The commission has not declassified all the documents before it, and legal teams are still not given adequate time to prepare for cross-examinations.
Monday's brief postponement of proceedings at the arms deal commission exposed two of its most serious flaws. Firstly, that it has not declassified all the documents in evidence. The commission adjourned in August 2013 to deal specifically with this issue, which Judge Willie Seriti said would "always be a nightmare".
Secondly, the commission still does not give adequate time for witnesses to prepare for cross-examination, a routine complaint of legal teams wanting to scrutinise witness testimony.
Former trade and industry minister Alec Erwin is now testifying at the commission. Erwin was part of the interministerial committee appointed to put together the arms deal, and is the first former minister to testify at the commission.
The commission adjourned on Monday afternoon after Seriti raised concerns that Lawyers for Human Rights (LHR) were in possession of a "classified document". The LHR represents arms deal researchers Andrew Feinstein, Hennie van Vuuren, and Paul Holden.
The LHR indicated on Monday that it wanted to cross-examine Erwin on the so-called classified document in question – the 1999 arms deal affordability report – which was given to the commission as part of witness submissions in January 2013. The LHR also wants to question Erwin on the arms deal offset contracts.
According to Erwin, the affordability report remains classified, which has led to a small dispute over who is actually responsible for ensuring that key documents before the commission are declassified.
The report has been in circulation for over 10 years: it was incrementally leaked, and has been extensively analysed in various published books canvassing the arms deal, over several years. An entire chapter is devoted to it in Holden and Van Vuuren's book, The Devil in the Detail: How the Arms Deal Changed Everything.
The authors noted: "First, it is abundantly clear that even if offsets were fulfilled and interest rates remained low, the impact of the arms deal on the economy was broadly negative. Indeed, this is even acknowledged in the report: 'If the risks do not materialise, the arms expenditure programme has a limited, though non-negligible impact on the macro-economy. This is true even for the highest [R25-billion] expenditure level'."
Its key findings, essentially that the arms deal offsets would not produce the economic utopia that government promised, have been in the public domain for years.
Commission spokesperson William Baloyi said the onus was actually on the LHR to write to it and request the declassification of the document ahead of time. The LHR did so on Monday afternoon.
But this seems at odds with the commission's main function and one of its terms of reference, which is to interrogate the offsets. As one source close to the commission put it, does this mean the commission has made no attempt to independently examine such a key document?
The document informed Cabinet as early as 1999 that the offsets would not make macroeconomic miracles. This seems central to the question of "rationale" – also a key term of reference.
And had the LRH not requested to cross-examine Erwin, would the commissioners have bothered to read the report at all?
On Monday afternoon, Feinstein, Holden and Van Vuuren issued a statement saying they were concerned the commission was interested in how they acquired the report.
"Judge Seriti and advocates for Alec Erwin indicated that they were displeased that we are in possession of a classified document, and inferred that we will not be able to cross-examine Erwin on the basis of that document if it is not declassified," they said.
Baloyi told the Mail & Guardian the commission was indeed perturbed that these witnesses had access to the "classified" document.
"The question then is where did they get that document?" he said, adding that the commission and the LHR would consider the matter further.
"We find this approach both disturbing and wrong. The job of the commission is to inquire into all available facts regarding the arms deal," said Feinstein, Van Vuuren and Holden.
"It should welcome the submission of information that helps it to fulfil its mandate justly and efficiently. The broader public is done a disservice by a commission of inquiry that does not attempt to ventilate vital facts in the public domain or put necessary questions to the arms deal's key players.
"This is precisely the reason why Holden and Feinstein made this document available to the commission in January 2013 in their joint submission. The commission, with such a large amount of time to review Holden and Feinstein's material, can hardly be surprised that they have this document in their possession," they said.
The three also said the focus of the commission should not be on how researchers and activists accessed the document, but rather on its content, especially when the document poses no threat to national security.
Declassification aside, Monday's postponement was mainly sought to give the LHR time to prepare: as the M&G previously reported, the commission often does not give legal teams access to witness statements and supporting documentation until the day of their testimony. Lawyers then have hours, perhaps a day at most, to study these voluminous witness bundles, sometimes numbering in excess of 500 pages.
Baloyi said the issue rested largely between counsel for the witnesses and the commission's evidence leaders. In some cases, witness statements are only prepared a day or two before the witness is due to testify, he said.
Baloyi said Seriti had previously requested counsel to make sure witness statements were available to the commission well ahead of time, but this was not always done, and the commission was aware of this problem.