During phase two of the arms deal public hearings, who makes the allegations will prove to be just as important as the allegations themselves.
Intentionally or not, starting phase two of the Arms Procurement Commission’s inquiry on July 21 with evidence by the so-called “critics” of the arms deal will set them up as complainants in the matter.
Phase two will deal with the fraud and corruption allegations that continue to plague the R70-billion arms deal, 15 years after it was signed.
Phase one, which deals with the rationale and affordability of the deal, will end as soon as former president Thabo Mbeki testifies. No date has been announced for his evidence.
Information obtained by the Mail & Guardian, activists and whistle-blowers over the 15-year period includes leaked details from other, now closed investigations by British, German and South African authorities. The information reveals that at one time authorities believed that about R1-billion in bribes had been paid to secure the arms deal.
The phase two witness list, released this week, kicks off with several “critics”. This includes the likes of Patricia de Lille, Andrew Feinstein, Paul Holden, Hennie van Vuuren, Terry Crawford-Browne, Richard Young and Raenette Taljaard.
After the critics, Fana Hlongwane, former adviser to the late minister of defence, Joe Modise, and Shamin “Chippy” Shaik, former governmental acquisitions chief, will appear.
Both were fingered as central to the bribe allegations – although both have denied the accusations. Shaik’s brother, Schabir, was convicted of fraud in relation to the deal. Shaik was Jacob Zuma’s financial adviser at the time. Tony Yengeni was convicted of fraud for receiving a discount on a luxury vehicle from an arms deal bidder.
Schabir Shaik, Yengeni and Zuma are three characters whose names are glaringly absent from the phase two list. Hlongwane and Shaik will be followed by Colonel Johan du Plooy, the sole Hawks investigator on the last two legs of the arms deal investigation closed in 2010, and the man who penned a 2010 memo motivating for the investigation’s end, General Hans Meiring.
Importantly, the arms companies themselves are not currently on the witness list. The commission’s spokesperson, William Baloyi, said he could not respond to questions about why this was so, as the commissioners were “not available” this week.
Baloyi confirmed that some winning bidders had made submissions to the commission and said the witness list was “not exhaustive”.
But the list’s compilation is not its fatal flaw: its design is.
Burden of evidence
Phase one saw allegations found in the 2001 Joint Investigative Team draft report and the draft auditor-general’s report into the arms deal put to witnesses as though they were allegations made by the critics.
In fact, these allegations are merely repeated, sometimes revealed, in books written by some of the critics. But the fact remains: the source documentation is available and the commission has powers of compulsion, which it can use to obtain it.
And in commissions of inquiry the burden of evidence is not on the interested parties.