Analysis

Arms deal: Who should make the case against the state?

Sarah Evans

Asking phase two witnesses to disprove statements made by government witnesses will not get to the bottom of the arms deal.

The arms deal commission. (Madelene Cronje, M&G)

ANALYSIS

Cape Town Mayor Patricia De Lille was asked to refute submissions made by phase one witnesses at the arms deal commission on Thursday morning. When she was unable to do this, commission chairperson judge Willie Seriti ruled that De Lille should only be asked questions about matters she had personal knowledge of.  

All the while, De Lille asked the commission to investigate allegations of corruption contained in her dossier, originally presented to Parliament in 1999, the year the deal was signed. De Lille’s testimony draws into focus challenges likely to be faced by other witnesses in phase two of the public hearings, which deals with allegations of fraud and corruption.  

Many of these witnesses have made allegations based on their own investigations, or relying on previous state investigations or information leaked from other sources, like international investigators. Like De Lille, these witnesses are under subpoena, and are also often just conduits of the allegations themselves, and the commission will have to tread carefully if it intends relying on these witnesses to build a case against the state. 

The onus is also not on the witnesses to build a case against the state for the commission. For example, De Lille was given the dossier by sources she was not prepared to name on Thursday. 

Sticky spot
De Lille would only say that these were concerned ANC members of Parliament. She was therefore only the communicator of the allegations, and could not prove or disprove what was contained in the dossier. This puts the commission in a potentially sticky spot: who will it rely on to make the allegations of fraud and corruption that it wants to interrogate? And at the outset of her testimony on Thursday morning, De Lille asked Seriti if his commission intended to merely inquire into the arms deal, or whether it intended to conduct its own investigation. 

Seriti did not answer the question, and said any legal questions De Lille had could be directed to her lawyers. This is crucial, as typically, in commissions of inquiries, the so-called complainants, in this case, the whistle-blowers, are not obliged to prove any allegations. That is the job of the commission, its evidence leaders and researchers.  De Lille wants the commission to probe two criminal charges she laid in 2007 and 2009 respectively, which were apparently not investigated by the National Prosecuting Authority (NPA). 

It is not clear that this is within the commission’s scope, however. One of the charges relates to allegations that 30 South African officials were given substantial discounts on luxury cars by the subsidiary of an arms deal bidder. ANC MP Tony Yengeni was convicted of fraud for failing to declare this discount to Parliament in 2003. But the other 29 names were never charged. De Lille said she traveled to Germany in 2007 to find out about a case in which the car manufacturer had apparently paid fines for admitting guilt in the improper awarding of these discounts. 

When she asked German prosecutors to share information related to the case with her, she was told that only organs of state could share information in that way. So, she told the commission on Thursday, De Lille wrote to the head of the NPA at the time, Vusi Pikoli, and asked him to request the information.

Criminal case under investigation
But Pikoli said this could not be done unless a criminal case was under investigation. In Munich, Germany, where the case was heard, De Lille was given a case number and the names of the 29 officials, and she laid a charge at the Caledon police station in Cape Town. But the case has since gone missing, De Lille told the commission. Then, on April 7 2009, the day after then NPA head Mokotedi Mpshe announced the dropping of charges against Jacob Zuma, De Lille opened another case. 

This time, she wanted the police to investigate Mpshe’s claims that Zuma’s case was contaminated by political interference – a criminal offence. She told the commission that nothing had come of that case, either. 

Meanwhile, evidence leader Advocate Simmy Lebala also asked De Lille about claims she made in Parliament that one of the arms companies, Thyssenkrupp, had donated R500 000 to the ANC, the Nelson Mandela Children’s Fund, and a community development organisation, each. 

Again, De Lille said this information was reliably leaked to her, and she wanted the commission to investigate further. De Lille said that a 2007 Mail & Guardian report indicated that German prosecutors had found three cheques, which proved that the payments were made. 

Seriti did not allow questions from Lebala on former president Thabo Mbeki’s testimony. Lebala wanted De Lille’s response to a number of statements made by Mbeki, including that he could not allow the inclusion of the Special Investigating Unit into the Joint Investigation Team (JIT), which investigated the deal in 2000. The JIT report was said to have been severely watered down to exonerate government of any wrongdoing, while identifying procedural irregularities in the procurement process. 

‘Stubborn’ evidence
De Lille said the importance of the Special Investigating Unit was that it was the only state organ which had the power to cancel contracts. But once more, she said her answer would only serve as an alternative to Mbeki’s statement, and the commission itself would have to investigate this itself. 

Lebala faced similar problems with a line of questioning into technical and affordability aspects of the weapons purchased. De Lille was asked if she could refute evidence given by South African National Defense Force witnesses in phase one. Lebala said unless this evidence was refuted, it was “stubborn” evidence that was not contested.  

De Lille said she was not an expert witness on this, but stressed that generally, politicians, not officials, had a duty to take into account affordability before making purchases. She said in her view, government had not done this during the arms deal.


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