At first glance, the public hearings on the arms deal, due to start in Pretoria next week, appear to be a good thing. The government will be bringing into the open one of the most damaging sagas since 1994. And the public will be given an opportunity to judge for themselves why and how improperly R50-billion was spent on a sophisticated defence package.
Unfortunately, if one probes a little further, the hearings have few redeeming features. Instead they appear to be the result of anything from sloppy legal thinking to a sinister exercise to sabotage the main criminal investigation.
South Africa will be setting a bizarre legal precedent by having such an inquiry while a criminal and forensic investigation is under way. One analogy would be an attorney general deciding to hold a public hearing to determine whether there is evidence to prosecute a case or a newspaper holding a public hearing to determine whether there is a scoop fit to print.
If the purpose of the hearing is indeed to gather evidence, it will be flying in the face of the most elementary legal experience: serious witnesses with serious information do not like mouthing off in public. Instead, they need to be gently coaxed into contributing to a criminal prosecution.
If the purpose of the hearing is not to gather evidence, two possibilities remain. One is that the hearing is a half-baked spin job by either the government, or by some institutions involved in the investigation to give the appearance of a hard-nosed approach to corruption. The problem is that a vigorous criminal prosecution would self-evidently be a much better way of achieving that end. Furthermore, there are already signs that the Office of the Public Protector, which will preside over the hearings, is not keen on the proceedings being that public. As things stand, television cameras will not be allowed, although e.tv will be asking to film.
The other explanation is that the hearings will be used to damage the progress of the investigators by neutralising or discouraging potential witnesses, or by alerting quarries. Even if this was not intentional, it would not be difficult for a proper criminal investigation to be wrecked by the clumsy handling of a quasi-judicial hearing. At the moment, little is known about the way the proceedings will unfold; whether, for example, cross-examination will be allowed, and how the public protector will decide who testifies.
If cross-examination is allowed, and any interested party can attend, the exercise may have potential. The indications are, however, that this will not be the case and that instead of being a roving, muscular inquiry it will be a cosy, self-managed process.
Amazingly, the proceedings will start with an announcement about how the hearings will work. And then there will be a few days of “scene-setting”.
There would be no harm in having the inquiry after a criminal prosecution was wrapped up. Why the rush?
Some of those involved in the mainstream investigation particularly from the auditor general’s office are opposed to the public hearing for some of the reasons mentioned above. So, in addition to frustrating the probe, the hearings could also exacerbate tensions between the investigating bodies.
The defence from those in favour of the hearings has been, among other things, that they will broach policy matters the tendering process for example which will not impinge on the criminal investigation. It is arguably extremely difficult to delineate an investigation into an arms deal in this way.
The only other major public inquiry to have taken place under the Public Protector Act was the long-running probe into former mineral and energy affairs minister Penuell Maduna’s attack on the Office of the Auditor General. That was one of the biggest and most expensive wastes of time in South African legal history.
We can only hope that next week’s hearings are more productive. As things stand, we fear they are either stupid or sinister.
New coach on gravy train
We welcome the decision by Bavumile Vilakazi, major of the East Rand Metropole, now known as Ekurhuleni, not to go ahead with the purchase of, among other things, a R560 000 armour-plated Mercedes-Benz. He initially arrogantly rejected objections to his profligacy. He has still, however, to ditch other costly and unnecessary projects which appear designed to serve his self-aggrandisement rather than his electors.
In this edition we publish the story of another executive mayor who clearly has his priorities wrong. Whereas we believe state spending priorities include providing education, health services and safe water to our millions of poor, this mayor appears more concerned with his comfort and status.
We would have expected clear, unreserved condemnation from the ruling party and government of this kind of behaviour by our new class of super-mayors. Yet the African National Congress and government, which regularly proclaim their commitment to good governance and project themselves around the continent as model institutions for the modern democratic states, have been remarkably tolerant of the appalling behaviour of at least two of the new executive mayors.
What was the intention behind the legislation that created them? To improve local government? Or to add another coach to the gravy train?
The state needs to develop clear guidelines on how executive mayors and committees may spend taxpayers’ money. There needs to be a mechanism for monitoring expenditure. That mechanism must be designed so that its ability to intervene against wrongdoing does not fall victim to party solidarity within a particular provincial legislature.