A "one-sided approach" at the arms deal commission is leaving reams of contestable evidence unchecked and unchallenged, arms deal "critics" say.
The commission is divided into two "phases": phase one consists of evidence mainly given by government officials, including the defence department and former ministers. Phase two consists mainly of arms deal "critics" – dubbed as such by evidence leaders who regularly quote from their publicised critiques of the arms deal.
Paul Holden, who co-authored the book The Devil in the Detail with Hennie Van Vuuren on the matter, cross-examined Armscor's project manager for submarines, Rob Vermeulen, on Monday.
But participants in the commission wishing to cross-examine "phase one" witnesses have to apply to the commission to do so, and only then will the commission consider their requests for witness statements and documentation before the commission, leaving little time to prepare for rigorous questioning.
This is despite initial assurances from the commission, as stated in witness subpoenas, that all necessary documentation will be made available to witnesses.
Additionally, phase two critics say they cannot predict which witnesses will need to be cross-examined, and need access to all witness statements before the commission ahead of time.
Holden, Van Vuuren and former ANC MP and global anti-arms deal campaigner Andrew Feinstein are represented at the commission by Lawyers for Human Rights (LHR). Feinstein and Holden have made a joint submission to the commission.
Last week, advocate Gina Snyman for the legal organisation told the commission that her clients reserved the right to cross-examine witnesses. But commission chair Judge Willie Seriti said witnesses could not be subjected to delays and ruled that cross-examination had to begin this week. Holden was given three days to read Vermeulen's witness statement and supporting documentation to prepare for Monday's cross-examination.
The three requested a list of documentation from the commission in February in an effort to prepare to cross-examine government witnesses.
Included in the requested documentation are records regarding the arms deal "offsets", which will form the basis of trade and industry department witnesses, and documents regarding the Scorpions and international investigations into corruption allegations in the deal. The commission has not provided the documents.
Without access to the necessary documentation and supporting evidence, these "critics" say the evidence before Seriti is essentially being led unchallenged, despite "obvious" errors in some of the testimony.
The M&G has seen correspondence from the commission, dated in February, where witnesses were told they would be allowed access to documentation relevant to their testimony. But in the event that these documents were classified, witnesses would have to sign a confidentiality agreement and produce a security clearance certificate before access would be granted.
The witnesses argued that a security clearance certificate would be "overkill", as a confidentiality agreement would already deter them from using the information outside the commission.
The commission's public hearings were due to start in March, but were postponed until August to allow the commission time to process an "increasing" number of documents and allegations put to it.
Witnesses were then asked to make "discovery affidavits" – essentially proving to the commission that the documentation they submitted was not classified or obtained illegally. They argued this would open up witnesses to potential self-incrimination, if documents in their possession were found to have been classified, as well as expose their sources to potential prosecution.
In further correspondence seen by the M&G, lawyers representing phase two witnesses objected to this.
"We are concerned that, despite assurance from the evidence leaders, the commission is attempting to inquire into the manner in which our clients exposed the arms procurement process, rather than the defects of the arms procurement process itself," David Cote from Lawyers for Human Rights wrote at the time.
In a letter from the commission in June, witnesses were advised that that they could cross-examine witnesses, but a full list of witnesses and the dates of their appearances could not yet be provided.
Later that month, the commission's head of legal services, advocate Fanyana Mdumbe, wrote to Holden, Van Vuuren and Feinstein, informing them that their request for documentation encountered "complications".
"We have noted your request for documentation. The commission has liaised with entities that have provided it with documents … There are complications associated with the declassification of documents. However, we will use our best endeavours to make such documents … available to you as soon as we have clearance to do so," the commission said.
By August, Lawyers for Human Rights again pleaded with the commission for the documentation to be made available, arguing that most of the documents requested were already in the public domain and classification could therefore not be an issue.
"It will be impossible to make a prior application to the chairperson for leave to cross-examine, if a summary of the content of the testimony is not made available in advance of the evidence," Cote wrote.
It is also not enough that the commission's transcripts are available on its website, he said.
"In practice, transcripts are not made available in a timely manner. While we recognise the difficulties associated with posting the transcripts, the availability of transcripts to allow our clients an opportunity to monitor the evidence is vitally important to their participation. Witness statements have also not been made available on the website."
Lawyers for Human Rights wrote to the commission in October, again asking for an opportunity to view the relevant documentation before the commission, as well as for an opportunity to refute allegations made against their clients, or "critics".
The commission responded, saying no witnesses had implicated Holden, Van Vuuren or Feinstein in any wrongdoing.
"What the witnesses did was merely to comment on some of the assertions made in the books of one or two of your clients … "
The commission said the evidence was not being presented in a "one-sided" fashion.
"The fact that the witnesses from the department of defence have not been cross-examined does not make the proceedings one-sided or unfair. Neither can the failure to cross-examine these witnesses be blamed on the commission," Mdumbe wrote.
As such, phase two witnesses will have to ask for documents as they apply to cross-examine witnesses on a case-by-case basis. Phase two witnesses are scheduled to give evidence in early 2014. The hearings continue with evidence from Armscor officials.