In an unprecedented development at the arms deal commission, critics are stepping forward to cross-examine witnesses they believe have had an easy ride from legal teams. Author Paul Holden questioned a witness on October 21, amid fears those giving testimony were being allowed to deliver a one-sided narrative on behalf of government.
It was an abrasive encounter, with the commission and its evidence leaders and counsel for Armscor squaring up against Holden on a range of issues. Leaked reports, allegations of bribery, and the commission’s handling of witnesses all reared their ugly heads.
Dr Richard Young, one of the losing bidders in the deal and now an outspoken critic of it, has locked horns with the commission over the terms of his application to cross-examine witnesses. He told the Mail & Guardian he believes witnesses are committing “perjury by omission”.
On Thursday, the commission said it would engage with Young but did not respond to his allegations.
We asked Holden to explain what all of this means, and what it is like entering the terrain of experienced senior counsel to tackle government’s witnesses.
Q: Dr Young is going to cross-examine a witness at the arms deal commission. You were the first civilian to do so. What is the significance of this development?
A: It is a hugely important development. To date, we have had witnesses give evidence that has been left effectively unchallenged. This has meant that, in certain instances, information that is vital for the commission to understand has simply not been unearthed. There have also been cases where some factual statements, which on their face appear to be incorrect, have not been corrected. Having critics and civilians help the commission pull out these facts can only assist it in fulfilling its mandate. One good example is that provided during my cross-examination of Robert Vermeulen: during questioning, he admitted that there was no competitive evaluation for the purchase of the three submarines. This is an absolutely fundamental point that goes to the heart of whether the arms deal selection process was fair and constitutional.
Q: There are evidence leaders at the commission who have put the "critics" version of events to witnesses. Isn't that enough?
A: It would be if the critical version of events had been presented with any degree of vigour. To date, the commission’s attempts to put the critics' version forward has consisted of a handful of questions that have often failed to understand the gist of the critics' version or engage with the underlying documents on which it is based. Reading a page from The Devil in the Detail and asking a witness to respond can hardly be considered a meaningful examination.
Q: The commission did not seem pleased that you conducted the cross-examination instead of your lawyers. Tell us why you did so?
A: Resources and time. Unlike the witnesses appearing at the moment, I’m not a government employee, and I’m not independently wealthy. It is simply not affordable to have a lawyer who can keep a watching daily brief and who can cross-examine at the drop of a hat. It also became clear that the commission would not grant us extra time to prepare: we either had to cross-examine on Monday the 21st or lose the opportunity forever. Myself and my lawyers were given the relevant documents three days before we had to conduct the cross-examination. In those circumstances, it was impossible to engage with the very technical material and brief my lawyers in full. I would much preferred to have had a legal professional lead the cross-examination, but I felt that my hand was forced.
Q: What's it like preparing for and conducting a cross-examination?
A: On the one hand, it was exhilarating. Like all the ‘critics’, I’ve been calling for an investigation into the arms deal for years. Having the chance to engage a witness was the culmination of that. On the other, it was exhausting and frankly terrifying. Preparing for cross-examination is an enormous amount of work, and it had to be done on an incredibly short time frame. I was shaking like a leaf during most of the cross-examination. It's hard not to be nervous when you’re surrounded by a bull-pen of highly paid lawyers, trying to negotiate commission procedures, arguing your points with the commissioners, and dealing with objections. I have absolutely no legal training, and it felt a bit like being thrown in the deep end. If we do cross-examine again, I desperately hope it will be done by my advocates!
Q: Dr Young feels the documents he's been given (the witness statement and evidence bundle) are "totally inadequate" for the cross-examination of a witness. You encountered a similar challenge. Is the commission being obstructive or are you being pedantic by asking for extra documents that you might not be entitled to or that might be classified?
A: I totally agree with Richard Young on this point. Firstly, we are entitled to the documents. Our subpoenas make it very clear that we are entitled to view any document held by the commission relevant to our testimony. My personal attempts to access these documents have come to nought. Second, the procedure established to cross-examine witnesses is incredibly onerous, especially having to cross-examine right after they finish their testimony. That gives you almost no time to view the relevant documents and process what they have said in their evidence-in-chief.
It seems strange, to me at least, that the commission is putting such emphasis on rather mundane logistical issues rather than trying to facilitate the fullest airing of facts as possible. Third, in a normal court process, interested parties would be given key documents – on discovery – as a matter of course. It is almost impossible to cross-examine a witness – to test their version of events to the full extent – without these documents. If this were a court case, it would be an outrage if the cross-examining parties weren’t given all the documents to which they were entitled.
Q: Tell us about the Ferrostaal report – prepared by US law firm, Debevoise and Plimpton in 2001. You attempted to use this report in your cross-examination but the commission objected on the basis that it was "leaked".
A: The Debevoise & Plimpton report is an incredibly important document. It outlines major allegations of corruption and wrong-doing and provides what I think is incontrovertible evidence that a number of highly placed figures in the arms deal received enormous amounts of funds from Ferrostaal. There is no doubt in my mind that documents like this should be put before the commission. The commission is primarily a fact-finding mission, and, in those circumstances, it would make sense that it allows the airing of all available facts.
Also, the fact that a document is ‘leaked’ hardly means that it can’t be relied on. The Debevoise & Plimpton report has been reported on widely in the media, and its content has never been challenged. "Leaked" documents have often been proven to be highly accurate and legally useful – consider, as one example, the Mail & Guardian’s exposure of the Oilgate scandal. It is also rather strange that the commission has not, already, taken its own steps to verify this report. I provided a copy of this report, along with Andrew Feinstein, in January this year. We would hope that, considering its important content, the commission would have prioritised verifying the information and doing further investigations based on it.
Q: What advice do you have for Dr Young? What should he be prepared for at the commission?
A: I feel a bit rich giving advice to Dr. Young. He is an incredibly smart individual, and the one man who I believe knows the most about the arms deal in all its various facets. He was also part of the public protector public hearings in 2001, and would have a sense of how this plays out. The one thing I would alert him to is the difficult I had in introducing documents, and also getting a witness to speak to documents they didn’t author. He will need to bear both in mind. I’d also remind him to be flexible, to expect to have to manipulate information on the fly, to use it to its fullest extent.
Q: You've written two books on the arms deal and are a known "critic", as the commission puts it, of it. You have been asked to give evidence in phase two of the commission. In your view, is the commission on track to uncovering the truth and finally putting the matter to rest?
A: We’re still in the relatively early phases, and I hope that, as matters going on, we start to get to the real key issues: corruption and abuse of process. Right now, we’ve been dealing with issues that aren’t what I’d consider the central issues. Once we get there, we’ll have to see how they are handled. But, based on what we’ve seen so far, I desperately hope that the commission is far more vigorous in challenging the assertions of witnesses who have appeared before it.