Judge Seriti has left the building

Analysis

“The [arms deal corruption] is another imagined issue. It’s just a figment of the imagination because honourable members have not paid attention to what benefits have been brought by the arms deal in terms of the industry and the country. Again, they would be imagining it. I know that they have been chasing to find something. Up to this day, nobody has found anything. They’ve been chasing it in the sea, in the sky and everywhere. Nothing has been found. What is the problem?” – Jacob Zuma, Parliament, 2004.

The inquiry began, in a room bristling with hope. There was barely enough space in the room in the Pretoria city council to seat all of the journalists in attendance.

Ten years after Zuma’s comments to Parliament on how arms deal corruption was a “figment of the imagination”, a judicial commission of inquiry, headed by Judge Willie Seriti from the Supreme Court of Appeal, was going to investigate the 1999 arms deal. At last.

It was given wide terms of reference to investigate allegations of fraud and corruption, as well as the rationale behind the arms deal and the economic benefits of the purchase.

On the day that the first frigate, the SAS Mendi, docked on South African shores, the Eastern Cape premier at the time, Nosimo Balindlela, was moved to recite poetry.

“It was quite beautiful,” enthused Rear Admiral Robert Higgs at the commission, of Balindlela’s endorsement of this arms purchase.

Balindlela said that the warship represented “the new, transformed South Africa”.

Even the Chinese were impressed when one of the new frigates was paraded along Asian shores, a crew of politicians on board, ready for a diplomatic visit.

Then there was the submarine that left an international delegation gobsmacked during a demonstration, as it miraculously disappeared under water, its state-of-the-art technology rendering it invisible to would-be enemies.

Higgs was proud. The navy was made whole. It was common cause that during apartheid a United Nations arms embargo had prevented the navy from replenishing its ageing fleet.

And so when democracy dawned, it was decided that South Africa would buy warships, submarines and fighter aircraft to service the defence force’s needs.

Imperative

Estimations in 1998 put the total cost of the shopping expedition at R29.9-billion. It would end up costing R70-billion.

Witness after witness told the commission how necessary these arms were to the navy and the army. While the country faced no immediate threat to its sovereignty, and while politicians had warned that the country’s most pressing threat was socioeconomic, every country had a duty to protect its citizens.

No, it was more than a duty, witnesses said. It was a constitutional imperative.

We have peacekeeping obligations on the rest of the continent. We have an entire shoreline to protect.

All the while, the defence force was reduced, as part of the new government’s demilitarisation of the state. Soldiers were retrenched in droves. Budgets were slashed and morale was low.

About 15 years later, the commissioners in Pretoria were treated to a presentation displaying the new frigates majestically overcoming the choppy ocean waves, the Gripens dashing this way and that through clear blue skies.

The narrative played out over months: we needed to buy these arms. While it was never a formal ruling, this first phase of the commission was informally devoted to investigating why we bought the arms. Fraud and corruption allegations would be covered later.

And so state witness after state witness entered into the record evidence about how wonderful, how necessary, how logical the arms deal was. And cross-examination was minimal, if at all.

Lawyers for the arms deal critics did apply to cross-examine key witnesses, but the time involved in preparing for this cross-examination, given the scale of the paperwork involved, often made this arrangement time consuming and impractical. This was because witness statements were often only available on the day of any given witness’ testimony, so predicting whether or not an application to cross-examine should be lodged was impossible.

The rigour of interrogation from lawyers for the state or the evidence leaders was unsatisfactory to the arms deal’s critics.

This meant that the narrative put forward by the state in the initial states of the commission went largely unchallenged.

This was alarm bell number one.

Behind the scenes, a range of “critics”, as Seriti called them, had been subpoenaed to give evidence in phase two of the commission.

These were people who had written books critical of the arms deal, members of Parliament who had questioned it and other public voices.

From the beginning, they say, they were not given access to all the documents they needed to prepare themselves for the evidence.

Dr Richard Young, a losing bidder of the arms deal who has spent the past 17 years investigating it, explained his experience of the commission to the Mail & Guardian as follows: “Do you understand Afrikaans? It was K-A-K.”

Young delivered to the commission tomes and tomes of documentation.

He, like many other critics, was painted as a kook: an agent of some kind who had no evidence to support any of his claims.

Alarm bell number two: the critics were often treated as if they were the complainants in a criminal matter and the burden of proof was theirs.

The arms deal is oceanic and the case against those involved is impossibly complex.

The documents that the Scorpions alone collected during their investigations filled three shipping crates.

Hawks investigators who investigated the case after the Scorpions were disbanded complained that they did not have enough resources to fully tackle the enormity of the case.

If years of investigations by state and private actors, forensic auditors and international bodies are accurate, then the nature of the bribery that allegedly occurred was equally expansive – and sophisticated.

There are two processes that would normally be used by “corrupt bidders”, according to Colonel Johan du Plooy, a former Scorpions-turned-Hawks investigator who spent 10 years probing the arms deal. Du Plooy was a witness at the commission.

First, there is formal tendering, “which is ostensibly conducted in a transparent manner in accordance with the relevant legislation and norms”.

And then, “a parallel, informal process of private contracts with persons influential in government, the true nature of which is hidden and never made transparent …”.

It is this process that was allegedly used to corrupt the bidding process during the arms deal.

Du Plooy was the last man standing: a lone investigator at the Hawks who told the commission that his investigations had to end because there was no “political will” to continue them.

Three presidencies

One investigator and a R70-billion arms deal scandal spanning at least 10 countries if one includes the countries that housed offshore bank accounts. This was a deal that spanned three presidencies.

It saw Jacob Zuma charged with corruption, charges that were later dropped, and his financial adviser convicted of fraud, which drew investigations from two chapter nine institutions and the anti-corruption units of three countries.

An arms deal born during Nelson Mandela’s presidency. An arms deal that birthed the Spy Tapes and possibly even Nkandla.

And by 2010, there was a lone investigator in an office in Pretoria whose job was to investigate it.

The Seriti Commission sits upstairs in the shiny council chambers that offset the grubby mall below. In the early morning, a sniffer dog enters the chamber for a routine security check.

In the courtyard below, large black vehicles accompanied by police vehicles with sirens speed up to the building. Shoppers run for cover and confusion abounds about why these armed policemen are yelling: “Get out the way!”.

The cavalcade reaches the building. Armed men guard the passageway to the lifts that lead to the commission seated above. Shoppers are asked to please step away from the lifts. A large crate of boxes is carried into the lifts and up to the second floor, and the cavalcade retreats, sirens blaring and tyres screeching.

It’s a dramatic scene perhaps better suited to the arrival of US President Barack Obama on enemy territory than the arrival of documents in sealed boxes.

Below, an ambulance waits, in case of emergency, and some journalists smoke cigarettes before the session begins.

At times, the activists from the Right2Know campaign protest in the courtyard. On one occasion, the group was denied access to the chamber, apparently because they had not been vetted by security.

Perhaps related, perhaps not, high-profile resignations exposed what insiders called an obsession with controlling the flow of information within the commission and its researchers.

A commissioner resigned, along with two researchers and three evidence leaders, during the commission’s four-year existence. Allegations of a “second agenda” abounded. But what this agenda might be has never been clear and the commission has taken offence at the suggestion.

Legend has it that in the commission’s early days, a witness and a researcher took a walk, a breather, from a heated meeting. The researcher was silent but “trembling”, according to the witness.

“Listen,” said the researcher to the witness. “There’s only one person in that room that you can trust.” She was referring to an evidence leader who would later resign.

An atmosphere of mistrust took hold in the commission’s corridors. Inside the commission’s chambers, an unshakeable scepticism lingered, like a fog.

‘Critics’

Early on, Terry Crawford-Browne, the man who took the presidency to court in an attempt to have the commission established, asked that it be cancelled.

More and more critics stepped forward to raise concerns about the commission and its work.

Young said he felt that there had been an attempt to make him seem like a man who lacked integrity. He was called a “bare-faced liar” by lawyers for the Cabinet ministers.

“The kind of person he is …” was a phrase heard in closing statements.

As if to counter the government’s narrative, evidence leaders regularly read passages from books or newspaper articles and asked witnesses to “respond”.

When it came time for the “critics” to testify, they were each asked to provide proof of the allegations they had made in their published works.

At least one critic felt this was problematic: what if every investigative researcher knew that their work could, at some time in the future, be put before a judicial inquiry for forensic scrutiny under oath? Surely it was the source documentation forming the basis of the research that should be interrogated?

And “critics” were not allowed to speak to evidence contained in documents they had not authored themselves.

News reports recounted how, for example, Young was “dealt a blow” when he could not provide evidence to back up his claims. In this instance, Young wanted a document authored by German investigators to be entered into evidence. He did not author it, so he was not allowed to speak to it. 

Paul Holden co-authored the book The Devil in the Detail: How the Arms Deal Changed Everything, with Hennie van Vuuren. Along with another whistleblower and author of books related to arms deals, Andrew Feinstein, Holden and Van Vuuren pulled out of the commission towards the end of 2014.

The three said the commission was indeed pursuing a second agenda. Holden told the M&G this week: “I am obviously disappointed. The Seriti Commission was a unique opportunity to investigate the arms deal without fear or favour. But the conduct of the commission to date suggests this will not happen, which is why I, along with my colleagues Andrew Feinstein and Hennie van Vuuren, decided to withdraw our participation from the commission.”

Holden said they had tried to assist the commission, but that this was not possible. 

“Despite being given the explicit right in our subpoenas, we were not granted access to the documents to which we were entitled. Key documents that we tried to submit during cross-examination were ruled inadmissible, even though they referred to substantial evidence of wrongdoing.

“One such document was the Debevoise and Plimpton – an American law firm – report into the activities of Ferrostaal, which detailed tens of millions of euros to a politically connected middleman on the South African deal.”

Seriti ruled that the document was inadmissible because Ferrostaal had commissioned it, and Ferrostaal had not waived attorney-client privilege. The report was leaked and has been in the public domain since at least 2011.

“The commission is just one more obstacle on the road to arms deal justice. And it is one that we are committed to overcoming,” Holden said.

Du Plooy was perhaps the only witness critical of the arms deal who had authored some of the documentation before the commission.

His testimony was based on interviews conducted by the former Scorpions, affidavits, reports and documents obtained during search and seizure operations.

If printed, Du Plooy said, the documentation related to Zuma and companies related to his alleged involvement in the arms deal alone runs to four million pages.

The investigation related to Zuma’s former financial adviser, Shabir Shaik, which resulted in his conviction for fraud, spans about 25 000 documents and 112 gigabytes of data.

As a special investigator for the Scorpions, Du Plooy worked on the arms deal investigations from 2001 until the final legs of the investigation were shut down in 2010. Du Plooy was involved in the investigations into Zuma, Shaik, Nkobi Holdings and arms companies Thales, BAE Systems and the German Frigate Consortium (GFC).

Du Plooy referred to the evidence of a Thales employee who testified in the Shaik trial that arms contracts are “highly political”.

Du Plooy told the commission that the court’s findings in the Shaik trial “strongly support the conclusion that there are reasonable grounds to believe that Zuma and Thales were complicit in the commission of the offences in respect of which Shaik and his companies were convicted”.

The charges against Zuma were dropped controversially in 2009.

The documents Du Plooy submitted to the commission, including two independent forensic audits of Zuma’s finances, detail money trails from Mauritius to France to Lichtenstein and allegedly to the pockets of middlemen.

Fana Hlongwane was the former adviser to the defence minister at the time that the arms deal was signed off, Joe Modise, who has since died.

Hlongwane’s lawyer, Jaap Cilliers, told the commission emphatically that it could not and should not recommend further criminal investigations into the arms deal.

He said Hlongwane denied ever receiving money related to the arms deal as “bribes”. But Hlongwane did receive “consultancy fees” during his time as a consultant for arms company and winning bidder BAE Systems.

During their interviews, the Scorpions were told that Hlongwane was paid around R95-million at today’s exchange rates.

The Scorpions’ early attempts to raid Hlongwane’s premises were unsuccessful: they arrived to discover that files had been removed, with the inference that someone had alerted Hlongwane to the possibility of the raid.

The Scorpions sent four letters of request for assistance in their hunt for the R95-million to Britain, Jersey, Lichtenstein and Switzerland in December 2008.

Menzi Simelane, former national director of public prosecutions (NDPP), was a director general at the department of justice at the time. Du Plooy said Simelane was not in favour of the Scorpions co-operating with Britain’s Serious Fraud Office (SFO) which, by then, had initiated their own investigation into the arms deal.

But the Scorpions persisted.

By 2009, the Scorpions had been shut down and replaced by the Hawks, this time situated within the police and not within the National Prosecuting Authority (NPA).

Du Plooy said this hampered the investigation, as the Hawks did not have the same direct access to specialist prosecutors and forensic investigators as they had had in the past.

In 2010, the NPA’s Asset Forfeiture Unit (AFU) met with Hlongwane. Du Plooy said he was not invited to the meeting.

He gives no analysis of what happened next, but his evidence to the commission is significant in light of Hlongwane’s denials.

Du Plooy says he was later informed that Simelane and AFU head Willie Hofmeyr conducted the meeting with Hlongwane. 

It would appear that the purpose was to give Hlongwane the opportunity to “explain” the “commissions” he had received.

His offshore bank accounts were frozen.

“Although the AFU was not satisfied with the version [provided by Hlongwane], the NDPP [Simelane] informed Hofmeyr that the version of Hlongwane was satisfactory and should be accepted,” Du Plooy told the commission.

At this point in the investigation, Du Plooy said, he was facing “seeming insurmountable obstacles”.

In 2009, after consulting with colleagues, Du Plooy told his superiors that the investigation should be closed and, in 2010, it was. A public outcry ensued.

In reaction to that outcry, two senior police officers were to be sent to Germany to find out what information that country’s authorities had obtained during their investigations into the arms deal, and to find out if any future prosecutions were possible.

Du Plooy does not know if these officers ever went to Germany.

Meanwhile, co-operation with Swiss authorities and investigators in Lichtenstein had ground to a halt. Du Plooy told the commission that a senior advocate told him that the prosecutors in that country were told all future communications had to go through Simelane’s office.

These prosecutors were told that the co-operation agreements between the countries had been terminated.

The SFO was more co-operative at this point and a document was discovered that the British investigators considered important in relation to the “informal tender procedures” that Du Plooy had told the commission about.

To his immense frustration, “logistical problems” made it difficult for Du Plooy to travel to Britain to investigate further.

Swiss authorities had frozen Hlongwane’s bank account there in the meanwhile. Again, attempts by Du Plooy to travel to Switzerland to meet with prosecutors were stymied.

Du Plooy concluded that “there was little or no political will to continue with this particular leg of the investigation, which would include the arms deal as a whole”.

In 2015, the SABC news bulletin that aired on the day of Du Plooy’s investigation announced: “[Du Plooy] is adamant that he has no direct evidence that President Jacob Zuma, former president Thabo Mbeki, middleman Fana Hlongwane or other politicians influenced the awarding of contracts in the 1999 arms deal.”

Cut to the footage of Du Plooy’s evidence, and Du Plooy told the commission that he believed Shaik had used Zuma to acquire a stake in the BEE partner of one of the arms companies.

Central to this is the so-called encrypted fax, used in the Shaik trial, which showed an agreement by which Zuma would receive money.

Seriti intervened.

“Now, the Shabir Shaik matter that we are being told about now, I’m not quite sure whether it falls within 1.5 of our terms of reference,” Seriti said.

Section 1.5 of the commission’s terms of reference states that the commission must investigate “whether any person/s, within and/or outside the government of South Africa, improperly influenced the award or conclusion of any of the contracts awarded and concluded in the SDPP procurement process [the arms deal]”.

It was around this time in the commission’s life that BAE Systems and SAAB announced they would not send representatives to testify, because those who had worked on the arms deal no longer worked for them.

Irregular

The commission has taken about 3 000 hours out of his life, Young said.

He has provided the commission with enormous volumes of documentation.

“In any normal court, I can prove that the whole arms deal was irregular,” he said.

Young says the commission must make a factual finding on this point: even without the corruption allegations, he believes that the first sign-off from the defence force, a critical decision to deviate from normal tender procedures is irregular because it did not have ministerial sign-off.

And so anything that followed from that is irregular, because the deal was entered into improperly.

He points out that a commission of inquiry cannot sanction; it can only recommend. Any expectation that the Seriti commission will make findings of guilt or innocence is unrealistic because of this.

But it can make factual findings without giving a view on whether or not certain aspects of the deal were criminal.

Young recommends that the commissioners must take a “forward-looking approach” in their final report. This means recommending how such a scandal can be prevented in the future.

That is if the commission makes factual findings about flouted processes and influenced politicians at all.

Lawyers for the state say the commission can make no recommendations about future criminal investigations. Cilliers says any future investigation will surely fail in court.

It’s Monday, and the commission is seated for the last time.

There is ample room to sit and the commission doesn’t require the space it did four years ago. The commission has heard from more than 50 witnesses, Seriti says, and although the process has been difficult at times, he believes the commission has risen above its challenges.

He has left the chamber for the last time.