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Courts could be called on to query Seriti commission

President Jacob Zuma proposed, the Seriti commission disposed. After years of political pressure and litigation, actual and threatened, as well as wells of ink used to print a range of books and reports, Zuma finally appointed Judge Willie Sereti to head a commission of inquiry into the strategic defence procurement package (SDPP), commonly known as the arms deal, which has plagued South Africa almost from the dawn of democracy.

Commissions of inquiry rarely live up to the expectations of those who have demanded their establishment. Take the Farlam commission into the Marikana massacre. Much remains in doubt concerning the culpability not only of the police in the deaths of 34 miners but also the role played by political heads of security and the mining houses.

Much effort is put into preparing evidence for such commissions, on behalf of those with a material interest in the outcome. Yet, other than a decommissioning of the intensity of the reaction to the event that gave rise to the demand for a commission in the first place, very rarely is much achieved to satisfy the public.

To be fair, the Farlam commission made some powerfully adverse finding against the police. By contrast, the Seriti commission makes none. It concludes, in effect, that all of the critics of the arms deal – including Cape Town mayor Patricia de Lille, former ANC MP Andrew Feinstein and researchers Paul Holden and Hennie van Vuuren (all of whom wrote detailed books on the arms scandal) and Terry Crawford-Browne, who litigated to ensure that the entire purchase be investigated – were talking nonsense.

According to Seriti, there was no activity concerning the entire procurement that involved any criminal conduct at all. The commission is so confident of its findings that it offers this insight: “We have in … this report given reasons why it would serve no purpose to recommend that the allegations of fraud, bribery and corruption in the SDPP be referred to another body for further investigation. The only other aspect of the SDPP procurement process that could be considered for further investigation is the deviations from standard procurement policies and procedures. We have, however, heard evidence from senior Armscor officials that, following the JIT [parliamentary joint investigative team] and auditor general investigation reports, the procurement policies and procedures have been overhauled and new policies put in place which now guide procurement of all military equipment. In view hereof, we deem it unnecessary to make any recommendations in this regard.”

A reader of this report is thus invited to conclude that all the controversy about the arms deal was but the product of the fertile imaginations of critics who had not a scintilla of justification for their allegations. The same reader, however, will also ponder the reasons for the government’s determination to do nothing for more than a decade, despite a barrage of publications alleging criminal activity.

The merits of its findings aside, the controversies about the conduct of the commission will ensure that the report is not the last word. From the outset, it was dogged with problems such as resignations, in some cases with disturbing reasons given.

A large number of documents alleged to provide key evidence of corruption were not admitted by the commission. Similarly, it refused to allow witnesses to testify about documents that had been written by others, thereby leaving the explanation of these documents to witnesses – of whom it was alleged that they been part of corrupt activity.

There is clear jurisprudence that a commission of inquiry’s findings can be taken to the courts on review. A 1997 decision of the Canadian Supreme Court held that although a commission, even when headed by a judge, is not a court of law but a body charged with making findings of fact and recommendations to improve governance, it must adhere to clear procedural standards.

On this basis, if these alleged failures of the Seriti commission are proved, it would mean that, when it suited it, the commission invoked rules of evidence to exclude certain witnesses and at other times refused to take account of important documentary evidence – all the stuff that justifies a review.

So, as occurs so often in contemporary South Africa, the courts may be called upon to resolve a matter of deep political controversy. And that raises the important question of the role of commissions of inquiry. All too often they take years to be completed and then the delivery fails to convince vast swaths of the population that the report resolves the issue that caused the commission’s appointment in the first place.

Would it not be far better if the legislature were sufficiently independent from the executive to be relied upon to exercise proper oversight? In the meantime, the courts must do that job.

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