CW and R2K unearth damning new evidence of failure of Arms Commission
11 October 2018
This week Corruption Watch (CW) and the Right2Know (R2K) Campaign are submitting damning new evidence to the High Court that the Arms Deal Commission failed to do its job. This is an important step in the civil society groups’ ongoing challenge against the commission’s findings. The new evidence shows that the commission not only failed in its investigation – but it also misled the public.
The two organisations filed their application almost two years ago, but the process has been hampered by the state attorney’s numerous delays in filing the documents that led the commission, under Judge Willie Seriti, to conclude that there was no evidence of corruption in the arms deal. The record relates to letters, memoranda, reports, minutes and other material that was before the Seriti Commission, upon which its findings were based, and which have never previously been released to the public.
Today, CW and R2K filed their supplementary affidavit based on parts of the record of decision that were eventually provided to the applicants, although these were still incomplete.
The documents in question allege three things: firstly, that the commission lied to the public and hid evidence of corruption; secondly, by failing to access information abroad, the commission made no attempt to investigate serious allegations of corruption put before it; and thirdly, that the commission has failed to investigate new allegations that have come to light.
“Never has it been more important to expose the flawed and inadequate processes followed by the Seriti Commission, and the way that key information was ignored, so as to arrive at the conclusion that there was no evidence of corruption in the arms deal,” said Leanne Govindsamy, head of legal and investigations at Corruption Watch.
The accompanying detailed note outlines the nature and extent of important, previously undisclosed information, which illustrates how evidence of corruption was either ignored or not considered by the commission. This includes:
· Evidence that Thabo Mbeki, Seth Phalatse, Richard Charter and Niall Irving had an “intimate dinner’’ in 1998, during the arms deal selection process. Mbeki was the head of the Cabinet sub-committee tasked with the selection process, Phalatse was at Armscor, and the others were agents and employees of BAE Systems. The commission did not investigate these allegations, nor was Mbeki questioned about this during his appearance, and no mention of the allegation was made in the commission’s report.
· Information on how the commission was advised that Seth Phalatse paid bribes to Sipho Zikode, an official at the Department of Trade and Industry, in order to secure ‘offset credits’ for a BAE Systems project. The commission did not investigate this at all, Seth Phalatse was never called to give evidence, and it was not mentioned in the commission’s final report.
It is of particular concern that in addition to not investigating these matters, the commission also lied to and misled the public about other key aspects of the arms deal.
“These documents, released at long last by the state, are a vindication of civil society efforts to get transparency and accountability from the arms deal commission when it was still sitting – which the commission refused. This case must help ensure that going forward, commissions of inquiry honour their mandate with independence and fairness,” said Alfred Tshabalala, of R2K’s National Working Group.
At the hearings of the People’s Tribunal on Economic Crime in South Africa, which took place from 3-7 February 2018, CW, R2K and civil society partner Open Secrets gave evidence of alleged corruption in the 1999 arms deal and subsequent repeated attempts to cover this up. Other evidence presented to the tribunal covered apartheid-era sanctions busting and state capture related to Denel, which served to join the dots between economic crimes of the past and present.
In its final report read out by retired Constitutional Court Justice Zac Yacoob on 20 September 2018, the tribunal noted the need to “tread carefully” regarding the arms deal findings and recommendations, in light of these current review proceedings. However, the report also stated: “the judicial review proceedings in respect of the Seriti Commission report do not preclude and cannot bar an investigation into the Arms Deal and the prosecution of those implicated by any evidence that we might have heard.”
Further recommendations include urging the National Prosecuting Authority and South African Police Service to investigate transactions conducted during the arms deal.
We therefore welcome the current prosecution of French arms giant Thales and former President Jacob Zuma for their alleged corrupt relationship in the arms deal. However, there is a long list of global corporations and politicians who are equally deserving of investigation and prosecution.
Issued by Phemelo Khaas and Alfred Tshabalala on behalf of Corruption Watch and Right 2 Know, 11 October 2018
art 4B (this includes part of the annexures and will come at a later stage)