Media statement by the Minister of Justice and Constitutional Development, Mr Jeff Radebe, MP: Announcement of the details of the Commission of Inquiry into allegations of fraud, corruption, impropriety or irregularity in the Strategic Defence Procurement Packages, Cape Town

27 Oct 2011

It is my honour and privilege to announce the terms of reference and the Regulations for the Commission of Inquiry into allegations of fraud, corruption, impropriety or irregularity in the Strategic Defence Procurement Packages (SDPP), commonly referred to as the Arms Deal. On behalf of the Executive, I hereby make these further announcements to give effect to the decision taken by the President as head of the State, pursuant to section 84(2)(f) of the Constitution of the Republic of South Africa, 1996.

On Monday, 24 October 2011 the President announced the Commission chaired by Judge Seriti, a judge of the Supreme Court of Appeal. All of them are senior judges of high standing and integrity, who have impeccable track records in the legal and judicial work. They are judges of independent minds, who command respect from their peers and have exhibited leadership attributes in their added responsibilities other than presiding in court.

The Commission will be assisted by a team of astute and seasoned legal practitioners in leading and assessing evidence presented before the Commission. These practitioners are Adv. Vas Soni SC, Adv. Sthembiso Mdladla, and Adv. Mahlape Sello, who were chosen by the Justice Seriti as he is empowered by the Regulations to do so. Under the guidance of Adv. Soni, who is one of the leading Senior Counsel and a member of the Judicial Service Commission, the Evidence leaders will form an important fortress for the Commission.

The establishment of this Commission and the commencement of its work, represent a watershed moment in the history of democratic South Africa, in a quest to rid our nation of what has become an albatross that must now cease to blemish the reputation of our government and the image of our country. As we cross the Arms Deal Rubicon, we wish to assure all South Africans that this Commission will work independently of everyone, including the Executive.

Its credibility remains paramount as it is about to undertake an all important national duty. The impact of its work will be significant even beyond the borders of our shores.

It should be borne in mind that this Commission has been instituted as a consequence of allegations that have persistently been in the public domain for a long time. The allegations surfaced soon after the dawn of democracy, following the procurement of multi-billion rand armoury that was intended to address the needs identified by the South African National Defence Force during 1996 - 1998. This culminated in the Cabinet decision to purchase aircraft, corvettes and submarines at the cost of R29 billion over 12 years. The allegations were probed by the different State institutions and were also a matter public debate in Parliament. Every time an end appeared in sight, new allegations would emerge. It is our conviction that the Inquiry will enable us collectively as a nation to reach closure on this otherwise contentious matter. We are hopeful that we will emerge from the Commission as a stronger nation glued together by values of social cohesion and nation building in a common endeavour to build a united and prosperous South Africa.

We believe that the work of the Commission will ensure that we sustain the momentum on the integrity of our national democratic transformation. In contrast, the seriousness of these allegations threaten to undermine this hard earned integrity of our constitutional democracy which is perceived as exemplary to be emulated even on the international scene.

I now turn to the specific aspects of the business of the Commission:

Powers of the Commission

The Commission derives its power from the Constitution [section 84(2)(f) read with the Commissions Act, 1947]. The practical operation of the Commission, such as matters relating to evidence and other matters on the conduct of members and persons appearing before the Commission, is provided for in the Commissions Act, 1947. The President has made Regulations which prescribe the powers and procedure. 

 The Terms of Reference for the Commission

The terms of reference must be seen to be sound, fair and consistent with the principles of justice as enshrined in our laws. The Commission of Inquiry shall inquire into, make findings, report on and make recommendations concerning the following, taking into consideration the Constitution and relevant legislation, policies and guidelines:

1.1. The rationale for the Strategic Defence Procurement Packages.

1.2. Whether the arms and equipment acquired in terms of the Strategic Defence Procurement Packages are underutilised or not utilised at all.

1.3. Whether job opportunities anticipated to flow from the Strategic Defence Procurement Packages have materialised at all and:

• if they have, the extent to which they have materialised; and
• if they have not, the steps that ought to be taken to realise them.

1.4.Whether off-sets anticipated to flow from the SDPP have materialised at all and:

• if they have, the extent to which they have materialised; and
• if they have not, the steps that ought to be taken to realise them.

1.5. 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 and, if so:

Whether legal proceedings should be instituted against such persons, and the nature of such legal proceedings; and

Whether, in particular, there is any basis to pursue such persons for the recovery of any losses that the State might have suffered as a result of their conduct.

1.6. Whether any contract concluded pursuant to the SDPP procurement process is tainted by any fraud or corruption capable of proof, such as to justify its cancellation, and the ramifications of such cancellation.

2. These terms of reference may be added to, varied or amended from time to time.

3. The Commissions Act, 1947 (Act No. 8 of 1947) shall apply to the Commission, subject to such amendments and exemptions as may be specified by proclamation from time to time.

4. The Commission shall submit interim reports and recommendations to the President from time to time and at least every six months prior to the finalisation of its report for presentation to the President. The Commission shall complete its work within a period of two years from date hereof and shall submit its final report to the President within a period of six months after the date on which the Commission completes its work.

Procedure of the Commission

The procedure of the Commission is outlined in the regulations made by the President in terms of section 1 of the Commissions Act, 1947, and which will be published in the Gazette soon.

The regulations, amongst others:

• gives the Commission the power to subpoena witnesses
• compel witnesses to answer questions
• power of search and seizure

Non cooperation with the Commission constitute an offence punishable by a fine or imprisonment for a period between 6 to 12 months.

Seat of the Commission

The main seat of the Commission will be in Johannesburg, where it will conduct its primary business. Due to security considerations, the actual location of the premises will not be disclosed at this stage. An announcement regarding the actual location and the first public hearings will be made in due course.

The Commission's Chairperson will determine the seat of the hearings which may take place at any other place than its principal place of business. This is so in order to enhance easy access to the witnesses and other people who wish to make attend the hearings.

The security of the premises, information and personal security will be a high priority.

Funding and resourcing of the Commission

A total budget in the amount of R40 million has been set aside by the Department of Justice and Constitutional Development to fund the costs of the Commission. The expenses to be covered by this budget allocation will include:

• Remuneration of personnel appointed on a fulltime basis for the duration of the Commission;
• Operational cost of the commission including administrative support, translation and transcription services, document management, public hearings, travelling and telecommunication; and
• Accommodation and equipment required for the Commission to carry out its business.

The Secretary and staff of the Commission

The Commission has appointed Mr Mvuseni Ngubane, a practicing attorney, and a former member of the Judicial Service Commission, as the Secretary of the Commission. The Secretariat will provide the necessary administrative support to the Commission to ensure that it delivers on its mandate. 

Appropriate number of staff and researchers will be appointed to constitute the Secretariat of the Commission.

Conclusion

In conclusion, I want to reassure all South Africans of our unwavering commitment towards fighting crime and eradicating corruption. We all must fold sleeves and work towards creating a conducive climate for sound and fair competition in business.

In addition this must promote and attract foreign investment towards South Africa. This is a course which corruption simply cannot advance.

The establishment of this Commission is yet another expression of our government's commitment towards accountability, transparency and the rule of law as values that underpin our constitutional democracy. 

We look forward to the outcomes of the Commission, which will be considered in the context of our constitutional and legal framework.

Statement issued by the Department of Justice and Constitutional Development, October 27 2011

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