Andrew Feinstein, Paul Holden and Hennie Van Vuuren
21 August 2019
We welcome the judgment delivered today in the High Court that sets aside the findings of the Seriti Commission of Inquiry into the Arms Deal. This is a profound victory for South African civil society and is the result of years of collective struggle against a massive cover-up of international bribery and corruption.
The judgement of the High Court is clear and unambiguous in finding that the Commission made no attempt, at any time, to conduct a meaningful investigation into the Arms Deal. It found that ‘the enquiry and investigation that the Commission was called upon to undertake never materialised.’ In summarising its findings, it also damningly found that that due to ‘so manifest a set of errors of law, a clear failure to test evidence of key witnesses, a refusal to take account of documentary evidence which contained the most serious allegations which were relevant to its inquiry, the principle of legality dictates only one conclusion, that the findings of such a commission must be set aside.’
The judgment will have a long-term and profound impact on South African politics and future Commissions of Inquiry. For the first time, South Africa’s courts have ruled that Commissions of Inquiry are reviewable, and must be conducted in line with the principle of fairness and legality. It also confirms that investigations by Commissions must be pursued with an ‘open and enquiring mind.’ This judgment creates a test of future Commissions of Inquiry, and sends a warning to all future Commissions of Inquiry that they must investigate matters under their purview fairly, fully, and with an ‘open and enquiring mind.’
In August 2014, in response to a call by civil society, we announced that we were withdrawing from the Commission of Inquiry, despite the fact that we had made detailed submissions to the Commission and provided thousands of pages of evidence. At the time, we cited numerous examples of the deeply unsatisfactory manner in which the Commission was conducting its investigation, which rendered it little more than an establishment cover-up. The judgment of the High Court has only served to confirm our original conviction that the Commission had no interest in investigating, or even acknowledging, the extraordinary and pervasive corruption that tainted the Arms Deal. This was made more painful by the fact that millions of South Africans have paid for the Arms Deal through lost opportunities, deepening inequality and the weakening of the countries democratic institutions which it facilitated.
The Seriti Commission, however, is only the most recent development in the two-decade long story of impunity and cover-ups that has marked the Arms Deal. This year marks two decades since the infamous deal was concluded by Thabo Mbeki’s administration. Detailed evidence of corruption emerged from even before the conclusion of the contracts. Since then, multiple investigations in South Africa and abroad have uncovered ‘commission payments’ to politically connected agents worth hundreds of millions of dollars. All of these investigations ultimately went the way of the Seriti Commission – derailed through disinterest, political interference, name-calling and capitulation in the face of political power.
That decision by the Court today is the result of tireless efforts by civil society. It shows that impunity and cover-ups do not work. South Africa will never be free of the lingering political stench of the Arms Deal until all aspects of the deal are fully investigated and those who took money and peddled influence are brought to justice. The prosecution of French arms company Thales and President Jacob Zuma is an important step in the right direction and is being watched with anxiety by those implicated in corruption. More prosecutions should follow.
It is equally important that those European companies that sought to corrupt our new democracy and thereby steal scarce public resources from the poor and unemployed also face the full might of the law. Their corruption was cold, premeditated and scandalous. They must pay the price – in financial, legal, moral and reputational terms – for fatally undermining South Africa’s post-apartheid democratic institutions and creating the febrile political present.
This, of course, is not to lose sight of the conduct of the Seriti Commission and its officers. The High Court judgment confirms that the Commission, which cost over R137m, ‘failed manifestly to enquire into key issues as is to be expected of a reasonable Commission.’ Judges Seriti and Musi must explain themselves, as must the multiple advocates who earned millions in fees for being party to a Commission that was clearly disinterested in finding the truth. We call on both the Judicial Services Commission and the appropriate bar councils to investigate their conduct. While a number of evidence leaders and researchers resigned from the Commission due to conduct of the Commission lead by Judge Seriti, many did not. Instead their conduct served to bolster an exercise that was a patent cover-up.
As the findings of the 1st Peoples Tribunal on Economic Crime in 2018 clearly showed, the Arms Deal has its roots firmly embedded in apartheid corruption. It was because of impunity for those crimes that this became post-apartheid South Africa’s first case of State Capture. It enriched multinational corporations and a handful of opportunists and criminals, all of whom then colluded to destroy those institutions that could hold them accountable. The Arms Deal ushered a corrupt network into this country’s democratic politics and paved the way for contemporary state capture. If we are to challenge State Capture in the present, we must acknowledge and seek justice for those instances of State Capture from the past, and learn lessons for the future.