The classified nature of key documents means the public is still in the dark about vital information
Being present at the arms deal commission feels like walking into a private conversation between two people.
References to classified information or annexures that the public cannot access have ensured that following the inquiry in detail, which is where the devil lies, is the preserve of lawyers and commission staff.
As a result, the navy’s defence of the arms deal, that the arms purchased were an essential arsenal for the defence of South Africa, has largely been allowed to be heard without probing questioning.
Chaired by Judge Willie Seriti, the commission is investigating allegations of corruption in the R70-billion arms deal.
Public hearings began on August 19 after a four-month and then two-week delay. The latter postponement was to give the commission a chance to finalise which military documents would remain classified and which would be open for public scrutiny.
Two weeks later and, with the commission now hearing evidence from its fifth witness, documents presented to the commission are still being kept from the public.
Dogged by controversy since its inception two years ago, the commission has a huge task ahead of it if it wishes to dispel fears that it was mandated to promote a “second agenda”, allegedly the protection of senior ANC leaders from exposure.
Key senior staff have resigned, including one commissioner, and claims of the commission’s alleged second agenda have resulted in calls from former legal investigator Mokgale Moabi for Seriti to take a lie-detector test.
The first batch of witnesses from the South African navy was called last week to give evidence about the rationale behind the arms deal as well as the purpose of the warships and submarines purchased.
Categories of persons
But witnesses have been allowed to rely on classified documents that are for the eyes of commissioners and evidence leaders only.
In response to requests for access to the annexures, the commission said the documents were “meant for the use by the commission and not by third parties” and that the documents could only be disseminated with Seriti’s permission.
The head of the commission’s legal division, Fanyana Mdumbe, said the media was not among the “categories of persons” entitled to see the documents. He added that the classified and declassified material in the annexures could not be separated and could not be released to the public.
Crucially, these documents appear to pertain to the true state of the frigates, particularly the submarines.
Witnesses are also permitted to simply refer to annexures containing details about the condition of the vessels without going into detail.
Only one witness thus far, the navy’s Rear Admiral Phillip Schoultz, has openly said that he has given classified documentation to the commission.
It also robs would-be cross-examiners from testing the veracity of the information in these documents.
But the commission’s apparent lukewarm approach to the evidence before it is the one item that was never a secret: from the outset, it made it clear that it would not be adversarial in nature.
In his opening address, advocate Tayob Aboobaker, in outlining the commission’s mandate, warned that it was a “process in which those responsible for the strategic defence procurement packages [the arms deal] and those who participated in its finalisation [will be] called to account for their actions. It is not a process by which they are brought to book.”
He said that the commission did not propose to deal with matters in detail.
“It will merely be a template with which to work to understand the process as it unfolds. Time does not permit the luxury of in-depth analysis of the evidence to be presented before the commission.”
Although the commission has heard evidence, in broad terms, about the actual sea-time and missions that the vessels purchased embarked on, the exact details are contained in the mysterious annexures.
In one case, when the “challenges” experienced by the submarines were discussed, it emerged that classified information was contained in some of these annexures.
Evidence leader advocate Simmy Lebala asked Schoultz to talk about “special operations integration (4SFR) and that it has been done for 11 days by Queen Modjadji II”.
SAS Queen Modjadji II is one of the three submarines purchased.
Schoultz replied: “Chair, that refers to a particular capability that we have which I would not like to speak about the detail of because of the sensitivity of that type of evolution [sic]. But suffice it to say it’s a capability that we exercise within a certain component within the defence force.”
Lebala: “For the sake of completeness, this detail that you are withholding, is it classified?”
Schoultz: “Yes chairperson, it is classified.”
Satisfied with this response, Lebala continued: “Now, we will pass it. What is significant is that you have dealt with the theme of it.”
The previous day, Lebala had said the information pertained to “defects” and “challenges” that occurred on board the submarine in December 2011.
No further detail was given about what occurred in December that year.
But the commission has dealt with some controversies regarding the frigates and submarines. Witnesses have flatly denied that the frigates were fitted with inappropriate engines and the navy maintains that the warships and submarines are in working condition.
On July 17 2012, Queen Modjadji I hit the ocean floor while conducting training exercises. It suffered a 1.5mx1.5m gash in the hull, and an inquiry into the incident was launched, the navy said.
The commission also acknowledged that the SAS Mathathisi had suffered damage worth R35-million when a power cable was incorrectly inserted. But witnesses said the damage was repaired in a week.
The first week of testimony bore out Aboobaker’s statement that the evidence would be dealt with in a general way, even though the truth about the deal is likely to lie in the detail. It also suggested a worrying inflexibility and lack of openness to media requests and interested outsiders, such as arms deal campaigner Terry Crawford-Browne.
Giving evidence on the background to the arms deal, the first witness, the navy’s Rear Admiral Alan Green, denied making statements in Parliament that the equipment purchased in the arms deal was not being utilised.
Evidence leader advocate Tshepo Sibeko questioned Green about a supplementary submission by Crawford-Browne that he (Green) told Parliament last year that the equipment was functionally useless.
Green said he was not aware of making such a statement and Sibeko failed to test him on this, despite the fact that Crawford-Browne made a submission on the issue in December last year to which he appended a Sunday Times report on the alleged statement.
Sibeko merely observed that the commission did not have transcripts of parliamentary proceedings and that the inquiry would endeavour to obtain them.
He did not clarify why the commission had not yet asked Parliament for the transcripts, or spell out why he was not willing to use the Sunday Times report in further questioning Green.
In addition, Crawford-Browne, who on several occasions has been referred to by witnesses as a “critic” or a “pacifist”, was denied the opportunity to make points of clarification.
The Mail & Guardian has also put in a request for a list of the names of the legal representatives of government officials called to testify at the commission.
This follows a Cabinet announcement that these officials, which include former President Thabo Mbeki, would receive legal representation from the state attorney. The request was refused.
Commission spokesperson William Baloyi said it was difficult to obtain the names as the legal teams are accredited as observers and there was no roll call when they were briefed by Judge Seriti – in camera last week – before the commission got under way.
Tabelo Timse is an investigator with amaBhungane, the M&G Centre for Investigative Journalism; Sarah Evans is a reporter with M&G Online