WeeklySA_AdminSCORE:They assert ruling used as whip to harass them
By Monk Nkomo
Two retired judges under siege for concluding there was no corruption in the controversial multi-billion-rand arms deal, have launched a new fight-back plan – to challenge the high court ruling that set aside their commission report.
On Monday, retired judges Willie Legoabe Seriti and Hendrik Thekiso Musi, who presided over the arms deal commission, filed an application for leave to appeal the ruling of the Full Bench of the Pretoria High Court, which on August 21 2019 set aside their arms deal report findings.
Both intend to apply for leave to appeal to the Supreme Court of Appeal to set aside the high court ruling, which set aside their commission report. The ruling followed complaints by Corruption Watch and Right2Know Campaign, which instituted the judicial review of the arms deal report claiming that the commission had failed to probe allegations of fraud and corruption. The respondents are Corruption Watch, Right 2 Know Campaign, Arms Procurement Commission, Minister of Justice and Constitutional Development, President of the Republic of South Africa, Minister of Defence and Minister of Trade and Industry.
In their papers, the judges submit that they wanted to set the record straight, because “the high court judgment was being used to harass us”. The duo has also challenged the high court’s finding that the commission had ignored crucial evidence that was presented by one of the witnesses Dr. Richard Young.
“The court failed to take into account the evidence of Dr. Richard Young who was cross-examined and could not present any credible evidence.He admitted that most of his evidence on the arms deal was based on what he had read innewspapers and other publications,’’ the retired judges submitted.
Seriti and Musi submitted that the court erred fundamentally by setting aside the entire commission report based on criticisms of how the Commission, inter alia, dealt with Young’s evidence, who in his own testimony, admitted that his evidence was based on theories and hearsay.
“There were no manifest errors of law, failure to test evidence of key witnesses or refusal to take account of documentary evidence which contained the most serious allegations which were relevant to the arms deal inquiry,” Seriti and Musi submitted. The judges also seek condonation for the late filing of the application.
In their papers the two retired judges said they did not approach the court earlier but, because the complaints had now been laid against them, it was important to set the record straight. “The judgment is being used as a whip to harass us. It has also become clear to us that whether or not the findings of a commission of enquiry can be set aside and reviewed on the basis that this court has done, is a matter of public importance’’.
Both judges submitted that the Full Bench of the Pretoria High Court, chaired by Gauteng Judge President Dustin Mlambo, could not justifiably take snippets of the complaints raised by one or two disaffected parties and conclude that there were reviewable irregularities committed by the armsdeal commission.
They also challenged the court’s finding that the commission had ignored crucial evidence that was presented by one of the witnesses Dr. Richard Young. ‘’ The court failed to take into account the evidence of Dr. Richard Young who was cross examined and could not present any credible evidence.He admitted that most of his evidence on the arms deal was based on what he had read innewspapers and other publications’’, the retired judges submitted.
In his testimony before the commission, Young was referred to his website where he said ‘’ Erwin and his Grand Larceneers, Mandela, Mbeki, Modise, Manuel et cie had this golden goose well and truly plucked, stuffed, peri-peried, drawn and quartered.’’ According to the commission, Young gave an unclear explanation about the meaning of the words ‘Grand Larceneers’. It was put to him that he knew that the word larceny meant theft. He had then replied: ‘’ Well I actually thought that it meant fraud but in any way if it is theft that is good enough for me’’.
The retired judges also denied the court ruling that they had refused to initiate diplomatic processes to access information held by the Germans, Swiss, Swedish, the West Indies and Liberian authorities.’’ This is incorrect. The Commission engaged and consulted with Serious Fraud Office of the United Kingdom, Swedish, Switzerland and German authorities. These foreign authorities could not provide the Commission with information relevant to the Commission’s terms of reference. The other point of importance is that the Commission had no power or authority to utilize the provisions of Mutual Legal assistance Act’’.
With the Commission not being a law enforcement entity, the judgment erred in finding that the Commission ought to have invoked the provisions of the International Co-Operation in Criminal Matters Act, the retired judges said.
The Commission carried out extensive investigations and conducted public hearings. Nearly 54 witnesses testified before the Commission and they handed in various documentary evidence, the two applicants said.
The two retired judges also submitted that a Commission was not a court of law nor is it a tribunal which could impose a sanction. A Commission of Inquiry only made recommendations to the President of the country who could then accept, amend or reject the findings of the Commission.
The applicants said the court failed to take account of the entire terms of reference and simply set aside the entire Commission’s findings based only on issues relating to corruption.
Both Seriti and Musi submitted that the legal questions were of considerable importance. ‘’ There are very good prospects that the Supreme Court of Appeal would come to a different conclusion, and the questions are not purely academic.’’
The Arms Deal was a South African military procurement programme undertaken to equip the post apartheid armed forces. In 1999 the ANC govt purchased R30 billion of defence equipment including submarines, fighter aircraft and helicopters. The deal was however tainted by allegations of bribery and corruption.This led to the launching of an inquiry by then President Jacob Zuma to investigate these claims. Supreme Court of Appeal Judge Willie Seriti and Free State Judge President Hendrik Musi were appointed to chair the inquiry.
December 23, 2015 : Seriti hands over the completed report to Zuma after nearly two years since it started . The report finds no evidence of corruption or bribery.
2016 : Corruption Watch and Right2Know Campaign institutes judicial review proceedings for the review and setting aside of the Commission’s findings and recommendations.
June 21, 2019 : The Full Bench of the Gauteng High Court in Pretoria delivers judgment setting aside the findings and recommendations of the Commission.
August 11, 2020 : The complainants – Shadow World Investigations and Open Secrets – file a complaint relating to the court ruling with the Office of the Chief Justice.
May 7, 2021 : The Secretary of the Judicial Conduct Committee informs the two judges that they may submit written representations for consideration by the Committee.
June 14, 2021 : Seriti and Musi submit written representations to the Judicial Conduct Committee in which they submit that the complaint was unfounded and that there was no evidence which suggested any misconduct on their part.
September 6, 2021 : The two retired judges file papers in the Gauteng High Court in Pretoria in which they intend appealing the ruling of the Full Bench of the Gauteng High Court in Pretoria with the Supreme Court of Appeal.
