Watchdog Lays Down the Options for Star Witness
|Publication||Mail and Guardian|
|Reporter||Mungo Soggot and Stefaans Brümmer|
Selby Baqwa has thrown a strange spanner in the works of his own inquiry
The Office of the Public Protector has asked a star witness of the public inquiry into the arms deal to drop his civil case against the government if he wants to testify at the inquiry.
The witness, Richard Young, says he was cheated out of a contract to work on the arms package's Corvettes. Young, who runs a defence technology company, has led the charge against apparent irregularities in the arms procurement process, and is believed to be one of the few people in possession of evidence that could expose impropriety.
Public Protector Selby Baqwa has also asked Young to provide a statement of the evidence he intends giving when the inquiry resumes next Tuesday. The public protector says it wants the statement in advance to be able to give anyone affected by Young's evidence the opportunity to respond.
Lawyers say both demands from the public protector are unusual, putting unfair pressure on Young, and being unduly generous to those who could be implicated. One advocate says a statement will make it easier to discredit Young.
Young's company, C²I², lost out to a sister company of African Defence Systems (ADS), the controversial company of which Schabir Shaik, the brother of arms acquisition chief Chippy Shaik, is a shareholder and director.
In addition to gathering evidence he believes supports his case, Young has also sought information about wider impropriety in the arms deal. He is the only businessman to have openly complained about the deal.
During recent correspondence with the public protector, Young and his lawyers have resisted repeated requests for an advance statement.
In a letter to Young's attorneys on August 1, Stoffel Fourie, a chief investigator for the public protector, says his office will draw up a statement on Young's behalf.
"As Dr Young has now taken the view that it is not his responsibility to provide the public protector with a statement in advance ... we have no option but to provide the other interested parties with a summary of our impressions of what Dr Young's testimony should probably consist of. You will appreciate that, under the circumstances, your client will have to bear the risks involved in such a step."
Young has meanwhile also been warned by ADS's lawyers this week that he cannot disclose any details of various contracts without obtaining formal permission from Armscor in terms of the Armscor Act and various contractual confidentiality clauses. ADS's lawyers say they can see from Young's correspondence with the public protector that he has not indicated whether he will discuss such contracts.
Where the watchdog's request that Young drop his legal action is concerned, Professor David Unterhalter of the Mandela Institute at the University of the Witwatersrand says it is a "puzzling position to take … and to require someone to forego their civil claim is possibly an improper exercise of [the public protector's] power".
As for an advance statement, Unterhalter says it is common for inquiries to rule that any party named has the right to be told about it, and afforded the opportunity to respond. "That does not mean the interested party has to be told chapter and verse what is going to be said." Unterhalter says the public protector's approach appears to reflect an "excess of caution".
Young has agreed to drop his civil case against the government for the time being, as he wants to see the public protector inquiry reach a conclusion. But he refuses to provide a written statement in advance of his testimony.
Neither the Public Protector Act, nor the rules drafted for the arms inquiry, oblige the public protector to obtain an affidavit from a witness in advance of his testimony. The Act and the rules merely stipulate that the watchdog give interested parties an opportunity to respond if something implicates them.
The public protector's office says in a statement Young is "under no obligation" to provide a statement, but that it will prevent delays during the hearings. With regard to his litigation, the watchdog says Young "was informed that it might not be in his best interest at this time to testify during the public phase of the investigation". Questioned further, a spokesperson for the public protector, Nicholette Teichmann, said this week Young was "given a choice" between litigating and testifying. Teichmann added the public protector does not want to prejudge a matter before the courts.
Unterhalter says any number of inquiries broach matters that could end up in court, but that has never been a reason not to hold an inquiry.
"No one is asking Baqwa to judge. All he has to do is listen and decide whether there has been any impropriety," Unterhalter says, adding that it would then be for the prosecuting authorities to take the matter to court.
With acknowledgment to Mungo Soggot, Stefaans Brümmer and the Mail & Guardian.