Judge Willie Seriti

IT’S OFFICIAL: Beneath its striking logo, the motto of the Arms Procurement Commission is writ large: “Transparency, Accountability and the Rule of Law”.

A laudable collection of values to guide the commission through the troubled waters it has to traverse to get to the truth of what occurred when the government decided, back in the 1990s, to buy weapons we didn’t need, with money we didn’t have, to defend us against enemies we couldn’t strategically identify.

The fealty of the commission to these values has been sorely tested by the reasons given for the resignation of one of its investigators, attorney Norman Moabi, a former acting judge.

On January 7, Moabi signed a two-and-a-half-page letter explaining his decision. Briefly put, he complained of obsessive control of the flow of information by the commission chairman, Judge Willie Seriti, a clandestine modus operandi within the commission (which he detailed), exclusion of input that does not advance a “second agenda” aimed at discrediting those who complain of impropriety in the arms deals, deliberate distraction of staff, total control of the secretariat and communications departments and nepotism.

He quoted Seriti as making remarks expressing a desire to muzzle complainants and ascribed to him a view that “there is no substance in what they have said”. In short, Moabi apprehends a continuation of the cover-up that has for so long bedevilled investigations into the arms deal.

This week, days after the resignation letter was leaked, Judge Seriti produced a remarkable five-page response, purportedly buttressed by a four-page memorandum authored by 10 evidence leaders. Both are aimed at discrediting the points of criticism raised by Moabi.

Judge Seriti tries to characterise Moabi’s complaints as a matter of “perception”. Moabi says he perceives two agendas in place within the commission – the official agenda and the “second agenda”. The latter he ascribes to his experiences and opinions.

The memorandum of the 10 evidence leaders does no more than confirm that the official agenda is still in place.

It does not attempt to traverse the allegations made by Moabi directly.

The clear implication is, however, that the official agenda is the only agenda. The reason for resorting to this tenfold bolstering of the credibility of Judge Seriti can be gleaned from an analysis of the judge’s own reply to the letter of resignation that he was clearly content to file away opaquely rather than deal with transparently, had it not been made public.

Judge Seriti’s press statement acknowledges the need to “respond in full as I hereby do”. The problem is he didn’t. The allegations of nepotism in the administrative wing of the commission were not dealt with at all; nor were the charges of “total control of the ‘secretariat’ and ‘communications’ departments”. He also did not traverse the charge that professional staff were deliberately distracted from the task at hand, except perhaps by implication.

Instead, his five pages of blather suggest that Moabi has an unspecified grudge against him as his sole motivation for resigning.

Most disquieting of all is the “I can’t recall making such utterances” in reply to the accusations that contain the sting of the charge that there is a “second agenda”, followed by a rambling justification for having uttered them.

The first of these suggests a desire to muzzle those who complain of corruption in the conclusion of the arms deals; the second suggests, quite wrongly, that there is no substance in the allegations of malfeasance made by “the Terry Crawford-Brownes of this world”.

Moabi says Judge Seriti did so utter.

The judge can’t remember, but nevertheless feels the need to justify and explain the sentiments attributed to him in quotes set out in Moabi’s resignation letter. In these circumstances it is fair to conclude that Judge Seriti did say what Moabi complains he said.

If, as he says, Judge Seriti has not, more than a year after his appointment, twigged that there is substance in the allegations of wrongdoing in the arms deals, then he hasn’t been paying attention to the task at hand, the content of seven books published on the topic and the court records at his disposal.

This is worrisome.

Judge Seriti attempts to justify his irritation with Crawford-Browne on the basis that the latter has “inundated” the commission with e-mails questioning its conduct and has “run a number of press articles along similar vein”.

This won’t do. Crawford-Browne’s pertinacious efforts brought about the appointment of the commission – if anyone is entitled to take an interest in its progress, or lack of progress, he certainly is. In fact, Crawford-Browne wrote to the commission fewer than 10 times last year, hardly a tsunami.

The commission has a duty to act fairly at all times. This principle was confirmed by the Constitutional Court in the litigation concerning the appointment of an inquiry into the affairs of the SA Rugby Football Union in the 1990s. As a senior judge, Judge Seriti is entitled to the benefit of the presumption that all judges act with integrity.

In any attempt to remove him from the commission, the onus will be on the applicant for his recusal to show, on a balance of probabilities, that there is a reasonable apprehension (not suspicion) of bias on his part.

The statement issued on January 22 by Judge Seriti does more to assist such an applicant than it does to support him. If there is no nepotism, why not say so? If the secretariat and communications department is independently run, demonstrate this. If the letter of resignation arrived on January 7, why was it not transparently and accountably dealt with before it came into the public domain? Why resort to specious reasoning based on the obvious fact that official documentation bears no trace of the secret agenda? It wouldn’t, would it? Even the official opposition has tumbled to this. Why are the other two commissioners silent?

It appears that more questions are raised than answered by what Judge Seriti has chosen to include in, and omit from, his press release.

The investigative journalists and other parties interested in seeing that justice is done in connection with the arms deals are going to have a field day picking over the information that is now in the public domain as a consequence of the leaking of the letter of resignation penned by the courageous Moabi.

They should concentrate attention on finding out why Judge Seriti selected as his head of legal research advocate Fanyana Mdumbe, an employee of the Justice Department, then ascertain whether the head of administration is a relative of the judge.

Other possibly dodgy appointments can also be investigated. They should also investigate why an inexperienced cadre deployed from the Department of Justice, whose minister was in the cabinet that gave the collectively responsible nod to the arms deals and is still an ANC leader, can be a suitable candidate for the job Judge Seriti gave him.

It would also be instructive to ascertain why the suggestions of the Institute for Accountability, made in November 2010, were ignored. Chasing wild geese at taxpayers’ expense is not the commission’s mandate.

Laboriously investigating admitted corruption is unnecessary.

The upside of getting it right with the commission is that South Africa will be relieved of a R70 billion debt via the cancellation of the arms deals. A power of good can be achieved by creating jobs that address poverty and inequality with a windfall of that scale.

The downside of getting it wrong is that the rule of law, accountability and transparency, all values foundational to our new order, will all take a hit below the waterline. Judge Seriti owes the public a proper explanation.

His statement was underwhelming and unhelpful and did not measure up to the commission’s motto. Fudging issues is not accountable conduct.

Paul Hoffman SC is a director of the Institute for Accountability

With acknowledgement to Paul Hoffman and Pretoria News.

Out dark spot.