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Position of Evidence Leaders |
22 July 2014
To:
[
Read the leaked joint resignation letter]
Dear Commissioner Seriti and Commissioner Musi
RE: POSITION OF EVIDENCE LEADERS
Further to the events of 21 July 2014 we wish to point out the
following :-
1. It was quite apparent that we had been deliberately excluded from
what was to take place that morning. At no time did Advocate Mdumbe
either indicate to us that for the first time in the history of the
hearings he was to play an active role by reading a document or even
ask us for a contribution towards such document. He did not attempt
to verify that the information contained therein was accurate. It
came as a complete surprise when he was called upon to deliver his
comments particularly as no regard seems to have been to our memo of
10 July 2014 setting out fully the position. Further,
the entire approach consisted of an attack on
Dr Young and completely ignored the fact that he had suffered
a physical impediment which seriously affected the most recent
consultations and preparing his evidence and witness statement.
2. We must also point out that certain of the
comments are inaccurate as set out hereafter.
(a) The mention in the letter from Dr Young’s attorneys of Dr Young
enquiring from ourselves about travel arrangements and not receiving
a response was an error by the attorneys which we pointed out to Dr
Young during the consultation. The evidence leaders played no role
in the travel arrangements as Advocate Mdumbe was well aware. In
fact on 12 July 2014 Advocate Mdumbe stated “I will ask the team to
make the necessary arrangements [for Dr Young’s travel] on Monday.
What do you make of Dr Young’s response to my query about travel
time and date? I am not sure I quite understand his response”.
For Advocate Mdumbe not to point out that it was at all times the
Commission who was making travel arrangements has created in the
mind of the public the impression that the evidence leaders were
dilatory or failing in their duty to bring an enquiry by Dr Young to
the attention of the Commission.
(b) The response further glosses over the fact that
the Commission only made the travel
arrangements for Dr Young very late on Friday 17 July 2014 at
a time when it had already been advised repeatedly by Dr Young, his
attorneys and ourselves that he would not be attending in Pretoria
on 21 July 2014.
(c) The response is further incorrect when it indicates that
“shuttle vouchers” were forwarded to Dr Young. Despite the letters
from Dr Young’s attorneys and specific statements by the evidence
leaders both to the Chair and Advocate Mdumbe that Dr Young would
not be able to drive at night (and the instruction by the Chair to
Advocate Mdumbe that a shuttle should be arranged) the voucher which
was forwarded to Dr Young late in the evening of Friday 18 July
2014, was for the hire of a vehicle and not for a shuttle.
(d) The response regarding the dates allocated to the hearing of Dr
Young’s evidence makes no mention of the fact that when we as
evidence leaders were informed for the first time (on 17 June 2014)
that the Commission had decided to commence with the evidence of Dr
Young, we immediately indicated that Dr Young
had already explained his unavailability at certain periods.
It accordingly was not a case where the Commission allocated dates
and then Dr Young indicated he was not available but that
the Commission took the decision to allocate
dates to him knowing full well that he would not be available.
(e) The estimate of time from Dr Young’s evidence was based
on our knowledge at the time. The transcripts of Admiral Kamerman’s
evidence were only available at about the time the Commission
informed us of the decision to call Dr Young first. Although we have
been repeatedly told that his evidence is of a very limited nature
and will not take too long, we disagree and we
believe Dr Young has been unfairly criticised in this regard
when he states his evidence could not have been completed in the
time allocated.
(f) It is a gross miss-statement to
state “Consultations with Dr Young never
stopped”. Paragraphs 9 and 10 of Advocate Mdumbe’s response
indicate that there were no consultations
between 5 June 2013 and 8 July 2014. The clear implication of
this is that consultations had stopped because all the evidence
leaders were focussing on the witnesses to be called in Phase 1.
(g) The response further does not indicate that
Advocate Mdumbe specifically informed Dr Young
that the evidence leaders would prepare a witness statement for him
– in fact Advocate Mdumbe went so far as to specify that
this would be done within the course of less
than a month and made such statement without ever making an
enquiry from ourselves. As Dr Young has
repeatedly pointed out, if in the course of 2013 he had been asked
to prepare his own witness statement, he would have had more
than sufficient time to do so. He was however
entitled to rely on the fact that he had been informed that a
statement would be prepared for him. As we have explained, it
is correct that it was only very recently (after the meeting of 17
June 2014) that we recommenced urgently preparing Dr Young’s
statement.
(h) The statement that “no other witness has
been consulted with as extensively as the team has with Dr Young”
carries with it a clear suggestion that we as his allocated evidence
leaders are being dilatory and spending too much time consulting.
This is not the first time this allegation has been made by the
Commission. We note that Advocate Mdumbe distances himself from the
fact that he attended certain of the initial consultations himself.
He is accordingly well aware that those were preliminary
consultations to obtain an overview of Dr Young’s information and
were not part of actually taking/drafting a statement. We were
employed as experienced independent advocates but our assessment of
the time needed to properly prepare a witness (rather than proffer
“half-baked” evidence) is continually disregarded.
(i) The response of Advocate Mdumbe makes no
mention of the reasons furnished by Dr Young for withdrawing his
application to cross-examine Frits Nortje. This clearly
creates the impression that Dr Young was vacillating or being
inconsistent.
(j) The section on “Impact on Commission Processes” is again in our
view misleading. It creates the impression that Dr Young was simply
ignoring the directives given by the Commission. No mention is made
of the fact that it would have been extremely
difficult for any person wishing to cross-examine a witness to
decide to do so until he had seen the full statement of the witness.
The very brief summaries which were placed on the Commission’s
website at a late stage were of no real assistance. It would have
meant that Dr Young would have had to attend in Pretoria for both
the witnesses Nortje and Kamerman, receive their statement virtually
as they commenced evidence, not have an
opportunity to consider it and prepare cross-examination and then
make an application to do so. In our view this would not have been
realistic. Our concern is that the response of Advocate
Mdumbe creates the impression that it is Dr Young who had been
delaying the hearing. Our understanding is that
the delay in Mr Nortje testifying was not
caused by Dr Young but by the representatives of Armscor seeking
time to peruse the documents which Dr Young had indicated he
intended to refer to.
(k) The request on 3 March 2014 to meet with Dr Young was not
made by the evidence leaders who had been allocated to Dr Young. We
further have a difficulty with the response of the Chair quoted by
Advocate Mdumbe. With respect it was not an instance of Mr Nortje’s
evidence being adjourned “because he wanted to accommodate Dr Young”
– it was more an instance as set out that the
representatives of Armscor wished an adjournment. Further it
was not a case that the evidence leaders were “going to spend
another four or five months talking to Dr Young before we can call
Mr Nortje”. For Advocate Mdumbe to have made reference to these
passages without setting out the entire context
created an extremely adverse impression of Dr
Young.
(l) Dr Young has pointed out that he accepts that the
Commission ruled on 24 March 2014 that Armscor and the Department of
Defence were not required to make discovery.
He has however pointed out that his request is different – in
the light of the ruling he is not calling upon such entities to make
discovery but is seeking documents, which he is aware are in the
possession of the Commission or Armscor or the Department of
Defence, since such documents are relevant to the evidence which he
will give.
(m) While it is correct that Dr Young has yet to submit an
application to cross-examine Admiral Kamerman,
he has indicated that he intends to make such application. As
was pointed out in the letter from his attorneys, nobody has made
application to cross-examine Dr Young. The fact
that mention is specifically made of Dr Young
not submitting an application to cross-examine Admiral Kamerman
again places him in an unfavourable light which in our view is
unfair.
(n) The concluding remarks are in our view entirely
unwarranted. While Dr Young did participate as a witness at the JIT,
that was some 14 years ago. He is not contending that he is “a total
stranger who has still to amass information regarding specific
allegations” – he is merely pointing out that he has a huge number
of documents and much information and that the Commission had
informed him that he was not required to draft a witness statement.
Accordingly his contention is that he has had insufficient time
since he was informed of the allocated date for his evidence to meet
with the allocated evidence leaders and compile a comprehensive
witness statement.
(o) In our view too it is unfair and
self-serving to state that “he who alleges must prove (it’s a
simple principle of the Law of Evidence)”. Dr
Young does not bear a burden of proof. He has made the
averments contained in his evidence at the JIT, his affidavit in the
Constitutional Court application by Mr Crawford-Browne and in his
draft statements furnished by him to the Commission.
(p) In our view it is by no means unreasonable
for him to specify that there are documents in the possession of the
Commission which will either prove the correctness and accuracy of
his allegations or at least offer support thereto. Without
such documents he would be reduced to a position where he would
merely be making a bald allegation and under cross-examination would
undoubtedly be challenged and criticized on the basis that he is not
advancing any proof but merely making an allegation.
(q) It is accordingly completely unsatisfactory for Advocate Mdumbe
to have ended his submission by stating “all that is needed from him
is to repeat such allegations formally at the enquiry”. This is
a gross over-simplification and again
creates an entirely incorrect impression.
3. We must also express our strong reservations regarding the entire
approach of Advocate Mdumbe’s document. It was well-known to the
Commission that Dr Young would not be present. The document that was
read out constituted a clear attack upon him
made in public at a time when he would
not be able to respond. This placed us as his evidence
leaders in a most uncomfortable and
embarrassing position as it was clearly seen as us supporting
what was being stated. The issues set out in the previous paragraphs
could and should have been properly canvassed with us and the
failure to do so has compromised our position as evidence leaders.
4. We also found it significant that copies of the letters from Dr
Young’s attorneys which were addressed only to the Commission and
ourselves as his evidence leaders were given
by the Commission to the legal representatives for the Department of
Defence prior to the hearing on 21 July 2014.
5. We have reiterated on several occasions our view that
Dr Young is an extremely important witness.
Indeed he is the only witness (with
the possible exception of Johan du Plooy)
who will testify as to their knowledge of
bribery/corruption in connection with the Strategic Defence
Procurement Package. For his evidence not to be called would in our
view be a travesty. It is not the case that
the Commission has “bent over backwards” for Dr Young – on the
contrary the reverse is the position. He has made himself
available for the various consultations which we and other evidence
leaders have had with him and has spent many hours collating
documents for his evidence. This has taken place while he has been
trying to run his business and run a farm and attend to numerous
other matters. We must, with deep regret, indicate that we cannot
associate ourselves with any decision not to call the evidence of Dr
Young.
6. We must also express our extreme discomfort
at the prima facie views expressed to us in chambers regarding the
acceptance of the evidence of Rear Admiral Kamerman. From the
time we have spent consulting with Dr Young, we believe that there
are at the very least serious grounds on which
Dr Young will be able to attack Kamerman’s credibility and
demonstrate that he has not been candid when giving his evidence.
7. We have already referred to the fact that in our view we have
been side-lined over the last few months. A clear instance of this
is that a meeting was held in Cape Town with
Dr Young on 3 and 4 March 2014. Despite the fact that we were his
evidence leaders, we were not invited to such meeting by the
Commission. To make matters worse, Dr
Young at such meeting handed to Advocate Mdumbe and to the
representatives of Armscor and the Department of Defence a disk
containing his 1 061 discovered documents. We were not informed of
this by the Commission nor was a copy of such disk made available to
us. It was a matter of huge
embarrassment when we consulted with Dr Young and he enquired
whether we had had sight of particular documents contained on that
disk. We then for the first time learnt of the existence of the disk
and had to acknowledge that we had not received a copy and had not
seen the documents in question. Dr Young then
kindly made a further copy of the disk available to both of us.
8. It was clearly impossible in the
time available to us to peruse the approximately 20 000 pages
contained on such disk. While we acknowledge that not all the
documents would be referred to by Dr Young in his evidence, it still
placed us in an impossible position where we had a consultation and
no knowledge of any documents discovered by Dr Young.
9. Further, the refusal of the Commission to allow us to spend time
reading the transcripts of evidence has meant that we are operating
in a vacuum with insufficient or no knowledge of what evidence has
been led that needs to be raised with the various “critique”
witnesses. This too has compromised our
position as independent advocates.
10. We have on previous occasions during meetings between
evidence leaders and the Commissioners expressed our reservations
regarding the apparent approach to documents. In our view since
this is not a court of law, it
should not be required of a witness to prove
the authenticity and source of a document before it can be referred
to in evidence. We believe that since the Commission is an
investigative body, the correct approach would be that a document
which on the face of it appears to be a valid document should be
provisionally accepted and a witness allowed to testify on it
subject to any person named in such document being afforded an
opportunity to deal with it and to demonstrate to the Commission
that it is either a forgery or cannot be relied upon at all. Having
heard all such evidence the Commission would then be in a position
to assess the weight if any to be placed on such document. For the
Commission not to permit documents to be referred to in evidence,
such as the Debevoise Plimpton report, nullifies in our view the
very purpose for which the Commission was set up.
11. The role of evidence leaders has been diminished to the point
where they are serving little purpose and are not independent.
12. The Chair has made it clear that in his view the evidence
leaders have no right to re-examine a witness after the legal
representative of such witness has re-examined. In this regard we
would refer to the minutes on 1 March 2013. In paragraph 4.1 of the
minutes of such meeting it was noted that the regulations are silent
on the right of the evidence leader to re-examine but that the
meeting was of the view that this right should not be taken away
from the evidence leaders. In our view this is crucial. There has
been very little cross-examination and accordingly the
re-examination of the various civil servants/members of the defence
force by their legal representatives, while clearly permissible in
terms of the regulations, has naturally been designed to protect the
status and credibility of such witnesses. This was all the more
reason why the evidence leaders should have been permitted to
re-examine each witness to point out any discrepancies in the
evidence.
13. We consulted briefly with Mr Mahlangu. It would appear that his
report will not be ready timeously and that in any event he has only
had regard to a very limited number of bank accounts. In our view
if he had been asked to examine the accounts
timeously of all the known “middle men/agents” this would have
helped considerably to deal properly with the allegations of bribery.
14. We are further concerned that despite the researchers working
for many months we have never been furnished
with a single report that they submitted setting out the
results of their investigations. We accordingly cannot properly
assess what evidence should be led in this phase which therefore
impacts severely on our standing and credibility as independent
advocates.
15. At the meeting of 17 June 2014, all evidence leaders were
requested to reconsider the investigation bundle and to submit
comments to Advocate Sello urgently. This we did but nothing seems
to be forthcoming and there has been no indication that the various
obligors are being subpoenaed to produce documents and give
evidence. If this is to be done, it will clearly take several weeks
if not months to carry out adequately.
16. Every indication to us has been that the
Commission is intent on completing the evidence of the “critique”
witnesses in some seven weeks after taking
almost a year to deal with rationale
For all the aforesaid reasons we find ourselves in a position
that as a matter of principle we are unable to continue acting as
evidence leaders. We believe that our integrity is being compromised
by the approach which the Commission appears intent on adopting. We
accordingly tender our resignation as evidence leaders with
immediate effect.
It is with deep regret that we take this step but we can see no
alternative. We thank you for the opportunity to have served as
evidence leaders and for the knowledge and experience which we have
gained as a result thereof.
Yours sincerely
______________________________________________________
ADVOCATE B.L. SKINNER SC
A lot of magenta to digest, but it's all true.
After this. can one really carry on spending one's irreplaceable
time and expose oneself to such great risk?
Let the loss lie where it falls.