The arms deal commission has been accused of intimidating witnesses by demanding to know how they obtained their documents. The commission warned witnesses that it would not accept unlawfully obtained evidence and that they must state whether their information was classified.
The commission - which was set up by President Jacob Zuma to probe the controversial multibillion-rand arms procurement deal - is still reluctant to subpoena the ANC or its officials.
The Sunday Independent has learnt that the commission has written to witnesses warning them that they would be asked to verify the authenticity of the documents submitted to it.
A letter sent to one of the witnesses, signed by the commission’s head of research Fanyana Mdumbe, reads in part: “You are further requested to indicate in the discovered affidavit whether, amongst the discovered documents, there are classified documents and whether such documents were obtained lawfully.”
One of the witnesses, Richard Young, confirmed Mdumbe’s letter in relation to his documents.
He said Mdumbe sent him an e-mail a week ago asking him to submit a sworn affidavit.
Young this week described the commission’s action as “witness intimidation”.
“It’s making witnesses’… giving evidence extremely difficult,” he said.
Young had been subpoenaed to appear before the commission but the subpoena expired after its public hearings were postponed.
“I’m now feeling a lot less comfortable about appearing before the commission,” he said.
Young accused the commission of simply playing for time until next year’s general elections.
Arms deal whistleblower and Cape Town mayor Patricia de Lille said even though she had not received the letter, the request from the commission was tainting its independence. She said it was equivalent to going after the messenger instead of the message.
“I can’t see how this is going to help the commission. They received piles and piles of documents from many people. For them to ask how you obtained the documents is neither here nor there,” said De Lille.
David Cote from Lawyers for Human Rights, representing witnesses Hennie van Vuuren, Andrew Feinstein and Paul Holden, confirmed that they had been in contact with the commission to discuss this request.
An initial letter had been sent out at the beginning of April asking witnesses to reveal which documents they had and where the documents had come from.
But Lawyers for Human Rights responded to the commission saying that this was unacceptable and that they expected that the commission would respect witnesses’ rights to keep their sources of information confidential.
The group received the latest correspondence from the commission on Friday, saying that the matter would be dealt with at the hearing itself, which is scheduled to start on August 5.
“We urge the commission not to let the issue become a red herring that deflects the focus of its work. We respectfully believe that facts should be the primary focus of the commission.
“In light of the proposed (secrecy bill), it would be regrettable if the issue of sourcing of documents is an issue that ultimately undermines the public’s right to know,” said Cote yesterday.
Former IFP MP Professor Gavin Woods said he had not received the letter but that the threat was worrisome.
“I’m puzzled that they are doing that. Surely their mandate is to find the truth. It makes you wonder if there is truth in the allegations made about the appointment of the chairman,” he said.
“Some documents would be from the military and have various degrees of confidentiality. Others are cabinet minutes.”
Woods said that he had told the commission to guide him on what sort of evidence they sought from him. He was last contacted last week and advised that he would meet with the commission to discuss the documents in his possession.
Mdumbe did not reply to calls and text messages, and commission spokesman William Baloyi said he could not respond to queries within a day. The commission’s attitude towards witnesses has apparently triggered unhappiness among other commission officials, with a third, as-yet unnamed, senior member contemplating leaving.
Legal researcher Kate Painting quit discontentedly following internal ructions, apparently regarding how commission chairman Judge Willie Seriti was running the show.
Painting was key to the commission as she was one of the founding staff members who researched and collected information internationally from arms companies and foreign governments.
Painting declined to comment. She was the second senior official to leave in frustration after investigator Norman Moabi left earlier this year, accusing Seriti of a second clandestine agenda.
At the same time, calls are mounting for the commission to subpoena ANC secretary-general Gwede Mantashe and treasurer-general Zweli Mkhize. The commission is probing allegations of fraud, corruption, impropriety and irregularities in the awarding of the R70 billion arms deal.
In a March letter from the lawyers of arms activist Terry Crawford-Browne to the commission, Crawford-Browne reiterates the need to subpoena the ANC for documents and financial records.
“The ANC paper trail is a primary source of concrete evidence on this aspect… It is the duty of the (commission) to have long since obtained the ANC financial and other documentary records. “The refusal to do so is illegal in that it is irrational to so refuse,” said the letter by lawyers Abrahams Kiewitz Incorporated.
In the letter, Crawford-Browne says it was unfair for the witnesses to give evidence without having insight of the ANC documents that had been procured by the commission. “These documents are at the heart of the rationale for the arms procurement deals and will… reveal the corruption involved,” it states.
Crawford-Browne had threatened the commission with a high court application to force it to subpoena the ANC. By Thursday the commission had still refused to subpoena the ANC. Advocate Paul Hoffman, representing Crawford-Browne, said the commission “took up the attitude that subpoenaing the ANC was premature”.
Mantashe last night declined to comment, saying the commission does not subpoena people through the media. - Sunday Independent