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Cape Town - The first witness Judge Willie Seriti’s Arms Procurement Commission will hear as it kicks belatedly into motion in Pretoria on Tuesday is not even on the official programme - but he is likely to cause some consternation.
In a dramatic turn of events unfolding in the course of a behind-closed-doors briefing of legal representatives by evidence leaders on Monday afternoon, arms deal crusader Terry Crawford-Browne - “gatecrashing” by claiming his legal right to represent himself in law - interrupted proceedings to deliver into the record a letter of strong objection to the way the commission was going about its work.
The meeting - succeeding an address by commission chairman Judge Seriti and presentations by “evidence leaders to outline the process” - is indicated in a commission press release as being a “pre-hearing conference of legal teams. (closed session)”.
The commission, however, denied it was a closed meeting, and having delivered his letter of objection, Crawford-Browne was asked to appear before a special meeting of the commission to amplify his position at 9.30am before the official business kicked off - according to the programme, at 10am. Judge Seriti - who was not present at the legal briefing - was expected to be there to hear Crawford-Browne’s arguments.
At the cutting edge of his objection, Crawford-Browne accuses the commission of bad faith and contempt of the Constitutional Court in holding meetings in camera. The Constitutional Court’s mandate - on the basis of which President Jacob Zuma established the commission - was Crawford-Browne’s insistence that it should be a public process.
But there is a lot more to follow. In his four-page letter of objection Crawford-Browne draws particular attention to 4.7 million pages of documentary evidence collected over a decade of investigation by the now-defunct Directorate of Special Operations (Scorpions). The documents are stored in two containers at the headquarters of the Scorpions’ successor, the SAPS’ Hawks unit, and have not been canvassed at all as potential evidence by the Seriti Commission.
This is in spite of the fact that - as Crawford-Browne notes in his objection - it was after the Hawks abandoned the arms deal investigation that “I lodged my application to the Constitutional Court that, given this huge volume of evidence it was irrational and therefore unconstitutional for President Jacob Zuma to refuse to appoint a commission of inquiry into the arms deal”.
Zuma set up the commission as time ran out in late October 2011 for him to explain why such a commission of inquiry should not be appointed by the Constitutional Court in response to Crawford-Browne’s application.
Crawford-Browne’s argument was later bolstered by an opinion prepared by eminent legal theorist and practitioner advocate Geoff Budlender SC, who found that the arms deal acquisitions had been “unconstitutional and illegal in terms of… the constitution, and also fraudulent”.
Budlender also found the “internationally accepted remedy for fraud is cancellation of the contracts, return of the equipment and recovery of the monies”, Crawford-Browne notes.
He also recalls that after the commission was appointed: “One of the first actions of my legal representatives was to write to the commission to request that the documentation… should be secured.
“Being the documentation of the arms deal contractors, and not of the Department of Defence, it is not classified material.”
Two weeks ago, the commission had to postpone hearings that were scheduled to kick off on August 5, largely because of a deadlock with the Department of Defence over the release of classified materials into evidence.