Jacob Zuma. Picture: REUTERS
Jacob Zuma. Picture: REUTERS

Had it not been for the multibillion-rand arms deal in the late 1990s, democratic SA may have taken a very different trajectory.

This is according to former ANC MP Andrew Feinstein, who believes the arms deal constituted the first instance of state capture in post-apartheid SA, and that the subsequent commission of inquiry, whose findings were set aside last week, laid some of the groundwork for the looting of the state.

"Let me take it a step further back," says Feinstein, who resigned from parliament in 2001 over government’s handling of the matter. "I think the Truth & Reconciliation Commission [TRC] could have saved [us] the trauma of the arms commission. If the TRC had done its work on business and corruption, as it did on human rights abuses, I am not convinced that the arms deal would have run the course that it did."

Back in 1999, Patricia de Lille, then an MP with the PAC, raised flags about the defence upgrade — the largest such deal in post-apartheid SA. Under the deal, the government acquired, among other things, 26 Gripen fighter aircraft and 24 Hawk lead-in fighter-trainer aircraft for the air force, and frigates and submarines for the navy. But De Lille claimed the process was tainted, and raised allegations of corruption centred on kickbacks that international arms companies were said to have paid to ANC officials in exchange for contracts — or, in the case of Jacob Zuma, for protection.

Despite calls by De Lille to investigate the matter, and a recommendation to that effect by parliament’s standing committee on public accounts (Scopa), then president Thabo Mbeki took no action. Then, in 2011, arms deal critic Terry Crawford-Browne approached the Constitutional Court in a bid to force Zuma, who was by then president, to institute such a commission. Zuma, against whom corruption charges had been withdrawn just two years before, established the commission, appointing Supreme Court of Appeal judge Willie Seriti to oversee it.

Judge Willie Seriti chaired the 2016 commission of inquiry into the arms deal. Picture: PUXLEY MAKGATHO
Judge Willie Seriti chaired the 2016 commission of inquiry into the arms deal. Picture: PUXLEY MAKGATHO

From the outset there were suggestions that the Seriti commission could be a whitewash. The inquiry was plagued by resignations and claims that its integrity might be compromised. Three evidence leaders resigned — including the chief evidence leader. So, too, did two judges appointed to the commission by Zuma: Willem van der Merwe and Francis Legodi. In the end, just two commissioners heard evidence: Seriti and Free State judge president Hendrick Musi.

Then senior commission investigator Norman Moabi quit. He alleged in a letter, leaked to the media at the time, that the commission was not being transparent and was concealing what he called a "second agenda".

Moabi alleged that Seriti ruled the commission with an iron fist, and that facts had been manipulated or withheld from commissioners. Contributions from those who did not pursue the "second agenda" were frequently ignored, Moabi wrote.

And while a number of high-profile politicians appeared before the commission, including Mbeki and former ministers Trevor Manuel, Alec Erwin and Ronnie Kasrils, Corruption Watch points out that only two of the people directly accused of corruption — Fana Hlongwane and Chippy Shaik — were called to testify. And Zuma never set foot in the commission.

Now, just 20 years since the infamous deal was signed, the matter is back in the spotlight. Last week, in a unanimous judgment in the Pretoria high court, judge president Dunstan Mlambo and two other judges granted an application brought by Corruption Watch and Right2Know to invalidate Seriti’s findings that there was no evidence of corruption in the arms deal.

The court found that the commission had "failed manifestly to inquire into key issues, as is to be expected of a commission".

Of course, the person most likely to be affected by the decision is Zuma, who is still facing charges of corruption related to the deal. Zuma and French company Thales, which is accused of paying him a bribe in return for protection from possible investigation, have applied for a permanent stay of prosecution.

If the court dismisses that application, Zuma and Thales will go to trial — though they will no longer be able to use the Seriti report to bolster their defence, says advocate Paul Hoffman, who represented Crawford-Browne at the commission and cross-examined witnesses such as Mbeki.

Click to enlarge.
Click to enlarge.

Not that Zuma is the only player who should be called to account — which is why Feinstein believes the National Prosecuting Authority (NPA) should pick up the matter. "Given that this judgment has just reaffirmed and reiterated the amount of evidence that actually exists, surely it is incumbent upon the NPA to look to prosecute everybody who was involved in the transaction," he says.

And Seriti, too, should shoulder a portion of blame, he says.

"Seriti severely damaged the body politic in a number of ways … and he should never be forgiven for that. That’s why I think he needs to face some personal liability," says Feinstein.

He believes Seriti should be impeached as a judge and lose his state pension for having knowingly wasted about R140m on what was a whitewash.

Seriti, however, stands by his report. He told radio station 702 after last week’s judgment that people are welcome to scrutinise his 1,000-page report, which explains all his decisions and the rationale for them.

And Mbeki, too, holds fast to the belief that there was no corruption in the deal. The Thabo Mbeki Foundation said last week it stands by the evidence given by the former president, claiming the issue amounts to one of process rather than substance.

"The judgment expressed itself to the commission’s handling of evidence presented before it and not the merits of the allegations of corruption made over the years," the foundation said.

What it means

The arms deal, and the seeming impunity of those responsible, may have laid the groundwork for state capture

De Lille, who herself testified at the commission, disputes such a view. She believes one of democratic SA’s biggest failings lies in not having brought the "crooks in the state" to book.

"It began with the arms deal," she says. "Had we drawn a legal line in the sand and slammed the door on corruption 20 years ago we would have prevented much of the looting of the state that followed."

She says last week’s decision clearly shows that all citizens in SA, irrespective of their power and connections, are governed by the same laws and constitution, and all are held to equal standards and to account.

It’s a sentiment echoed by Feinstein. He believes the decision sends a very important message to those looking to sanitise their actions through judicial inquiries. "I think any senior politician, including a president, is going to be much more loath to appoint a commission in an attempt to exonerate [him-or herself]." This, he says, is exactly what Zuma seemed to be trying to do with the Seriti commission.

It also offers an opportunity for a reset. "We need to get rid of this theme of corruption and malfeasance that has run through our society … If we are going to get rid of that seam of dirt, that seam of darkness, we have to go back to the arms deal.

"The consequence [of not doing so] is that we will not get rid of the practice that has unfortunately taken hold in our democracy, [the attitude] that it is OK to use the state — and particularly for the ruling party to use the state for its own political ends and, in some instances … for [party members’] own personal material gain. Because that is what state capture was."

But key to any sense of consequence is the NPA. In response to questions, spokesperson Bulelwa Makeke says the matter will receive consideration by the prosecuting authority, and it will take a "firm decision" in due course.