OPINION: The pendulum swings

Norman McFarlane

North Gauteng High Court Judge President Dunstan Mlambo handed down a judgment last week Wednesday that has major implications for those alleged to have had their fingers in the till during the 1999 strategic defence acquisition, aka the arms deal.

It also has major implications for commissions of inquiry, since for the first time in our legal history, the findings of a judicial commission of inquiry have been taken on judicial review, and set aside.

The commission, headed by Justice Willie Seriti, was initiated by then President Jacob Zuma, and concluded its four-year “fact-finding mission” in June 2015.

Mr Zuma released the 767-page report in April 2016, and made much of the fact that the commission had exonerated every individual and organisation that had been implicated in wrong-doing.

“Government was of the view that any findings pointing to wrongdoing should be handed over to law enforcement agencies for further actions. The commission does not make any recommendations. There are no findings,” he said.

It is worth noting that Mr Zuma was, at the time of releasing the report, moving heaven and earth in his attempt to avoid his day in court on charges relating to the very same arms deal.

The commission’s proceedings were marred by allegations of impropriety, ignoring of evidence, the disappearance of evidence, the resignation of key commission members and evidence leaders, fear-mongering, and the existence of a “second agenda”.

Long before it concluded its work and Mr Zuma released its findings, it was thoroughly discredited as a whitewash in the public domain, and arms deal activist Terry Crawford-Browne, whose court action forced Mr Zuma into setting up the commission, had made it clear that its findings would be challenged in court.

Justice Mlambo’s trenchant judgment effectively torpedoes a key pillar of Mr Zuma’s defence strategy in his ongoing corruption trial and his pursuit of a permanent stay of prosecution – that since the Seriti commission found no evidence of wrongdoing, the charges he faces are without substance. French arms company, Thales (formerly Thint), Mr Zuma’s co-accused, also seeks a permanent stay of prosecution on the same grounds.

A ruling in his application for a permanent stay of prosecution is expected soon, and Mr Zuma is most likely feeling a tad less confident than he might have felt a week ago, about the likely outcome.

Whether or not President Cyril Ramaphosa chooses to reopen the matter and implement yet another commission of inquiry – he has launched five in the short time he has been in office – remains to be seen, but even if he chooses not to, there is nothing stopping the investigative and prosecutorial authorities from pursing those against whom prima facie evidence exists, but who were exonerated by the Seriti commission.

That those who initially took the commission’s findings on judicial review – the Right2Know Campaign and Corruption Watch – and Mr Crawford-Browne will be agitating for further action, is axiomatic.

Controversial alleged “middleman”, Fana Hlongwane, who, by all accounts was given an “easy ride” during his testimony to the commission, might find that the likes of the National Prosecuting Authority (NPA), the Hawks and the Special Investigative Unit will have a renewed interest in “interviewing him in connection with their inquiries”.

This also raises the awkward question of the likes of former cabinet ministers Alec Erwin, Ronnie Kasrils and Trevor Manuel, and past president Thabo Mbeki, all of whom, in their testimony, told the commission the entire arms deal was above board. How does their evidence square with the findings of the North Gauteng High Court?

Our legal system makes provision for an appeal, but in a radio interview last week, Justice Seriti stated (bizarrely) that he stands by his report and its findings, and that he would not be seeking leave to appeal, and if he doesn’t, nobody else can.

But the possibility of “renewed interest” in the investigation and prosecution of matters relating to the arms deal aside, this judgment sets the bar for all commissions of inquiry, past or present.

The judgment found that the commission had failed to properly inquire into matters it was mandated to, and failed to consider key evidence and witnesses.

The evidence before the commission, and how Justice Seriti dealt with that evidence, failed the rationality test.

The commission also failed to execute its mandate without fear, favour or prejudice.

This judgment may open the flood gates in respect of commissions past, but more importantly, it will also place on terms all current and future commissions.