Investigators in South Africa's R50-billion arms deal have expressed serious reservations about the advisability of public hearings into the procurement scandal due to open on Monday

The concerns have divided officials of the three investigating bodies - although there are indications that the final format the hearings will take has partly allayed these worries.

Senior legal sources have also privately expressed serious misgivings about the hearings to the Mail & Guardian over the past week, echoing reservations published by the Institute for Democracy in South Afrcia (Idasa).

The central anxiety is that the hearings may prejudice potential prosecutions stemming from the forensic and criminal investigations by the three agencies. They are the Office of the Auditor General, the National Directorate of Public Prosecutions and the Office of the Public Protector. About 30 investigators are involved.

Legal experts have expressed surprise that the inquiry is being run during the investigation, saying it is not a sensible way of gathering evidence from sensitive witnesses.

Some of the investigators have expressed similar fears, and even drawn up lists of their reservations about the hearing, although it is believed some of these concerns have now been ironed out.

Although all three institutions have officially sanctioned the public inquiry, it emerged this week that there will be no representative from the auditor general's office leading evidence. All the agencies will however be represented on the presiding panel. Of the three agencies, the auditor general's office is understood to have been the most wary of the public inquiry. The auditor general's office is officially in charge of the investigation.

Sources familiar with the probe say that, while the heads of the three agencies involved are committed to the public inquiry, there is more disagreement and concern lower down the ranks.

The public protector's explanation for the public hearing is that it will "complement" the other aspects of the probe, filling in the background and the context to the arms deal. The findings from the inquiry will be included in a joint report that will be submitted by all the investigators to Parliament.

It is understood that some investigators' principal concerns have been that the inquiry could appear to the public to be a form of cover-up, and that it could damage their efforts to secure prosecutions. Some investigators have previously suggested that the hearing could publicly discredit witnesses, discouraging others from coming forward. They have also made the point that the usefulness of witnesses in subsequent criminal prosecutions could be undermined by their prior public exposure.

The Auditor General, Shauket Fakie, has previously insisted that the forensic probe be at an advanced stage before such an inquiry gets under way. The public protector's office said this was now the case. The problem raised by investigators is that culprits alerted to allegations against them could have time to destroy evidence.

However, there is also a more sanguine school of thought among some investigators that the inquiry is a well-intentioned, if slightly misguided attempt to provide background and context to the entire saga, and that is highly unlikely to create any real problems with the main probe.

The inquiry, which starts in Pretoria on Monday, will be run by the Office of the Public Protector, and could last for several weeks. Few details have been given about how the inquiry will work; it is indeed expected to start with an explanation of how proceedings will unfold, followed by a "scene setter". Fakie told Business Day this week that the investigators would also be given the opportunity at the hearing to present their preliminary findings.

When the inquiry was formally announced on May 10, a joint statement by all the investigating bodies said they would be careful to ensure that the inquiry broached only material that would not compromise the criminal and forensic probe.

The proceedings will not involve cross-examination. Some investigators have expressed fears that cross-examination could discourage witnesses and whistle blowers from coming forward. The opposing argument is that if the inquiry is to get anywhere near the truth, cross-examination is essential.

Nicholette Teichmann of the public protector's office said "there will be questioning, not cross-examination. The questions will come through the public protector, who will be assisted by advocate Stoffel Fourie from our office - he is our chief investigator - and two NDPP [National Director of Public Prosecutions] prosecutors."

Raenette Taljaard, a Democratic Alliance member of Parliament's standing committee on public accounts, said she has repeatedly and unsuccessfully sought clarity from the offices of the both auditor general and public protector about the format of the hearings.

Referring to earlier reassurances from the auditor general, Taljaard said in a follow-up letter to Fakie: "Names [of potential witnesses] are currently emerging and a month after our interaction those who are to appear before the team and their legal representatives are completely in the dark as to the procedures and format of what they will be subjected to." Fakie in turn referred Taljaard back to a representative of Public Protector Selby Baqwa, who was out of the country this week.

In its recent analysis of the arms deal saga, Idasa expressed several concerns about the hearing. "We are particularly concerned about witnesses possibly incriminating themselves," the organisation said, asking also whether witnesses would be able to refuse to reply to questions that could incriminate them. Idasa said there was also a danger the hearings would alert people being investigated. "The result will be that the investigation may be prejudiced in material respects." It adds, "The subject of the public hearings is highly sensitive and there may be instances where witnesses would not only seek protection from the state but would also not wish to disclose the source of their information. In such a case it is hard to see exactly what purpose would be served by public hearings."

Another area of concern is that the hearing, which will take place under the auspices of the Public Protector Act, could boil down to a case of one agency investigating another - the existing criminal probe stemmed from a preliminary investigation by the auditor general.

Idasa also said there was a danger the hearings "might have the effect of prejudicing the investigation itself".

Responding to questions by Idasa this week, the office of the public protector said this week the inquiry was launched because of the public interest in the saga. "The public phase will be conducted in a manner that will not compromise the forensic or criminal investigations."

Teichmann shrugged off suggestions the inquiry would interfere with future criminal prosecutions. "That has been thoroughly addressed. The forensic and criminal investigations have been done [in close concert] with the public phase, to make sure there is no clash ... There shouldn't be a problem at all. This is not a hearing, but a public phase of the investigation ... The public protector will treat all witnesses in a fair and just manner and will not allow anyone to be improperly prejudiced."

She said witnesses or potential witnesses have been notified but not been subpoenaed in an effort to "get everyone to participate freely".  

With acknowledgment to the Daily Mail & Guardian.