A six-page memo littered with contradictions and
inaccuracies informed the decision to end the probe into the
multibillion-rand arms deal.
Hawks
head Anwa Dramat's decision last year to close the decade-long investigation led
to an outcry from anticorruption campaigners and opposition parties.
The apparent flimsiness of the reasoning underlying his decision is reflected in
an internal memorandum, which was submitted to Dramat on September 14, a week
before he pulled the plug.
When shown the memo, arms deal campaigner Richard
Young charged: "The president and his ministers all preach the good fight
against corruption. Here are cases that are eminently winnable after having been
investigated in great depth and at great cost, but clearly prosecution was not
an option as they involved luminaries close to the president."
Democratic Alliance MP David Maynier recently obtained the memo from the police
under the Promotion of Access to Information Act. He had applied for "all
documentation relating to the decision to cancel the investigations" after the
Mail & Guardian revealed Dramat's decision last October. He was given no
further documents. "It’s hard to believe that this poorly drafted six-page
memorandum formed the basis of the decision to close the investigation into the
arms deal," said Maynier.
The Hawks did not respond to detailed questions, but spokesperson McIntosh
Polela played down the significance of the memo to the decision. "It is merely
an internal discussion document summarising the main points of concern. It
obviously does not provide for various consultations that took place about the
facts and the merits of the decision to close the investigation."
But the question remains whether the "consultations" would have been of greater
quality if the written "summary" had not been so poor.
Hawks commercial crime head Hans Meiring *1
submitted the memo to Dramat to recommend closing the probe. Meiring's
involvement is explained by the fact that Johan du Plooy, the veteran -- and by
then only -- investigator allocated to the probe, reported to him. Du Plooy did
not agree with Dramat's decision, according to third party reports.
The decision closed the investigation's last two active legs, which also
happened to be among the most explosive. The BAE Systems leg rested on evidence
that the British arms firm had paid more than R1-billion in "commissions" to,
among others, late defence minister Joe Modise's adviser, Fana Hlongwane. The
German Frigate Consortium (GFC) leg included allegations of a R20-million
kickback to Chippy Shaik, then head of defence procurement.
Hlongwane remains a confidant of senior ANC leaders. The M&G revealed
last year that he financed a R4-million home for Siphiwe Nyanda, now President
Jacob Zuma's parliamentary counsellor, when Nyanda retired as chief of defence
in 2005. Nyanda headed the defence force when the arms contracts were signed.
Chippy Shaik is the brother of Schabir, Zuma's former financial adviser, who was
convicted of corruption in the arms deal.
In broad strokes Meiring's memo argued that the right to a speedy trial could be
compromised by the passage of time since the deal "in the mid-nineteens [sic]".
It also states that companies, witnesses and evidence had disappeared, a proper
investigation would be resource-intensive, suspects had already died; parallel
foreign investigations had been closed; and it would be difficult to get
witnesses and evidence from abroad.
Some of the more questionable aspects of
Meiring's memo include:
- It is highly superficial
when measured against the gravity of the decision. The memo does not refer
to any specific suspects, witnesses, dates or evidence.
- Meiring’s grasp of the facts is tenuous. He calls BAE
Systems "British Eurospace", presumably after its former name, British
Aerospace. His claim that "the transactions relating to [the BAE]
investigation refer back to the mid nineteens" [presumably mid-1990s], omits
that the arms contracts were signed in December 1999 only and that allegedly
corrupt payments flowed until at least 2007.
- Meiring complains about the difficulty of getting
foreign evidence, such as financial flows and company documents, while
acknowledging that such information was already in the Hawks's possession
after foreign investigators had shared it informally. Although the
evidentiary value of informally obtained evidence is decreased, the evidence
is known and formal channels remain potentially available.
- Meiring complains about the difficulty of obtaining
evidence after years have passed, while admitting the existence of about
4.7-million pages of documents, secured in a 2008 raid on BAE, Hlongwane and
others. But this trove he turns into another negative, on the basis that it
would require further effort to "peruse and analyse".
- Meiring argues, contradictorily, that although "cost
implications to conduct an investigation cannot be a consideration … it
should not be ignored". He also complains that "a team of dedicate[d]
investigators and prosecutors would be required" -- although the appointment
of such teams is presumably standard in important, complex cases.
- Meiring claims that "the three suspects in the BAE leg
have all passed away". Modise, defence minister during the period of arms
procurement, and Richard Charter, one of BAE's local agents, have both died,
but the identity of the third suspect is a mystery. Certainly, Hlongwane --
who was regarded as a suspect because he could have influenced the deal as
Modise's adviser and subsequently received more than R200-million in
payments from BAE and its partners -- is alive and well.
- Meiring claims there is "no prima facie evidence
against any person" in the BAE matter, even though a South African judge
confirmed an offshore freeze on Hlongwane's funds as the "proceeds of
crime". Although he has denied wrongdoing, Hlongwane has not denied
receiving payments from BAE.
- Meiring dismisses the entire GFC investigation
involving Chippy Shaik in three paragraphs tacked on to the end of the
document, claiming that "the reason mentioned in the BAE case is also
applicable to the German Frigate Consortium case". This flies in the face of
firm evidence.
Shaik's alleged R20-million bribe is documented in Thyssen company memorandums
obtained in raids by German investigators and informally shared with the South
Africans. Thyssen is the lead company in the GFC. In one key memo Thyssen
executive Christopher Hoenings recorded that Shaik "asked once again for
explicit confirmation [of] the verbal agreement made with him for payment to be
made in case of success, to him and a group represented by him, in the amount of
$3-million".
Further corroborative documentation is understood to include an instruction in
which Shaik allegedly nominated accountant Ian Pierce to receive the payment.
German magazine Der Spiegel reported two years ago that Merian Ltd, an
offshore company represented by Pierce, received $3-million in April 2000, the
same month that South Africa paid the GFC the first instalment on navy vessels
ordered from it.
The M&G subsequently identified at least some flow -- five payments
totalling roughly R500 000 -- from Merian Ltd to a South African bank account
held by Pierce.
Whereas the police have now disclosed the Meiring memo to the DA's Maynier,
Parliament's standing committee on public accounts, which ordered the arms probe
in 2000, remains in the dark. Scopa chair Themba Godi said last week that after
the news of Dramat’s decision "I did a formal letter to [the Hawks] and they did
not bother to respond".
Godi later contacted police national commissioner Bheki Cele, who said he would
"talk to them", but still got no response *2.
Maynier said he would hand a copy of the memo to Godi so that Scopa could probe
Dramat's decision.