Photo by Sunday Times | Patricia de Lille

 Arms deal - Secrecy clause invoked

“I’d like to see if the investigators have the real desire to uncover the truth and not for it to be another cover-up” - Gavin Woods
 
Cape Town mayor Patricia de Lille and retired banker Terry  Crawford-Browne have told the FM that they will be handing over their submissions to the arms deal commission within two weeks.

But these submissions will not be made public. According to the commission’s regulations, which were signed by President Jacob Zuma, this would be an offence. This despite the fact that most of the documents that Crawford-Browne and De Lille intend submitting are already in the public domain.

Says De Lille : “I find it strange that the commission would want to keep my submissions secret despite the fact that most of the information contained in those submissions would include what’s become known as the ‘De Lille dossier’. Some of the information in that dossier has led to two successful prosecutions in the cases of Schabir Shaik and Tony Yengeni. It is part of the public record in both the supreme court of appeal and the constitutional court”.

Crawford-Browne concurs. He also intends making his submission “on or before the 19th of this month” and his submissions are, in part, already a matter of public record at the constitutional court . “I insist on making my submissions public; I have nothing to hide.”

As things stand under the regulations of the commission, which forms part of the Commission Act of 1947, any document submitted or destined to be submitted to the commission without the written permission of Judge Willie Seriti cannot be made public. And in the event that the regulation is contravened, a person convicted of this offence shall be subject to “a fine not exceeding R200, or imprisonment for a period not exceeding six months”. Just on what basis these highly divergent punishments would be meted out is unclear.

Spokesman William Baloyi says the commission does not want the submissions made public as it wants to “ safeguard the integrity of the commission by ensuring that it is not competing with a parallel public process ... ”

University of Cape Town law professor Pierre de Vos says: “Even if the regulations had good reasons, they seem far too broad. By making secrecy the default position, it’s only a matter of time until they’re challenged and their constitutional validity tested.”

Other prominent witnesses such as Richard Young, the defence contractor whose affidavit formed part of Crawford- Browne’s constitutional court application, tells the FM that he will be delaying the filing of his submissions until the very last minute as he needs all the time available to complete it.

“It’s not just a question of making the submissions public. The way the commission has been set up reminds me of the public protector hearings back in 2001, when anyone making submissions had to be prepared to face the cross- examination of experienced senior counsel trained to break you. That’s why you need to have your own legal team, which often means a senior counsel who works with a junior counsel, who also works with an instructing attorney. The last time I went through something like this, I spent approximately R120000 in 2001 money,” says Young.

The commission allows for people appearing before it to be assisted by an advocate or attorney, but the regulations say that it will be at their own cost.

The other area of concern that may put witnesses off is the issue of cross-examination. In the case of De Lille in 1999, when she first mentioned the allegations contained in her dossier to parliament, there was legal protection. This protection will not be there during the commission process.

Gavin Woods, a former chairman of parliament’s standing committee on public accounts , has decided not to make a submission unless summoned to do so. He told the FM that “with all the uncertainty surrounding the commission right now, I’d like to wait and see if the investigators have the real desire to uncover the truth and not for it to be another cover-up ”.