Johannesburg - At the Arms Procurement Commission, even the constitution is a secret document.

The Star has tried for a week to get access to the documents on which the Department of Defence witnesses are giving evidence, but so far neither the documents nor an explanation for a refusal have been forthcoming.

On Monday, the commission again delayed providing a response and said the commissioners - judges Willie Seriti and Thekiso Musi - would respond on Tuesday on the issue. But no response was received by late on Tuesday.

It’s understood that the commission has been discussing The Star’s request for the documents since it was made last Wednesday. On Monday, the commissioners apparently met Department of Defence lawyers to discuss the matter.

The Star has asked what documents are in each of the bundles that relate to each witness for an indication of what, if anything, is classified in each bundle, and for sight of the documents. No information on the documents has been provided.

There have been hints from the commission that the blockage was with the Department of Defence.

But on Tuesday, the Department of Defence flatly denied this and put the matter squarely in the commission’s jurisdiction.

“These bundles we prepared for the commission as evidence from the defence force. It is for the commission to decide how to use them and who to give them to,” department spokesman Siphiwe Dlamini said.

“What the commission does with the documents is out of our hands.”

Dlamini didn’t know whether there were classified documents in the bundles or if any had been declassified.

So far only the witness statements and CVs have been handed out. One witness statement was stamped “Defence Intelligence: Declassified” and date-stamped Monday.

It’s the bundles of documents that each witness is discussing that are not available.

Assuming that all the documents the witnesses refer to are included in the bundles, this means the constitution has effectively become a secret document at the hearings.

Last week, Rear-Admiral Alan Green referred repeatedly to the constitution.

This presumably means a copy of the constitution is in the bundle of documents relating to his evidence.

The commission’s commitment to transparency has been referred to several times.

“The public nature and transparency of this process is absolutely critical to its success,” evidence leader Tayob Aboobaker SC said last week.

On Friday, evidence leader advocate Simmy Lebala SC said: “The principles of this commission are transparency and accountability, and this commission has demonstrated that so far.”

The failure to make the documents used in evidence available to the public means that the witnesses and evidence leaders refer to information in documents - often identified merely by a page number and paragraph reference - to which the media and general public don’t have access. This makes much of the evidence incomprehensible and frequently meaningless.

For example, during Monday’s hearing Rear-Admiral Philip Schoultz discussed the use of the navy’s four frigates and three submarines, but Schoultz and Lebala referred throughout to a document that was not released - there were indications in the hearing that parts or all were classified.

The commission was supposed to start the public hearings on August 5, but postponed it for two weeks. Partly because of quorum problems, but also because the Department of Defence was supposed to sort out the declassification of documents.

It’s not clear what purpose the postponement served if the documents to be used were not declassified, or if they were declassified - or never classified - but would not be made available anyway.

louise.flanagan@inl.co.za

With acknowledgement to Louise Flanagan and Independent Online.