Open Secrets & Shadow World Investigations | Daily Maverick | 20 August 2020 |
Our complaint has been submitted in line with the Judicial Services Act which allows for complaints to be filed where judges are guilty of either ‘gross misconduct’ or ‘gross incompetence’, among other things.
We have submitted a complaint to the Chief Justice about the conduct of Judge Willie Seriti and Judge Hendrick Musi. Both judges presided over the Commission of Inquiry appointed by then-President Jacob Zuma to investigate corruption and wrongdoing in the Arms Deal. Judge Seriti served as the chairperson (hence the Commission being referred to more frequently as the Seriti Commission), while Judge Musi was co-commissioner.
In April 2016, the commission reported its findings – that there was absolutely nothing wrong with any aspect of the notorious Arms Deal. The findings were received with incredulity as they contradicted huge volumes of evidence, not least two successful convictions (Tony Yengeni and Schabir Shaik), and the prosecution of Jacob Zuma and arms company Thales.
In August 2019, following a complaint by Corruption Watch and Right2Know, the High Court set aside the Seriti Commission report. In a scathing judgment, the court found that the Seriti Commission “failed to enquire fully and comprehensively into the issues which it was required to investigate on the basis of its terms of reference”.
Our complaint has been submitted in line with the Judicial Services Act. The Act allows for complaints to be filed with the Chief Justice as the chairperson of the Judicial Services Committee. The Act allows complaints to be filed where judges are guilty of either “gross misconduct” or “gross incompetence”; where their conduct was “incompatible with or unbecoming to the holding of judicial office”; and was “prejudicial to the independence, impartiality, dignity, accessibility, efficiency or effectiveness of the courts”.
It also allows for complaints to be filed where judges have violated the judicial code of conduct, which requires that “a judge must always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office”.
We have also asked the Chief Justice to consider referring aspects of the commission’s work to the NPA for potential criminal investigation.
Documents discovered as part of the court proceedings launched by Corruption Watch and Right2Know raise serious questions about whether the commission’s final report accurately recorded what happened when the commission approached an arms company in the US and authorities in the UK. In both cases, the commission stated it had been told that the people they were consulting had no evidence of corruption; but documents released as part of the High Court application cast doubt on the accuracy of these accounts. If the commissioners knowingly misled the public in their final report, this would constitute fraud.
Contortions and absurdities
In order to reach their findings, the judges had to twist themselves into ridiculous contortions in order to ignore evidence that was in front of their eyes.
The High Court application to overturn the commission included many examples of this, but perhaps the most absurd and outrageous example is the commission’s failure to acknowledge the existence of a well-recorded and easily available legal settlement between BAE Systems and the State Department.
In 2011, the US Department of State entered into a settlement with BAE Systems. This followed a similar settlement reached by the Department of Justice the previous year. Both settlements made headline news in the US, the UK and South Africa.
The two settlements, when read together, showed that BAE Systems had used an elaborate offshore structure (called Red Diamond) to make payments to “advisors” on multiple deals in a number of countries. The system was set up offshore specifically to make it difficult for law enforcement to investigate.
Moreover, BAE admitted in the Department of Justice settlement that it made payments to ‘advisors’ using this structure “even though in certain situations there was a high probability that part of the payments would be used in order to ensure BAE was favoured in the foreign government decisions regarding the sales of defence articles”.
In the Department of State settlement, it further admitted that BAE “or its representative Red Diamond made payments to brokers involved in securing the sale to South Africa. [BAE] failed to disclose the payments as required”.
The important point, here, was that both settlements had to be read together. The Department of Justice settlement established how Red Diamond was used to pay agents to win contracts despite a “high probability” that the money would be used to gain favour for BAE in foreign contracts, while the Department of State settlement confirmed that BAE had made payments using this system to win its South African contracts.
The Seriti Commission, absurdly, appeared to pretend that the Department of State settlement did not exist. Indeed, the commission referred to it as the “alleged” Department of State settlement in its final report. The commission explained this conclusion by recounting a meeting with Department of Justice officials where said officials implausibly said they had never heard of the Department of State settlement.
In addition to the settlement being sent to the commission by SWI’s Andrew Feinstein and Paul Holden, the Department of State settlement was, and still is, available from the Department of State website.
Here’s an exercise: Google Department of State BAE Systems
Now click the first result.
Congratulations, you just did more work than the Seriti Commission.
Misconduct and the need for accountability
We believe that the failure of Judge Seriti and Judge Musi to do their job as commissioners to investigate the Arms Deal was an act of serious and profound misconduct that stains the reputation of the country’s judiciary.
It robbed the country of a once-in-a-generation chance to finally get to the bottom of the Arms Deal rot, and start prosecuting the bribe-payers and bribe-takers. It was a heinous waste of over R100-million that was spent to pay the salaries of commission staff and cover the commission’s many expenses.
Instead, the country will continue to be beset by a slow drip of new evidence of serious corruption in the Arms Deal: just see, for example, the new details of how General Siphiwe Nyanda openly, and with obtuse self-confidence, admitted that he took out a home loan with Arms Deal mega-agent Fana Hlongwane while serving as chief of the SANDF. And, all the while, the European arms companies that so corrupted our young democracy have faced zero justice or accountability – instead profiting off contracts for weapons South Africa never needed and hasn’t properly used.
A fair, functional and trustworthy judiciary is at the very heart of democracy. If the public loses faith in the ability of the judiciary to fairly and competently consider matters brought before it, the fabric of South Africa’s constitutional order would unravel with alarming speed.
Judge Seriti and Judge Musi failed to do their job in investigating the Arms Deal, yet they continue to be honoured with the title of judge – and benefit from a large state pension which they receive in perpetuity. They could conceivably be called, as retired judges, to oversee other commissions of inquiry.
In the face of their actions, their continued holding of judicial title besmirches the reputation of the judiciary and the public’s faith in this most critical institution.
It is imperative that the Chief Justice apply his mind to these most pertinent of facts and refer both Judge Seriti and Judge Musi to the Judicial Services Commission with all due haste.