PRESS RELEASE: Setting the record straight on access to key evidence from the Arms Procurement Commission

Andrew Feinstein, Paul Holden and Hennie van Vuuren, represented by Lawyers for Human Rights, have responded to Judge Willie Seriti’s request for a detailed list of documents and evidence that has, so far, not been delivered by the Arms Procurement Commission despite numerous appeals.

Repeated requests for documents
During the cross-examination of former finance minister Trevor Manuel on 12 June, Judge Seriti requested that LHR provide a further list of outstanding documents already requested. Welcoming this request, correspondence containing the full list of these outstanding documents was sent to the Commission on Tuesday, 17 June. These documents, detailed below, are either in the Commission’s possession or fall within the Commission’s ambit to obtain.

On 12 June, the Commission’s secretariat suggested before the Commission that the repeated request was unreasonable, arguing all relevant documents had now been supplied. This is not correct, as our attached annexure of outstanding documents demonstrates - the majority of requests over the past 17 months (since February 2013) appear to have been largely ignored. It is important to note that these documents are vital in enabling us to prepare properly to give our evidence during phase II of the hearings, expected to begin in July.

As detailed in Annexure A (attached), a number of requests were repeatedly sent to the Commission, including:
• Documents held by the Department of Trade and Industry, mutual legal assistance requests by SA law enforcement bodies, minutes of meetings of specified committees regarding the Arms Deal and other reports held by law enforcement agencies;
• A copy of the ‘Supply Terms Agreement’ referred to in Robert Vermeulen’s statement;
• A copy of the ‘Debevoise Plimpton Audit’, which reveals from the inside alleged bribery and corruption by one of the successful bidders (Ferrostaal). The document is available on the Mail & Guardian website but we understand that the Commission will not accept this as admissible evidence; 

• All documents setting out the procurement system required by section 217(1) of the Constitution;
• The final report on an impact assessment undertaken at Denel Saab Aerostructures (Pty Ltd) related to an aerospace project within the Industrial Participation Programme Vols 1 and 2, 2010, NAD Auditors Incorporated. The Department of Trade and Industry has confirmed it has no objection to the use of the whole document. On 4 February 2014, LHR was permitted to hand up and refer to only two pages of the document. The reason given by the Commission was that it “already has too many documents in its possession”;
• Documents forming part of the investigation by the Directorate of Special Investigations (over 4-million pages);
• In our letter of 30 April 2014, we stated that we assumed all the documents listed in Annexure A to that letter are in the possession of the Commission, as they are directly relevant to the enquiry. At the time we received no answer on whether these documents were in the Commission’s possession and if not, what steps would be taken in obtaining them.

Reasons for requestsThe Commission has the statutory power and presidential mandate to investigate the Arms Deal. It also has the duty to seek out and obtain information that may be relevant, to consider its relevance and make it available to interested parties so that its accuracy and other evidence may be tested and assessed. The Commission should obtain, examine and make available these documents. It is not enough to rely exclusively on interested parties to produce the documents they wish the Commission to consider.

This leads to fundamental unfairness and may prevent the truth from emerging if these documents are not produced and made available to us ahead of our evidence and cross-examination. To do otherwise disables us from assisting the Commission in the performance of its function.
Next steps

The Commission has been asked to respond to this request within 14 days of the date of this letter (01 July 2014).

The work of the Commission should not be reduced to a dispute between its office-holders and witnesses who seek no personal gain from the Commission. Instead, the Commission should be leading the struggle for openness and transparency to ensure it fulfills its mandate and gets to the bottom of the controversial Arms Deal, something it has so far failed to do, undermining the public’s right to know the truth.