New evidence to be filed as part of a court case taking the arms deal commission of inquiry’s findings on review purports to show that the commission ignored critical evidence, ignored the advice and documents provided by local and international investigators, and ultimately, through wilful ignorance or incompetence, did not do its job.
Corruption Watch and Right2Know filed a supplementary affidavit on Thursday, based in part on a record of the commission’s work provided to them as part of their court case.
Speaking to News24 on Thursday, the organisations said the commission's own record showed up the holes in its investigation, which ultimately led to a "whitewash" of the multimillion-rand arms deal scandal.
Paul Holden, who has researched the arms deal extensively and appeared at the commission and part of the team pursuing the case, said the record showed that, in the early days of the commission, investigators seemed enthusiastic.
They met with investigators from Europe, Britain and South Africa, gathering heaps of documents. There appeared to be a real willingness to find out whether the deal was tainted by corruption.
But as the commission went on, this attitude changed, and many key commission members resigned, alleging a cover-up. It now appears as if the commission's record backs up their allegations.
In 2016, then-president Jacob Zuma released the findings of the commission. The commission said it found no evidence of fraud or corruption, or of undue influence in the awarding of the contracts, and that the awarding of contracts was not influenced by "improper motives or criminal shenanigans".
Zuma is currently fending off corruption charges related to the arms deal. Together with his co-accused, French arms dealer Thales, Zuma is on trial for 783 questionable payments he allegedly received improperly, in exchange for saying he would protect the company from possible future criminal prosecution.
Shortly after the commission's findings were released, Corruption Watch and the Right2Know campaign announced that they would take the commission's findings on review.
The organisations say that, during its three-year-long investigation, the commission failed to look at "massive evidence" of corruption.
About 18 months later, the applicants received 27 lever arch files from the commission - the "record" of its investigation - which were filed as part of the commission's response.
Holden and the other applicants say the record is likely much bigger, given that the commission had at least two shipping containers full of documents, and these were just from the Scorpions' and later the Hawks' investigation.
Holden says that the record shows that the commission was given massive amounts of information from Britain's Serious Fraud Office (SFO) and the Scorpions, and that international authorities were more than willing to assist them.
The Scorpions and the SFO pointed them to important aspects of the arms deal that the commission did not investigate further.
These include an instance where a senior politician had an "intimate dinner" with arms deal company representatives, and where a legal representative for another senior politician allegedly received suspicious payments.
In its report, the commission said it had met with the SFO and that it was told they had nothing more than what they had given to the Scorpions during their application to conduct raids on Zuma's home and offices when he was first charged with corruption.
But Corruption Watch and R2K say this is not true. They say the record shows the Scorpions gave the commission evidence that was not used in that application - and that the Scorpions' investigators went out of their way to point out relevant evidence to the commission.
Much of the information that the Scorpions and SFO gave to the commission points directly to possible criminality.
Some of it is not necessarily criminal, but should have been of interest to a commission of inquiry, the applicants say, as it shows that there were politicians who behaved inappropriately, at the very least, with arms deal companies.
This should have led to the commission asking questions about whether the awarding of contracts was improperly influenced, the applicants say.
In its early days, the commission appears to have been particularly interested in emails between the Scorpions and the SFO, exchanged during the 2007 investigation.
These emails were provided to the commission and are further evidence of what these investigators were following up, but the commission ultimately took the matter no further.
The applicants also say the commission said it had tried and failed to get help from the German authorities, who were also investigating the arms deal.
But the applicants say there are memos and correspondence in the record, not previously known about, that prove that the commission simply did not submit the right information to the Germans for their request for mutual legal assistance.
The Germans were not unwilling to co-operate.
But by the time the commission gave the Germans the right documents, it was just months away from closing its investigation, leaving no time for investigators to properly engage with the German evidence.
The SFO even told the commission that the evidence it was willing to provide was so voluminous that it would take a long time to gather, and asked the commissioners to provide it with key words or phrases so that the necessary evidence could be traced.
The commissioners didn't take up the offer, the applicants say.
Ultimately, no foreign investigators were called to testify at the commission, and only one Hawks investigator was cross-examined. He was the final investigator in the Hawks investigation, which was systematically shut down.
Holden says the commission did not look at the documents contained in the shipping containers either, raising questions about its willingness to get to the truth in its investigation.
Corruption Watch's David Lewis told News24 that, in the light of the Zondo commission of inquiry into state capture, it is important for the public to be vigilant about ways these commissions could be used to hide wrongdoing.
He said the public was also fatigued by previous commissions of inquiry which did not end in anyone being held accountable, adding that the case was critical if the public was going to trust the work of these commissions again.
The commission's office number, as well as cellphone numbers that used to belong to its team, are no longer operational.
The commission no longer exists on paper, but News24 was told that the state attorney's office was responding on its behalf. The Department of Justice said that it could not comment, as the commission technically no longer exists.
The Presidency, a respondent, was not immediately available for comment.
Former commissioners Judge Willie Seriti and Judge Thekiso Musi are not opposing the application.