On the controversial transaction itself, the Commission heard evidence from fifteen witnesses. In addition, as set out later, the nature of the Commission's proceedings - whether they were to be in open session or to a greater or lesser extent behind closed doors - proved to be a matter of sometimes acrid controversy. While all parties supported the principle of open hearings, they differed emphatically on the extent to which this was to be implemented in practice. Three further witnesses accordingly testified about whether certain documents should be withheld from public disclosure and certain proceedings be closed to the public.
Parties represented:Representative(s):
including:
Ms J R Adendorff
Mr L P Cilliers
Mr T J de Waal
Mr B R Retief
Mr D Robinson
Brigadier A Savides
Mr P C Smith and
Mr J J van Dyk
The principle of public hearings is contained in section 4 of the Commissions Act, 8 of 1947 which (subject to a proviso giving the chair a discretion to exclude persons whose presence in his opinion is 'not necessary or desirable') reads as follows:
Sittings to be in public. - All the evidence and addresses heard by a commission shall be heard in public: ...The new Constitution (Republic of South Africa Constitution Act, 200 of 1993) enshrines this principle as the basis of public conduct: see sections 33(1)(a)(ii) and 35(1), and constitutional principles VI and IX. The Constitution as a whole reflects a strong emphasis on openness and accessibility in the affairs of government and state agencies. The Constitution constitutes a new founding charter against which all governmental action, including legislative, judicial and executive action, must be judged. This embraces the conduct of statutory bodies such as this Commission, and indeed of Armscor, who must look to the fundamental tenets of the Constitution in exercising their powers and regulating their proceedings. Armscor enters into transactions with individuals, agencies and other countries in the name of South Africa and does so as an institution subject to the Constitution. The Commission considers that the public therefore has a basic right to know how its money is being spent and what is being done in its name.
The importance of this basic right is in our view not diminished by the fact that Armscor deals in weapons and related equipment. On the contrary, as indicated earlier, the public has a right to know whether South Africa is selling arms for the purpose of self-defence, or for external aggression, or for internal repression by the recipient state.
Certain parties urged the Commission to adopt a deferent approach towards the Executive in determining which documents should be released and which should be withheld from the public. The Commission accepts that the Executive is responsible for the conduct of South Africa's foreign and trade policy. How this is to be pursued is, however, is an important matter for debate. The public has the right not only to participate in the debate, but to have access to the facts and considerations on which it is based.
In any event, the Commission was itself appointed by the Executive, under a statute which requires that evidence and argument be heard in open sitting. The Commission's appointment, and terms of reference, were themselves indications that the Executive wished to foster public debate about Armscor, about the controversial aspects of its activities, and about the wisdom and desirability of the arms trade in which it participates.
It also seems to the Commission, as indicated by its appointment and terms of reference, that a substantially open inquiry is in the interests of government. South Africa's emerging foreign policy seeks to ensure that the country overcomes the pariah status it acquired under apartheid, and that it is accepted as a responsible member of the international community. A substantially closed hearing into Armscor, which admits to having operated on the illicit market for many years, would not advance this important goal.
Apart from personal safety and national security, the parties' arguments persuaded the Commission that commercial requirements for confidentiality might sometimes be a legitimate consideration in withholding facts and identities from disclosure. But the Commission took the view that commercial and contractual considerations, including the risk that their exposure may result in penalties, forfeitures and contractual cancellations, could not be paramount in determining applications for secrecy. They had to be weighed against a range of ethical, legal and public policy considerations.
It was argued that it was not the responsibility of the Commission to balance moral and legal questions; and that to place any weight on moral and ethical considerations would be inappropriate. The Commission does not agree. The end of apartheid had profound consequences for all institutions in our country, including commissions such as this. To speak of 'the apartheid era' is not, as was suggested, merely to invoke an 'emotive term'. On the contrary, the Preamble of the Constitution recognises that 'there is a need to create a new order' after apartheid. The Postscript evidences the need to move away from 'the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice'; it attempts to lay the foundation for South Africa 'to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge'.
That commitment had to find legitimate expression also in the work and proceedings of the Commission. Unlike the previous legal order, the new Constitution explicitly incorporates ethical norms and endorses, in particular, the principles of accountability, openness, and respect for international law. Our commitment to taking into account relevant moral and ethical considerations thus took account of the Constitution itself.
The Commission therefore did not consider itself obliged to protect arms dealings which promoted or perpetuated apartheid, or foreign parties who contravened the UN arms embargoes against South Africa. The Commission is likewise not obliged to protect foreign parties which used South African arms for aggressive or repressive purposes.
The Commission also observes more generally that the concept of 'national security' may be invoked to inhibit public debate on political and social problems. Thus, in South Africa, a mass of legislation was introduced under apartheid to preclude comment on the armaments and nuclear industries and other issues. The Commission sought to find a balance between too broad and too narrow a determination of national security and national interest. In another ruling, the Commission declined to grant Mr M T S Vermaak an order prohibiting the disclosure of his name, identity or the details of his office at Armscor, or the publication of his photograph. The Commission ruled that the evidence of personal threat to Mr Vermaak was vague, insubstantial and altogether lacking in the sort of cogency required for the public to be deprived of access to his details.
The most controversial of the Commission's rulings on openness concerned a 'logistics pamphlet' dated 15 October 1993, and referred to as 'Log 17 Pam 19', emanating from the SANDF. This contains a list of countries to which South Africa may or may not sell armaments. Extensive evidence and argument sought to persuade the Commission to disbar the public from access to the log pamphlet. When the Commission refused, its ruling was challenged on review in the Supreme Court, but these proceedings were withdrawn. In its ruling, the Commission accepted that many aspects of defence and foreign policy could not be conducted in public. It none the less held that this is not an appropriate area for the public to repose an unqualified degree of trust in the government. The public has a right to know as much as is reasonably and practically possible about armaments transactions. This is not only an intrinsic right in a society committed to openness and democracy - which the Constitution proclaims - it is also an important instrument in furthering the human rights concerns, both locally and internationally, which underlie our new constitutional order. Part of the justification for urging non-disclosure was a concern with embarrassment, to both the present government and governments abroad. The Commission did not accept that 'embarrassment' or discomfiture, in consequence of the revelation that many countries had traded with pre-transition South Africa (despite their protestations to the contrary, and in defiance of a UN embargo), constituted a good basis for non-disclosure. In the first instance, the Commission's terms of reference require it to investigate arms transactions which may have violated 'any international embargo': it could hardly have been contemplated that the Commission would give protection to any party, governmental or otherwise, that was involved in such a violation.
It was also urged that no decisive dividing line could be drawn between the interests of the previous government in this regard, and the new Government of National Unity. The Commission took the view that this approach was profoundly mistaken. The transition to democracy in our country, and the advent of a new government, have been hailed world-wide as morally momentous. This break with the past underlay the Commission's approach. In the Commission's view, it was of great significance that the log pamphlet was dated October 1993 and thus emanated from the pre-transition government, and that the Executive of the Government of National Unity was in the process of revising the document.
The Commission was told that diplomacy and arms transactions require a measure of secrecy: yet it is precisely secrecy that creates the conditions for subterfuge, duplicity, abuse of power, corruption, malpractice and irresponsibility. The right of the public to know, where reasonable and practicable, had therefore to be asserted.
The Commission accepted that no decision as to disclosure in this area can be without risk of harm, or without anxiety as to its consequences. That risk, in the present case, was not sufficient to entitle the Commission to bar from the press and the public their important right to examine our past, including past armaments dealings, regardless of the embarrassment this might cause to the new government or other countries.
The final ruling on openness concerned the question whether the Commission should conform to the conditions set by a witness, Mr M Steenberg, whose evidence was material to its inquiry, but who was outside its jurisdiction. Mr Steenberg offered to testify subject to the stipulation that certain interested parties, especially the media, were excluded from his testimony.
Despite urgent argument to the contrary, the Commission ruled that the concession could not properly be made. The Commission weighed the materiality and potential value of Mr Steenberg's evidence against the terms on which he proposed to deliver it. It held that the process by which testimony is gathered is obviously relevant to its probative value. By barring the media and excluding materially interested parties from its proceedings, the Commission would attenuate the value of the very evidence sought to be placed before it. This was not merely because relevant cross-examination would be excluded if interested parties were absent. It was also because secrecy pollutes the quality of testimony. An open session is itself a powerful instrument in truth-gathering, since publicity helps to ensure the trustworthiness and completeness of testimony.
The Commission, in any event, placed an independent value on the manner in which it executed its mandate. How one attains the truth, or the closest practicable approximation to the truth, may be as important as the attainment of the truth itself. The Commission is a statutory body operating under the Constitution. It is not merely a fact-gathering or fact-finding machine. The manner of the Commission's working is itself of public import and, in the fulfilment of its terms of reference, the Commission is accountable to the same public to which the Executive is responsible. The public credibility and accountability of this Commission are themselves conditions of the creditworthiness of its findings. If this were otherwise, the Executive could have appointed an internal investigator into the impugned transactions, who could have concluded the inquiry speedily, cheaply and in secret.
Three Armscor witnesses refused to answer questions on the basis of the privilege against self-incrimination: Mr G J Bronkhorst; Mr D Robinson; and Mr M T S Vermaak. The former two did so on isolated occasions. Their refusal did not substantially impede the Commission's work.
Mr Vermaak, by contrast, refused to testify on all significant aspects of his conduct in the Wazan transaction. Acting on legal advice, he reserved the right to decline to answer any question which might, in any conceivable way, relate to the controversial Wazan transaction. He thus refused to state even where or when he had first met Mr Wazan.
The Commission ruled on numerous occasions that Mr Vermaak's extremely broad refusal to answer questions was legally unjustified. The Commission's officials have been instructed to bring the matter to the attention of the Attorney-General of the Witwatersrand for appropriate action in terms of section 6(1) of the Commissions Act, which makes it an offence for a witness to fail 'to answer fully and satisfactorily any question lawfully put to him'.
Mr Vermaak's refusal to answer questions, whether legally tenable or not, made the Commission's work considerably more difficult. He was the author of certain documents pivotal to the course of events. He alone of the witnesses could explain his written reports of certain crucial meetings. He was best able to elucidate the financial calculations and the flow of funds, which at first seemed mysterious and in certain respects even incomprehensible. He acted on behalf of Armscor at virtually every stage of the impugned transaction. His state of mind, his knowledge and his intentions were central to what took place.
Enticing glimpses of Mr Vermaak's account appeared from his lawyers' cross-examination of other witnesses. The version they put appeared palpably flawed and even insupportable. But the Commission was deprived of the benefit of whatever persuasive powers or plausibility Mr Vermaak may have been able to muster in advancing that version.
However much Mr Vermaak's refusal to answer questions complicated the Commission's task and protracted the proceedings, it did not prevent the Commission from attaining a reasonably exhaustive appreciation of the facts. Particularly after hearing the evidence in Switzerland of Mr M Steenberg, Mr J der Hovsepian and Prince Anwar F Al-Shaalan, the Commission is confident that, assisted by argument, it has been able to determine the facts relating to the Wazan debacle.
After careful deliberation, the Commission took the view that it would not be appropriate for it to lend its support to any initiative in this direction. This was for two principal reasons. First, an advance indemnification against prosecution, without prior 'confession' or disclosure, would render no assurance that any witness would testify truthfully or fully. The comparable provision in the Criminal Procedure Act (section 204 of the Criminal Procedure Act, 51 of 1977) empowers a court to grant a witness 'discharge from prosecution' after he or she has, in the opinion of the court, testified 'frankly and honestly'. This powerful inducement to candour and completeness was not available to the Commission.
Second, as the Commission was deliberating this issue, a larger national debate was taking place about the establishment and operation of the Truth Commission. That debate concerned, fundamentally, the terms on which our nation will re-examine its past, and deal with the injuries apartheid caused. The Commission was reluctant to anticipate the part that illegal arms sales may play in that process by endorsing, in advance, the claim to indemnity by Armscor officials.
While the inquiry into the Wazan transaction has been lengthy and arduous, the Commission is of the view that these proceedings were none the less not unduly protracted. This view derives from the following considerations.
2.6.1 Complexity of issues and bulk of documentation; quasi-judicial nature of proceedings
The Wazan transaction proved to be complex beyond expectation, and unearthing the truth about it a matter of great intricacy. No simple 'conspiracy theory' (or theories) proved adequate to explain the events, and no witness came forward with spectacular revelations. The facts about the transaction, and the most plausible inferences to be drawn, had to be established in the manner most familiar to South African lawyers: by patient adducing of evidence, with sufficient leeway to parties with interests at stake to examine and cross-examine witnesses; by painstaking examination and comparison of documents; and by careful analysis of inferences and probabilities.
The documents relevant to the transaction filled many volumes. Armscor made available to the Commission twenty two large volumes of documentation. Fifteen exhibit sequences - some totalling many hundreds of pages - became part of the record.
The evidence was complex and susceptible to more than one interpretation. Some interpretations, which looked inviting at the outset but were later discarded, would if adopted have been most prejudicial to certain of the witnesses and organisations. Fairness and accuracy therefore demanded an exacting, scrupulous and even exhaustive approach. For this reason, the Commission gave the parties represented before it adequate latitude to cross-examine witnesses, submit documentation and challenge adverse interpretations.
The parties' legal representatives in the performance of their professional duty took full advantage of this. Their endeavours have been indispensable. If the proceedings have been lengthy on this account, then performance of the Commission's mandate made it unavoidable.
2.6.2 Open sittings: impact on efficacy and duration of Commission
Some commentators were critical of the Commission's insistence on open proceedings. Thus, during an interpellation in Parliament on 15 March 1995, Mr W N Breytenbach, MP, former Deputy Minister of Defence, put certain questions during an interpellation to the Minister of Defence (see appendix four). One of Mr Breytenbach's inquiries was whether there was 'any connection between the drawn-out nature of proceedings and the Commission's religious adherence to the principle of public hearings'.
The Commission, after expressing its appreciation to Mr Breytenbach for his questions, expressed the view that its adherence to the principle of public hearings could not appropriately be described as 'religious'. On the contrary, bearing in mind that the principle of public hearings originates in section 4 of the Commissions Act, 8 of 1947, and is now enshrined in the new Constitution, the Commission's adherence to the principle may best be described as legal and constitutional.
No witnesses have to the knowledge of the Commission refused to testify because of the public hearings. Mr E Wazan himself declined to testify. But since the authorities in Lebanon are seeking him on criminal charges, including charges arising from the relevant transaction, he has doubtless had other reasons for his unavailability. In any event, as in the case of the attenuated testimony of Mr Vermaak, the Commission considers that Mr Wazan's absence did not prevent it from approximating the truth regarding the AK 47 debacle.
In its quotations from documents or the evidence, in preference to inserting the offensive 'sic', the Commission has occasionally corrected what appear to be mere errors of grammar, syntax or semantics.
the finding must be based on some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory (at 210c-d).
In addition, the Commission wishes to express its appreciation to the SANDF staff members who assisted its operations. These included Lieutenant General B S Raubenheimer, Brigadier A Boonzaaier, Brigadier T J Botha, Brigadier A J van Niekerk, Colonel J P Nel, Captain S Naude, Warrant Officer 1 J A J van Heerden, Flight Sergeant P Fick and Corporal M Smith.
Ambassador A Jaquet and the staff at the South African Embassy in Berne, Switzerland, afforded hospitality and assistance during the week in which the Commission convened there.
The Commission's own staff included Advocate Brian Sheer, a senior staff member from the office of the Attorney-General of the Witwatersrand; Mr Bastiaan du Toit (until December) and Mr Donald McDonald du Plessis (thereafter), both from the prosecutor's office at the Pretoria Magistrates' Court; and Ms Charmaine Engelbrecht. Adv Sheer was responsible for leading the evidence, but undertook in addition an inordinate load of responsibility for the running of the Commission. We extend our gratitude to all of them.
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