Erwin not cross-examined on arms deal as contracts still secret

The declassification and availability of key documents on Tuesday continued to be a stumbling block for the Arms Procurement Commission proceedings.

Lawyers for Human Rights declined to cross-examine former trade and industry minister Alec Erwin, because arms deal contracts had not been made available to its legal team.

The cross-examination of Mr Erwin was set to begin on Monday but was postponed to allow Lawyers for Human Rights to obtain the contracts, which contained secrecy provisions.

Mr Erwin was the first minister to testify before the commission. Others expected to follow include former president Thabo Mbeki, former intelligence minister Ronnie Kasrils and former defence minister Mosiuoa Lekota.

On Tuesday morning, evidence leader Barry Skinner SC told the commission that the documents requested included a 1999 affordability report in which the decision to procure the arms had been declassified, but that there had been problems obtaining the actual contracts.

Mr Skinner said although the contracts had not been marked "classified", there were provisions in them providing for information to be treated as confidential and should not be divulged to other parties that were not signatories to the contracts unless permission was given by the signatories.

Some of the parties to the contracts had not given permission for their release and in the absence of consent from all parties, the government seemed reluctant to disclose the contracts.

Insufficient time to prepare for cross-examination and the unavailability of crucial documents that remained classified has affected the commission’s smooth flow.

The commission, chaired by Judge Willie Seriti, is tasked with investigating allegations of fraud, corruption or irregularity in the acquisition of arms for the South African National Defence Force, which in 1998 cost R30bn.

Lawyers for Human Rights is representing former African National Congress MP Andrew Feinstein, and arms deal researchers Paul Holden and Hennie van Vuuren.

The group’s counsel, Anne-marie de Vos SC, said it was very difficult to argue that the commission was discharging its mandate without having regard to the terms of the contracts.

Ms de Vos said Mr Erwin had indicated in his statement there were certain terms in the contracts that were not in dispute.

"We have not seen the terms and that is why we seek the contracts," she argued.

Ms de Vos said the former minister had raised several issues before the commission, including the origin of the nondefence industrial participation, or offsets, as a policy tool and variations made to the terms and conditions of contracts that Lawyers for Human Rights "wanted to test" with him.

"It is impossible for me to know what questions to put to the witness without the information contained in the contracts," said Ms de Vos. Judge Seriti then suggested that Ms de Vos continue with the cross-examination while evidence leaders tried to obtain the contracts.

She said she would not want to adopt a piecemeal approach to cross-examination and preferred recalling the witness when all documents were available.

Marumo Moerane SC, for Mr Erwin, said Ms de Vos had elected not to cross-examine Mr Erwin and efforts to recall him later would be strenuously opposed.

Mr Moerane said it was surprising that the issue of contracts was so vital to a witness who had been out of the government for six years. In answering a question from Judge Seriti, Mr Moerane said Mr Erwin’s statement and evidence did not make any reference to the contracts.

Judge Seriti remarked that a number of officials from trade and industry had testified before the commission.

"I am surprised that contracts are now a major issue while people who applied the contracts methodically were never examined about the terms of the contract. Mr Erwin, you are excused. No one wants to cross-examine you," Judge Seriti said.

The commission will continue on Monday.