Secret documents haunt arms deal commission

Close to a year since the Arms Procurement Commission started its investigation into the arms deal, the classification of documents is still delaying the process.

These issues arose in August last year when the commission postponed its public hearings after the defence department requested urgent meetings to discuss the declassification of documents.

But the issue reared its head again today. Lawyers for Human Rights (LHR) advocate Anne-Marie de Vos refused to cross-examine former trade and industry minister Alec Erwin because she had not seen contractual agreements between the state and the companies that had won the bid to provide the arms.

The commission was adjourned yesterday so that the LHR could prepare to cross-examine Erwin regarding these contracts.

This did not happen today as the LHR was not provided with some of the documents it had requested, namely a confidentiality agreement for all parties involved in the deal (the “umbrella agreement”) and the National Industrial Participation Programme (NIPP) agreements. The NIPP includes contracts obliging foreign companies to provide investments and jobs in return for buying their arms.

Said evidence leader Advocate Barry Skinner: “The umbrella agreement and NIPP agreements … shall be treated as confidential by the parties and shall not be permitted to be divulged to any person not being a party to the agreement without the prior written consent of the other parties.”

Armscor lawyer Richard Solomons said the arms company did not have a personal objection to the release of the contracts and agreements, but the decision was not up to the body – it would be government’s decision.

But De Vos said her clients – Andrew Feinstein, Hennie van Vuuren and Paul Holden – had instructed her not to cross-examine Erwin without seeing the contracts.

“The interesting comment made by my colleague was that there are certain terms of the agreement that are not in dispute. But we have not seen the terms of the agreement,” she said.

She said the LHR wanted to see the contracts precisely so that they could see the terms.

“The contracts are important for this witness and many others to come,” said De Vos.

She said she would wait until the documents had been made available before cross-examining Erwin.

Judge Willie Seriti, chairperson of the commission, said: “If you decline to cross-examine the witness at this stage … I suspect that at a later stage if you come back to make an application to recall this witness, there will be various issues that you’ll have to deal with.”

Erwin was excused and the next witness was called but there were problems there too.

Evidence leader advocate Simmy Leballa said they could not lead the next witness, Armscor programme manager Fritz Nortje, because losing arms deal bidder Richard Young had continued to request documents for his cross-examination.

According to Leballa, the evidence leaders were not sure when Young would stop asking for the records as this interfered with their preparation of the witness.

“He has advised that there are volumes and volumes of documents that should be used with the testimony of Nortje. He has requested documents from Armscor and the commission and we’ve been advised that he’ll be using documents that we do not know of and cannot find,” said Leballa.

Seriti ruled that Nortje’s cross-examination would resume on Monday and no further time should be given to Leballa to prepare the witness.

But Young will not be allowed to make use of any documentation that he had not included in his affidavit.

The commission will resume on Monday.