More than two years after the high court set aside the report of the arms deal commission, retired judges Willie Seriti and Hendrik Musi have applied to appeal the judgment, saying it “is being used as a whip to harass us”.
In court papers, the two judges — who made up the arms deal commission's panel — suggested that an appeal would be in the public interest.
“Whether or not the findings of a commission of inquiry can be set aside and reviewed on the basis that [the court] has done is a matter of public importance. There are very important commissions of inquiry which have been set up in recent times and no doubt will also be set up in the future.”
But in an answering affidavit, Corruption Watch’s Karam Singh said their application is “hopelessly late” and their public interest claim “patently not the truth”. The two are trying to avoid accountability for their own judicial misconduct, he said.
The arms deal commission report in 2016 controversially found no evidence of corruption, fraud or malfeasance by senior politicians and government officials in the infamous Strategic Defence Procurement Package. “They thus remain wild allegations with no factual basis,” said the report.
In 2019 the high court set the report aside. It found that uncontested evidence before it revealed a “manifest set of errors of law, a clear failure to test evidence of key witnesses, a refusal to take account of documentary evidence which contained the most serious allegations which were relevant to its inquiry”.
When the case was taken to court by Corruption Watch and the Right2Know Campaign, no-one opposed it — including Seriti and Musi. But that was before the judgment became the basis of a misconduct complaint against them to the Judicial Conduct Committee (JCC) by the NGOs Open Secrets and Shadow World Investigations.
In May this year, acting JCC chair Raymond Zondo found on a prima facie basis that, if the allegations in the complaint were true, they would constitute gross misconduct, which is potentially impeachable.
Now, even though parties normally have just one month to apply to appeal, Seriti and Musi insist that the court should condone their lateness.
Seriti said the two had initially been prepared to live with the consequences of a wrong judgment, but this changed when the complaint came. “It became clear that the judgment now holds serious prejudice for us [and] may stand in our way when challenging the allegations levelled against us on the basis that these were court findings that would be binding on the proceedings before the JCC,” he said.
They have also, in a separate case, launched a challenge to the constitutionality of the Judicial Service Commission (JSC) Act, saying it is unconstitutional in that its disciplinary processes apply to retired judges.
But Singh said the application is “hopelessly late” — more than two years after the judgment and almost four months after the JCC complaint. He said the only explanation given for the four-month delay is that the judges had to consult with lawyers and prepare a response to what they called a “voluminous” 52-page complaint.
“I submit that this is not an adequate explanation,” he said.
He said the application is so “patently without merit that the applicants must have had some other motive in bringing it”. It is an attempt to bolster their defence to the complaint because “they are now being required to account for their conduct”. This case, along with the other, is a “ploy,” he said.
As a result of the constitutional challenge to the JSC Act, the JCC has postponed its disciplinary process indefinitely.
Seriti said the two judges had expected the presidency and justice minister to defend their report as they had initially indicated. But “in or around February 2019, all the parties [in] inexplicable circumstances filed and served notice to withdraw”. If the court had looked at the whole report, instead of just the parts that Corruption Watch and Right2Know had referred to, it would have found differently, said Seriti.
The judgment is the first and only time a commission of inquiry’s report has been challenged in court. The court had to first decide whether a commission’s report is reviewable by a court — since its findings and recommendations are not binding — and to what extent.
Seriti suggested it was in the public interest that this subject be revisited by an appeal court, saying: “A commission’s findings and recommendations are for the advice of the president and it is the president’s prerogative to either accept the opinion of the commission, its findings or recommendations.”
But Singh denied that the Supreme Court of Appeal needs to determine the parameters of an investigation by a commission of inquiry. “This was fully addressed in the judgment of this court,” he said.
Instead, what is in the public interest is that “public trust in the judiciary is maintained by holding to account judges who are guilty of misconduct, and by properly investigating allegations of misconduct”, Singh said.
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