The report of the inquiry into whether arms were loaded onto the Russian ship Lady R in Simons Town in December will not be made public, the Presidency said on Friday.
The panel investigating the controversy that has strained South Africa's relations with the US is not a commission of inquiry, said the president’s spokesperson Vincent Magwenya.
Its terms of reference will not be gazetted or published. The work of the panel, chaired by retired deputy judge president Phineas Mojapelo, will not be public, nor will its report be released publicly.
“The investigation covers issues of national security and classified information, which is protected from disclosure,” Magwenya said.
Commissions regulated by the Commissions Act have the power to summons witnesses to appear and give evidence and the power to compel the production of documents.
The work of this panel “will be supported” in obtaining the information it needs “by letters from the president instructing all relevant government entities as identified by the panel to co-operate fully with the panel or face disciplinary sanction”, said Magwenya.
However, should the panel require evidence from non-government entities, it is unclear how it would be able to compel such evidence. For example, on May 23, journalist Sam Mkokeli reported on the Semafor news site that South Africa was investigating the possibility that a private company illegally loaded a consignment of arms onto the Lady R.
The panel’s members and its work were announced on Sunday in a media statement. The other members of the panel are senior counsel Leah Gcabashe and former justice minister Enver Surty.
The investigation covers issues of national security and classified information, which is protected from disclosure
— Presidency spokesperson Vincent Magwenya
The decision to appoint a panel came after the shock press briefing on May 11 by US ambassador Ruben Brigety, who said he was confident that weapons were loaded on to the Russian cargo ship, and accused South Africa of deviating from its non-aligned position in the Russia-Ukraine war.
In Sunday’s statement, Magwenya said President Cyril Ramaphosa had decided to establish the inquiry “because of the seriousness of the allegations, the extent of public interest and the impact of this matter on South Africa’s international relations”.
The panel has been tasked with establishing “persons who were aware of the cargo ship’s arrival and, if any, the contents to be off-loaded or loaded, the departure and destination of the cargo”.
It would also evaluate “whether constitutional, legal or other obligations were complied with in relation to the cargo ship’s arrival, its stay, the loading or off-loading of its contents, and its departure”.
The panel’s report will include recommendations on any steps that may need to be taken in light of their findings or as a result of any breaches that may have occurred.
On Friday Magwenya said the inquiry was similar to the investigation into the July 2021 riots in KwaZulu-Natal and Gauteng “and the value of its report remains unchallenged”.
The July riots inquiry was headed by Prof Sandy Africa. Its other panel members were adv Mojanku Gumbi and veteran struggle activist and civil servant Silumko Sokupa.
Though its mandate was primarily focused on government’s preparedness for and response to the unrest, its terms of reference included looking at the role of private actors such as security companies and community policing forums.
Magwenya said that all Lady R inquiry panel members were independent. Mojapelo was appointed in terms of the Judges Remuneration and Conditions of Employment Act “and he is subject to the SAAPIL case principles” on when and how judges “can be requested to assist the executive”.
This is a reference to the Constitutional Court’s 2000 judgment in the case of South African Association of Personal Injury Lawyers v Heath, in which the highest court found that it was unconstitutional for a judge to head the Special Investigating Unit.
In that judgment, former chief justice Arthur Chaskalson examined whether having a judge heading the Special Investigating Unit breached South Africa’s model of separation of powers.
He held that there was no “rigid test for determining whether or not the performance of a particular function by a judge was incompatible with the judicial office”.
But the judgment put forward some guiding considerations, including whether the function is more usual or appropriate to another branch of government, whether it is subject to executive control or direction and whether it creates the risk of judicial entanglement in matters of political controversy.
Magwenya said the case stipulated that “judges cannot be subjected to any direction by the executive”.
“Advocate Gcabashe and Mr Enver Surty are contracted as independent members of the panel. Therefore, there’s nothing suggesting they will act otherwise or contrary to their expected or stipulated independence,” he said.
Magwenya said the president would speak “to any actions that may result with respect to national security. This is provided for within our secrecy laws as per the nature of this matter”.
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