Process begins to hold Arms Deal Commission Judges accountable for gross misconduct
On 11 August 2020, non-profit organisations Shadow World Investigations and Open Secrets submitted a complaint to the Chairperson of the Judicial Conduct Committee (of the Judicial Service Commission). The detailed complaint focused on the High Court’s damning judgment which finds that Judge Willie Seriti and Judge Hendrick Musi had failed to investigate the Arms Deal during the Commission of Inquiry into Allegations of Fraud, Corruption and Wrongdoing in the Strategic Defence Procurement Package (known as the ‘Seriti Commission’). The complaint also asks the Judicial Conduct Committee to consider whether certain actions by Judges Seriti and Musi may constitute criminal misconduct and, if so, to refer these matters to the NPA for further action.
The organisations lodged this complaint to bolster public trust in the integrity of the Judiciary and send a strong signal that the kind of conduct that enabled a cover-up of serious crimes by the Seriti Commission should not be tolerated. The R142 billion corrupt Arms Deal (calculated in current value) has resulted in enormous social damage in South Africa – resulting in the loss of up to 1 million jobs – and enriched a small group of powerful European corporations, politicians and middlemen.
In a letter to the two organisations, dated 07 May 2021, Deputy Chief Justice Raymond Zondo (as acting chair of the Judicial Conduct Committee) has affirmed the seriousness of this complaint. He states in the letter that: “In accordance with section 16(1) of the Judicial Service Commission Act (Act 9 of 1994) (JSC Act) I am satisfied that, in the event of Shadow World Investigations and Open Secret’s complaint being established, it is likely to lead to a finding by the Judicial Service Commission that Judge Seriti and Judge Musi are guilty of gross misconduct as envisaged in section 14(4) of the JSC Act.”
The letter confirms that the matter has now been referred to the Judicial Conduct Committee (JCC). The JCC were due to meet on 02 July 2021 and recommend to the JSC whether the matter should be investigated and reported on by a Tribunal. This decision is a major step as it signals the start of a process towards accountability. Both organisations welcome an opportunity to make representations to the Committee. This first step towards accountability is a further vindication of civil society’s efforts to expose cover-ups at the Seriti Commission – and the decision by civil society activists to withdraw as witnesses from the Commission. Click here to access the letter from DCJ Justice Raymond Zondo as well as a fact sheet on this case.
UPDATE: 02/07/2021: The Judicial Conduct Committee (JCC) met today, Friday the 2nd of July 2021, to hear a complaint lodged against Judge Willie Seriti and Judge Hendrick Musi concerning their conduct during the Commission of Inquiry into the Arms Deal (known as the Seriti Commission). However, Judge Seriti and Judge Musi have filed a last-minute application to the Gauteng Division of the High Court challenging the constitutionality of the Judicial Service Commission Act (JSC Act). This has led to a substantive postponement of the JCC hearing until the South Gauteng High Court deals with the constitutionality issue.
Shadow World Investigations and Open Secrets believe that their submission is incorrect. The consequence of the arguments made by Judge Seriti and Judge Musi is a system where retired judges cannot be held accountable for previous acts of misconduct or gross negligence committed whilst they were active Judges. Judges could, as a result, conduct themselves with impunity, safe in the knowledge that they could simply retire if their misconduct was challenged. It is our view that Judges Seriti and Musi played a pivotal role in denying Arms Deal Justice through their failure to conduct the investigation they were supposed to. They now seek to avoid accountability for their misconduct, arguing that retired judges must be forever immune from the consequences of their actions.
Read our full media statement here
The South African Arms Deal was where both Andrew (as a Member of Parliament in South Africa) and Paul (as an investigative researcher) first focused on the arms trade. In 1999 the young democracy spent around £6 billion on weapons that it arguably didn’t need and in which it is estimated £220 million in bribes were paid. Andrew’s first book After the Party: A Personal and Political Journey Inside the ANC (published internationally as After the Party: Corruption, the ANC and South Africa’s Uncertain Future) and Paul’s first and second books The Arms Deal in Your Pocket and Devil in the Detail, covered the deal and its consequences.
In 2011, SA President Jacob Zuma appointed a Commission of Inquiry to investigate the Arms Deal, known as the Seriti Commission of Inquiry after its chair, Judge Willie Seriti. Paul and Andrew made a detailed submission to the Commission and attempted to assist the Commission undertake its investigation. When it became clear that the Commission was a cover-up, Paul and Andrew, with their colleague Hennie van Vuuren, answered the call of civil society and withdrew all participation. For this stance, Paul, Andrew and Hennie were named anti-corruption heroes.
In 2016, the Seriti Commission delivered its final report, widely regarded as a cover-up. Paul and Andrew worked closely with local civil society (Corruption Watch and R2K) to challenge the Seriti Commission’s report. In 2019, the High Court set aside the Commission’s report, vindicating Paul and Andrew’s decision to withdraw cooperation. The judgment, which allows new investigations into the Arms Deal to take place, also creates a legal precedent that can be used to stop future commissions of inquiry from engaging in cover-ups.