PRESS STATEMENT on the decision to not cross-examine Alec Erwin and continued frustation at the opacity of the Seriti Commission of Inquiry

PRESS STATEMENT on the decision to not cross-examine Alec Erwin and continued frustation at the opacity of the Seriti Commission of Inquiry


Lawyers for Human Rights, on the instructions of Andrew Feinstein, Paul Holden and Hennie van Vuuren, on Tuesday was left with no option but to decline the opportunity to cross-examine former trade and industry minister Alec Erwin at the Arms Deal Commission due to lack of access to vital documents central to the witness’s testimony.

Judge Willie Seriti excused Erwin, saying: “Thank you Mr Erwin, no-one wants to cross-examine you.”

This does not accurately depict LHR’s position in wishing to cross-examine Erwin.

“LHR is frustrated by this oversimplification and misrepresentation,” said LHR’s David Cote, “Our client’s most definitely do wish to cross-examine Mr. Erwin and have made this abundantly clear but in order to do so, we require access to crucial documents, including the very contracts that the Arms Deal is based on.”

Our refusal forms part of increasing frustrations around a lack of access to crucial documents related to the Seriti Commission of Inquiry into the multibillion rand Arms Deal.

LHR asked for an adjournment on Monday to prepare to cross-examine Erwin, having only received his witness statement the same day, for the 1999 Affordability Report to be declassified so that it could be used in cross-examination, and crucially, for sight of the umbrella agreements and the annexure of the National Industrial Participation projects – the very agreements that form the crux of the Arms Deal.

On Tuesday, the Commission advised that Cabinet would declassify the Affordability Report. The report was an examination of the economic impact of the Arms Deal presented to the Cabinet sub-committee overseeing the Arms Deal in August 1999. The report indicates that the Arms Deal’s impact on the South African economy would be broadly negative in the best-case scenario and devastating in the worst-case scenario.

While the Affordability Report has been declassified, efforts to have the contracts declassified have not been successful.  As Erwin referred to the variations of the terms and conditions of those contracts, it is vital to have sight of those terms and conditions before any questions in cross-examination can be put to the witness.

As a result, we declined to cross-examine Erwin as doing so without access to the relevant documents would have been impossible.

The criticism of LHR and its clients not to cross-examine Erwin piecemeal is disingenuous, not least due to established norms of procedural fairness, but due in addition to the fact that these contracts ought long since to have been available in the public interest.

Possession of classified documents
Former ANC MP Andrew Feinstein commented: “How can the truth be revealed if key information remains hidden from the public? If the Commission is to be successful in its mandate, these documents need to be brought to light and role-players made to answer to them,”On Monday, Judge Seriti and advocates for Erwin indicated their displeasure that we were in possession of the previously classified Affordability Report.

We find this approach both disturbing and wrong. The Commission’s job is to investigate all available facts regarding the Arms Deal. It should welcome the submission of information that helps it fulfill its mandate justly and efficiently. Furthermore the document has been reported on extensively in the media and has formed the subject of published material over a number of years.

The focus of the Commission should not be on how researchers and activists accessed a document but on the exceptionally important content of that document. This is especially true of a document that manifestly poses no threat to national security, contains information that is clearly in the public interest and whose classification serves only to protect the powerful from the consequences of their own actions.

The continued failure to free such information severely limits the public’s ability to hold our leaders in government and the corporations they do business with to account.

Statement issued by Andrew Feinstein, Paul Holden and Hennie van Vuuren via Lawyers for Human Rights, February 18 2014