President Jacob Zuma’s announcement that he would institute a Commission of Inquiry into possible arms deal corruption, was widely lauded. Finally, most commentators said, there was a real chance that a full Judicial Commission of Inquiry would get to the bottom of the arms deal scandal. The Commission would finally allow South Africans to get to know the extent of the corruption in the arms deal as well as the names of those who profited illegally from this deal.
However, the recent promulgation (in terms of the apartheid-era Commissions Act of 1947) of the regulations that will regulate this Inquiry suggests that the Presidency is anxious to control the information submitted to the Commission and to prevent the process from leading to the revelation of any embarrassing or shocking details that might turn out to be damaging to him personally or to those he might wish to protect (whether they have “donated” money to his cause in the past or not).
In fact, a quick perusal of the Commission’s regulations leaves one with the uneasy feeling that the aim of instituting the Commission of Inquiry might well all along have been to help with the suppression of any possible further damaging revelations about the arms deal. By drawing critics of the arms deal into the Commission process, these critics might well be forced to stop revealing any damaging information about arms deal corruption to the wider public.
Thus Regulation 10 states that “whenever the Commission is satisfied … that the Commission’s inquiry may adversely affect any existing, instituted or pending legal proceedings or any inquiry instituted in terms of any law, evidence which is relevant to such legal proceedings or inquiry shall be dealt with by the Commission in such a manner as not to adversely affect such legal proceedings or inquiry”.
If this regulation is strictly interpreted by the chairperson of the Commission (and not in accordance with the principles of openness, accountability and transparency contained in the founding provisions of the Constitution), the Commission may well order that all evidence about arms deal corruption which may relate to any existing or even pending criminal investigation be kept secret. This would mean that any documents before the Commission that may or may not be used in future arms deal corruption cases may suddenly become secret documents which may not be revealed by anyone.
Moreover, section 12 of the regulations declares it to be a criminal offence for any person to reveal any ”information which may have come to his or her knowledge in connection with the inquiry” (including any records in possession of the Commission, including notes, record or transcription of the proceedings) and also prohibits a person from leaking any such documents to anyone. This means that leaks would possible lead to criminal conviction for anyone found guilty of leaking documents or other information relating to the Commission’s work.
Section 14 and 15 drives home the message that the Commission would have broad powers to keep almost any aspect of the Commission’s work secret. It criminalises the following acts by both whistle blowers and by members of the media:
14. No person shall without the written permission of the Chairperson: (a) disseminate any document submitted to the Commission by any person in connection with the inquiry or publish the contents or any portion of the contents of such document; or (b) peruse any document, including any statement, which is destined to be submitted to the Chairperson or intercept such document while it is being taken or forwarded to the Chairperson.
15. No person shall, except in so far as shall be necessary in the execution of the terms of reference of the Commission, publish or furnish any other person with the report or any interim report of the Commission or a copy or a part thereof or information regarding the consideration of evidence by the Commission, unless the President has authorised the publication.
These provisions are clearly over-broad and are almost certainly unconstitutional. It would potentially prohibit anyone who submits documents to the Commission from sharing these documents with the media. If, say, Terry Crawford-Brown or Andrew Feinstein prepares a document and submits it to the Commission it would become a criminal offence for them to show this document to anyone — including to members of the media — unless given permission to do so. And if the media receives any information about the “consideration of evidence” by the Commission and publishes a report about this, the reporter and editor will be committing a criminal offence.
Interestingly, these provisions were cut and pasted almost word for word from the regulations which were promulgated to regulate the work of the Donen Commission of Inquiry into the food for oil scandal. That report was completed in September 2006 but was never released until last year, after the Cape Argus and Independent Newspapers challenged President Jacob Zuma in court to do so. Presumably the President released that report because his lawyers informed him that in terms of the Protection of Access to Information Act (PAIA) he would sooner or later be required to do so.
It is not clear to what extent the Commission would legally be able to refuse anyone access to the documents before it in terms of these regulations. After all, in as far as these regulations clash with the provisions of the Promotion of Access of Information Act (PAIA), the regulations quoted above will be of no force and effect. PAIA would clearly apply to the arms deal Commission as the Commission is a public body exercising a public function in terms of the Commissions Act. Section 5 of PAIA states that “this Act applies to the exclusion of any provision of other legislation that… prohibits or restricts the disclosure of a record of a public body or private body”.
However, in the chairperson of the Commission has a special love for secrecy and wishes to do his or her work in the dark, far away from the prying eyes of the public who might be shocked by the allegations of fraud and corruption involving high placed ANC leaders and other politically connected businessmen and women, he might well rely on several provisions in Chapter 4 of PAIA, read with the Commission’s regulations, to do so.
Most pertinently, section 41 of PAIA states that documents could be kept secret if it could reasonably be expected to cause prejudice to:(i) the defence of the Republic: (ii) the security of the Republic; or (iii) the international relations of the Republic. It may also be opt secret if it would reveal information: (i) supplied in confidence by or on behalf of another state or an international organisation; (ii) supplied by or on behalf of the Republic to another state or an international organisation in terms of an arrangement or international agreement.
Such documents would include any documents relating to military tactics or strategy or military exercises or operations undertaken in preparation of hostilities or in connection with the detection, prevention, suppression or curtailment of subversive or hostile activities; relating to the quantity, characteristics, capabilities, vulnerabilities or deployment of: (i) weapons or any other equipment used for the detection, prevention, suppression or curtailment of subversive or hostile activities; or (ii) anything being designed, developed, produced or considered for use as weapons or such other equipment. Records may also be refused on grounds of so called national security concerns.
Whether the arms deal will be a whitewash or whether it will become a credible, legitimate, open and transparent process in which a serious effort will be made to come to grips with the arms deal scandal without trying to hide anything from the public, will depend largely on the Chairperson of the Commission. However, if the Chairperson of the Commission fails to fulfil his task in conformity with the constitutional values or in a slavish executive-minded manner, one would be well advised not to call him out on this.
You see, section 13 of the arms deal Commission of Inquiry Regulations deems it a criminal offence for anyone to “insult, disparage or belittle the Chairperson or any member of the Commission or prejudice the inquiry or proceedings or findings of the Commission”. Dear readers, it might well be that the Chairperson of this Commission will fulfil this serious and important task diligently and in an open and transparent manner — as required by the Constitution and the law. If that is the case, I will cheer him on. If not, well, maybe some readers will volunteer to contribute to my legal fees if I am then criminally charged for disparaging or belittling the Chairperson of this Inquiry.
Everything is fucked. Nobody can be trusted. PdV why don’t you emigrate to Switzerland or join th DA.
Wow. I’ll chuck in a tiny amount if you get criminally charged. That’s terrifying.
What am I missing?
COMMISSIONS ACT 8 OF 1947
[ASSENTED TO 1 APRIL 1947] [DATE OF COMMENCEMENT: 18 APRIL 1947]
(Afrikaans text signed by the Governor-General)
as amended by
General Law Amendment Act 80 of 1964
General Law Amendment Act 102 of 1967
General Law Amendment Act 49 of 1996
ACT
…
4 Sittings to be public
All the evidence and addresses heard by a commission shall be heard in public:
Provided that the chairman of the commission may, in his discretion, exclude from the place where such evidence is to be given or such address is to be delivered any class of persons or all persons whose presence at the hearing of such evidence or address is, in his opinion not necessary or desirable.
ozoneblue
February 22, 2012 at 20:27 pm
Hey OB,
They meant you when it was written “his opinion [is] not necessary or desirable.”
A brutal foreshadowing, more than hinting at what we will have to live with under the Democracy busting secrecy bill.
Read the PROCLAMATION by the President of the Republic of South Africa, Arms Deal Inquiry Rules, short, direct and not so sweet, posted yesterday.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=281344&sn=Detail
I note M&G didn’t even report on it today, and that Politics Web actually withdrew it from their main listings within a few hours, something I find rather strange considering its vital importance. I found it again today by using the ‘search window’ at PWeb.
Pierre, does Terry Crawford-Brown have locus standi to ask for review of these regulations?
ozoneblue
February 22, 2012 at 20:27 pm
Hey OB,
Me and Dworky have started F-O-P-T (Friends of Pierre Trust) to raise money for Pierre (see “maybe some readers will volunteer to contribute to my legal fees”).
Will you and Dmwangi donate generously?
Dudette, never again say Zuma is stupid hehe. He’s pissing on your beloved constitution in an intelligent way! The arms deal inquiry is as bogus as our laws. Zuma et al will still be giggling about this in 20 years time while still ruling SA. And remember you heard it here first!
We have been here before.
http://mirror.wikileaks.info/wiki/Bank_Fees__Banking_on_silence/
January 7, 2009
By Editor (The Star)
Hackers have blown the whistle on banking fees – in a report banks hoped to keep buried.
The Competition Commission, the authors of the 590-page report, had originally blacked out certain sections, which banks claimed were confidential.
The commission has now opened a criminal case against Wikileaks, a website dedicated to exposing “unethical behaviour in governments or institutions”.
The Technical Report of the Banking Enquiry, concluded in June last year, was the result of a 22-month inquiry into South African banking, particularly the big four: Absa, Standard Bank, Nedbank and FNB.
An intergovernmental task team is expected to be formed soon to look at recommendations by the Competition Commission to reform South African banks.
“This report is important as it might explain why banking fees are so extremely high,” explained Wikileaks on its website.
Competition Commission spokesperson Jennifer Cohen said the decision to black out certain information in the report was at the behest of the banking institutions.
A letter by commissioner Shan Ramburuth to Wikileaks says that prior to the release of the report on December 12 2008, the banks had filed claims of confidentiality.
Their reasons for wanting certain information blacked out was that it was “trade, business or industrial information that belonged to them, had a particular economic value and was not generally available to or known by others. The Competition Commission accepted these claims and undertook not to disclose the information which had been so claimed,” wrote Ramburuth.
The commission particularly takes banks to task for not catering for low-income earners.
Among the recommendations is a cap on penalty fees.
“Where detailed data has been provided, indications are that as much or even more revenue is earned by banks from rejected debit orders on these accounts than from the processing of successful debit orders,” it found.
The commission felt that low-income earners suffered twice when hit with these penalties as most would not intentionally default on a payment but could arguably have many valid reasons for having insufficient funds to service debit orders.
These would include getting paid late. Low-income earners also did not have the comfort of “padding” their accounts to brace themselves for such an eventuality.
“It seems to us quite unacceptable that a bank should recover more than the cost incurred in processing the rejections.”
Although banks indicated they would, on application, reverse penalties in a deserving case, the commission found it was unlikely that the vast majority of customers would have the confidence or the time to challenge the debit, opting to “suffer in silence” instead.
On December 16 2008, hackers managed to reveal the blacked-out information of the report, revealing them on Wikileaks.
“We’ll be engaging with the commissioner on the matter through the formal channels established through the process,” said Standard Bank spokesperson Ross Linstrom.
This article was originally published on page 3 of The Star on January 07, 2009
What surprises me is that Terry Crawford-Browne – whom I would have expected to be hopping mad at this news – is his being on record as saying that he’s “satisfied” with the Commission’s powers and “not too worried” about the regulations. He also said that he doesn’t believe Zuma will try to keep the outcome of the investigation secret.
Lisbeth
February 23, 2012 at 18:35 pm
You have to understand that there is a certain member of our body politic who have absolutely nothing to gain from a full investigation into the arms deal and would go to extreme lengths to discredit the process even before it has begun.
“It would potentially prohibit anyone who submits documents to the Commission from sharing these documents with the media. If, say, Terry Crawford-Brown or Andrew Feinstein prepares a document and submits it to the Commission it would become a criminal offence for them to show this document to anyone — including to members of the media — unless given permission to do so.”
The lack of logic in there is just absolutely mind-boggling. One would imagine that a potential “whistle blower” would under such draconian circumstances just submit any documents containing compelling evidence to the media instead of the commission and there is nothing in there to stop that from happening.
“However, the recent promulgation (in terms of the apartheid-era Commissions Act of 1947)”
From what I can ascertain prof Chameleon had absolutely no moral qualms with the findings of the Hefer Commission set up under the same old Apartheid era act.
Harms spectre looms large in Hefer probe
http://www.iol.co.za/news/politics/harms-spectre-looms-large-in-hefer-probe-1.116913
In fact prof Chameleon unconditionally agreed with the findings of that Apartheid era abomination:
“Everyone who recalls the merciless cross examination of Mo Shaik and Mac Maharaj before the Hefer Commission of Inquiry and the way it exposed these two gentlemen as rather flawed and possibly dishonest men,”
http://constitutionallyspeaking.co.za/should-the-jsc-hearings-be-in-public/
LOL @ Myani!
So very King Crimson …
“This is not just a bad dream; it’s a reality, it’s going to happen. No one should have any illusion whatsoever that this thing is going to go away. It’s a fact of life and it’s going to happen,” Manyi said.
“So, law abiding citizens, buy your e-tags. E-toll is coming. Don’t harbour any thought that this… might go back.”
http://www.sowetanlive.co.za/news/2012/02/23/get-used-to-it—manyi-on-etolls
http://www.businessday.co.za/articles/Content.aspx?id=165805
GAVIN LEWIS: How to create sustainable, permanent jobs now: an A-Z
We do not have the luxury of waiting for longer-term interventions, such as education reform, to bear fruit
GAVIN LEWIS
Published: 2012/02/24 07:32:24 AM
WE URGENTLY need sustainable, permanent jobs in SA — people need them now, not by 2015 or 2020. But to achieve this we need to be pragmatic about the world as it is now, not plan for the world as we would like it to be. Economists use the term the “real economy” to emphasise this distinction. For now, put aside the “knowledge economy” and focus on the real economy.
We have nearly 1-million vacancies for people with skills, against 30% of the population unemployed and with few or no skills. We do not have the luxury of waiting for longer-term interventions, such as education reform, to bear fruit — as urgently needed as those are.
The second reality is that the state does not have the human and financial resources to solve our economic problems on its own. That’s why we spent only 68% of our infrastructure budget last year. The government’s main role should be to create the opportunities for economic growth with jobs. It struggles to achieve just this.
What are the solutions in the very short term? Some of the answers lie in the nexus between the economic policy documents SA has seen in the past 12 months, from Economic Development Minister Ebrahim Patel’s New Growth Path to Minister in the Presidency Trevor Manuel ’s New Development Plan, and to the Democratic Alliances’s 8% Growth Project, and even in the depths of the convoluted Industrial Policy Action Plan. There is common ground here about jobs on the scale and of the type we need now.
By delving through these documents and applying some practical thinking, here are some suggestions, from A-Z, on how to create lots of new jobs, fast, over the next two to three years (the list is not comprehensive):
•Africa: Start refurbishing every South African border post now to ease the flow of traffic in trade and tourism;
• Apprenticeships: The sector education and training authorities (Setas) have destroyed apprenticeships. Abolish the National Youth Development Agency, use the funds to promote blue-collar jobs and offer full free further education and training (FET) education. Link properly equipped FET colleges and the few Setas that work to individual businesses offering internships so graduates do not emerge with worthless qualifications;
• Broadband: Roll out affordable, universal access to every citizen, using public-private partnerships. It has a direct and proven link to economic growth;
• Corruption: Save R30bn a year by putting more big men in jail. Give the money back to the taxpayers — or pay off the Gauteng Freeway Improvement Plan in cash;
• Crime: It has now become (in Gauteng at least) one of the single biggest obstacles to small business growth;
• Energy: This is the lifeblood of the industrial revolution, whether in the form of coal and water, petrol or gas, or nuclear energy. Provide it affordably, encourage private-sector and Southern African Development Community provision and remove one of our two major limits to growth above 5%;
• Entrepreneurship: Introduce courses on it at every public school, along with basic economics (like maths “literacy”);
• Export processing zones: While we dither about industrial development zones, declare every local airport an export processing zone. For instance, by linking Rand Airport with the Johannesburg Fresh Produce Market, you support local emerging farmers and others with export opportunities to the region;
• Franchising: Look at the McDonald University type of training from zero (to name but one example);
• Green economics: Establish recycling depots and payment systems in every village and township;
• Housing: Design new housing projects around local economic development, rather than adding the local economic development as an afterthought;
• Informal sector: There are about 3-million South Africans working in the informal sector, providing goods and services of every kind to their fellow citizens. Support them — after consulting them first on their needs — with, for instance, shared equipment;
• Infrastructure: Drop the suspicions about the private sector and get serious about public-private partnerships, or it will never happen. Remember also, investment in productive infrastructure is what is needed. Allow mines and industries to build their own infrastructure and bypass Transnet if necessary;
• Labour: While we wait for the big debate about labour policy to one day reach a conclusion, we can in the short term reform two utterly destructive measures against jobs — block the extension of bargaining council agreements on wages designed for big business and organised labour to small businesses (which create the bulk of new jobs), making dismissing, and therefore hiring, workers all but impossible; and to reject attempts to ban labour broking, which accounts for 30% of the current workforce. Relax laws on dismissals for small businesses below a certain size (50 employees?);
•Metros: These areas must train their own blue-collar workers to meet their own needs. Cape Town does, using abandoned parastatal training facilities;
• Policy: Restore certainty about policy on the two main generators of the sorts of employment we need right now: mining and agriculture. That means the government must decide once and for all on its policies and speak with one voice on the topic. Investors demand policy certainty more than any other single criterion for new investments;
• Procurement: Pay suppliers within 30 days, otherwise you destroy emerging enterprises. Gauteng still can’t do this;
• Red tape: Slash unneeded and obstructive red tape in a concerted manner and in co-operation with chambers of commerce, along on the lines of the Western Cape’s “From Red Tape to Red Carpet” model.
• Rural poverty: Launch a major expansion of rural road-building and maintenance (gravel roads). It will give small-scale farmers vital access to markets and poor people access to government services and grants.
• Small business: Provide tax incentives (as Finance Minister Pravin Gordhan starts to do in his budget) and combine all state-linked finance institutions into one that lends at more favourable rates than banks do. Involve private-sector small-business specialists and banks on tender and small-business support boards and give them executive powers;
• Small-business support agencies: Forbid any public support agency from counting “business plans” as productive training. They are usually little more than business suicide notes. Instead, ask people what they want and deliver it, then follow up with mentorship;
• State-owned companies: Since the government is determined that state-owned companies will play a central part in the equation, don’t wait for an end to that argument but allow competition with every one of them, starting with Eskom — and not just from local suppliers but also from other countries. They can use the money we pay them to buy our goods and services, much as China keeps the US economy growing;
•Tourism: It seems South African Airways will also be with us until the second coming. Until then, adopt an open skies policy for all other airlines. Tourism is a big creator of small businesses and semiskilled jobs;
•Vote: Vote the bums out, as the Americans would say;
• Youth: Implement the youth wage subsidy programme with immediate effect.
Lewis is a Democratic Alliance member of the Gauteng legislature.
Brett Nortje
February 24, 2012 at 10:18 am
“That’s why we spent only 68% of our infrastructure budget last year.”
Incorrect. We only spend 68% of our infrastructure budget because we have a policy of employing incompetents based on “demographic” requirements above all else. Public works used to have a plethora of skilled and experienced engineers/project managers who have been encouraged to leave.
“Infuriated MPs said the department had degenerated into chaos because of unskilled people who almost brought it to its knees. Minister of Public Works Thulas Nxesi admitted to parliamentarians that his department was in a shambles and technically under administration.
Nxesi, whose department was briefing the portfolio committee on public works on remedial action regarding the auditor-general’s audit opinion, said they had sought help from the national Treasury and three other departments to stabilise Public Works. “What is clear is that you won’t turn it around with the current people.”
http://www.thenewage.co.za/44092-1007-53-Public_Works_in_a_mess
The ramapnat inefficiency and corruption in government departments make me wonder why we are even bothering with the arms deal anymore – its such old news…:-)
We can learn something from Nigeria.
http://www.thenewage.co.za/44358-1020-53-US_CEO_gets_30_months_in_jail_for_bribing_Nigerians
Who is the genius who sold Iscor to Accelor Mittal?
http://www.businessday.co.za/articles/Content.aspx?id=165906
Unbelievable! This is shocking indeed…