Letter to the Editor: Sadly, Joe Modise was no angel on the Arms Deal

One of the most persistent of these myths is that the Arms Deal has been properly investigated and that no wrongdoing has been found, which the Modise family repeats. They point to both the Joint Investigation Report (by the Auditor-General, National Director of Public Prosecutions and the Public Protector) and the recently concluded Seriti Commission as evidence.

Sadly, they are profoundly misguided to rely on either as exculpatory proof. They seem to forget that I served on the Standing Committee on Public Accounts (Scopa), and attempted to investigate the Arms Deal. The reason I was forced out of Parliament was because I attempted to ensure that the Joint Investigating Team included the Special Investigations Unit (SIU), which had the power to annul corrupt contracts. This was overridden by the executive of the ANC.

That was merely a prelude to the scandalous Joint Investigation Report. The Report was widely dismissed as a white-wash upon its publication. When draft versions of the report were made available by court order to Dr Richard Young, it emerged that huge sections of the draft Auditor General’s report had been removed from the Joint Investigation Report. All of the excluded material pointed to major procurement irregularities and a great deal of it concerned the role of Defence Minister Modise. Moreover, these sections had been cut after the draft report had been sent to the members of the Cabinet Committee, including Thabo Mbeki and others, that had overseen the Arms Deal selection process. The drafts had been sent to the Cabinet Committee under the terms of an old apartheid law, the Special Defence Account Act, passed to ensure details of sanctions busting could be kept under wraps.

In addition, paragraphs clearing the Arms Deal of any impropriety were hastily included after the draft was shared, and which did not appear in any prior drafts. It was grossly inappropriate for the people being investigated to be allowed to see and comment on the report, and it has irredeemably tainted its findings.

This is precisely why my colleagues and I were excited by the appointment of the Seriti Commission of Inquiry. As a result, I, along with my colleague Paul Holden, made a substantial submission to the commission that included thousands of pages of supporting evidence. I also assisted the commission to set up meetings with investigative authorities abroad.

But as the commission progressed, it became abundantly clear that it was failing utterly to investigate the deal. Numerous employees, including two senior evidence leaders, resigned in protest at the way the commission was conducting itself. Among other things, they criticised the commission’s failure to admit or consider absolutely vital evidentiary documents on flimsy legal grounds. Two researchers, Norman Maobi and Kate Painting, also claimed that the commission had a “second agenda” – to ensure that “critic” witnesses like ourselves would never speak in public about the Arms Deal again.

It was for these multiple reasons that I and my colleagues Paul Holden and Hennie van Vuuren pulled out of the commission in protest, despite the commission’s veiled threats of arrest for failing to co-operate.

Our fears were borne out in full when the Seriti Commission Report was published in April 2016 (by the way, the Modise family points to a Zapiro cartoon by way of support for one of their arguments about how foolish Terry Crawford-Browne was made to look – how about considering this one, or this one, or how about this one?). The report, a shambolic whitewash filled with non sequiturs and faulty logic, has subsequently been challenged by Corruption Watch and Right2Know, who claim that the commission’s findings should be set aside as the commission failed to conduct a meaningful investigation.

The founding papers in the legal challenge are a sobering read – hundreds of pages outlining the various ways that the commission failed to do its job. There are so many examples of the commission failing to investigate, it is hard to choose the most outrageous one. Perhaps it is the fact that the Commission failed to look at or consider the majority of the millions of documents seized by the Scorpions and given to the commission when it started. Perhaps it is in the fact that the report and the commission entirely ignored the Schabir Shaik conviction and Jacob Zuma’s indictment, despite both dealing directly with the Arms Deal.

Or perhaps it was when Advocate Fana Hlongwane appeared before the commission. Hlongwane was the man who, among other things, introduced the Guptas to Bell Pottinger. During the Arms Deal, he was Joe Modise’s Special Adviser, and was later investigated by the Scorpions for receiving tens of millions of rand as an “agent” for BAE Systems. Despite apparent inaccuracies in his witness statement, Hlongwane was not asked a single question in examination by the commissioners and walked out, unruffled, after a handful of emollient hours.

But what of the proof against Modise? The Modise family takes issue with the fact that I rely on the information contained on the website armsdealfacts. As they must know, however, that site explicitly only gave a list of “some of the documents” showing wrongdoing in the deal – it is not an exhaustive account of all wrongdoing, much of which I and my colleagues have written about elsewhere. For instance, I wrote extensively about Joe Modise’s role in the Arms Deal as long ago as 2007 in After the Party and a few years later in The Shadow World. In addition, there are at least three other books that address various aspects of his role. A number of international NGOs have also published reports on the deal and the Defence Minister’s role in it. If I created the impression that the website link was the full extent of evidence against Modise, this is my error, but hardly one that can be used to claim there is no evidence against him.

What the Modise family does not address is that Joe Modise was under criminal investigation related to the Arms Deal for a number of years, but that this investigation was left to lag and then eventually discontinued after Modise passed away in 2001. This was precisely the sort of thing that the Seriti Commission should have investigated, but entirely failed to do. Nevertheless, documents submitted to the Seriti Commission (and apparently completely ignored by it) by the investigator Colonel Johan du Plooy confirm that the investigation into Modise had reached a relatively advanced stage. It is surprising that the Modise family makes much of Gavin Wood’s alleged inability to be able to present supporting documents about these claims during his testimony to the Seriti Commission, but is entirely silent about the fact that Col du Plooy did so.

One document – a request for mutual legal assistance to authorities in Guernsey – set out what the Scorpions had been able to uncover in their ultimately truncated investigation. They had discovered that Modise had, along with other senior officials involved in the Arms Deal, secured shares in a company by the name of Conlog. The shares, acquired in 1997 (as the bidders in the Arms Deal had started submitting their offers), meant that Modise “stood to benefit by an amount of approximately R20 million”. Conlog was in line to receive substantial contracts via the offsets linked to the Arms Deal, including from BAE/SAAB. Modise, famously, intervened directly to ensure that BAE’s Hawk was evaluated with the cost excluded. This directly led to its selection, despite the fact that its closest competitor was just over half the price. British police believe that BAE paid around £115-million in bribes to win this contract.

The Modise family also disputes that the shareholders of Futuristic Business Solutions (FBS), which received sizeable contracts in the Arms Deal, were relatives of Joe Modise. If this is true, it is strange that they have taken so long to correct the public record considering that this has been stated in the media, and repeated, since at least 2001.

In this regard, it is notable that the Modise family does not feel the need to discuss General Lambert Moloi in their letter, perhaps because this relation is more difficult to disavow. Moloi, now deceased, was a former MK General close to Modise in exile, and also served as Modise’s aide-de-camp. He was widely reported to be Modise’s brother-in-law. Moloi owned 5% of the shares of FBS. Tsepho Molai, whom the Modise family claims to have no connection to, has been widely reported to be the son-in-law of General Lambert Moloi.

One final point: the Modise family, like so many others who defend the Arms Deal, claim that the deal was fully supported by the Defence Review. This is not true. While the Defence Review outlined a proposed force design that informed the Arms Deal shopping list, the Defence Review also acknowledged some other important facts. First, that South Africa faced no imminent or medium-term military threats. Second, that the greatest threats to South Africa’s security were crime, poverty and unemployment. Finally, that the Defence Review was explicitly not supposed to be read as approval for any future acquisitions. Indeed, the Review very clearly stated that “the approval of a force design by the Parliamentary defence committee, Cabinet or Parliament does not constitute a blanket approval for all implied capital projects or an immutable contract in terms of exact numbers and types of equipment. At best, it constitutes approval in principle for the maintenance of the specified capabilities at an approximate level”.

Indeed, one of the primary drafters of the Defence Review, Professor Laurie Nathan, even went as far as to write an article in 2001 to make this point as explicit as possible. He clearly explained that “parliamentary approval of the Defence Review in 1998 cannot be construed as a mandate to buy weapons” and affirmed that “the arms package is inconsistent with national policy on security and defence as endorsed by the Cabinet and Parliament. The package is more likely to reduce than enhance security”.

Telling uncomfortable truths about a person to their family and loved ones is never pleasant. I certainly do not relish doing so. But, as the Modise family states, our present day discourse should be fact-based and balanced. Their letter is lacking in both respects. DM