Publication: Mail and Guardian Issued: Date: 2002-01-25 Reporter: Paul Kirk Editor:

Fakie Faces Fight over Arms Deal Report


Publication  Mail & Guardian
Date 2002-01-25

Paul Kirk

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These drafts are central to a crucial question surrounding the arms deal report - did the executive meddle in the final report?

A key member of Parliament's public accounts committee and a local arms company boss are squaring up for a fight with the auditor general that may well test the Promotion of Access to Information Act in court for the first time

The pending battle looks certain after Auditor General Shauket Fakie dismissed their requests for information relating to the arms deal by invoking legislation allowing "manifestly frivolous and vexatious" requests to be rejected.

The request was made by Democratic Alliance MP Raenette Taljaard, who sits on Parliament's public accounts committee. Taljaard has demanded draft copies of the investigation into the arms deal, and hinted at legal action should she not get what she wants.

These drafts are central to a crucial question surrounding the arms deal report — did the executive meddle in the final report after it was shown draft audit reports before Parliament got the final version?

Meanwhile, Richard Young, the managing director of C2I2 — a company that lost out in the arms deal —has already indicated he intends taking legal action to challenge Fakie's decision to refuse the documents to him.

Meanwhile Chippy Shaik, the procurement head at the centre of the arms scandal, was last week found guilty of contravening security legislation by having shown drafts of last year's final arms deal report to his lawyers in order to have damaging references to him excised. He is expected to be sentenced in the coming week.

His brother, Schabir Shaik, also appeared briefly in the Durban Magistrate's Court this week where his case was remanded until a later date and he was not asked to plead. Schabir Shaik was arrested for having confidential state documents in his possession. It is not known who gave these documents to him.

Ironically, it is the very drafts that Chippy Shaik leaked and some of the documents that Schabir Shaik had in his sock drawer at home that Fakie is now refusing to hand over. In nearly identical letters to both Taljaard and Young, Fakie has cited three clauses of the Promotion of Access to Information Act that allow him — or any other public body — to refuse an application for information.

Two of the clauses make provision for the refusal of requests if national security or the confidentiality of government sources is likely to be compromised. The other allows for "manifestly vexatious and frivolous" requests, as well as those that unreasonably divert his resources, to be denied.

The first two clauses can arguably be overcome by a number of methods — including excising sensitive parts of the documents. Taljaard has written to Fakie saying: "As I have highlighted before I fail to see how a public representative in pursuit of his or her constitutional duties can be construed as having lodged a 'manifestly frivolous and vexatious request'". She ends the letter: "One can but only speculate as to the reasons underpinning this strange decision. I can assure you that the Democratic Alliance is considering your correspondence and its further action in this regard."

Young was refused the documents on the same grounds. Young said this week: "The AG has repeatedly stated, including in Parliament, that there were no substantial changes between the drafts of the Arms Deal Report and the published version. If this were true, there is no plausible reason within the tenets of the Open Democracy Act to withhold any of the drafts. It is absolutely clear to me that the auditor general has things to hide that was contained within these drafts."

Fakie's office has yet to reply to a written request from the Mail & Guardian for copies of the draft audit reports shown to the executive.

With acknowledgements to Paul Kirk and The Mail & Guardian