Publication: Noseweek Issued: Date: 2003-01-01 Reporter: Editor:

 Collision Course


Publication  Noseweek
Date Dec-Jan 2003
Web Link


The cover-up of the corruption and lies surrounding South Africa’s arms procurement programme is unravelling on all fronts. The question now is whether enough will become public in time to force the cancellation of the weapons purchases that are otherwise set to cut deeply into budgets for social services and poverty alleviation for decades to come.

It seems government strategy is already being directed at stalling, rather than preventing disclosure, which has clearly become unstoppable.

The intention appears to be to delay disclosure for long enough to enable the supply of arms to have progressed beyond the “point of no return”. Defenders of the arms purchases can then go to court and argue “on the balance of convenience” that, whatever corruption and other irregularities may have taken place, it would not be reasonable at that late stage to reverse the process.

The battle for disclosure is raging on three fronts:

Military software supplier Richard Young, MD of CCII Systems, and an unsuccessful bidder in the arms deals, who is claiming R150m from the government - damages he says he suffered because of shady dealing in the arms programme - has won the first round. The Pretoria high court has ordered the auditor general, Shauket Fakie, the director of Public prosecutions, Bulelani Ngcuka, the then public protector, Selby Baqwa, and Minister of Defence Misiuoa Lekota to give Young access to thousands of documents and records which the government had clearly hoped to keep secret.

In the Cape high court Finance Minister Trevor Manuel is shaping up for a similar fate at the hands of former banker Terry Crawford-Browne, who is suing for cancellation of the arms deal on behalf of the poor of South Africa and on behalf of Economists Allied for Arms Reduction, a body which internationally has several Nobel Prize winners as patrons. Government lawyers have taken every technical point possible in their attempts to delay or derail the case. But already, in papers filed on behalf of Manuel, what appear to be serious discrepancies are emerging. (In fact Manuel authorised his beloved, the director general of the National Treasury, Maria da Conceicao das Neves Calha Ramos - you didn’t know that was her name, did you! - to testify on his behalf.)

Apparently, assuming nobody could get access to the contracts (he has refused Crawford-Browne’s request to see them), Manuel denied that the loans he had concluded to fund the arms deals were government to government contracts, or that they were an intrinsic part of the arms package (which would have required parliament’s approval).

“In considered view of the second respondent (Manuel) and the National Treasury (Ramos), production of the (loan) documents would be contrary to the public interest,” declared Ramos. “The transactions are part of the financial business carried on by the government and the terms and conditions upon which it does so ought not to fall within the public domain.”

Unfortunately for Manuel, noseweek (and Crawford-Browne) have already seen the contract - not marked “secret” or even just “confidential” - and he is being misleading on both counts.

One of the signatories to the main loan contract is “Her Brittanic Majesty’s Secretary of Sate acting by the Exports Guarantee Department.

There are also some provisions in the agreements with serious political implications for the future - matters the public undoubtedly has a right to know.

And now, in the Mail and Guardian, it emerges that all in government and its investigative agencies have known for a year or more that Deputy President Jacob Zuma has been implicated by witnesses in a bribe that was allegedly being brokered with French arms supplier Thompson - but have failed to mention it in their reports to parliament. In fact there is reason to suspect the investigation may have been put on indefinite “hold”.

In Young’s case, many of the documents he now has access to are likely to prove extremely compromising to the government. In the course of the court application itself, Young surprised Fakie with one of the documents the auditor general had already under oath denied existed, so proving that Fakie cannot be trusted to tell the truth on matters relating to the arms deal.

Fakie, Ngcuka and Baqwa constituted the Joint Investigation Team set up in November 1999 (Judge Heath having been excluded at the last minute), ostensibly to investigate the arms deals.

Young suspects that the team’s final report, published in February 2001, was significantly watered down as a result of behind-the-scenes intervention by government ministers and officials.

What concerns Young are changes that may have been made to that section of the report dealing with the “de-selection” of his company in favour of Thompson CSF, the French company whose involvement in the arms deals remains highly controversial. (Most recently with regard to the alleged negotiation of the bribe to Zuma. The deputy president has denied all knowledge of the matter.)

The court judgement is a dramatic demonstration of what the constitution means to citizens faced with oppressive government action, but the case also demonstrated how long hostile officials can delay matters. Young first applied to Fakie for access to documents in November last year. Fakie aggressively refused all cooperation and invited Young to take him to court if he wasn’t satisfied with his decision. It has taken Young a full year to get his court order - and the order gives Fakie another 40 days to comply, with lots of opportunities for still more argument and delay.

The judge ordered the state to pay the R400 000 in legal costs incurred by Young in making the application. For the government, the delay apparently comes cheap at the price.

Besides the draft versions of the Joint Investigators’ report, Young has asked to see all correspondence concerning the arms deals between Fakie and the Department of Defence between January 1 1998 and November 20 2001, all documents relating to the arms deals between Fakie and Baqwa’s office, and all Fakie’s audit files between those dates concerning the arms deals.

In January Fakie turned down the application in its entirety, saying that it involved too many documents.

In court he added - unwisely as it turned out - something extra. As far as copies of the correspondence Young had asked for were concerned, he told the court, there had not been any such correspondence.

Unfortunately for Fakie, Young already had some copies of just such letters.

Fakie was clearly stung by this unexpected turn of events. He accused Young of having tried to trap him, and claimed he had simply forgotten the letters and that they contained nothing he might have whished to hide.

Young, in fact, found the correspondence very useful.

One letter is from Chippy Shaikh, the man at the centre of the scandal, recommending a few changes he would like to see in the wording of the Auditor General’s original Special Review of the Arms Deals.

Another is a letter from the acting secretary of defence, M Netsianda, thanking the Auditor General for his attendance at a meeting on October 21 to decide the setting up of a committee to “steer” his audit of the arms deal. (And who emerged as a member of that “steering” committee? None other than Chippy Shaikh, whose role in the arms programme should have been top of the committee’s agenda! The letters are addressed to senior officials or cabinet ministers about a highly controversial matter and are not easily forgotten.

Finally, contended the auditor general, “inasmuch as it appears that the applicant intends embarking upon a private investigation, any such suggestion is quite untenable.”

But the primary objective of the Access to Information Act is to facilitate such investigations. The auditor general may legitimately be expected to assist with such enquiries, not oppose them.

The judge reminded Fakie that the purpose of the Act is to give right of access to information held by the state in as “swift, inexpensive and effortless a way as is reasonably possible”.

In court The Open Democracy Advice Centre (a branch of the Institute for Democracy in South Africa) supported Young’s application and castigated the respondents for not advancing open democracy.

Finally, judge Willem Hartzenberg summed up:

“If regard is had to the media coverage which this matter enjoyed and the prominence of the members of the joint commission this is certainly a case where maximum access is necessary to dispel any suspicion of a cover-up. It is not good enough to hide behind generalities ... the applicant (Young) alludes to conflict of interest and political pressure. If at all feasible such suspicions must be put to rest.”

If the attitude of the auditor general is anything to go by, many suspicions stand to be confirmed. For diggers there is gold in them thar hills!

With acknowledgement to Noseweek.