Publication: Cape Argus Issued: Date: 2006-12-10 Reporter: Estelle Ellis Reporter:

Govt Fails in Last Attempt to Hide Arms Deal Documents



Cape Argus




Estelle Ellis

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Last ditch attempts by the Ministry of Defence to keep arms deal documents away from South African businessman, Richard Young, has failed.

The Supreme Court of Appeal this week *1 dismissed an application by Minister Mosiuoa Lekota and his department for leave to appeal an order by Pretoria judge Brian Southwood forcing them to hand over the documents.

Judges Fritz Brand and Leona Theron dismissed the minister's application.

Young's company CI Systems was one of the losing bidders in the multi-billion rand arms deal. He lost out on the contract to supply combat technology to the South African navy's corvettes.

CI Systems also tendered for the supply of some of the sub-systems during the arms deal and Young has, ever since the preferred bidders were announced, contended that CI Systems was wrongfully excluded as a tenderer.

He is pursuing a R150 million damages claim against the government which will be heard next year *2.

He had applied for the documents under the Promotion of Access to Information Act. The Department of Defence furnished some of the information requested but refused to furnish the rest. They relied on a part of the act which allowed the department to withhold secret documents despite a valid request. Judge Southwood however ruled that the documents were not protected.

Lekota further indicated that he wished to lead more evidence on the issue, but this too was dismissed.

Among other things the court has ordered that Young be given a copy of the covering letter which accompanied a joint investigation team's draft report *3 (looking into allegations of irregularity committed in the deal) to the Department of Defence, notices by the public protector *4 requiring attendance at the public phase of the joint investigation and notices from the minister of defence for authorisation in terms of the Defence Act to testify *5 at the public phase of the joint investigation.

Young has persistently claimed that many and significant changes were made to the Joint Investigation Task Team's report before it was made public *6.

With acknowledgement to Estelle Ellis and Cape Argus.

*1       2006-11-06.

*2      None of the defendants will be able to complete discovery until 2007-03-31 and therefore an application has been made to move the trial date to the 3rd and 4th quarters of 2008.

*3      The judge could only order that the DoD furnish the covering letter and not the draft Joint Investigation report itself because the DoD claimed under oath that it had destroyed the latter.

This draft of the JIT Report was that one which severing criticised the conduct of the DoD's Chief of Acquisitions's, conduct regarding the Arms Deal acquisition process.

The DoD's Chief of Acquisitions was then Shamin Shaik.

*4      These notices show that VAdm Robert Simpson-Anderson and RAdm(JG) Jonny Kamerman and others had been notified to appear before the Public Protector's hearings as early as three months before I appeared. Yet the Public Protector advised me and my legal team that Simpson-Anderson and Kamerman would be giving rebuttal evidence only one and a half days before they commenced in doing so.

*5      These notices show that the Public Protector had anticipated such authorisation and had himself requested such ministerial authorisation for a variety of DoD officials. Yet he failed to either advise me that I might require authorisation and therefore that I should obtain this myself in advance, nor did he apply for it himself (seeing that these were his hearings).

Once I was threatened by ADS that by giving evidence I would be liable for disclosing protected information, I had to abandon given evidence and return to Cape Town for two weeks.

This cost me the time, legal costs, accommodation and travels costs for an entire legal team of six people, but more importantly is was the basis on which the Minister of Defence forced me to disclose my entire evidence in writing to them and all other affected parties one week before I commenced giving evidence.

So the DoD's, Armscor's, GFC's, ADS's, Llew Swan's and Chippy Shaik's advocates and lawyers came fully prepared for cross-examination, such preparation being fully exploited by them. Yet I was given a page of two of summaries of Simpson-Anderson's and Kamerman's evidence literally a minute before they commenced giving evidence. And then we were not allowed to cross-examine Simpson-Anderson properly because he had given evidence in the initial stages of the hearings and Kamerman was allowed by the Public Protector to return to Germany on the Saturday morning after completing his evidence-in-chief on the Friday afternoon. A hummingbird and an ostrich on the scales of Public Protector justice.

*6      These are not merely bald claims.

They are borne out by the many and significant changes that are embodied in the textual differences between the Joint Investigation Team's draft reports and its final report, as well as the handwritten notes on the final draft which recorded the wishes of Ministers Manuel, Lekota and Erwin, as well as those of President Mbeki, to alter, remove or add certain findings.

With the prima facie case against then Deputy President Jacob Zuma in the Arms Deal regarding his symbiotic relationships with Thomson-CSF and Schabir Shaik, as well as the clear indications of gross irregularity concerning then Deputy President Thabo Mbeki in the Arms Deal regarding his yet to be probed relationship with Thomson-CSF, it is not surprising that the Ministers and the President wanted the compliant authors of the final JIT report, i.e. Advocates Lionel van Tonder and Stoffel Fourie, under top-cover of stooges Auditor-General Shauket Fakie and Government Public Protector Selby Baqwa, to include a new finding at the final hour that no-one in government could be held responsible for any irregularity in the Arms Deal Acquisition process.