Drafts Are Not Meant for Changing
Joel Netshitenzhe, head of the presidency's communications, is correct in concluding that the government's position is one of "Damned if we do, damned if we don't", in his opinion piece in The Mercury of January 14.
The only difference is that the government's position is one of its own making, whereas Catch-22 derives from fate.
The auditor-general has nothing to be wary about in respect of the sub judice rule. And he should be concerned with the truth.
The government's silence, plus proof of changes to the draft report submitted to them, form a cogent argument that they have things to hide.
Netshitenzhe's misrepresentation of the truth that I initially wanted the contracts cancelled is disingenuous. I never wanted the arms deal contracts cancelled and as far as I know, there is no public record to this effect.
In mid-1999, before the contract was signed on December 3, I considered interdicting the corvette combat suite contract because of irregularities I suspected had occurred.
On September 1 1999, requested by Armscor and the SA Navy, I withdrew my threat of litigation, on agreed condition that my matter be properly resolved. It was not.
Under cross-examination at the public protector's hearings, I said "I could but hope" that the subcontracts be cancelled to allow our reinstatement.
This is entirely different from wanting the arms deal cancelled. Subsequent events have completely vindicated my suspicions around the combat suite contract.
My concerns about the conduct of French-owned company Thomson-CSF appear well-founded. A senior executive said in a sworn affidavit that an encrypted fax allegedly recording a bribery transaction with South Africa's Deputy President Jacob Zuma was indeed authored by him.
On the observation that I might believe even the courts might be turned on the matter of my compensation, hopefully such opinion of the courts has not yet been set. But considering the latest ruling party threats against the judiciary, this is indeed ominous.
Netshitenzhe's contention that draft reports are not subject to amendment has no validity in this case.
Investigators might produce numerous internal drafts, but there is just the final draft for external publication.
Nevertheless, the Aud-Gen has repeatedly averred that the findings in the final draft were not changed and that the only changes were cosmetic. Any honest comparison of the draft and final reports clearly shows that every finding implicating the government and its contracting partners has been removed.
Regarding the routine auditing of books of government departments, the use of the management letter and meetings with senior managers to clarify issues, this is only true in a regulatory audit, not a forensic audit.
The arms deal investigation can hardly be described as a routine audit. It was spawned by a regulatory audit which found many preliminary indications of serious problems, thus recommending a forensic investigation.
The Aud-Gen draft report concludes that nearly all findings of the Special Review were valid. Even this finding was removed from the final report. But in any audit it is for senior managers to provide appropriate clarifications, not political heads of departments.
In the management letter process only factual corrections are made, not changes to findings, conclusions and recommendations such as was the case of the draft report.
More importantly, in this case the investigated party was a suspect, not an auditee.
If this was truly a valid instance where an interaction between auditor and auditee was required, the presidency and the interministerial committee can simply make this management letter process and responses available. But there was no management letter.
Not that there were no interactions, only that these were secret and opaque.
Netshitenzhe's contention that the Public Access to Information Act excludes draft reports was not the court's interpretation. Legal precedent is that drafts are only protected until the final version is published.
Where any records, including draft reports, might indicate failures to comply with the law and it is in the public interest, then this restriction is in any case lifted.
In that I selected only certain quotes, publication space or air time is always limited. This is a matter of practicality, not misleading selectivity. Indeed, the author makes a similar point in his very next sentence.
Later, he refers to a "campaign of confusing detail".
His logic suffers the classic but simplistic fallacy of inconsistency - when it suits his argument there is selectivity, when it doesn't suit his argument there is purposefully confusing over-elaboration.
The only parties who are befuddled are Netshitenzhe, his principals in the government and others such as the Aud-Gen.
That there was fundamental wrongdoing was the main finding of the final draft report, only that this never reached the intended audience, being parliament and the public; this because of direct intervention of the executive.
Netshitenzhe should explain why the then deputy president had clandestine meetings in Paris with Thomson-CSF during the contracting process and why he was prepared to guarantee them contracts.
He should explain how such intervention on behalf of a foreign company furthers constitutional imperatives of a transparent, cost-effective government.
He should explain the often repeated government statement that they had nothing to do with choice of subcontractors.
On the matter of selection of the Hawk or Aermacchi MB339 jet trainer, the existence of two sets of minutes for the same meeting shows a severe lack of integrity in the procurement process.
Removal of this from the final report shows a severe lack of integrity in the joint investigation reporting process. Proper conduct of a responsible government would be to facilitate and not obstruct the appropriate platform for reviewing the conduct of the Aud-Gen and ministers in changing the report.
It remains to be seen if news of the Aud-Gen and ministers collaborating in changing the investigation report is dead. But it is a fallacy of logic to think that the government's ignoring the situation and its failure to provide an appropriate response to a matter of national importance is the right thing to do.
Netshitenzhe's missive is long on rhetoric and faulty analogy and short on logic and facts.
The bottom line is that the three members of the joint investigating team, formally said there were no material or substantial changes to the final draft.
Now that they have been caught red handed, the contention is that it is a matter of principle that drafts are there for the changing. Sorry - wrong.
The best leg-spinner on the planet would be embarrassed if he was achieving this amount of spin.
But at least we now know how the government intends to deal with this outrage - give the problem to parliament and then let the ruling party's 70% majority steamroll any effort to determine the truth - Viva.
Richard Young is MD of C2I2 Systems, specialists in defence information technology
(Article edited and shortened.)
With acknowledgements to Richard Young and The Mercury.