Reporter: Andre Grobler
"Nothing Wrong" with Auditor-General Contempt of Court Order
The Supreme Court of
Appeal (SCA) was told on Wednesday there was nothing wrong with the court order
that found Auditor-General Shauket Fakie in contempt of court over the
government's multi-billion rand arms deal.
The judgment under appeal
declared that the Auditor-General (AG) failed to comply with an earlier court
order ordering him to give CCII Systems (Pty) certain documents pertaining to
the arms procurement process.
Fakie appealed against the whole judgment
and order given in the Pretoria High Court.
CCII Systems (Pty) was a
sub-contracting bidder in the arms deal for the supply of two sub-systems of the
combat suite for navy corvettes. It was successful in one tender.
Rogers, counsel for CCII Systems, submitted that the AG did not take the earlier
court order, under the Promotion of Access to Information Act,
"No adequate explanation was given why it took so long (to
hand over documents)," Rogers said.
According to court papers, the first
judgment ordered the AG to hand over the documents within 40 days and was
delivered on November 15, 2002.
The court order that found Fakie in
contempt of court was delivered on October 24, 2004.
that some of the outstanding documents were "even" delivered on the eve of the
Shortly after leave to appeal was granted on the
contempt matter, the AG "without admission of liability", made available the
last outstanding "draft reports".
Rogers argued that finding Fakie in
contempt of court was "probably the only way to get them to comply".
"draft reports" relate to documents CCII System wanted in relation to a report
that was tabled in Parliament in November 2001.
This followed after
allegations that the process of the procurement of the arms had been irregular
and corrupt. The AG conducted a preliminary review during the 1999/2000
financial year with the focus on the procurement process.
The AG report
was submitted to the Standing Committee on Public Accounts (Scopa) which in
return asked the AG, together with the Public Protector and the National
Director of Public Prosecutions, to investigate the claims.
was not satisfied with the report's findings and instituted
On Wednesday, Fakie's counsel Gilbert Marcus submitted that
he had not wilfully breached the order forcing him to hand over
Marcus submitted that by the time of the second application *1 by Richard Young's military
technology company, there was compliance with the court order in four of the
five categories of documents that had to be released.
"There was no
culpable breach of the order," he said.
He also indicated that the AG had
started compiling documents in terms of the court order after parties consulted
on the relevant documents needed -- which became known as the "reduced
However, there was disagreement over the "draft reports" in
regard to the investigation launched.
Marcus submitted that in this
regard there was no breach of the original court order and it was not wilfully
He said that contempt of court proceedings were
inappropriate in the circumstances.
"We submit that there must be a
substantial case. Proof beyond reasonable doubt must be proven."
argued there were "less restrictive" measures that could have acquired the same
The judgment under appeal declared that the AG failed to comply
with the earlier court order and made a consequent declaration that he was in
contempt of court.
It also imposed a sanction for contempt of
imprisonment of one month suspended on condition that the AG timeously comply
with the order allegedly breached.
Judgment was reserved by the
With acknowledgement to Andre Grobler and Sapa.
*1 Not quite. Some 10 000 pages of
documents had been produced by the time the application was heard in October
2004, but certainly not by the time the application was launched on 12 June
2003, by which time only 751 pages had been produced, along with a covering
letter from the AG advising that the 751 pages was all the requester was
The High Court found that the only reason that the AG produced
the bulk of the documents at the end of July 2003 was as a result of having the
application launched on 12 June 2003 and them beginning the vetting process at
least week thereafter (about 18 June 2003).
Fortunately, the relevant
facts of the matter stand objectively on their own.
The threat of
incarceration also brought about the release of a welter (many, many dozens) of
draft reports in December 2004, after the requester was previously only provided
with one chapter (Chapter 12) of the AG's draft investigation report (of 15
What logic would drive the notion that the requester would not
be interested in or entitled to the other 14 chapters, including chapters
covering the introduction, the terms of reference, the investigation
methodology, the corvette package, DIP, conflicts of interest and key findings
Pure bloody-minded logic.