Publication: Sapa Issued: Bloemfontein Date: 2006-02-15 Reporter: Andre Grobler

"Nothing Wrong" with Auditor-General Contempt of Court Order






Date 2006-02-15


Andre Grobler


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.

Owen Rogers, counsel for CCII Systems, submitted that the AG did not take the earlier court order, under the Promotion of Access to Information Act, seriously.

"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.

Rogers submitted that some of the outstanding documents were "even" delivered on the eve of the contempt hearing.

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".

The "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.

CCII Systems was not satisfied with the report's findings and instituted proceedings.

On Wednesday, Fakie's counsel Gilbert Marcus submitted that he had not wilfully breached the order forcing him to hand over documents.

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 record".

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 submitted late.

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."

He argued there were "less restrictive" measures that could have acquired the same results.

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 Bloemfontein court.

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 getting.

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 chapters).

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 and recommendations?

Pure bloody-minded logic.