Publication: Government Issued: Date: 2001-01-19 Reporter: President Thabo Mbeki

Letter from President Thabo Mbeki to Judge Wilhelm Heath,
19 January 2001 

http://www.info.gov.za/projects/procurement/heath.htm

Judge Wilhelm (sic) Heath
The Special Investigating Unit
East London

19 January 2001

Dear Judge Heath,

Re: The Strategic Arms Acquisition Programme

I thank you for your letters dated 24 November 2000, 20 December 2000, 16 and 18 January 2001.

I have also taken note of your public statements on this matter.

In the opening paragraphs of the unanimous judgement of the Constitutional Court in the matter of the South African Association of Personal Injury Lawyers against you and the Government, the President of the Court said:

"This appeal concerns the constitutionality of important provisions of the Act and of two proclamations issued by the President pursuant to its provisions. It reflects a tension that often exists between the need on the part of government to confront threats to the democratic state, and the obligation to do so in a manner that respects the values of the Constitution."

"There can be no quarrel with the purpose sought to be achieved by the Act, or the importance of that purpose. That purpose must, however, be pursued in accordance with the provisions of the Constitution."

He goes on to state that:

"The separation required by the Constitution between the legislature and executive on the one hand, and the courts on the other, must be upheld otherwise the role of the courts as independent arbiter of issues… will be undermined. The Constitution recognises this and imposes a positive obligation on the state to ensure that this is done".

The Court, accepting that all the parties acted in good faith in establishing the Special Investigating Unit (SIU), said:

"The fact that all involved acted in good faith and in what they perceived to be in the interests of the country, does not make lawful, legislation or conduct that is inconsistent with the separation of powers required by the Constitution."

The Court then ruled that the section of the Act that forms the basis of your appointment is inconsistent with the Constitution and invalid.

As a member of the judiciary yourself, I am certain you will agree with me that there can be no doubt about the "spirit and essence" of this judgement.

In trying to address the immediate problems of continuity highlighted by the judgement, the Court decided to suspend the declarations of invalidity for a period of one year. In this regard, the Court had the following to say:

"If the declarations of invalidity are suspended provision can be made for an orderly transfer of the powers of the head of the unit to a functionary who is not a member of the judiciary. That will require amendments to be made to the legislation and time will be required for that purpose".

"If the legislature wishes to address all the issues raised in this and other decisions… that may take a significant period of time. Less time will, however, be needed to … appoint a functionary other than a judge to head the SIU.

"…There are good reasons for the first respondent’s position as the head of the SIU to be regularised without undue delay. Time will however be required for the various committees of parliament to consider what is to be done and for appropriate legislation to be drafted. Time must also be allowed for a new appointment to be made, and for the first respondent to transfer his responsibilities to the new head of the SIU in an orderly fashion. I consider that a period of 1 year will be sufficient for this purpose."

Again, I am certain you will agree with me that the "spirit and essence" of the ruling of the Court is that you be removed without delay.

I had hoped that you, being a member of our judiciary, would appreciate the sentiments of your colleagues on the Constitutional Court that we all act urgently to ensure that the principle of the separation of powers, a principle that is critical to our nascent democracy, is not further compromised.

The Minister of Justice is preparing the necessary amendment that will enable us to appoint a non-judge to head the Unit.

We will request parliament to consider this amendment as soon as it resumes its sessions in about three weeks.

I have considered your comments on the recommendation of the Minister of Justice.

Let me, at the outset, state that the Special Investigating Unit that you head is an instrument of this Government. You, as head of the SIU, are therefore accountable to this Government.

The Constitution states quite clearly that the executive authority of the Republic is vested in me, as President of this country. I exercise this authority together with members of the Cabinet, which includes Minister Maduna.

Let me further state that this Government was brought into power by more than two-thirds of South Africans.

You have an obligation to provide this Government with whatever information you have relevant to a consideration of whether to issue a proclamation or not. Neither the Minister nor I have the responsibility to seek information from you, the nature of which we would necessarily not even know, seeing that it is in your custody.

I do not understand on what basis you would reach the conclusion that information, about this country, is more protected in your hands, than in the hands of the President of this country.

In your letter of 16 January 2001 you state that:

"Should the information received by the Unit be disclosed…", (this is to the Government),"… it could possibly jeopardise (sic) the investigation as well as the lives of the informants. …In addition to this should this information become public knowledge it could lead to a ‘cover-up".

Is it that this democratic Government, elected by an overwhelming majority of our people; a Government that is responsible for creating SIU as an instrument to root out the corruption that was endemic during the tenure of the apartheid regime, is a Government that is prone to ‘cover up’"

Worse than this, you charge that once the information you have was given to the Government, in this case the President, the ‘lives of the informants’ might be jeopardised!

These are very serious charges, which you will have to substantiate.

It is also interesting to note your statement that the SIU is not overwhelmed by work. On 7 September 2000, when this case was heard by the Constitutional Court, you agreed with the stated facts that the SIU was investigating over 100 organs of state involving 221 580 cases.

You now state, three months later, that "the SIU has completed and closed a large number of cases" as a result of which you have four staff members who can be released from their normal duties. I will be happy to receive a detailed report in this regard.

The President of the Constitutional Court, speaking on behalf of the entire Court, states as follows in the judgement:

"I accept that it is important that the head of the SIU should be a person of integrity. But judges are not the only persons with that attribute."

You are aware that the Constitution states that the Public Protector has powers to investigate "any conduct" in state affairs. There is no distinction made between matters of a civil or criminal nature. Likewise, the Auditor General has extensive powers to investigate state institutions.

The courts in our country also have civil jurisdiction, which jurisdiction extends beyond that of the SIU and the Special Tribunal. Every person has access to the courts in this country. I do not understand on what basis you state that ‘vital civil aspects’ of the investigation may be overlooked if the SIU is not involved in the investigation.

There is no reason for you to be confused by Minister Maduna’s statement that there is no legal basis for a joint investigative body. This is true. Each of the agencies functions on the basis of its separate legal basis. It is true that there is nothing that prevents the agencies from cooperating in an investigation.

(The Director General in the Presidency has already informed me of his discussions with you with regard to his press statement. I am certain that the matter has been clarified. I am not aware of the nature of the statements made by the Ministers. Any erroneous statements made in this regard must have been made in good faith.)

Finally, and most important, Judge Heath, I am led to believe that you know that you do not have even prima facie evidence that, in law, any person or persons committed a criminal offence in connection with the matter under discussion.

Indeed, members of your Unit have been operating under the misapprehension that you, in person, when last we met, informed me that there was no basis for the issuance of a proclamation authorising you to investigate any recovery of state assets in connection with the defence acquisition.

This would have been the correct thing for you to do, which you did not do. Instead you embarked on as unseemly campaign to "tout" for work, with a level of desperation I am still trying to understand.

Given all the circumstances detailed above, as recommended to me by the Minister of Justice, I have decided not to issue a proclamation for the Special Investigating Unit to investigate the strategic arms acquisition programme.

Yours faithfully,
Thabo Mbeki

Judge Wilhelm Heath
The Special Investigating Unit
EAST LONDON

The Deputy President wasn't the only one writing venomous letters to persons interested in investigating the Strategic Defence Packages.

Let the games begin.