The Heath special investigating unit (SIU) is "disappointed" with the recommendation by Justice Minister Penuell Maduna not to involve it in the impending arms probe, and will make its own presentations to President Thabo Mbeki in this regard, the unit said on Tuesday.

"The SIU believes that it has the capacity to handle a joint investigation of this nature and had in fact already identified several key members within the unit who have the expertise, skill and experience to conduct an investigation of this nature," Naomi Goodley, legal representative for the unit, said in a statement.

She said that although the unit is disappointed with Maduna's recommendation, it will still accept any decision made by Mbeki, given that they can only operate under a presidential mandate.

Goodley also strongly denied the existence of any animosity between the government and the unit.

"Over the past week the impression has been created that much animosity exists between the government and the SIU, while the fact is that the SIU perceives itself to be one of the weapons in the government’s arsenal to fight corruption and does not see itself as a functionary in the field of politics."

The SIU is also concerned about the misconception surrounding the validity of the investigation should it not be able to utilise the skills of the unit. Goodley said that although the unit has much to offer, it does not consider itself as "indispensable" to the probe.

"It should be noted that due to the complex note of the areas to be investigated, the parliamentary standing committee felt that the investigation would best be served by combining the investigative and legal expertise of four agencies.

"A civil investigation of this nature is highly technical in nature and deals with policy procedure and legal aspects of procurement, contracts and tendering.

"While the SIU does not consider itself to be indispensable to this probe, it does feel that it would be in a position to make a meaningful contribution to the investigation," she said.

The credibility of the probe will not be affected by the non-involvement of the SIU, said Goodley.

"The SIU is confident that its allies in the fight against corruption, the directorate of public prosecutions, the public protector and the auditor-general, will successfully investigate this very controversial R43 billion strategic defence procurement package (SDPP) and ensure that the investigation is above all scrutiny," said Goodley.

The unit did express some concern about some of the comments made by Maduna in his recommendation to the President.

As regards Maduna's claim that he was not able to scrutinise the "De Lille dossier", Goodley said that it is accepted practice that the unit does not send all documentation to the department of justice. Instead, it simply provides a short motivation for proclamation.

"It should be noted that the documentation received by Ms De Lille was never requested by the minister, nor his department. Further, at no time did this department request additional information or clarity on the motivations submitted for consideration," she said.

Also, Goodley rejected Maduna's argument surrounding the recent Constitutional Court decision which prevents Judge Heath heading up the unit as from the end of the year.

"In making his recommendation to the President, the minister stated that to continue referring new matters to the unit would have the effect of undermining the Constitutional Court judgment, but in fact legal opinion was obtained by the SIU confirming that the Constitutional Court judgment in no way affects the operation or day-to-day work of the unit.

"So, the Minister’s statement is in effect a misinterpretation of the judgment, as the judgment itself does not contain a bar on referrals to the SIU," said Goodley.

She rejected Maduna's argument that neither Judge Heath nor any other party had provided him with information that suggested unlawful appropriation of public funds and that accordingly there was no need for the SIU to be involved.

A report tabled in parliament by the auditor-general last year highlighted material deviations from generally accepted procurement practice and recommended a forensic audit into the deal's subcontracts. Thus, Goodley argued, only an investigation would be able to establish "whether or not there was unlawful misappropriation of public funds".

She also strongly rejected the belief that the unit is overworked and therefore unable to make a meaningful contribution.

"The SIU is of the opinion,that it could have made a valuable contribution to the multi-agency probe, as we have the powers to both investigate and institute civil action arising out of the investigation," she said.

With acknowledgement to Greg Gibbons and Woza.