Judge Willem Heath has taken legal advice to reverse a government attempt to drop him from the R43-billion arms probe. 

The move comes after it emerged this week that the government intends excluding Heath on the basis of a recent Constitutional Court ruling that requires that the Heath unit not be headed by a judge.

Heath, backed by Gavin Woods, the chairperson of parliament's public accounts committee, has now asked President Thabo Mbeki to refer the deal to the Heath Special Investigating Unit.

The appeal to Mbeki is backed by a legal opinion Heath obtained arguing that the court's ruling did not prevent the president from referring new cases to the unit, which can only act on cases once they have been referred by presidential proclamation.

Maduna and Pikoli told Heath there would be no more cases referred to the unit. However, Penuell Maduna, the minister of justice, and Vusi Pikoli, the director-general of the ministry, told Heath early this month that no new cases would be referred to him.

Woods, who wrote to Mbeki on behalf of the committee two weeks ago to ask him to refer the investigation to Heath, said he was aware that members of his committee felt under a great deal of pressure. He was concerned that the stress and possible political fallout might lead some members to reconsider their role in the committee. He was aware of indications of ANC committee members being "leaned on" from above.

Heath applied to the justice department for a presidential proclamation allowing his own probe to go ahead shortly after the publication of a damning auditor-general's report on the deal earlier this year. 

That application was followed by a more detailed motivation, but no proclamation has been forthcoming. Instead, following the ruling of the constitutional court in November that the unit should not be headed by a judge, Maduna and Pikoli told Heath there would be no more cases referred to the unit.

"The director-general said it would be improper to refer any further proclamations to the unit in the light of the constitutional court ruling," Heath said.

The involvement of Heath is seen as crucial to an in-depth probe of the deal Heath said the court ruling had no impact on the functioning of the unit because the order had been suspended for a year.

Parliament has been ordered to change the provision that a judge should head the unit. The use of a judge in an investigative unit was said to blur the constitutional separation between the executive and the judiciary.

Heath said he forwarded a copy of an opinion by a senior counsel to Mbeki's office this week that confirmed his view that nothing in the constitutional court ruling prevented the government from referring new cases to the unit in the period that the court has set aside for the investigative unit to change its head. 

In its judgment the court suspended its order to protect "the important work being done by the unit" and noted that no prejudice was suffered by those being investigated if Heath continued to head the unit in the interim. 

However Paul Setsetse, the spokesperson for the department of justice, said no new cases would be referred to the Heath unit and that legislation to restructure the unit would be tabled as early as January.

The involvement of Heath is seen as crucial to an in-depth probe of the deal as he has far wider investigative powers than the auditor-general, the public protector or the Investigating Directorate for Serious Economic Offences, which have also been asked by the public accounts committee to contribute to the investigation.

The move to block Heath follows behind-the-scenes questioning of the committee's wish to include Heath and the extensive scope of the inquiry. 

Woods also said that interventions by senior politicians and parliamentary officials, which questioned whether the committee had overstepped its authority in relation to the inquiry, had caused an "awkwardness" between the committee and the multi-unit probe.

It also appears that the reluctance to include Heath is delaying the full implementation of the probe. 

Woods confirmed that he had written to Mbeki urging the president to grant Heath a presidential proclamation and also asking Maduna to support the application.

Meanwhile, Essop Pahad, the minister in the office of the presidency, has "categorically denied" reports that he has been trying to derail the investigation into the arms deal. 

With acknowledgement to Sam Sole and the Sunday Independent.