Outrage and fears that the government is sending the worst possible message to foreign investors have followed Justice Minister Penuell Maduna's move to exclude anti-graft boss Judge Willem Heath from the multi-agency probe into South Africa's R43-billion arms deal.

Analysts and opposition parties believe that the reasons Maduna gave for excluding Judge Heath in his recommendation to President Thabo Mbeki were "fundamentally flawed".

And, the Pan Africanist Congress is prepared to take the government to court if Mbeki goes along with his justice minister's advice.

In his letter to Mbeki, Maduna said it was unconstitutional and unnecessary to include Judge Heath's state-appointed unit in an investigation. He also said the unit had too many cases already with which to contend, and that there was no evidence to warrant a probe.

No evidence to warrant a probe says Maduna

The arms deal has been mired in controversy since an inquiry last year by parliament's public accounts committee.

It concluded there had been enough irregularity to launch a multi-agency investigation into the tender processes and into the R15-bilion increase in the estimated cost of the deal.

Alarmed by Maduna's recommendation, public accounts committee chaiman Gavin Woods of the Inkatha Freedom party emphasised on Monday that an investigation would not be complete without the Heath unit, which had a legal mandate and specific skills that the other investigative agencies did not have.

The committee recommended that the directorate of public prosecutions, the auditor-general and the public protector be part of the investigation.

While Woods agreed there were a number of discrepancies in the reasons given by Maduna, one of the aspects that alarmed him most was the minister's implication that the formal request for an investigation by the portfolio committee did not reflect the wishes of parliament.

R15bn increase in the estimated cost of the deal queried

But the greatest discrepancy, Woods said, was Maduna's conclusion that referring new matters to the unit would be contrary to the spirit of a recent judgment on the constitutionality of Judge Heath's position as unit head.

The Constitutional Court gave a year's grace for the appointment of a head who is not a judge.

Woods also rejected Maduna's statement about there being no evidence of unlawful appropriation of public funds or assets in the arms deal.

"To us and other parliaments around the world the hard facts of wrongdoing are not necessarily what stimulates an investigation."

The committee called for the probe after the auditor-general found procedural weaknesses in the procurement process, and after officials were unable to answer questions satisfactorily.

Meanwhile, political analysts at Idasa as well as researchers at the Institute for Security Studies warned that excluding Judge Heath would not instill much-needed confidence among foreign investors, who would perceive the move as a cover-up.

President Mbeki is expected to give his decision later this week.

With acknowledgement to Troye Lund and Independent Online.