Response
 

Defence Minister Mosiuoa Lekota and the joint investigating team that probed the R53bn arms deal are unwilling to hand over confidential documents to an unsuccessful contractor, and are seeking leave to appeal against a high court judgment that would force them to do so.

The case will set an important legal precedent for the interpretation, implementation and scope of the Promotion of Access to Information Act, which gives citizens the right to apply for access to public documents.

In November, judgment was handed down in the Pretoria High Court requiring Lekota, auditor-general Shauket Fakie, former public protector Selby Baqwa and national director of public prosecutions Bulelani Ngcuka to provide documents relating to the arms procurement process and the joint investigating team's work to Richard Young, MD of C²I² Systems.

The documents requested included the initial drafts of the team's report that were submitted to a cabinet committee before being sent back for revision. Young and his company bid unsuccessfully for the information management system for the German corvettes.

Young believes that his bid failed because of irregularities in the arms-procurement process, and he is suing government, Armscor and the company that won the contract, African Defence Systems, for R150m in damages.

The respondents in Young's application have jointly requested leave to appeal either to the Supreme Court of Appeal or the Constitutional Court against the judgment by Judge Willie Hartzenberg. Young will oppose the application.

"I find it unbelievable that public watchdogs have appealed against a judgment which is so clearly in the public interest," Young said.

He said his claim for damages case did not hinge on getting access to the documents under the Information Act as he could get them through normal of discovery procedures.

The application for leave to appeal said that the judge erred in not attaching any or insufficient weight to the fact that the auditor-general did not have the financial resources to find and evaluate the documents requested. "The work involved in processing the request would substantially and unreasonably divert the resources" of the auditor-general, the application said.

It was almost impossible for Fakie to comply with C²I² Systems request as it "was cast in the widest possible terms and related to the entire audit file".

The applicants said a "reduced" request for documents should have been rejected as it was not filed properly.

The documents requested also contained preliminary working drafts that should not be available for disclosure as the judge ordered, especially if this would involve a breach of confidence with third parties. "His lordship should have found that classified information relating to military matters in respect of contracts and execution thereof is worthy of protection," the applicants said. "His Lordship should have found that the maintenance of effective military capability, the capability of the republic of SA adequately to be able to defend itself, sound interstate relationships and the relationships of SA with foreign companies are worth of protection."

The release of confidential military information could pose a danger to the country, and therefore the judge should have refused Young's request.

With acknowledgements to Linda Ensor and Business Day.