The government agencies that investigated South Africa's multi-billion rand arms deal have applied for leave to appeal a court decision forcing them to publicise information from their investigations.

In November Pretoria High Court judge Justice Willie Hartzenberg ordered the auditor-general to hand over information relating to the investigation conducted by his agency, the Scorpions and the public protector to Cape Town businessman Richard Young.

The ruling was made in terms of the Promotion of Access to Information Act - the first time the act had been used in court to force government bodies to reveal information.

Young lost out on a major arms deal contract when Schabir Shaik's company African Defence Systems won a contract he contends should have been awarded to him. He claimed that documents held by the investigators will prove his claims of irregularities, corruption and political interference.

In the past weeks the arms deal investigation has come under heavy criticism. The official version completely exonerates all members of the executive branch of the government of any wrongdoing.

Recent revelations hint this may have been a whitewash.

Before the report on the investigation was released to Parliament, President Thabo Mbeki secretly used apartheid-era defence legislation to obtain draft copies of the investigation and scrutinise them.

In terms of the Auditor-General Act, Fakie is answerable only to Parliament and it was a parliamentary body, the Standing Committee on Public Accounts, that commissioned Fakie to investigate the arms deal. The chairman of the Standing Committee on Public Accounts, Dr Gavin Woods, slammed Fakie at the time for allowing the executive access to the drafts.

The drafts shown to Mbeki and his executive are among the documents Young requested in court.

Despite the clean bill of health given to the executive in the final draft of the arms report, two weeks ago the Mail & Guardian revealed that the Scorpions are investigating Deputy President Jacob Zuma.

It has been alleged that Zuma attempted to solicit a R500 000 a year bribe from Shaik's partners in return for his protection.

In their application for leave to appeal, A-G Fakie, Public Protector Selby Baqwa and Bulelani Ngcuka, the National Director of Public Prosecutions, give notice that they intend to appeal the whole of the judgment to either the Transvaal Provincial Division of the High Court, or alternatively the Constitutional Court.

They do not, however, bring any new arguments as to why they should not hand over the documents, but rehash the old claims. Their papers were handed in to court late on Monday this week.

In their papers asking for leave to appeal, the three agencies - and the minister of Defence - claim the auditor-general does not have enough resources to identify what documents need to be handed to Young. They also claim that searching the files for documents relating to Young's case would: "substantially and unreasonably have diverted [Fakie's] resources".

In reply to this argument in the original case, Hartzenberg said the matter is of such importance that if Fakie had to hire more staff simply to comply with Young's request, then he would have to do it.

They also claim: "classified information relating to military matters in respects of contracts and execution thereof is worthy of protection".

Then the group claim that disclosure of the information may harm the relationships between South Africa and foreign companies as well as allow potential enemies access to vital information about South Africa's defence capabilities.

In reply to these arguments, Hartzenberg originally ruled that Fakie would have to identify which documents he could not release for these reasons and give the court a reasonable explanation why they could not be released.

Fakie also claims that the documents should not be released as they may assist Young in his civil action against Defence Minister Mosiuoa Lekota - the fourth respondent.

Hartzenberg originally ruled that Young had instituted his access to information act claim before his damages claim against the minister, and that it would be silly to rule that anyone who was contemplating legal action is denied access to information regarding their case.

Young, who has pursued government with single-minded determination, said he is determined to obtain the papers he requested.

With acknowledgements to Paul Kirk and the Natal Witness.