The continuing saga around the exclusion of the Heath Special Investigating Unit from investigating the arms deal lived on in the trial of Durban businessman Schabir Shaik in the Durban High Court yesterday.

Two former members of the unit yesterday gave evidence and the former head of the unit, advocate Willem Heath SC, is expected to give evidence today.

Shaik has pleaded not guilty to two charges of corruption and one of fraud.

MPs Patricia de Lille and Gavin Woods said on Tuesday they were eager for the unit to investigate allegations of corruption around the arms deal. But according to the law, the Heath Unit needed a proclamation from President Thabo Mbeki before they could start.

Advocate Gerhard Visagie said yesterday they were optimistic when the matter was referred to them at the end of 2000. They had believed they could play a role in the investigation of compliance with procurement procedures, the validity of contracts, and possible misrepresentations or undue influence.

As the year progressed, Visagie said, there was a deterioration in the relationship between Judge Heath and the authorities. This was followed by a Constitutional Court judgment stating that it was unconstitutional for a judge to be the head of an investigating unit.

Advocate Jannie Lubbe SC, who was a senior legal consultant for the Heath Unit, said the former minister of justice, Penuell Maduna, had contacted him and the former director of public prosecutions of the Cape, advocate Frank Kahn SC. He wanted their advice on whether there was anything in the arms deal that warranted an investigation.

Lubbe said they concluded it was too early to tell if criminal offences had been committed but said there were sufficient grounds for an investigation. "We advised that there should be a proclamation."

On January 18 2001 he received a telephone call from Maduna, who asked if there was any prima facie evidence of a criminal offence committed. Lubbe said not at that stage *1. The next day Mbeki announced he was not going to give a proclamation to the Heath Unit to investigate the arms deal.

With acknowledgements to Estelle Ellis and The Mercury.

*1 The reason being that the very definition of prima facie implies that a formal investigation or evidence gathering effort had to have been undertaken.

This situation is commonly called the Theory of the Chicken and the Egg.

So the two good advocates, Lubbe SC and Khan SC, recommended such a special investigation whose goal would be to produce such evidence of the prima facie variety (e.g. formally commissioned affidavits, signed witness statements, crates of smoking AK-47s with greasy paw-prints all over them, rolls of 1 000 Franc notes with traces of DNA*2 or cheese or garlic, bank accounts with residues of 500kZAR deposits with a distinctly francophone aroma, freshly-built tribal villages with no obvious source of lawful original financing or ongoing financial support, requests for donations to bursary funds make by very secret means in a foreign language - but no graduates to speak of, flagrant violations of conflicts of interest involving persons with suspiciously similar DNA*2, etc., etc.).

But The Man had an even more special investigation team in mind, consisting of Three Stooges, a couple of whom wouldn't know a prima facie piece of evidence if they saw one - and if one was pointed out to them they would be sure to kick it right back under the stone from whence it came - viva, Facie, prima.

*2 Deoxyribose Nucleic Acid.