The Human Rights Commission (HRC) has approached the high court to force Armscor to release documents that could prove corrupt dealings with controversial French armaments company African Defence Systems (ADS).

The application, in terms of the Promotion of Access to Information Act (PAIA), marks the first such case in which the state's human rights watchdog takes on another state organ in court over information.

Advocate Kaya Zweni, the HRC's lawyer, said Armscor's reasons for refusing access to the documents were "not valid" in terms of the act and the next step was to take the issue to court.

"It is the first time the commission will go this far because previous requests for information to state bodies were all complied with. Armscor released one document with sections blacked out, but they are still refusing to release the attachments to an internal report we requested," he said.

ADS is the second respondent in the case, due to be heard next month in the Johannesburg high court.

The application follows months of meetings and correspondence between the HRC and Armscor about the release of attachments to a report on an internal Armscor investigation into allegations of corrupt transactions with ADS during the 1990s.

At first, Armscor claimed that the documents would reveal sensitive state secrets but the HRC insisted that the PAIA provided for an override of state security if the disclosure was in the public interest and if it could prove corruption.

Armscor then changed its tune on why it was denying access and argued in a final response to the HRC in December that information and commercial interests belonging to third parties (mostly ADS) would be compromised by the release.

Bertus Celliers, the Armscor spokesperson, confirmed the refusal to access, but would not comment. He previously indicated that the information would be released should the third parties give permission.

Armscor and Johannesburg-based ADS as well as its parent company Thales in France have consistently declined to comment on the allegations. They are also embroiled in the Schabir Shaik trail being heard in the Durban high court.

The allegations of corruption and fraud relate to an Armscor contract granted to ADS to upgrade missile systems for the air force that first surfaced in 1998 when a former ADS employee, engineer Fritz Louw, blew the whistle.

The HRC took up the unusual test case after Louw spent six years fruitlessly trying to obtain the full investigation report. Louw's claims of irregularities included payment to ADS for "work that was invoiced but not done at all", work invoiced and later completed while booking time on it in subsequent tasks as well as work invoiced when done up to a certain level, which he claims "effectively defrauded the taxpayer" of millions of rand.

Armscor's internal investigation concluded that some deficiencies existed in ADS undertakings to upgrade the Cactus surface-to-air missile system, but the report stated that no instances of fraud or collusion between ADS and Armscor were found.

In 2002, Armscor released the main report to Louw in terms of PAIA, but is still digging in its heels on the attachments.

In its final response to the HRC, Armscor said it decided to deny access to the records, because it "would reveal trade secrets of third parties and thereby prejudice them in commercial competition", and that third parties would be "disadvantaged in contractual and other negotiations".

The armaments corporation further stated: "The commercial interests and integrity of third parties would be compromised and harmed by the disclosure," and one of the third parties, ADS, obtained a court interdict against the whistleblower that bars him from making public comments on the transactions.

Louw has since stated in a memorandum to the HRC that all four reasons were invalid. He provided correspondence showing that by its own admission ADS did not own the information.

Louw said no trade secrets would be revealed, contractual negotiations disadvantaged, or third parties compromised, as the equipment and technology was outdated and no longer in use, while the letters and minutes of meetings that would indicate corruption did not reveal technical secrets.

He further maintains that the court interdict had nothing to do with the request for information as it merely prohibited him from discussing the alleged fraud with his former colleagues at ADS.

"The information requested from Armscor will prove fraud, theft, perjury and defeating the ends of justice," Louw said in the memorandum sent to the HRC.

"The information I applied for all belongs to the state and Armscor."

An initial audit by Shauket Fakie, the auditor-general, on the alleged corruption between ADS and Armscor, is also due to be tabled in parliament next month.

 With acknowledgements to Christelle Terreblanche and the Sunday Independent.