Johannesburg - Defence Minister Mosiuoa Lekota's plans to bypass constitutionally enforced defence acquisition procedures and spend billions on a fifth warship for the navy looked legally "dubious" yesterday.

On September 4, Lekota announced to the public that he was in talks with the German Frigate Consortium (GFC) to purchase a fifth warship for the navy. Making the announcement Lekota said the fifth warship would not re-present a new arms spending spree but was being purchased in terms of the original agreement that allowed the SA government to purchase a fifth warship as an option in its controversial R60 billion arms deal.

The original contract for the four corvettes was personally signed by Lekota in December 1999.

The effect of using this contract to cover his latest military hardware purchase would be to bypass defence acquisition procedures and simply award a multi-billion rand contract to the German shipyards without allowing other companies to tender for the work.

The two largest companies making up the GFC, Thyssen Krupp and Blohm and Voss were cleared of paying kickbacks to secure the contract to supply the four corvettes. However allegations that they paid bribes to senior ANC officials have never been challenged.

The companies had for several years been under investigation by German authorities for illegally paying bribes to SA officials and politicians - but in June 2008 Thyssen Krupp Marine Systems in SA announced the probe had folded without finding any evidence of corruption.

Democratic Alliance (DA) spokesman on the arms deal, Eddie Trent, has repeatedly claimed the reason for the collapsed investigation was that the South African government failed to respond to requests for legal assistance from the German authorities. The German authorities wanted SA assistance in investigating senior politicians and officials that the GFC had allegedly bribed.

Repeated attempts by DA members of parliament to obtain copies of letters asking for assistance from the German authorities have been blocked by the Department of Justice.

In making his announcement Lekota said the fifth warship would not be another corvette but a "sealift" ship - one capable of transporting troops and equipment to trouble spots around the world. Lekota repeatedly stressed the fifth vessel would not be a corvette but an entirely new class of warship.

Expert in international law Professor Doctor Andre Thomashausen, head of the Department of International and Comparative Law at the University of SA, was shown the original contract for four corvettes - and remarked that it was an extremely poorly put together contract.

Thomashausen, apart from being an academic, is a German barrister and practises civil law in the German high courts.

The original contract is styled an "umbrella agreement" and a separate "supply terms" document the technical details of the frigates - such as the electronics the ship is to have. Thomashausen said that contracts drawn up in such a way are legally very clumsy and difficult to enforce in court.

Said Thomashausen: "The umbrella agreement is obsessed with regulating the conditions for 'DIP' and 'NIP' and forgot to actually regulate the sale of the ships.

"There is only one paragraph, and that is not even in the main body of the agreement but in the Preamble that actually deals with the purchase, namely four Corvettes plus (separately) four combat suites plus (separately) one option for a fifth Corvette. The option is for a fifth Corvette, nothing else *1."

Thomashausen said it was clear the agreement does not allow for the purchase of any type of warship other than another corvette identical to the four already purchased.

Thomashausen continued: "But it is only an option. To exercise it, a further purchase agreement would have to be entered into. So, no, this agreement does not allow them to simply order another ship, but it gives them a right of option to have one built before the shipyard is entirely committed to building the next large orders."

Spokesman for Lekota, Sam Mkhwanazi, said no firm order had been placed for the fifth vessel but that when such an agreement was reached an announcement would be made.

Asked whether formal acquisition processes would be followed with regard to the new ship, Mkhwanazi said Lekota had explained the new warship was covered by the 1999 contract.

Appointed by Mbeki, Lekota was among the many cabinet ministers who tendered their resignations from cabinet on Tuesday in the wake of Mbeki's ousting.

With acknowledgements to Paul Kirk and The Citizen.