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2003-01-07

The Editor
Business Day

Sir

I am pleased to see that Business Day is giving some prominence of the matter regarding the recent High Court judgement concerning the Promotion of Access to Information Act and the subsequent request by the Auditor-General (AG), Public Protector (PP) and National Director of Public Prosecutions (NDPP), the so-called public watchdogs, to appeal against the judgement and order.

As you rightly point out, this matter is of great importance to every single citizen of this country in their own right.

However, the other side of this legal coin is that it is rapidly becoming clear that the courts are the last bastion in our fight against corruption, fraud, cronyism and nepotism which are presently being committed on a national basis and on a massive scale.

Nobody who reads a newspaper, watches or listens to the news, or is themselves the victim of such activity, should be under any illusion other than that this financial criminality can only lead to the nation not getting the best products, at the best prices and on the best terms. Unless checked, this unjustified enrichment will consume the scarce resources of this country to exhaustion.

Believe me, I am all for redistribution - with the capital R of the RDP or GEAR, but how come in all these empowerment and privatisation deals the same few dozen individuals' names come up time and again, viz Arms Deal, third cellular operator, Komatiland forests, toll roads, Home Affairs ID book, etc. etc.?

It is certainly worth noting last Friday's announcement by the new president of Brazil, a country over 3 times larger than ours in population and the ninth biggest economy in the world, to postpone buying 12 new fighter aircraft in order to fund the country's more critical poverty alleviation programme.

It is possibly more interesting to note that Brazil requires 12 new aircraft to replace 18 1970-vintage Mirages while South Africa not only requires 28 fourth generation fighters, but feels the need to do so while presently owning 45 quite capable Cheetah C, D and Es, the first of which were acquired in 1986 and the majority in 1994.

By 2000 many of our Cheetahs had never even been fully assembled.

At least 28 of our Cheetahs should be quite adequate until at least 2014 and even until 2020.

Also interesting is last month's announcement by Poland to purchase the F-16 from Lockheed-Martin of the US rather than the Gripen Jas-39 of Saab/BAE Systems.

After losing a recent bid in Hungary and pulling out of the bid in the Czech Republic (all bidders did so except Saab/BAe!), a Lockheed-Martin spokesman said :

"the Polish authorities' selection procedure had differed from previous eastern European tenders by clearly defining their requirements and their budget and by carrying out the tender in a transparent way."

Does this ring a bell - mid-bid criteria changes and non-costed options!

Moreover, the F-16 is the standard in modern air interdiction fighters and doesn't do a half bad job in ground attack (ask Sadam Hussein circa January 1991, already 12 years ago), but Lockheed-Martin were not even qualified to tender in our case?

Remember also that the SAAF "had to" get BAe's Hawk lead-in fighter trainer because it had the only compatible cockpit with the Gripen.

The DoD may also say that in 1998 Armscor was still under a US arms embargo - but not for much longer - by then it was very close to resolved between Deputy President Mbeki and Vice President Gore.

But we didn't need to buy fighter aircraft in 1998 or 1999. Our first Gripens are coming in 2006 or 2007 a lead time of over seven years. Lockheed-Martin's lead time for 16 aircraft is less than 4 years and 6 years for all 48 aircraft.

And so we could easily have deferred our fight aircraft acquisition until 2008 or at least until 2004.

Poland was also given three US ships, including a logistical support ship and two frigates, in order to boost its maritime forces, plus over 6 billion dollars of industrial participation.

I understand that the SAAF did not even want to acquire new fighter aircraft within the Strategic Defence Packages - the Arms Deal.

What is even more telling is that the DoD's director of weapon systems, Rear Admiral (Junior Grade) Servaas Johannes Verster, testified as follows at the public hearings, presided over by another of our esteemed public watchdogs, Advocate S.A.M. Baqwa SC, and I quote :

"the problem with the strategic defence packages was not only lying in the multi-project environment, they were also lying in the fact that they were government-initiated things that we were not used to; that we normally start a process on our own, start a need on our own, drive the thing from our position, not having something driven from another position"

Whose need, whose position - enough said?

It must now be clear why we cannot rely on the Government to fight corruption for us; the Arms Deal was their own government-initiated enrichment exercise. It had nothing to do with defence requirements - even the DoD's Chief of Acquisitions, Shamin Shaikh, brother of Schabir, said so in just so many words at a preferred supplier meeting which I attended.

Hence the rapid exit of Judge Heath from the Special Investigating Unit, a move so cynical and so clinical as to almost defy belief - if one then didn't know why.

Nor, it seems, can we rely on the Auditor-General; we just need to take a critical look at his Joint Report into the Arms Deal. A more pathetic effort after more than R6 million of expenditure into this 2-year investigation would be difficult to imagine. A cursory analysis shows that he never even covered his terms of reference, let alone provided any conclusions or recommendations of any real value.

But what we do know for certain, is that some of the residue of good work pointing to gross irregularities, this work outsourced by the Office of the Auditor-General to external forensic auditors, was removed from their draft reports on the specific instruction of the Auditor-General. One can only ask oneself, just why could this be?

Perhaps now one can understand why the Auditor-General is prepared not only to refuse us access to genuine source records under the Act, but then to appeal to the High Court, then to the Supreme Court of Appeal or the Constitutional Court. And this Act was not only a child of the Constitution, but also of the Bill of Rights. The mind boggles.

Regarding the Public Protector as a public watchdog it is indicative to look at his hearings into the Arms Deal, the so-called public phase of the joint investigation.

Firstly, even most of the Joint Investigating Team themselves were highly unconvinced about this farce. But on a more personal note, Adv Baqwa allowed the DoD's counsel to perform a "bludgeoning by questioning" (as described by Grant Oliver of eTV) in the most adversarial of fashions after advising all that the hearings would be inquisitorial of nature. My counsel was given very little scope in examining one of the State's rebuttal witnesses (despite testimony obvious incongruent with the facts regarding Shamin Shaikh's recusal) and not even a chance in examining their chief rebuttal witness, Rear Admiral (Junior Grade) Jonathan Edwin Gold Kamerman, who was only announced as a witness on the late afternoon of 2001-08-29.

But most strangely of all was that I gave my evidence between 2001-08-27 and 2001-08-29 and Baqwa allowed me to be treated as though I was the accused. Meanwhile, just 3 days earlier on 2001-08-24, a member of the Joint Investigating Team, a deputy director of the Directorate of Special Operations, signed an affidavit which was submitted to the High Court on 2001-08-30 wherein he alleged the acceptance by the mysterious "Mr X" of a bribe offered by Alain Thetard, the chief executive of Thomson-CSF Southern Africa (30% owned by none other than Schabir Shaikh, brother of Shamin).

I had always known that brothers Schabir and Shamin, as well as Thomson-CSF, had what is called in the industry as "top cover" and had told all the investigators where I thought this top cover lay.

Even my testimony to the hearings as well as affidavit provides and very strong indication of the whereabouts of the top cover - hence prima facie evidence was by then in the hands of the JIT.

So all this time the JIT new that my allegations of corruption and gross irregularities were credible and that there was prima facie evidence to support it, but Baqwa was more conducive to allowing hostile and threatening questioning as to where and from whom I'd received copies of damning documentary evidence.

Just a fortnight ago I received a written demand from Armscor that I explain to them what they allege to be breaches of security relating to my "appearance before the Public Protector" - this after being forced by the Public Protector and the DoD to get authorisation from the Minister of Defence to give my pre-prepared evidence.

It should also be remembered that both the AG and the Public Protector each removed two of their staff from the Joint Investigation Team; in the AG's case this was the head of the whole JIT and a deputy auditor-general, while in the PP's case this was the initial lead investigator from the PP's office.

However, I do feel the need to correct some facts in your article entitled Lekota Fights Against Yielding Arms Data by Linda Ensor published in your edition of 3 January 2003.

As far as I am aware, Defence Minister Mosiuoa Lekota has not in fact lodged a request for an appeal. Whether the legal advice he has been given by the State Attorney is better, or whether he is just leaving the appeal to the "public watchdogs" (more correctly government lapdogs), I do not know.

Regarding their request to appeal, where the AG says that it is impossible to comply with C²I² Systems's request as it "was cast in the widest possible terms and related to the entire audit file", this is false. My original request for access made in November 2001 clearly referred to "my complaints and allegations regarding the Corvette deal".

After the AG refused access, in late January 2002 I issued a formal internal appeal (a process which is provided for in the Act, but not as we later learned applicable to the Auditor-General) where again I made sure that he could not possibly mis-interpret my request as anything other than being in respect of the Corvette deal. We also ensured that my request specifically excluded both military sensitive information, as well as any provided to the investigators in confidence as provided for by the Act.

Regarding the AG's allegation that my "reduced" request for documents was not filed properly, we did not file a new request. The AG's immediate response to my initial request had been outright refusal and that I could challenge his decision in the High Court. With no possibility of an internal appeal, we had no option but to take the court route - which cost me hundreds of thousands of Rands and took nearly a year, not including the further three months for the execution of the court order or the appeal process.

In our court application we again confined our request to what I had initially requested and called this the Reduced Record. There is nothing wondrous or underhand at all about this. All we did is say, "if you say that so many documents is too much for you to handle, then just give us the ones that are specifically relevant to us".

Once the AG received our court papers he realised that not only was I being serious about getting access, but that his bluff had been called. He realised that in the end he would have no option but to play for time and possibly use State resources to exhaust me financially. So he responded by proposing that I discard my court application and my initial request for access and start afresh with a new request - and pay his, the PP's, the NDPP's and the MoD's legal costs.

Regarding the AG's appeal that the preliminary working drafts should not be disclosed as the judge ordered as this would involve a breach of confidence with third parties is ludicrous. Drafts of forensic investigation reports should not contain such references and even if they did, the Act makes specific provision for severance, a procedure as simple as Tippexing out a name, date or figure in the copies of the records supplied.

Lastly, regarding the release of confidential military information that "could pose a danger to the country", or any other privileged information, the judge ordered that a list of such documents be provided to me, not the documents themselves.Thus the judge duly took into consideration both the rights of the State and of other parties as set out in the Act.

For anyone wishing to get further information on this court matter, open and free access can be had at http://www.armsdeal-vpo.co.za/special_items/pai_act/pai_act.html.

Richard Young PrEng, PhD
Managing Director

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