IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case number
In the matter between:
Terry Crawford-Browne - Applicant
and
The President of the Republic of South Africa - First Respondent
and
The Government of the Republic of South Africa - Second Respondent
AFFIDAVIT
I the undersigned
TERRY CRAWFORD-BROWNE
hereby make oath and say:
1. I am an adult male retired bank manager of Sandown Crescent E105, Royal Ascot, Milnerton, Cape Town.
2. First Respondent is the President of the Republic of South Africa, of Tuynhuys, Gardens, Cape Town.
3. Second Respondent is the Government of the Republic of South Africa, of care of the State Attorney, Liberty Life Building, Long Street, Cape Town. No relief is claimed against Second Respondent. It is joined in this application by reason of its legal interest in the relief sought herein.
My locus standi in judicio:
4. I bring this application in the public interest as contemplated in section 38(d) of the Constitution in that I contend that success in the litigation would better enable the state to respect, protect, promote and fulfill all of the rights in the Bill of Rights as is required by section 7(2) of the Constitution.
5. In particular I contend that the following specific rights guaranteed to all in the Bill of Rights are infringed or threatened by the failure and/or refusal of First Respondent to appoint a commission of inquiry into allegations of irregularities, fraud and corruption in the procurement of armaments by Second Respondent during and since 1999 ("the arms deals"):
(a) human dignity;
(b) socio-economic rights; and
(c) the right to just administrative action.
6. In this regard, I respectfully refer to paragraph 2 of my Amended Particulars of Claim in Case No. 1135/09 issued out of the Western Cape High Court and attached to this affidavit marked "TCB1".
History of the litigation:
7. I instituted the said action after a request for the appointment of a commission of inquiry into the arms deals, made by Archbishop Emeritus Desmond Tutu and former President F W De Klerk jointly on 1 December 2008 was refused by First Respondent's predecessor on 12 December 2008. This correspondence is appended to TCB1 hereto, marked "E" and "F".
8. The pleadings in the said action are not yet closed. First Respondent filed an exception dated 24 August 2009, a copy of which is annexed hereto marked "TCB2". This exception elicited amendments to the original Particulars of Claim with which I am advised it is unnecessary to burden this Court as only the Amended Particulars of Claim as they now stand are relevant at this stage.
9. In response to the filing of the particulars of claim as finally amended, First Respondent has filed an exception in which the point is taken that only this Court has jurisdiction in the matter. A copy of this exception is annexed, marked "TCB3", from which it can be seen that the points taken earlier in "TCB2" are not being persisted in by First Respondent, presumably because of the effect of the amendments made.
10. I am advised, and verily believe, that there may well be merit in the jurisdiction point raised in the second exception, TCB3. Argument will be adduced in this regard if necessary.
11. I am further advised that, even if the second exception is not well founded, the interests of justice will be served by seeking direct access to this Court and the other relief set out in the notice of motion to which this affidavit is annexed. If necessary argument will be adduced in support of my contention that is in the interests if justice that the issues in the case be determined by this Court as a court of first instance.
The interests of Justice:
12. On the assumption that I am not entitled, as of right, to direct access to this Court I proffer the following grounds in support of my contention that it would be in the interests of justice for the matter to be determined by this Court:
(a) The unavoidable delays that are inherent in litigating the exception through a series of potential appeals would give rise to unfortunate and unnecessary delays in getting to grips with the real issues in the case. This would not, I contend, serve the public interest, or the interests of justice.
(b) Adherence to the principles of the rule of law is a foundational value in South Africa's constitutional democracy and requires that there be accountability and fundamental fairness in the discharge of constitutional obligations and responsibilities by functionaries of the state, including First Respondent.
(c) As can be seen from paragraphs 5 to 8 of the Amended Particulars of Claim, the background factual matrix upon which I rely is replete with evidence and allegations which cry out for proper investigation with a view to bringing those guilty of possible criminal activity to justice in the criminal courts of the land.
(d) There is furthermore the prospect of the cancellation of those of the arms deals in which corruption is established and Second Respondent has potential claims for damages on a proper interpretation of the escape clauses in the relevant contracts.
(e) In any event, and under the common law, if fraud in the conclusion of any of the arms deals can be proved on a balance of probabilities, Second Respondent would be entitled to resile from the arms deals in question and claim resitutio in integrum. The result would be a great saving of public money, running to scores of billions of rand, which could be put to better uses than the acquisition of unnecessary and unsuitable armaments that do not advance the public weal.
(f) The scourge of corruption needs to be addressed efficiently and effectively if constitutional democracy in South Africa is to survive. The President, the Government and the African National Congress have repeatedly declared that addressing corruption is one of South Africa's top priorities. The reality however, is that public resources, time and energy have been massively squandered on attempted cover-ups of the arms deal scandal. Institutional failures to investigate rigorously the corruption associated with the arms deals have been described by IDASA as "the litmus test of South Africa's commitment to democracy and good governance."
(g) I respectfully ask that all of the various averments raised in Amended Particulars of Claim be regarded as incorporated herein. Unless and until a proper, independent and thorough investigation of the matters raised in paragraph 7 thereof is undertaken, the allegations of irregularities, fraud and corruption will remain unaddressed to the detriment of the people of South Africa.
(h) On 4 October 2010 I was informed by Colonel Johan du Plooy, the only member of the Directorate of Priority Crime Investigation ("DIPCI") who still works on the arms deals investigation, that the head of DIPCI, Major General Anwar Dramat, on 30 September 2010 closed police investigations into the BAE and German frigate consortium arms deals. This decision is perplexing, coming as it does at a time when SAAB has been charged in the Swedish courts with corruption arising out of its role in the BAE arms deal with South Africa. I further point out that, certainly until the demise of the Directorate of Special Operations, there was good cooperation between the British Serious Fraud Office and the South African National Prosecuting authority. So much so, that the High Court granted search and seizure orders against BAE premises plus Fana Hlongwane, John Bredenkamp and others in November 2008 on the strength of affidavits and documentation setting forth the manner in which 115 million pounds sterling were paid by BAE to its agents to facilitate bribery payments in South Africa. The DIPCI on 7 September 2010 confirmed before the parliamentary Standing Committee on Public Accounts (SCOPA) that the Scorpions in July 2009 had handed over 460 boxes and 4.7 million computer pages of evidence against BAE for investigation. The case against BAE was referenced as CAS 916/11/2009 Brooklyn. The seizure of documentation in November 2008 was public knowledge. It preceded and motivated the joint appeal on 1 December 2008 to the former President for a judicial commission of inquiry by Archbishop Tutu and former President de Klerk. Amongst the documents in my possession are 166 pages of affidavits by officials of Scorpions and British Serious Fraud Office detailing how BAE paid bribes of 115 pounds to secure its arms deal contracts, to whom the bribes were paid, and to which bank accounts. If necessary, the papers filed of record in that matter will be made available at the hearing of this application.
(i) On 8 February 2010 I wrote to First Respondent urging him to deal with the irregularities in the arms deals alternatively to appoint a commission of inquiry. I hand-delivered the letter at Tuynhuys. A copy is attached marked "TCB4". I have had no response to this letter.
(j) On 6 August 2010 I hand delivered to the chairman of SCOPA a detailed motivation for SCOPA to recommend to the President a judicial commission of inquiry into the arms deals in respect of BAE payment of bribes to secure its contracts with South Africa, including the prospect in terms of the "remedies in case of bribes" clauses of the BAE contracts providing Armscor and/or the South African government the right summarily to cancel the contracts and to claim compensation. The meeting of SCOPA on 7 September 2010 confirmed that there was no political will either in Parliament or in the DIPCI to pursue this matter. SCOPA's attitudes and the decision by DIPCI to close its investigations mock official professions about addressing corruption.
(k) The matter has also been brought to the attention of the Public Protector, but without response. I therefore affirm that all other fora have been investigated and exhausted, hence this application to the Constitutional Court.
13. In all the circumstance set out above, I respectfully contend that it is in the interests of justice that the fundamental fairness at the core of the rule of law be upheld by granting direct access insofar as necessary and dealing with the substance of the main relief sought in the notice of motion to which this affidavit is attached.
Nature of relief sought:
14. The main relief which I seek in this matter is an order compelling the appointment of a commission of inquiry into the arms deals. First Respondent contends that this Court is the only court that has jurisdiction to entertain any of the substantive claims for relief set out in the notice of motion. I am advised, and verily believe, that since the handing down of the decision in the Chonco matter, this may well be the case, in which event the issues raised by the allegations contained in TCB1 have to be adjudicated by this Court.
15. First Respondent has thus far been astute to avoid dealing with the merits of the main claim and has avoided dealing with the detailed allegations made in support of the relief sought as set out in TCB1. For this reason alternative relief is claimed, the granting of which will depend upon the manner in which First Respondent chooses to deal with each and every allegation made in TCB1. Only when this is done will it be possible to determine whether the defence is one that involves issues of fact or issues of law, or both.
16. If this Court is of the view that there are issues of fact that need to be determined, a mechanism for so doing is suggested in the notice of motion. If this Court does not agree with the position taken by First Respondent that it has sole jurisdiction in this matter and is not prepared to grant direct access in the matter, further alternative relief is sought with the view to getting the matter to finality without unnecessary procedural delays.
17. In this regard I point out that much water has flowed under the bridge since the arms deals were concluded. Many of the potential witnesses are no longer young or well. (Shabir Shaik, for example, is on medical parole due to a medical finding that he is terminally ill.) There is also much documentation with which any commission of inquiry appointed would be seized and it is appropriate that the matter be afforded some priority in the public interest.
Grounds for relief claimed:
18. The grounds upon which I rely are set out in TCB1. In short I contend that it is illegal and irrational for First Responded to have failed and/or refused to appoint a commission of inquiry into the arms deals in the circumstances pleaded in paragraph 7 of TCB1, all of which cry out for the appointment of a commission of inquiry.
Procedural matters:
19. Inasmuch as First Respondent has not yet addressed the merits of the specific allegations made in TCB1 it is impossible for me to anticipate whether any material disputes of fact will arise if and when First Respondent answers this affidavit.
20. Should it transpire that there are material disputes of fact, then I contend that it would be appropriate to refer those disputes to trial on the basis set forth in the notice of motion. If, however, First
Respondent prefers to rely exclusively on points of law and does not dispute any material allegation of fact in TCB1, then, so I contend, it will be possible to determine the legal issues so raised or, if it declines to exercise its jurisdiction in the matter, it may refer the points of law to the Western Cape High Court for determination there as a matter of semi-urgency.
Conclusion:
21. I accordingly respectfully request that the relief set out in the notice of motion be granted.
TERRY CRAWFORD-BROWNE
Signed and sworn to before me at on [October] 2010, the deponent having acknowledged that he knows and understands the contents of this affidavit, has no objection to taking the oath and considers the oath binding on his conscience, and the deponent having uttered the words: "I swear that the contents of this affidavit are true so help me God."
COMMISSIONER OF OATHS
***
Text of Terry Crawford-Browne's supplementary affidavit, June 13 2011:
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case number CCT 103/10
In the matter between:
TERRY CRAWFORD-BROWNE - Applicant
and
THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA - First Respondent
and
THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA - Second Respondent
with
THE SOUTH AFRICAN INSTITUTE
OF RACE RELATIONS - intervening as Amicus Curiae
APPLICANT'S SUPPLEMENTARY AFFIDAVIT PURSUANT TO THE CHIEF JUSTICE'S DIRECTIONS DATED 16 MAY 2011
I, the undersigned,
Terry Crawford-Browne
make oath and say:
Introduction:
1. I am the applicant in this matter in which I seek an order compelling the appointment of an independent commission of inquiry into the arms deals and certain ancillary relief as set out in the notice of motion to which my founding affidavit is attached.
2. The matter is enrolled for hearing on 20 September 2011 and I have been directed to supplement my founding affidavit by 15 June 2011.
The books written on the arms deals
3. In order to do so, I have instructed my attorneys of record to obtain affidavits from, inter alia, Richard Young ("Young"), Andrew Feinstein ("Feinstein") and Paul Holden ("Holden"). The former is a complainant in respect of corruption in the arms deals and the latter two have written books on the subject of wrongdoing in connection with the arms deals. The latter two live and work in England; their affidavits will be filed as soon as they come to hand. This may involve a minor delay due to the logistics of getting duly deposed affidavits timeously filed. Other affidavits in confirmation of what is set out in this affidavit will be sought and filed as soon as possible. If any are late I respectfully request condonation of their late filing. A covering affidavit by my attorney will be filed giving explanations for the late filing of any affidavit or affidavits filed after this affidavit is filed.
4. I too have written a book, called "Eye on the Money", based upon my experiences in connection with the arms deals and also upon my own empirical research and observations regarding wrongdoing in the arms deals. When I use the term "wrongdoing" in this affidavit, I use it in the broad sense as defined in paragraph 6 of the amended particulars of claim which are attached to my founding affidavit marked "TCB1" and to include "malfeasance" and "misfeasance" as alluded to in earlier directions issued by this court in this matter. I confirm the content of the said book. I do not intend to burden the record with the text of all of the books written on the arms deals. However, the mere fact that they have been published as serious works of non-fiction is sufficient, so I am advised, for the purposes of obtaining the relief sought in this application. If First Respondent is desirous of contesting anything contained in the three books authored by Feinstein, Holden and me, he is at liberty to do so. Extracts from them that are of specific relevance to aspects of the application are set out in or attached to this affidavit.
5. All three of the said books contain allegations of wrongdoing in connection with the arms deals that are seriously defamatory of numerous individuals in Second Respondent, including First Respondent.
6. I must place on record that neither I nor, to the best of my knowledge and belief, Feinstein or Holden, has since been sued for defamation, or for an interdict, by any person or entity impugned in the books.
The postponement on 5 May 2011
7. Before the matter was postponed in this Court on 5 May 2011, I was encouraged, or perhaps admonished, by some of the members of the court to supplement the allegations made in the form of a pleading annexed to and confirmed by my founding affidavit. The most relevant parts of the pleading are the allegations set out in paragraphs 7 and 8 in which the circumstances and facts upon which I rely are set out in skeletal form.
8. Most of these allegations ought to be common cause in these proceedings because they are a matter of public record, verifiable by reference to official records - such as court judgments and parliamentary records - or else are notoriously well known.
The quantum of proof required
9. I am advised and verily believe that inasmuch as I am, at this stage, seeking only to adduce evidence on affidavit in support of a claim for the appointment of a commission on inquiry into allegations of wrongdoing, in and around the procurement of armaments, it is not necessary for me to establish actual wrongdoing (although I submit that I am able to do so in many instances) but merely a reasonable apprehension of wrongdoing which would justify the granting of an order directing First Respondent to exercise his responsibility to so appoint on the various legal grounds which will be argued on my behalf.
The admissibility of hearsay
10. I am further advised that because this application is in the nature of public interest litigation, and also because many of the facts and circumstances upon which I rely are not necessarily placed before the court as proof of the truth of their contents, but simply to illustrate the nature, scope and source of the many and varied allegations of wrongdoing, that this court may, in the exercise of its discretion, receive hearsay allegations which may not in the ordinary course have been admissible. I reveal the sources of hearsay wherever I can and I verily believe that all sources upon which I base my case are reliable and that such allegations are the truth. Wherever possible I will file confirmatory affidavits from the sources quoted. (I should record, however, that journalists are notoriously reluctant to depose to affidavits of this kind for fear of prejudicing their professional independence and compromising their confidential sources.)
The history of the litigation
11. When I commenced this litigation it was in the form of an action and the amended particulars of claim in that action, together with attachments, are attached to my founding affidavit in this application, marked "TCB1" (record page 24 et seq.). The said particulars of claim were initially pleaded far more fully, but they were pared down in response to a series of dilatory exceptions which were taken by First Respondent in these proceedings, the first defendant in the action.
12. One of the documents which I annexed to the original particulars of claim was Appendix B to Holden's book, The Arms Deal In Your Pocket, which is a timeline entitled "THE ONLY ARMS DEAL TIMELINE YOU'LL EVER NEED" covering the period 1989 to 8 August 2008.
13. As the matter is now on motion, following the successful exception based on the contention that the court in which the action was instituted does not have jurisdiction, it is appropriate to place the said timeline before the court as a suitable basis for placing the matter in its chronological context. The timeline is accordingly attached hereto, marked "PH1".
Roadmap to this affidavit
14. In this affidavit I propose to set out in greater detail the general facts and circumstances upon which I rely and thereafter to supplement the specific allegations made in the amended particulars of claim annexed to my founding affidavit, marked "TCB1". I apologise in advance if this leads to some repetition of material already annexed to the founding affidavit, my intention is to supplement it to the best of my ability in a coherent manner, in the time available to me, with the limited resources available to me, and with the help of those who are prepared to be of assistance in this matter.
General background
15. That there is a massive volume of evidence of wrongdoing associated with the arms deals was confirmed by General Anwar Dramat, head of the Directorate For Priority Crime Investigation (the Hawks), when he testified before the parliamentary Standing Committee on Public Accounts (Scopa) on 7 September 2010. I sat directly behind him during the hearings, and took detailed notes. The following paragraphs are based upon my contemporaneous notes taken while General Dramat made his presentation to Scopa.
16. General Dramat advised that the Hawks had inherited three investigations from the Scorpions, namely CAS914/11/2009 pertaining to the German Frigate Consortium ("GFC"), CAS915/11/2009 pertaining to the German Submarine Consortium ("GSC") and CAS916/11/2009 pertaining to British Aerospace ("BAE"). He testified that the evidence against BAE alone comprised 460 boxes and 4.7 million computer pages.
17. General Dramat did not refer to the contract which had the least value in the arms deals controversy, being the helicopter contract in which the Italian company Agusta was selected to supply 30 utility helicopters. Yet in April 2001 on a Carte Blanche television programme, a senior executive of Bell Helicopters publicly revealed that the company withdrew from the tender process because they were not prepared to pay bribes to the Shaik companies to secure those contracts.
18. Two Shaik companies, Nkobi Holdings (Pty) Ltd and Nkobi Investments (Pty) Ltd ("the Nkobi companies"), along with Schabir Shaik ("Shaik"), were subsequently found by the Durban High Court to have made payments amounting to over R1million to Jacob Zuma ("Zuma") - during a period in which Zuma was first national chairperson and then deputy president of the African National Congress ("ANC") - so that Zuma would use his name and political influence for the benefit of Shaik and his business enterprises, which Zuma did. The Nkobi companies, in which Shaik was the major shareholder, thus acquired shareholdings in Thint (Pty) Ltd ("Thint") and hence in African Defence Systems (Pty) Ltd, a company which formed part of the GSC and benefited from the arms deals. The Durban High Court finding resulted in the forfeiture of the Nkobi companies' shareholding, worth R21m in Thint, along with dividends derived from these shares amounting to some R12million. (See Shaik and others v State, [2008] ZACC 7 [CC].)
19. In a unanimous judgment, this court ruled in that case that both the shares and the dividends had flowed to Shaik and his companies as a result of Zuma's support for Shaik. It added that corruption was the type of criminal conduct targeted by the Prevention of Organised Crime Act, making its fruits subject to confiscation.
20. Preceding the Directorate of Special Operations' (Scorpions') raids on BAE premises in South Africa in November 2008 and to which General Dramat referred, investigators from the Scorpions and the British Serious Fraud Office ("SFO") on 19 November 2008 furnished the Pretoria High Court with some 160 pages of affidavits by Johan du Plooy and Gary Murphy. These affidavits detail how BAE paid bribes of £115 million to secure its South African arms deal contracts, to whom the bribes were paid, and into which bank accounts.
21. I subsequently obtained copies of these affidavits, which were referred to in my founding affidavit (record page 16, paragraph (l)). These said documents are now attached to this affidavit, and are marked "BAE1-BAE160".
The abandonment of criminal investigations
22. Despite this massive volume of evidence, the Hawks announced two weeks after the Scopa parliamentary hearings that they had abandoned the three investigations.
23. A six page memorandum by Major General JW Meiring to General Dramat motivates why these investigations should be abandoned. It is an extraordinary document, including at paragraph 3.18 that the volume of evidence against BAE is so massive that "approximately 460 boxes of documents and 4.7 million pages of documents must be perused and analysed." The memorandum is attached hereto marked "JWM1".
24. The investigations were closed in September 2010 because it was argued that -
the right to a speedy trial might have been compromised by the passage of time since the arms deals took place in the 1990s;
24.2 companies, witnesses and evidence were no longer available;
24.3 a proper investigation would be resource-intensive;
24.4 some suspects had died;
24.5 parallel foreign investigations had closed; and
24.6 it is difficult to get witnesses and evidence from abroad.
25. The document emphasises the difficulties (para 2.6) that "three suspects in the BAE leg in South Africa have all passed away" and, alternatively (para 3.10) "some of the suspects are now residing in other countries and extraditions will have to be applied for."
26. These suppositions by Meiring are patently not true. The beneficiaries of the bribes detailed in "BAE1-BAE 160," with one exception, are all still alive and are resident in South Africa for most or at least part of the year. In addition, investigations in the United States and Sweden are still continuing.
27. Not only do those affidavits detail why, how and to whom the bribes of £115 million were paid; they also specify into which bank accounts in South Africa the bribes were paid.
28. The decision to abandon the investigations is a flagrant violation, I aver, of the Hawk's constitutional obligations under section 205 (3) of the Constitution, as well as of our country's international obligations to fight corruption.
29. In addition, the Meiring memorandum does not even refer to investigation CAS915/11/2009 regarding the GSC.
30. The submarine contract was highly controversial given allegations that the former Minister of Defence, the late Joe Modise ("Modise") received bribes, and that the National Industrial Participation ("NIP", plural "NIPS") commitment to build a stainless steel plant at Coega never materialised.
31. The lead company in the submarine consortium is MAN Ferrostaal, a company now under investigation in Germany for a wide variety of irregularities regarding foreign contracts.
32. It was also alleged in the Sunday Times newspaper in August 2008, citing a study by an organisation called Control Risks, that MAN Ferrostaal had made a payment of R30 million to former President Thabo Mbeki ("Mbeki"), of which he had paid R2 million to then Deputy President Zuma, and the balance of R28 million to the ANC.
33. More recently, it was reported in the Mail and Guardian newspaper in September 2010 that MAN Ferrostaal is paying R75 million towards the making of the film of former President Nelson Mandela's book Long Walk To Freedom, and that this funding is being construed as an offset for the submarine contracts.
34. I visited the Munich Prosecutors office in March 2011. They confirmed that they are not at present investigating MAN Ferrostaal's South African contracts simply because of a lack of co-operation from South African prosecuting authorities.
35. I also visited the Federal Ministry of Justice in Berlin, and met the official responsible for Germany's compliance with the Organisation for Economic Cooperation and Development ("OECD") Bribery Conventions. He confirmed that German authorities would take the matter very seriously and would rigorously investigate should a complaint be lodged from South Africa against MAN Ferrostaal within the five year statute of limitations.
The request by Archbishop Emeritus Tutu and former President De Klerk for the appointment of a commission of inquiry
36. Archbishop Desmond Tutu and former President FW de Klerk (and others), one week after the aforementioned raids on BAE premises (which were public knowledge), petitioned then President Kgalema Motlanthe to appoint a judicial commission of inquiry into the arms deals. This request was preceded by requests such as that of Raenette Taljaard on 4 December 2002 to then President Mbeki. Copies of her request and his reply of 12 December 2002 are attached marked "RT 1"and "RT 2". At various times every major political party except the ANC, trade unions, non-governmental organisations and church bodies have called for a commission of inquiry into the arms deals.
37. As appears more fully from his letter at pages 80 and 81 of the record, the then President refused to accede to the petition, although he appears to concede, in the third paragraph of his reply to Tutu, that the grounds relied upon by him and de Klerk "have substance".
38. Indeed, as early as August 1999, Archbishop Njongonkulu Ndungane had publicly called upon Mbeki to appoint a judicial commission of inquiry into the arms deals.
ANC whistleblowers
39. Senior intelligence operatives who are or were members of the ANC approached me in June 1999 with information pertaining to the arms deals. Their approach to me was made because of my close associations with both Archbishops Tutu and Ndungane and, perhaps, because I was then a member of the ANC who had earned the trust of those who turned to me for help. For obvious reasons I am reluctant to identify the intelligence operatives and ANC parliamentarians involved, apart from Bheki Jacobs ("Jacobs"), who is now deceased.
40. These intelligence operatives, led by the late Jacobs, informed me that leading members of Umkhonto-we-Sizwe led by Modise regarded the arms deals as a means toward personal self-enrichment. They also said that political protection against prosecution would be provided by government in return for kickbacks (the payment of bribes or protection money) to the ANC.
41. I respectfully contend that there can be little doubt that the dissolution of the Scorpions occurred at least in part because of the unwillingness of Scorpions investigators to participate in the said protection of those who paid, received or facilitated bribes, against prosecution.
42. An example of such bribery was cited by the operatives who approached me. They cited Shabir Shaik and the Nkobi Group of companies, and their relationship with then Deputy President Zuma.
43. The Nkobi Group had been named after the former ANC Treasurer, the late Thomas Nkobi, and some of its companies were front companies for the ANC.
44. When Archbishop Ndungane's public call for a judicial commission of inquiry made in August 1999 was rebuffed, I introduced the said operatives to Patricia de Lille, MP ("de Lille").
45. The "Briefing To Patricia de Lille from Concerned ANC MPs" followed in September 1999. This document is attached hereto marked "PdL1" and has become known as the de Lille dossier. Its contents are self explanatory and should be regarded as incorporated into this affidavit.
46. De Lille, Archbishop Ndungane and I were subjected to massive pressures, including anonymous death threats, to disclose the identities of the ANC whistleblowers. We have not done so.
47. In November 1999, de Lille and I held a joint press conference in the precincts of Parliament, and announced that we had forwarded the evidence of arms deals wrongdoing to Judge Willem Heath for his assessment and appropriate action.
The Auditor General's report
48. The evidence furnished to Judge Willem Heath, together with other investigations, led to the Auditor General's report to Parliament in September 2000. This is attached hereto marked "AG1".
49. The Auditor General was dissatisfied regarding the arms deals on five major issues:
BAE had been given undue preference, and the removal of cost from consideration was a material deviation from tendering practices based on the requirements of section 217 of the Constitution;
The promised offsets could not be guaranteed;
The conflicts of interest of Chippy Shaik, brother of Shabir Shaik;
No consideration had been given to the personnel requirements of the acquisitions;
A local company, CCII Systems (Pty) Ltd ("C2I2"), had been unfairly excluded from tendering for a sub-contract with the GFC.
50. Public hearings were held in Parliament in October 2000, which I attended and to which I made a written submission which I no longer have.
Scopa's 14th report
51. These hearings led to Scopa's 14th report and to unanimous approval of the National Assembly in November 2000 for a multi-disciplinary investigation into the arms deals, and specified that the Heath Unit should be included. A copy of that report is appended, and marked "SCOPA1."
52. During the subsequent Christmas recess, high-level efforts were unleashed to derail this investigation. Those involved included the ANC's Chief Whip, Tony Yengeni ("Yengeni"), the Speaker of Parliament, Frene Ginwala, and the Minister in the President's office, Essop Pahad. The sequence of events in this strategy is detailed in Feinstein's After The Party at page 189.
53. A letter signed by Zuma, but subsequently confirmed (in the Shaik trial) to have been written by Mbeki, lambasted Scopa. The full letter is appended, marked "JGZ1." Feinstein comments in his book:
"It was a thirteen page excoriation of the committee for the same offences highlighted by the President. Using Johnny de Lange's words from the governance committee meeting, it stated that ‘the investigation is tantamount to a fishing expedition'. Describing the arms companies as ‘well-known and prestigious international companies', the letter fulminated against our rather measured statement that the arms industry was prone to corruption. It continued: ‘Natural justice demands that you both substantiate the allegation that the persons, governments and corporations ... are prone to corruption and dishonesty ... it is a most serious matter indeed for our parliament or any section of it to level charges of corruption against foreign governments and corporations without producing evidence to back up such allegations.' After further attacking Scopa for unfounded allegations and our ultra vires support for the Heath Unit the letter concluded with a familiar, paranoid refrain: ‘The government will also act vigorously to defend itself and the country against any malicious misinformation campaign intended to discredit the government and destabilise the country.'
This laughable defence of the innate purity of governments and arms companies seems particularly absurd in the light not only of the extensive documented history of global arms deal corruption and the accepted investigative process of compiling prima facie evidence and then launching a full investigation, but also what has subsequently emerged (and continues to emerge) about the South African deal." [Feinstein page 189]
54. Ministers Trevor Manuel ("Manuel"), Alec Erwin ("Erwin") and Mosiuoa Lekota ("Lekota") addressed Scopa members in late February 2001. They berated the parliamentarians for their audacity in questioning the veracity of cabinet ministers and Second Respondent.
55. It was evident from their answers to questions put by members of Scopa that all three ministers were completely out of their depths in terms of financial and economic knowledge. It also seemed that the full powers of the State would be used to block any meaningful investigation.
The JIT report
56. In due course and after many delays, the Joint Investigation Team ("JIT") report was tabled in Parliament on 15 November 2001. It is attached hereto marked "JIT1".
57. The opening paragraph 14.1.1 of the executive summary of the 380 page JIT report purportedly exonerated Second Respondent of any improper or unlawful conduct. That paragraph was curious, and prompted immediate public outrage to the effect that the report was a "whitewash."
58. The said paragraph contradicted virtually every other paragraph of the report which otherwise found that every contract was very seriously flawed by tendering irregularities.
59. Subsequently, and during the course of litigation, Young of C2I2, by court order obtained copies of the draft report. His affidavit which will be filed herewith details how and when the JIT report was "doctored" in the President's office.
60. In argument my counsel will analyse the main respects in which the actual contents of the JIT report contradicts the executive summary as doctored. Of particular relevance in this regard are the following paragraphs of the report:
Paragraph 1.1.5.1;
Paragraph 1.1.6.15;
Paragraph 1.3.1;
Paragraphs 4.1.13 to 15;
Paragraph 4.3.6.2;
Paragraphs 4.5.1.10 to 12;
Paragraph 4.6.5;
Paragraph 4.6.8;
Paragraph 4.6.10;
Paragraph 4.7.8.1;
Paragraph 6.1.10;
Paragraph 6.4.5.7;
Paragraph 6.4.6.17;
Paragraph 6.4.8.5;
Paragraph 6.4.8.9
Paragraph 6.8.5;
Paragraph 7.3.5.4(c);
Paragraph 7.7.1; and
Paragraphs 8.10.3.1 and 2.
Supplementing my amended particulars of claim
61. It is now appropriate to supplement the skeletal allegations made in the amended particulars of claim which are attached to my founding papers marked "TCB1", record page 27 et seq. I am advised and verily believe that the first five paragraphs thereof are uncontroversial whereas paragraph 6 will probably be denied by First Respondent. The sustainability of such denial will depend upon the court's assessment of the allegations, facts and circumstances pleaded in paragraphs 7 and 8 of my amended particulars. I turn now to supplement the allegations made in the said pleading.
Ad paragraph 7.1
62. The three books on the topic of wrongdoing in the contracts referred to in paragraphs 5.1 to 5.5 of the amended particulars of claim are Feinstein's "After the Party" (now in its second expanded edition), Holden's "The Arms Deal in your pocket"and my "Eye on the Money". All are serious works of non-fiction and they chronicle a multitude of instances of fraud, corruption and other impropriety and wrongdoing - both malfeasance and misfeasance - in and around the conclusion of the arms procurement contracts. I reiterate that no attempt has been made to interdict their publication and that none of the authors has been sued for defamation by any person or entity adversely commented upon.
63. I respectfully submit that the type of allegations made in these three books cannot simply be ignored by First Respondent. As there is at present no investigation of the wrongdoing concerned by any institution in the criminal justice administration, I submit that the only practical means available to get to the bottom of the allegations is to appoint an independent commission of inquiry.
Ad paragraph 7.2
65. This allegation can adequately be supplemented by referring to the judgment in S v Yengeni 2006(1) SACR 405 (T).
Ad paragraph 7.3
66. Similarly, I need do no more than refer to the relevant reported judgment which was upheld on appeal to the Supreme Court of Appeal and to this Court. The citation is S v Shaik and Others 2007 (1) SACR 142 (D).
Ad paragraph 7.4.1
67. This allegation has been overtaken by events. The 783 charges of corruption against Zuma were withdrawn by Acting National Director of Public Prosecution Mokotedi Mpshe ("Mpshe") in April 2009 on spurious grounds.
68. At the time of the said withdrawal of charges, Mpshe was at pains to confirm that he and his staff were satisfied that the merits of the case against Zuma were intact and good and that the withdrawal took place upon a technical basis only. The decision to withdraw the charges against Zuma is the subject matter of litigation which is likely to be finally adjudicated upon in this court, unless the work of any possible commission of inquiry pre-empts this.
Ad paragraph 7.4.2
69. Zuma's threat in March 2008 to expose others if he were to be convicted on the charges then pending against him (which included charges of bribery in relation to the arms deals - in effect the payment of protection money by Thint - a French arms manufacturer) was widely published in the press and and was the subject of two cartoons by Zapiro, one depicting Mbeki and Zuma as persons in glass houses who should not throw stones, and the other placing them in the Garden of Eden with the serpent. The caption of the former is "Digging the dirt on Mbeki's role in the arms deal, the Zuma camp aims to force a general amnesty for anyone implicated in corruption" and that of the latter is "Zuma threatens that unless there is a general amnesty, he'll force Mbeki into the witness box in his own upcoming corruption trial". Both cartoons are available, on pages 79 and 80 respectively, in the Zapiro annual compendium entitled "The Pirates of Polokwane" published by Jacana Media (Pty) Limited in 2008. The Garden of Eden was originally published in the Sunday Times on 23 March 2008 and the Glass Houses was originally published on 18 March 2008 in Independent Newspapers (being The Star, Cape Times, Pretoria News and The Mercury). A confirmatory affidavit deposed by the cartoonist will be delivered.
Ad paragraph 7.5
70. The evidence to flesh out this allegation is to be found in the reported judgment in the matter of Zuma v National Director of Public Prosecutions [2009] All SA 54 (N) paragraphs [29] to [35] which also confirms (at paragraph [32]) the allegations referred to in the immediately preceding paragraph.
Ad paragraph 7.7
71. The whole of the JIT Report is annexed hereto, marked "JIT1". First Respondent is invited to respond to the particular paragraphs set out in paragraph 6.8 and its sub-paragraphs of the letter of demand which is annexed to my amended particulars of claim marked "A" and which is already filed of record.
Ad paragraph 7.7.1
72. The matter of the Presidency interfering with the compilers of the JIT report is dealt with by Feinstein at page 183 of the second edition of "After the Party" and by Holden at page 299 of his book.
73. There has been a great deal of executive interference in the attempts by the legislature and other institutions of government to investigate wrongdoing in connection with the arms deals.
74. This has been chronicled in various reports in the media which I believe to be true because the content of the reports is based on information in the public domain which has not been disputed by any person at any stage.
Parliament sought an independent forensic audit including the Heath unit
75. On 30th October 2000, Scopa resolved that an independent forensic audit was required "to prove or disprove" allegations of corruption and malfeasance in connection with the arms deals. Scopa recommended a cross-cutting investigation involving four agencies, and particularly wanted to include the Special Investigation Unit (SIU), led by Judge Willem Heath, which was more politically independent, had a large legal and investigative staff, and could apply to have procurement contracts set aside and thus recoup public monies wrongly spent. [Feinstein, After the Party: pp172-173, 181; Laurence, Crushed!, pp12-13; Laurence, Draft reports ignite smouldering embers, Focus, Issue no 37, Helen Suzman Foundation, www.hsf.org.za, 9 October 2007, p2; 1996/97Survey, pp60-61]
76. On 2 November 2000 Parliament unanimously adopted Scopa's report and agreed to establish a comprehensive joint investigation team (JIT) drawn from all four agencies, including the Heath unit. [Mail & Guardian 19 October 2007]
Executive interference excluded the Heath unit
77. On 8 November 2000, ANC members of Scopa were summoned to a meeting with Essop Pahad, minister in the presidency, and other senior members of a new governance committee intended to provide "political leadership" to ANC MPs in Parliament. Also present, among others, were then Deputy President Zuma and the president's parliamentary adviser, Charles Nqakula. [The Sunday Independent 28 October 2007, Sunday Times 4 November 2007]
78. Though the Constitution requires Parliament to hold the executive to account, the executive members present told the MPs to reverse their call for a multi-agency investigation. The ANC members on Scopa were instructed to use their majority to water down their resolution and ensure the Heath unit was excluded from the investigating team. [The Sunday Independent 28 October 2007]
79. On 12 January 2001, four cabinet ministers (Erwin, Jeff Radebe, Lekota, and Manuel) held a press conference where they criticised Scopa. They said there was no need for an investigation into the arms deals at all as it was "the firm conviction of the Cabinet" that the acquisition of arms had been "undertaken with the utmost integrity".They described the arms procurement process as "open and transparent" and "fail-safe against corruption" because all decisions had to be approved by four government departments. [Feinstein, After the Party, page 185; 2001/2002 South Africa Survey, South African Institute of Race Relations, Johannesburg, 2002, page 73]
80. Thereafter, ANC members on Scopa apologised for the committee's unintended offence to the executive, criticised Scopa chairman Dr Gavin Woods (of the Inkatha Freedom Party) and said that Scopa had never called for the inclusion of the Heath unit. They also expressed their total confidence in the capacity of the other three agencies to conduct the investigation without Heath. [Feinstein, After the Party, pages 201-206; 2001/2002 Survey, page 75]
81. On 19 January of the same year a letter to Woods, signed by Deputy President Zuma, stated that Woods was ‘ultra vires' in seeking any investigation and that steps would have to be taken to ensure that both Scopa and Woods respected the rule of law. Zuma also accused Scopa of "having seriously misdirected itself", of making unwarranted assumptions of corruption against government ministers and officials involved in the arms deals, and of launching a fishing expedition aimed at trying to prove those assumptions true. [Laurence, Crushed!, page 14; Feinstein, After the Party, pages 186-187]
82. Also on 19 January 2001, then President Mbeki refused to authorise the inclusion of the Heath unit in the investigation on spurious grounds and publicly described Heath as "an inveterate blackmailer". (This accusation was seemingly prompted by Heath's refusal to hand over information regarding the arms deals which the judge regarded as too sensitive to disclose to the executive because it could jeopardise the investigation and lead to the victimisation of whistleblowers.) [Laurence,Crushed!, page 14; Feinstein, After the Party, page 187]
Executive interference with the JIT inquiry
83. The Auditor General, Shauket Fakie ("Fakie"), had initially supported the inclusion of the Heath unit but changed his mind after Mbeki held a meeting with him where he admonished Fakie for his initial report into malfeasance in the arms deals, which had prompted Scopa's inquiry. [Feinstein, After the Party, pages 197-198; Mail & Guardian 9 November 2007]
84. According to Feinstein, an ANC MP and member of Scopa who resigned in protest over executive interference into the investigation, Mbeki also made it clear "which aspects of the deal the auditor-general's office could or could not investigate". Thereafter, Fakie's staff were instructed not to have any contact with Woods, while two senior members of Fakie's office, who had been directing the inquiries into the arms deals for more than a year, were summarily removed from the investigation without any reasons being provided. Said one investigator: "The hand of the presidency over the investigation was palpable." [Feinstein, After the Party, pages 197-198; Mail & Guardian 9 November 2007]
Executive interference in the JIT report
85. In November 2001 the three agencies which had remained involved in the probe (the Auditor General, the Public Protector, and the National Prosecuting Authority) presented a joint report to Parliament on the outcome of their investigations. This 380-page report was drawn up primarily by the Auditor General's office with limited input from the other two agencies. [Business Day 7 January 2005; Feinstein, After the Party, page 212]
86. The joint report of 14 November 2001 identified some 50 instances of non-compliance with normal procurement processes. It also found that "proper evaluation procedures were not consistently and diligently applied and a proper audit trail was not established throughout the procurement process". It said "the time allocated for each evaluation and execution was insufficient to ensure that it was done properly and efficiently", and that "various key documents had not been finalised and/or duly approved before the final contracts were concluded". [Final Report of the Joint Investigating Team into the Strategic Defence Procurement Package, November 2001, cited in Feinstein, After the Party, page 211]
87. Noted Feinstein in response: ‘In auditing terms, these were serious failures. In fact, in numerous Auditor-General's reports such findings would lead to the AG expressing an adverse opinion or refusing to express an opinion at all. This would then lead Parliament to refuse to authorise the expenditure and require government to recover the monies spent. This was what occurred in relation to ‘Sarafina II', with senior public servants losing their jobs. So why was this, the largest single procurement undertaken since the advent of democracy, and with arguably the highest incidence of non-compliance with accepted practice, treated differently by the AG?' [Feinstein, After the Party, p211]
88. The report avoided key issues Fakie had earlier identified as warranting investigation. These included the overall costs of the procurement over 12 years, including not only interest payments but also likely further costs from inflation or depreciation of the rand against foreign currencies. In addition, the report noted that the sub-contracts entered into had not been examined in any detail. Yet it was in the complex interactions between main and sub-contractors that corruption could well have taken place, especially as Chippy Shaik had been closely involved in these decisions. Moreover, though the government had denied that it had influenced the award of the sub-contracts in any way, Scopa had seen letters from the Department of Defence and the parastatal, Armscor, instructing the main contractors as to the sub-contractors they were to choose. [Feinstein, After the Party, pp211-212]
89. In its "Key Findings and Recommendations", the report nevertheless stated: "No evidence was found of any improper or unlawful conduct by the government." It acknowledged that certain "irregularities and improprieties" had come to light, but said these pointed to the conduct of "certain officials" in government departments and could not be ascribed to the president, the cabinet, or the ministers who had served on the special committee responsible for the arms purchase. "There are therefore no grounds to suggest that the government's contracting position is flawed", the report concluded. [Business Day 7 January 2005; Patrick Laurence, Draft reports ignite smouldering embers, pages 2-3; Feinstein, After the Party, page 212]
The response of Scopa to the executive interference
90. Woods responded that the three agencies had conducted "a weak and seriously incomplete investigation", contrary to what Scopa had envisaged. However, when Scopa met to consider the JIT report, the ANC used its majority to vote through a response which it had drawn up in advance and which expressed total satisfaction with the JIT probe. The Scopa response also expressly rejected the need for any further investigation. [Feinstein, After the Party, page 212]
91. In February 2002, Woods resigned as chairman of Scopa in protest and simultaneously released a document noting the fact that Scopa had effectively condoned some 50 instances of non-compliance with tendering procedures. "In terms of the Public Finance Management Act standards, the Auditor General would have had to declare most of the five main transactions as unauthorised or irregular expenditure", Woods wrote. However, despite the billions of rands involved in the arms acquisition, the investigation team had simply "rationalised" these concerns away or "dismissed the need to establish the truth". Woods concluded that the team's report had "whitewashed" the arms deals. This had led to "the whole saga...being buried". [Business Day 24 July 2002]
92. A supporting affidavit from Woods is in the course of preparation by him, but unfortunately, owing to his other pressing personal and professional commitments, it will not be completed by the 15 June deadline for filing. When it comes to hand it will immediately be served and filed. I respectfully request that the late filing of the valuable information Woods is able to supply should be condoned in that his affidavit will be filed in good time for the respondents to deal with it and there can be no prejudice to them in the circumstances in which this affidavit and the attachments to it will occupy them for a longer period than that involved in the delay in filing the affidavit by Woods.
93. I am also arranging for the filing of a confirmatory affidavit from Feinstein. His affidavit will be filed in support of this application, either herewith or as soon thereafter as it becomes available. Should it become relevant, I ask the court to condone the late filing of Feinstein's affidavit as the material canvassed herein regarding Feinstein is important but the obtaining of an affidavit from him is not a matter that is entirely mine to control. Moreover, I respectfully request that any late filing of the confirmation Feinstein is able to provide should be condoned in that his affidavit should be filed in good time for the respondents to deal with it and there can be no prejudice to them in the circumstances in which this affidavit and the attachments to it will occupy them for a longer period than that involved in any delay in filing the affidavit by Feinstein.
94. Earlier drafts of the JIT report were made public in 2005 after a prolonged legal battle to gain access to them under the Promotion of Access to Information Act of 2000. These drafts showed that the final report had been significantly changed before it was made public. [Business Day 7 January 2005, Sunday Times 5 June 2005]
95. Comparison of the draft and final versions, wrote Tim Cohen in Business Day, showed that the final report had "excised great swathes of the original, including allegations that public servants were intimidated, minutes of meetings substituted, preferred suppliers changed, and doubts suppressed". [Business Day 7 January 2005]
96. In addition, the final report excluded strong objections from senior members of the defence force to buying more fighter jet aircraft when the country had only nine pilots able to fly its 50 existing supersonic fighters; the influential role of late Defence Minister Modise in ensuring that the R15 billion purchase for the jet aircraft nevertheless went through; and the pivotal role played by Modise in ensuring that the British-made Hawk jet was chosen instead of an equally sound Italian aircraft which would have cost half the price paid for the Hawk. [Business Day 7 January 2005]
97. Important additions had also been made to the final report in the form of categorical statements that "No evidence was found of any improper or unlawful conduct by government", and that there were no grounds for suggesting that "the government's contracting position was flawed". Earlier drafts had contained no such conclusions. In many instances, the contrary conclusion had in fact been reached. [Business Day 7 January 2005]
98. Among the documents released was a set of handwritten notes, which were in the same handwriting as the annotations on the penultimate draft. Under the heading,"Add to overall conclusion", these notes contained the sentence: "1. The joint investigation team found no evidence of impropriety, fraud, or corruption by cabinet or government." This sentence is echoed in the final report's assertion that "No evidence was found of any improper or unlawful conduct by the government". [Laurence, Draft reports ignite smouldering embers, Focus, no 37, 2003, pages 2-8, at pages 5-6]
99. Feinstein's book has since provided further examples of the way in which the final report was changed. Fakie's draft had been critical of the aircraft purchase in various ways. The draft said Modise ‘could have influenced' the decision to select the Gripen and Hawk aircraft produced by BAe/Saab. It noted that ‘preference had been given to BAe/Saab by making changes to value systems midway through the process'. It said these changes had caused the Hawk aircraft to be ranked first, followed by the Italian Aeromacchi jet', even though the Italian aircraft ‘could have been acquired much cheaper while also meeting the requirements of the SAAF [South African Air Force]'. The draft report thus concluded that ‘there were fundamental flaws in the selection of BAe/Saab as the preferred bidder' for the aircraft. [Feinstein, After the Party, p214]
100. By contrast, the final version of the report exonerated the executive and stressed that there were "no grounds for suggesting that the government's contracting position was flawed". It acknowledged that the evaluation criteria for the aircraft had been "expanded to include a non-costed option" and said this was "unusual in terms of normal procurement practice". However, it went on to stress that "this decision was neither unlawful, nor irregular in terms of the procurement process as it evolved". It said the ministers' committee had decided to recommend the Hawk/Gripen option to cabinet for "strategic reasons, including the total benefit to the country in terms of counter trade investment [the promised offsets] and the operational capacities of the SANDF [South African National Defence Force]". [Feinstein, After the Party, page 215]
101. This rationalisation in the final report is unconvincing, however, and ignores aspects of the saga which the draft report made clear. For the Hawk aircraft did not in fact meet the operational requirements of the SAAF. This factor, coupled with its cost, had resulted in its exclusion from the initial shortlist drawn up in 1997. It was only after Modise had held meetings with the UK's Defence Export Services Organisation that interest in the Hawk had begun to rise again.
102. The SAAF nevertheless remained so implacably opposed to the Hawk that the chief of the force wrote that they would accept it only if "politically obliged" to do so. The secretary of defence, Pierre Steyn, later told investigators that the selection of the Hawk/Gripen had been "turned arse about face", the SAAF being pressurised to tailor its requirements to fit what the politicians had already decided.
103. As Feinstein records, "Despite Steyn's objections, Modise insisted that...both the costed and non-costed options be sent to the cabinet sub-committee, stating: ‘We must not prejudge - let the politicians decide.' The politicians decided in favour of the Hawk/Gripen at an informal meeting attended by Mbeki, Chippy Shaik, Modise, Erwin, and a few others in Durban. Steyn..., who was also in attendance, was furious, as the relative merits of the Hawk and Aeromacchi were not even discussed at the meeting. Later, the Hawk/Gripen was presented to cabinet as the sole recommendation. Steyn resigned over the matter". [Feinstein, After the Party, p215]
104. When some of the major discrepancies between Fakie's draft and final reports became apparent, an editorial in Business Day commented: ‘...The draft of what is now known as the arms-deal report shows unequivocally that the final report was a thorough whitewash... A comparison between the draft versions and the final version shows a sea change in approach. The draft versions aim at ascertaining responsibility, the final version explicitly at deprecating responsibility. The draft versions hold individual ministers responsible and specifically outline their roles in the process, particularly [that of] Modise. The final version states, on the basis of little substance in the investigation, that ministers acted in a way that was neither illegal nor irregular... Auditor General Shauket Fakie has spent much of the past few years denying that the report was changed in any fundamental way. We now know that this is not true. We now know why the draft versions had to be wrestled from his grasp after a lengthy legal brawl...'
105. Overall, the earlier drafts showed that various changes had been made to the JIT report between May and October 2001 but these were small and unimportant. The significant changes were made between 18 and 26 October 2001. The record also showed that the draft had gone to the presidency on 4 October 2001 and that Fakie had met Mbeki on or around 16 October. This juxtaposition of events indicated that the major changes had been made after this meeting and as a result of it. [Business Day 7 January 2005]
Subsequent interference and obstruction
106. Opposition parties called for a judicial commission of inquiry, saying the final report had been a cover-up. The DA said that failure to appoint such a commission would "send out a clear signal that the government was either unable or unwilling to deal decisively with the mounting allegations of corruption that continue to surround the arms deal". The United Democratic Movement and other parties agreed that a judicial commission was necessary to restore confidence. [Business Day 10 January 2005]
107. The DA obtained encrypted faxes and other evidence suggesting that Mbeki had, as early as 1997, promised an arms contract to arms manufacturer Thomson-CSF (while such a contract was in fact later awarded to an entity within the Thomson-CSF group). In addition, the evidence showed that Mbeki had held a secret meeting with the company in 1998 when he was chairman of the ministerial sub-committee dealing with the arms purchase. Opposition parties were initially barred from questioning Mbeki about the matter in Parliament and were finally told, in a written reply, that the president "does not recall" such a meeting. [Business Day 23 June 200 and 28 February 2006, Sunday Times 28 Aug 2005. See also annexures "DA1," "DA2" and "DA3."
108. The SFO began investigating "commissions" (paid by BAE to South African middlemen) which helped secure the purchase of Hawk trainer jets. But Mbeki at first denied having any knowledge of such a co-operation request from the SFO and later asserted that the national interest could be harmed by a forensic scrutiny of the arms deals. An editorial in the Mail & Guardian commented that the SFO had been waiting months for its request for legal assistance to be processed. [Mail & Guardian 19 January 2007]
109. In 2008, then Justice Minister Brigitte Mabandla refused to authorise overseas travel by DSO investigators to meet the SFO and follow up on leads in other countries. [Mail & Guardian 20 June 2008]
110. The SFO informally provided the DSO with new evidence of huge commissions paid by BAE, including commissions paid to former ministry of defence adviser Fana Hlongwane ("Hlongwane"), who was alleged to have received more than R200 million in commissions from BAE in the decade following the arms deals. But, in 2009, the director general of the Department of Justice and Constitutional Development, Menzi Simelane, said South African law did not allow such informal exchanges and flew to Britain in an attempt to persuade the SFO to end its South African probe. In addition, when the DSO applied to a South African judge to issue a formal letter of request for access to the British evidence, this letter was reportedly not forwarded by Simelane's department to the SFO. [Mail & Guardian 26 March 2010, 17 September 2009]
111. In 2010 the SFO entered into a comprehensive plea bargain agreement with BAE which put an end to the SFO's probe into South Africa's purchase of Hawk trainer jets from BAE. South Africa's persistent failure to co-operate with the SFO may have contributed to the SFO's decision to enter into this plea bargain. [The Times 9 September 2010]
112. In March 2010 the Asset Forfeiture Unit (a unit within the National Prosecuting Authority) obtained a preservation order from Judge Willem van der Merwe to freeze a portion of Hlongwane's assets held in accounts in Liechtenstein. But Simelane later ordered the abandonment of the preservation order after erroneously deciding that there was no evidence to support the forfeiture application that would have followed. Judge van der Merwe then ordered the 500-page file, which included extensive new information about payments to Hlongwane, to be placed in the public domain. [Mail &Guardian 26 March 2010]
113. German investigators also sought South African help in probing commissions paid by the German shipbuilder ThyssenKrupp to secure the sale of corvettes as part of the arms deals. Mbeki was alleged to have helped "turn" the tender in ThyssenKrupp's favour in 1999, while Chippy Shaik, Second Respondent's then head of arms purchases, was alleged to have demanded some R30 million from the firm to ensure the success of the German bid. However, DSO investigators were again, on technical grounds, prevented by the Justice Department from exchanging information with their German counterparts. In 2008, the German investigators ended their probe after South Africa had failed to provide them with any of the information they had requested to finalise their case. [The Star 19 June 2008; Mail & Guardian 20 June 2008 and 17 September 2009]
114. In December 2007, charges of corruption and other crimes were laid against Zuma, then president of the ANC, whose financial adviser, Schabir Shaik, had been convicted of corruption in June 2005 for offences relevant to the arms deals. Zuma's trial would have thrown considerably more light on malfeasance surrounding the arms deals, but instead the case against him was withdrawn in April 2009 on indefensibly flimsy technical pretexts by Mpshe, who insisted at the time that a good case on the merits of the charges nevertheless remained. [Sunday Times 5 April, Business Day, The Citizen 7 April, Mail & Guardian 9 April 2009]
Ad paragraph 7.8
115. The 14th report of the Standing Committee on Public Accounts ("Scopa") dated 1 November 2000 is annexed hereto marked "SCOPA1".
Ad paragraph 7.9
116. The "De Lille dossier" is annexed marked "PDL1".
Ad paragraphs 7.10 and 7.11
117. I am advised and verily believe that these paragraphs are sufficiently detailed to enable the First Respondent to respond on oath to their contents. The most recent estimate of the total cost of the arms deals is now R70 billion. This is due to interest, inflation and currency exchange rate fluctuations, none of which is germane to the essence of my case, which is aimed at the appointment of a commission, not a findingin relation to the public airing of various forms of wrongdoing. These I have set out simply in order to show that First Respondent's failure and/or refusal to appoint a commission is irrational and unreasonable and therefore illegal.
Ad paragraph 7.12
118. The High Court file pertaining to the search and seizure operations against Hlongwane and others in South Africa is annexed marked "BAE1-BAE160". I have been unable to finance the location and copying of the Swiss proceedings against him. This is because I have been rendered indigent by earlier litigation concerning the loans underpinning the arms deals. The details of this are set out in stark and painful completeness in Terry's answering affidavit in these proceedings.
Ad paragraphs 7.13 to 7.18
119. I am advised and verily believe that these paragraphs are sufficiently detailed to enable First Respondent to respond on oath to their contents. If First Respondent needs greater detail than that pleaded, he is invited to refer to the three books upon which I rely in this supplementary affidavit.
Ad paragraph 8.1
120. A copy of my complaint against Manuel is annexed marked "TM1". I confirm the contents thereof.
Ad paragraph 8.2
121. Young's affidavit setting out his involvement in the arms deals will be delivered separately from this affidavit.
Ad paragraphs 8.3 to 8.6 and paragraphs 9 to 22
122. I am advised and verily believe that these paragraphs are sufficiently detailed to enable First Respondent to respond on oath to their contents. I reaffirm that there has been no response from the Public Protector (to whom I wrote again, as can be seen from my founding affidavit), from the South African Police Service or from the National Prosecuting Authority to the various communications referred to in these paragraphs and in the parentheses in this paragraph. There is simply no current investigation of any wrongdoing in the arms deals, hence the crying need for the appointment of a commission of inquiry.
Further matters of relevance
123. In addition to the matters already on record, as now supplemented above, I wish to draw the attention of the court to the further matters set out below:
My claim is not res judicata
124. I reject the suggestions in the affidavit deposed by Kenneth Terry ("Terry") that the decision in Case No. 9987/2001 renders the relief sought in the present application res judicata. I am advised that this is not the case, as different relief is sought herein. Nor did I base my narrow cause of action in the previous litigation on corruption, fraud, wrongdoing and wide-spread irregularities in the conclusion of the arms deals. As a banker, I merely focused on the loans, in the hope that setting them aside would unravel the transactions.
My litigation against Manuel
125. In embarking on litigation against Manuel in his capacity as Minister of Finance, I was acting in the public interest and in the following circumstances:
126. After de Lille and I announced in November 1999 that we had forwarded evidence of arms deals wrongdoing to Judge Willem Heath, I also informed the British government's Export Credit Guarantee Department ("EGCD") of the very serious allegations and evidence against BAE and advised them it would be fraudulent to finalise the financing arrangements for the arms deals pending Judge Heath's findings.
127. The ECGD is the official British export credit agency. BAE is by far its largest client.
128. Despite also being kept informed, Second Respondent, on 3 December 1999, signed the supply agreements for the arms deals contracts, including the BAE agreement, subject to finalisation of loan agreements to be negotiated by the then Minister of Finance, Trevor Manuel ("Manuel").
129. Manuel's key role in the Cabinet's arms deals committee was to consider the affordability and financing of the acquisitions. He was publicly known to believe that the country could not afford the arms deals, yet was nevertheless persuaded to enter into the loan agreements.
130. Manuel and all other cabinet ministers at the time had also been kept fully informed by me, through the Coalition For Defence Alternatives (a faith-based group involved in the parliamentary Defence Review) about the allegations of wrongdoing.
131. Nonetheless, Manuel signed the Barclays Bank and ECGD loan agreements on 25 January 2000, which give effect to the BAE Hawk and BAE/Saab Gripen fighter aircraft contracts. His signature is on page 47 of the document annexed hereto marked "BB1".
132. The director of the ECGD, Chris Leeds, with whom I had been in correspondence for the previous three months, signed on behalf of the British government, also on page 47. My correspondence and warnings about corruption allegations were unsuccessful in preventing the signing of the supply contracts or loan agreements.
133. Manuel also seemed to be aware of wrongdoing in the arms deals, as Feinstein records in his book, After The Party. Feinstein, a former ANC Member of Parliament and senior representative on Scopa, records how Manuel invited him to lunch near Parliament and at the end of the meal came to the real point of the meeting:
"We all know JM [as Modise was known]. It's possible that there was some shit in the deal. But if there was, no one will ever uncover it. They're not that stupid. Just let lie. Focus on the technical stuff, which was sound.
I responded that there were even problems with the technical aspects, and warned that if we didn't get to the bottom of the deal now, it would come back to haunt us - a view I expressed over and over again within the ANC. [Feinstein's 2nd edition, page 177].
134. Quite clearly Manuel seemed to believe that Modise had been involved in corruption.
135. As Minister of Finance as well as in his other capacities, Manuel was legally obliged to investigate any suspicions of corruption or money laundering in terms of the Prevention of Organised Crime Act (1998) and other legislation.
136. After the JIT tabled its report, which despite its conclusion exonerating the Cabinet of any wrong-doing, also highlighted many failures to comply with proper procurement practices. I filed an application in the public interest in the Western Cape High Court under Case No. 9987/2001 seeking the setting aside of the arms deals loan agreements that had been signed by Manuel on 25 January 2000. My rationale was that if the loan agreements were set aside, it might still be possible to cancel the arms purchases.
137. Manuel insisted under oath that the loan agreements stood independently of the arms deals. This was an irrational statement and was disproved by the loan agreements themselves, but I sought discovery of additional documents to prove further that the loan agreements were not independent of the arms deals, but integral to them.
138. The Barclays Bank/ECGD loan agreements were verified in court by Manuel's legal counsel, Advocate Michael Kuper SC, as authentic. On page 12, they set out the purpose of the loans as the purchase of the BAE Hawk and BAE/Saab Gripen fighter aircraft in five tranches, thereby contradicting Manuel's assertion under oath that the loan agreements were independent of the arms deals. As advised above, the main agreement is appended marked "BB1."
139. Kuper also referred the court to the "representation, covenant, and default" clauses (clauses 21-23) of the agreement, and volunteered that they were "potentially catastrophic for South Africa."
140. As a former international banker, I agree with that assessment, and believe those clauses to be a textbook example of "third world" debt entrapment by European banks and governments.
141. The ECGD has long been notorious amongst international bankers for "turning a blind eye" to the use of corruption to secure major British export contracts. A detailed 79 page study by Dr Susan Hawley ("Hawley") of The Corner House was published in June 2003. Its executive summary and conclusion, together with its case study of BAE's South African arms deal contracts is appended, marked "ECGD1".
142. I aver that former Minister of Finance Manuel, in committing South Africa to those loan agreements and their default clauses, exceeded his authority in terms of the erstwhile Exchequer Act or the incoming Public Finance Management Act.
143. In March 2003, the Cape High Court ordered discovery to me, within ten days, of the arms deals' International Offers Negotiating Team and Financial Working Group papers.
144. However, Manuel and Maria Ramos ("Ramos"), who then worked for the Department of Finance, seemed to devise elaborate ploys to frustrate that order, having unsuccessfully argued in court papers that it was not in the national interest to disclose how Second Respondent conducts its international financial arrangements.
145. Only after three applications for committal for contempt of court against Manuel and Ramos did they finally provide me with what later transpired to be only a draft copy of the 1999 affordability study. This occurred in November 2003, eight months after the court order.
146. On receipt of these documents I emailed my lawyer, Charles Abrahams, on 19 November 2003 as follows:
"The documents received yesterday are very uneven and incomplete. Of two hundred and twenty four pages, fifty one relate to three steel projects, the opening paragraph says South Africa doesn't need another steel mill. After comparison with chapters eight and nine of the JIT report, it is evident that we've only got part of the IONT and financial working group documents.
The Cabinet most certainly did not approve of the arms deal on the basis of the documents we've got, given the repeated and unambiguous warnings they contain about the risks involved. If they did, they most certainly did ‘not apply their minds.' Having ignored these warnings and signed the loan agreements, Manuel should be facing criminal charges."
[In this email, IONT is used as an acronym for Second Respondent's International Offers Negotiating Team ("IONT").]
147. I also issued a press statement dated 19 November 2003, a copy of which is appended, marked "TCBS1."
148. Manuel stated on oath that he had now complied with the Court's discovery order.
149. I learned in due course that this statement on oath was false to the knowledge of Manuel, and thus comprised the offence of perjury. I was subsequently able to estimate that in fact I had been furnished with less than three percent of the documents to which I was entitled in terms of the 2003 discovery order.
150. I filed a complaint against Manuel of perjury and money laundering with the Specialised Crime Unit in Bellville, Cape Town in August 2008 but, as far as I know, no action has been taken against him.
151. By early 2004, I was mentally and financially exhausted.
152. I therefore proceeded, unwisely as it transpired, with the application in expectation that the loan agreements combined with the affordability study were alone sufficient to prove that Manuel had not properly applied his mind, and that his signature to the loan agreements was illegal and unconstitutional.
153. Regrettably for me, the judges seized of the matter found that Manuel was merely implementing a cabinet decision, and therefore that I had sued the wrong party. My application was therefore dismissed with costs.
154. The history in relation to the execution of the costs order has already been placed on record in the affidavit deposed to by Kenneth Terry ("Terry"), record pages 142 to 144.
A vast pool of evidence
155. From all of the aforegoing, I respectfully submit that there is a vast pool of evidence warranting the establishment of an independent commission of inquiry into the arms deals.
My open tender
156. Accordingly, on 10 May 2011, shortly after the matter was postponed to 20 September 2011 at the request of First Respondent, I instructed my attorney to make an open tender to the State Attorney on a temporarily confidential basis. A copy of this tender is attached marked "TCBT".
157. The State Attorney's office in Cape Town acknowledged receipt, and requested an extension until 31 May 2011 to consider the tender. I readily agreed to this request as I was and remain anxious to bring this litigation to a swift and just conclusion.
158. The State Attorney did not revert with a positive response by 31 May and I am accordingly entitled, because of the terms and open nature of the tender, to place same before this court for consideration in connection with the question of costs. The State Attorney's rejection of the open tender by letter dated 31 May 2011 is attached marked "SA1".
159. I respectfully contend that my tender offers a satisfactory means to close the highly contentious arms deals scandal. It is a matter of great regret that First Respondent did not respond positively to the tender before the directions which occasioned the preparation of this affidavit were issued. A copy of my attorney's response to the State Attorney's letter of 31 May 2011 is attached marked "TCBS2" and is self explanatory. There has been no response to it at the time of deposing to this affidavit.
Costs
160. Insofar the costs reserved on 5 May 2011 are concerned, I am advised that postponements are not there for the asking in this court and that First Respondent was afforded an indulgence to prepare affidavits on the merits of this dispute at a time when I was opposing the postponement of the matter and had instructed my legal advisers to proceed to argue the matter on the papers filed of record as at 5 May 2011.
161. In this regard it is relevant to point out that First Respondent ought to have dealt with the merits of the matter in his original answering papers but did not do so, at his peril I submit.
162. Furthermore, after directions concerning disputes of fact were issued, the heads of argument delivered on my behalf on 11 March 2011 requested that directions be issued to enable me to deal appropriately with the earlier directions concerning the possibility of material disputes of fact.
163. This request was followed up in correspondence and led to the launching of an application for directions under rule 11 on 6 April 2011, under which First Respondent would have been required to deliver the necessary affidavit(s) by noon on 21 April 2011. This would have been in good time for the hearing on 5 May 2011.
164. Instead of delivering the said affidavit(s), First Respondent elected to oppose the rule 11 application in a dilatory fashion, as a consequence of which it was overtaken by events and the passage of time.
165. Ironically, the postponement of the hearing on 5 May at First Respondent's request occurred to enable him to do that which he had studiously avoided and indeed resisted doing up until the stage when the court put him to the election of arguing the matter on my papers and those then filed by First Respondent or seeking time to do what the rules and practice required of him in the first place.
166. In these circumstances I submit that is appropriate that a punitive costs award should be made.
Relief claimed
167. I accordingly respectfully request that an order be made in terms of the notice of motion and that I be awarded the costs of the application including the costs attendant upon the engagement of two counsel, and the costs reserved on 5 May 2011 on such scale as this court deems appropriate.
TERRY CRAWFORD-BROWNE
Signed and sworn to before me at Noordhoek on this 13th day of June 2011, the deponent having acknowledged that the deponent knows and understands the contents of this affidavit, has no objection to taking the oath and considers the oath binding on his conscience, and the deponent having uttered the words: "I swear that the contents of this affidavit are true so help me God."
COMMISSIONER OF OATHS
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