In the High Court of South Africa North Gauteng High Court, Pretoria - Case No. 9577/09

In the matter between :

Democratic Alliance - Applicant

an

The Acting National Director of Public Prosecutions - First Respondent

The Head of the Directorate of Special Operations - Second Respondent

Jacob Gedleyihlekisa Zuma - Third Respondent

and

Richard Michael Moberly Young - Intervening Party

CCII Systems (Proprietary) Limited - Second Intervening Party

Founding Affidavit

I, the undersigned,

Richard Michael Moberly Young,

do hereby make oath and declare as follows :

1. I am an adult male citizen of the Republic of South Africa, am qualified as an electronics engineer (in which discipline I hold a PhD from the University of the Witwatersrand), and am the sole director, and also the managing director, of CCII Systems (Proprietary) Limited ("CCII Systems"), a duly-incorporated company which has its principal place of business at Unit 3 Rosmead Place, 67 Rosmead Avenue, Kenilworth, Cape Town. I am in addition the major shareholder in CCII Systems.

2. I am also duly authorised to depose to this affidavit and to bring this application on behalf of CCII Systems.

3. The facts herein contained are within my personal knowledge, and are true and correct. Where I make submissions of a legal nature, I do so on the advice of Applicant's legal advisers, who are also my and CCII Systems's legal advisers for the purposes of this application to intervene as further applicants in the review proceedings instituted by Applicant under the above case number.

The Purpose of this Application

4. This is an interlocutory application, in which I seek leave on behalf of myself and CCII Systems to intervene as Second and Third Applicants respectively in the application proceedings instituted by Applicant (which will become the First Applicant, in the event that this application should be granted) for the following substantive relief :

4.1 reviewing, correcting and setting aside the decision of First Respondent taken on or about 6 April 2009, to discontinue the criminal prosecution of Third Respondent, in accordance with charges contained in an indictment of 27 September 2007 (‘the decision');

4.2 declaring the decision to be inconsistent with the Constitution of the Republic of South Africa, 1996, and invalid.

5. By letter dated 24 April 2009 the State Attorney, on behalf of First Respondent, wrote to the attorneys of record of Applicant and Third Respondent, stating that the record would be filed if First Respondent was obliged in law to do so, but that there were two issues which prevented this, being :

5.1 the conditions under which Third Respondent's legal representatives had made representations to the National Prosecuting Authority ("the NPA");

5.2 the standing of Applicant in the main application, as well as the reviewability of the decision.

A copy of this letter is, I am advised, annexure "A" to the founding affidavit of Mr James Selfe in Applicant's interlocutory application for the record of the proceedings relating to the decision of First Respondent which forms the subject-matter of the review application, and I accordingly do not annex a further copy to this affidavit.

6. Applicant disputes the contention on behalf of First Respondent that it lacks standing in the main application, as will be confirmed by it in an affidavit of Mr Selfe which will be delivered together with this affidavit. Nevertheless, in order to obviate any possible difficulties in this regard, CCII Systems and I seek to intervene as Second and Third Applicants. As will become apparent from what follows below, there can be no serious dispute about our standing.

My Interest in the Prosecution of Third Respondent

7. Historically this matter arises out of the South African government's Strategic Defence Packages ("SDPs") armaments acquisition programme, more commonly known as the "Arms Deal". This process formally commenced in 1997, with placement of contracts taking place on 3 December 1999.

8. CCII Systems is a supplier of specialised software and computer systems for defence applications. It was first tasked in 1992 by the Armaments Corporation of South Africa Limited (Armscor), acting as procurement agent for the South African Navy ("the SAN"), to assist in the development of a combat suite (a set of systems that enables a naval vessel to engage in combat) for use on new patrol corvettes that were to be acquired by the SAN. In particular, CCII Systems became involved in the development of the so-called Information Management System ("the IMS"), a databus for the distribution of data to the various systems comprising the combat suite. This computerised system was intended to be a central component of the vessels' combat capability, essentially receiving incoming data (regarding missiles or aircraft, for example), translating such data electronically and sending appropriate responsive messages through to the weaponry of the vessels.

9. As appears from the founding affidavit in the main application, two companies were intended to be co-accused with Third Respondent, namely Thint Holding (SA) (Proprietary) Limited ("Thint Holding") and Thint (Proprietary) Limited ("Thint"). Both companies were owned by Thales International of France ("Thales") and both have apparently closed their business operations in South Africa since the announcement by First Respondent that the prosecution was not proceeding.

10. Due to the conduct of Thales and an indirectly-held local subsidiary of Thales, African Defence Systems (Proprietary) Limited ("ADS"), the IMS of CCII Systems was at a late stage of the evaluation process and in highly questionable circumstances deselected for inclusion in the combat suite of the SAN's patrol corvettes. Instead, the Detexis Diacerto Combat Suite Databus ("the Detexis system") of one of Thales's subsidiaries was selected.

11. The deselection of the IMS, developed by CCII Systems for inclusion in the combat suite of the SAN's patrol corvettes, was in my view inexplicable on any ground pertaining to the nature and value of the system itself. The IMS was in fact, as the SAN's own evaluation team found, a superior product and the Detexis system was deficient and failed to comply with the required specifications in terms of a document issued by the SAN, as the end user of the corvettes to be supplied as part of the SDPs, on or about 10 December 1998 titled SA Navy Patrol Corvette Combat Suite Requirements Specification, which document set out the requirements baseline for the combat-suite component of the four corvettes.

12. One of the directors of both ADS and ADS's local shareholder, Thint (then called Thomson-CSF (Proprietary) Limited ("Thomson-CSF")), was Schabir Shaik. Schabir Shaik was also an indirect shareholder in ADS via his company, Nkobi Investments (Proprietary) Limited.

13. During the period 1997 to 2001 Shamim "Chippy" Shaik was Chief of Acquisitions in the Department of Defence and had the responsibility for the SDPs.

14. Chippy Shaik is the brother of Schabir Shaik.

15. Given what I perceived in the circumstances to be clear and unjustifiable favouritism, amounting to illegality, in this regard of Thomson-CSF and ADS by the Department of Defence, in about May 2000 I formally complained to the Special Investigating Unit under then-Judge Willem Heath about the conduct of ADS and Chippy Shaik. The Special Investigating Unit informed me that it doubted that it would receive a presidential proclamation to be involved in the investigation into the Arms Deal. I accordingly then directed my complaint in writing to the Office of the Auditor-General ("the OAG"). Annexed hereto marked "RMMY01" is a copy of my letter to the OAG, dated 11 July 2000.

16. My formal complaint to the OAG included allegations of "vested interests" and "family and business links" of Chippy Shaik with ADS.

17. I received a response to my letter from the OAG on 25 July 2000, confirming receipt of my complaint and advising both the Public Protector and the Investigating Directorate for Serious Economic Offences ("IDSEO") of it. A copy of the response is annexed marked "RMMY02". IDSEO is the de facto predecessor of the Directorate of Special Operations ("the DSO"), represented in these proceedings by Second Respondent.

18. Letters from the Public Protector dated 31 August 2000, 17 October 2000, 13 November 2000 and 13 December 2000 (annexed hereto marked "RMMY03", "RMMY04", "RMMY05" and "RMMY06" respectively) serve further to confirm receipt of my formal complaints and my (and/or CCII Systems') status as complainant in the matter. (I should at this point note that it may be contended on behalf of one or more of the Respondents that the complainant was not I personally, but was in fact my company, CCII Systems. It is so that CCII Systems was the legal person whose interests were directly affected by the deselection of the IMS and that a number of letters were sent by me on a CCII Systems letterhead. In order to preclude any such argument, with its attendant delay of the resolution of the main application, CCII Systems is a co-applicant with me in this interlocutory intervention application.)

19. My complaint to the OAG eventuated in its publication of the Special Review of the Auditor-General (RP 161/2000) on 15 September 2000, which led to the formal multi-agency investigation of the Arms Deal of which my complaints constituted one area of investigation.

20. One of the agencies charged with the joint investigation of the Arms Deal was the DSO on behalf of the NPA, represented in these proceedings by Second Respondent.

21. The joint investigation culminated in the publication and submission to Parliament of the Joint Investigation Report into the Strategic Defence Procurement Packages, dated 14 November 2001. This report upheld my complaints of the conflict of interest and transgression of his supposed recusal from the decision-making process by Chippy Shaik. Indeed it found that "his recusal was no recusal at all".

22. As a result of the investigation and this particular finding amongst others, the DSO proceeded with further investigations of a criminal nature into a possibly unlawful business relationship between the brothers Chippy and Schabir Shaik.

23. I believe that other than those official state agencies, the viewpoint of the African National Congress ("the ANC") regarding my involvement is also relevant, both because the ANC has at all material times been the ruling party and because Applicant has alleged that there was political pressure from the ANC on First Respondent in regard to the decision to withdraw charges against Third Respondent.

The ANC's view as expressed by its then Secretary-General, who later became President of the Republic, was as follows:

"According to the ANC, the source of the allegations surrounding the deputy president [Third Respondent in these proceedings] lies in Richard Young.

Motlanthe was emphatic about who he sees as the real source of the current saga, saying it is Richard Young."

This view was expressed in an interview published in an article in the newspaper City Press on 30 August 2003, a printout of which is annexed hereto marked "RMMY07".

24. During its investigations, the DSO became aware of certain payments that had been made by Thomson-CSF to Third Respondent through the facilitation of Schabir Shaik. It accordingly prosecuted Schabir Shaik.

25. Under what I regard as being very questionable circumstances the NPA at that time withdrew its charges against Shaik's corporate co-accused, Thint. The NPA also declined at that time to prosecute Third Respondent, saying that although it had prima facie evidence to prosecute him for essentially mirror-image charges to those of Schabir Shaik, its prospects of success were not sufficiently high.

26. The investigations by the DSO led to the successful prosecution of Schabir Shaik for bribery and corruption, which resulted in a custodial sentence of an effective 15 years being handed down.

27. The investigations also continued beyond those that were required for the prosecution of Schabir Shaik, until the NPA apparently felt itself to be in a position to prosecute Third Respondent.

28. After the NPA's success in not only prosecuting Schabir Shaik, but also in obtaining the forfeiture of his assets derived from the crimes for which he and his companies were convicted, i.e. his shares in ADS, with all relevant judgments being confirmed unanimously by the Supreme Court of Appeal and the Constitutional Court, the NPA decided to institute charges against Third Respondent and Thint Holding and Thint.

29. It is apparent from the aforegoing that I was the primary and original complainant in regard to the criminal proceedings against Third Respondent (and if not me, then CCII Systems). I was on the list of state witnesses for the criminal trial of Schabir Shaik, although I was not eventually required to give evidence. I was also on the list of state witnesses for the criminal trial of Third Respondent.

30. My averments regarding the illegality of CCII System's deselection are borne out in a recent report by the NPA on the current status of its Arms Deal investigations entitled Report by NPA to SCOPA on Arms Deal Investigations. SCOPA is the parliamentary Standing Committee on Public Accounts which is charged with financial oversight. A copy of the report, dated 23 January 2009, is annexed hereto marked "RMMY08". I refer in particular to Paragraphs 16 and 17 on Pages 3 and 4 of the report.

My Representations to National Director of Public Prosecutions

31. As Section 22(2) of the National Prosecution Authority Act 32 of 1998 provides for representations regarding a decision to prosecute or not to prosecute to be received by the National Director of Public Prosecutions ("the NDPP") from the complainant, I on 16 September 2008 addressed an application to make such representations to First Respondent in regard to the prosecution of Third Respondent, Thint Holdings and Thint. A copy of my letter in this regard is annexed hereto marked "RMMY09".

32. On 18 September 2008 I received a written response from the NPA, in which I was advised that my "concerns as a complainant and state witness carry particular weight" (annexed as "RMMY10" hereto).

33. Following the NPA's acceptance of my application to submit to it representations in my capacity as complainant, I made further written representations to the NDPP dated 15 January 2009, 27 March 2009 and 29 March 2009 (annexed as "RMMY11", "RMMY12" and "RMMY13" respectively).

34. To these, I received one response from the NPA, dated 20 March 2009 (a copy of which is annexed marked "RMMY14").

35. I was not invited to make oral representations or to provide any further oral or written explanation or elucidation of my representations.

The Decision

36. Notwithstanding the aforegoing, on 6 April 2009 First Respondent with considerable fanfare in the form of a press conference, which was televised live on national broadcast television, announced that in response to Third Respondent's representations he was withdrawing the charges against him.

37. First Respondent expressly based his decision on the narrowest of points, saying that there had been an abuse of process pertaining to the personal interest shown in the matter by the head (now the former head) of the DSO and the former head of the NPA.

38. In my view such "abuse", if abuse it is, is comparatively insubstantial and is vastly outweighed by the constitutional imperative that the NDPP and the NPA prosecute accused persons where there is a prima facie case. It is outweighed also by the public interest, including the interest of persons such as myself, who have addressed legitimate and appropriate complaints to the prosecuting authorities, in seeing that alleged crimes, where substantiated by the ensuing criminal investigation, are prosecuted to completion.

39. First Respondent apparently also based his decision to withdraw charges on a foreign judgment, in the process ignoring recent jurisprudence of the Supreme Court of Appeal to the contrary. Furthermore, it has since come to light that the Hong Kong judgment on which First Respondent relied was in any case overturned on appeal by the Hong Kong Court of Final Appeal.

40. During the press conference (which I watched and video-taped), the NPA was at pains to emphasise that on the merits it had a strong case against Third Respondent. First Respondent made no reference whatsoever to the substantive merits of Third Respondent's representations, both written and oral, pertaining to the prosecution of him, other than the allegation of an abuse of process by the NPA's own members or former members of staff. Such "abuse" pertained only to the timing of the prosecution, not to the decision whether or not to prosecute. I respectfully say that this could not have constituted a valid basis on which not to continue with the prosecution at all.

41. It is clear that there has been a sea-change in the political landscape since 2005 and that the NDPP and the NPA have consequently completely lost their appetite to proceed with the prosecutions.

42. I however contend that the duty of a prosecutor is to prosecute a matter to its conclusion, where (as here) there is merit in the charge, and I as the original complainant have a corresponding right in this regard. The exercise of a discretion to withdraw charges against Third Respondent, notwithstanding the fact that there is a strong case on the merits against him, constitutes a reviewable misdirection, I respectfully say, on the part of First Respondent and the NPA and my rights and that of my company are adversely affected as well.

43. The withdrawal of the charges by First Respondent is in the premises unlawful and therefore subject to being set aside on review. It is important to me and to CCII Systems that the prosecution proceed, so that my complaint may be vindicated and redress by way of criminal proceedings for the wrong done to me personally and to my company CCII Systems may be achieved.

Conclusion

44. I accordingly support the relief that has been sought by Applicant in the main application, as does CCII Systems, on the grounds set out in the founding affidavit of Mr Selfe. I respectfully say that a proper case has been made out for the relief that is sought. I therefore ask that an order be granted in terms of the notice of motion to which this affidavit is annexed. CCII Systems and I have, in view of what has been set out above, a direct and substantial interest in the subject matter of the application. The factual and legal issues to be determined in the application are identical to those that would have to be determined in the event that CCII Systems and I were to launch our own application for the review and setting aside of the decision of First Respondent and the further relief that has been sought by Applicant.

45. By intervening in these proceedings, a duplication of affidavit evidence which would otherwise result is avoided, as is the incurrence of unnecessary extra legal costs.

______________________________________

Richard Michael Moberly Young

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