Cape Town - In the latest twist in his protracted campaign against the South African government’s arms deal of the late 1990s, Anglican activist Terry Crawford-Browne is taking President Jacob Zuma to court to pay up a R650 000 debt Crawford-Browne believes he has failed to honour for more than two years.
The debt arises from a public commitment Zuma gave to pay Crawford-Browne’s legal costs when the latter agreed to withdraw an application for the Constitutional Court to reopen investigations into alleged corruption and assorted malfeasance in the ANC government’s Strategic Defence Package in favour of Zuma’s Arms Procurement Commission.
The commitment was recorded in a consent order issued by the Constitutional Court on November 17, 2011 in which Chief Justice Mogoeng Mogoeng, pronouncing that “the applicant is granted leave to withdraw” (Application CCT 103/2010), specified that, in settlement, the president and government was required to meet sundry costs incurred by the applicants. These included the costs of two counsel retained by Crawford-Browne, those incurred in a postponement called by Zuma in May of 2011, and costs incurred by the Institute of Race Relations in acting as a friend of the court in the matter.
Since that time, Crawford-Browne says, despite several reminders, no money has been forthcoming in settlement of the Concourt-ordered agreement, and as he notes in a letter sent this week to Acting Chief Justice Dikgang Moseneke, he finds himself “indigent” and not in a position to retain counsel to pursue his legal options.
In response to a query to the Presidency as to whether Zuma intended to honour the Concourt-ordered debt, spokesman Mthunzi Mhaga said: “The Presidency is still committed to the payment of the costs which were taxed last year. The Department of Justice is in the process of effecting such payment in compliance with the president’s undertaking. There are processes that are under way which have to precede such payments and soon the matter will reach its finality.”
Crawford-Browne’s letter to Justice Moseneke was part of a package of documents he assembled to back up his submission that “the cancellation of those (arms deal) contracts and recovery of an estimated R70 billion for South Africa is now a matter for the Constitutional Court to decide”.
But Justice Moseneke was not biting. In a February 6 e-mail his office thanked Crawford-Browne for his communication “requesting legal advice”, curtly noting that judges “are not at liberty to provide legal advice to members of the public”.
Though Crawford-Browne had been seeking something more than free advice and was in essence requesting that the matter be referred to the Concourt at large for judicial action, and that a directive be framed in response to the perceived failure of the Seriti Commission to deliver on its mandate, Justice Moseneke’s response has sent Crawford-Browne back to the drawing board. He says taking Zuma to court for failing to pay up on agreed legal costs would mark the first step in a renewed campaign.
“Once those legal costs are paid, then we can reconstitute the legal team to deal with step 2, namely the failure of the Seriti Commission to comply with its terms of reference, and the farce it has become.”
Crawford-Browne has since 2001 been seeking the outright cancellation of all the component part of the arms deal. He argues that:
n The procurement packages were signed off with an escape clause whereby, if the deal were shown to have been tainted with bribery or corruption, it could be cancelled by the South African state as the buyer and all money repaid against the return of the purchased materiel. In view of the voluminous evidence to hand of corrupt activities associated with the deal, those clauses should be invoked and money retrieved put into social development projects.
n The constitution enjoins public representatives to act rationally and in the best interests of the country. This, he argues, has not been the case, as is demonstrated by government ignoring its own affordability studies to force through the deals despite the Treasury having declared them beyond the capacities of the exchequer. Crawford-Browne has drawn sustained attention to offsets by the weapons manufacturers failing to materialise, falling short by more than R100bn of the value promised in terms of the arms deal.
In his arguments Crawford-Browne is backed up by a legal opinion by advocate Geoff Budlender SC, which concurred that the requirements of Section 217 of the constitution had not been met.
Though initially consenting to withdraw his application for the Concourt to order and to control a Commission of Inquiry into the arms deal in the light of Zuma’s announcement in September 2011 that he would be establishing the APC, Crawford-Browne has grown disenchanted with the Seriti Commission in the more than two years of its existence and has publicly called for its disbanding.
However, this week fellow arms deal activist Hennie van Vuuren was quoted as saying shutting the commission down would deny South Africans the opportunity to get to the truth of the matter.