An attempt to compel President Jacob Zuma to appoint a commission of inquiry into the controversial arms deal was postponed at the Constitutional Court on Thursday.
This was to give the president time to respond to information submitted in the application by former banker Terry Crawford-Browne, and came after an exchange with both counsel by judges irritated by the potential waste of court time.
The court heard that Crawford-Browne first made an application challenging the president's refusal to appoint a judicial commission of inquiry, in the Western Cape High Court. He wanted a direction that the president appoint the commission of inquiry, that the president's decision not to do so be set aside, and that the matter be referred back to him for determination.
Zuma's counsel filed a number of exceptions to this, and Crawford-Browne's claim was eventually whittled down to a challenge that the president had failed to fulfil his constitutional obligations in refusing to appoint the inquiry.
The last exception filed on behalf of the president was that only the Constitutional Court has the jurisdiction to decide on the last point. After that exception was filed, Crawford-Browne filed the application to the Constitutional Court.
The president then opposed Crawford-Browne's application for direct access to the Constitutional Court.
They argue it would be undesirable for the judges to hear oral evidence if facts of the case are in dispute and that there was precedent that it would be undesirable for the president to give oral evidence. This referred to a case where former president Nelson Mandela had to testify in a rugby union dispute.
Crawford-Browne proposed that any factual disputes could be referred to a lower court or a commissioner for oral evidence.
The judges at the Constitutional Court wanted to know why the president had not responded to any of the facts contained in Crawford-Browne's application, saying it would be unfair to decide the case without any response.
They said the president's counsel had chosen to focus on the legal and technical aspects of the case instead.
Crawford-Browne wants Zuma to order a commission of inquiry into the multi-billion-rand arms deal. It has dogged South African politics since allegations of bribery and corruption were raised by politician Patrica de Lille, then a member of the Pan Africanist Congress, in Parliament in September 1999. Ultimately he wants the deals cancelled and any money paid to the arms suppliers paid back to South Africa.
The National Prosecuting Authority brought charges against Zuma and one of the companies involved, French arms company Thint, twice before he was president, relating to an alleged bribe.
The first attempt at taking them to trial was struck off the roll as the NPA was not ready to proceed. The second was abandoned due to allegations of political interference in the investigation by members of the now-defunct investigating unit the Scorpions. A new investigative unit called the Hawks was set up in the police, and their head Anwa Dramat has announced the case is closed.
Hawks spokesman McIntosh Polela told Sapa on Thursday there had been no change to this decision.
Crawford-Browne believes it would be in the public interest to have the president order an independent commission of inquiry since various other approaches have failed. Zuma's predecessor Kgalema Motlanthe turned down a similar joint request by former apartheid era head of state FW De Klerk and Anglican Archbishop Emeritus Desmond Tutu, saying it was already being investigated and this would create a parallel process.
The Scorpions were dismantled as a result of a policy agreement by the ANC, which Zuma heads, which led to a law being passed in Parliament. Nobody is currently investigating the matter and a recent Constitutional Court judgment challenged the legality of the Hawks.
Crawford-Browne's lawyer advocate Paul Hoffman said: “Ultimately the application is best characterised as a skirmish in the fight against corruption.”
The president's counsel, continuing its challenge to the direct access application, submitted that the Constitutional Court does not want to be the court of first resort and that the High Court case has not been completely withdrawn.
The matter was eventually postponed to September 20 to allow a response from Zuma.
Crawford-Browne told Sapa afterwards: “Obviously the government was unprepared... I will continue to remain in focus, and I will be very pleased to have it come to a head.” -
Sapa