DIANNE HAWKER
President Jacob Zuma says the Constitutional Court has no power to force him to institute a judicial inquiry into the arms deal.
In heads of argument at the court, Zuma’s lawyers argue that the constitution gives the president discretionary power to decide on whether or not to institute a judicial inquiry and say that power was properly exercised by former president Kgalema Motlanthe when he decided not to order a probe.
“It is a discretionary power conferred upon the president, which is not constrained in any express manner by the provisions of the constitution. It is closely related to policy. The functions of commissions of inquiry are to determine facts and to advise the president through the making of recommendations. The president is not bound to accept the commission’s factual findings or to follow its recommendations,” his lawyers said.
Zuma is responding to an application by arms deal probe activist and retired bank manager Terry Crawford-Browne for a court order instructing Zuma to commission an independent probe. Crawford-Browne is requesting direct access to the court after a similar bid failed in the Western Cape High Court. The Concourt will hear argument on Thursday.
In the High Court case the Presidency and government had filed an exception, saying the Concourt was the only court with jurisdiction to decide on this issue.
However, now their argument has changed with Zuma’s lawyers arguing that Crawford-Browne has “failed to make out a case for direct access”. They argue that disputes of facts should have been aired in the High Court and Supreme Court of Appeal before the Concourt was called on to make a final decision.
Along with former ANC MP Andrew Feinstein, Crawford-Browne has spent years motivating for a full arms deal probe.
In his founding affidavit in the Concourt case Crawford-Browne said Zuma, Parliament, the Public Protector and the Hawks had all turned a blind eye to serious allegations of corruption and bribery.
In 1999 South Africa concluded deals to buy warships, fighter jets and other arms equipment from European arms companies, and allegations later surfaced that German steel maker ThyssenKrupp, French arms manufacturer Thint and British Aerospace (BAE) Systems had paid bribes in order to be named preferred bidders.
Among those implicated are former ANC chief whip Tony Yengeni, Zuma and his former financial adviser Schabir Shaik, and former president Thabo Mbeki.
In court papers Crawford-Browne said “the background factual matrix upon which I rely is replete with evidence and allegations that 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”.
In September 2010, Hawks head Anwar Dramat told Parliament that there were 460 boxes and 4.7 million computer pages of evidence collected in the arms deal investigation, to which only one investigator was still assigned.
Dramat said a prosecution could take up to 10 years. A month later he closed the case, much to the dismay of opposition parties in Parliament who had long called for a full investigation into the arms deal.
Crawford-Browne argues that a judicial probe, incorporating all the evidence collected by the Hawks and their predecessors in the Scorpions, was in the public interest.
He says if fraud were proven, the government could claim damages from the arms companies and “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”.