The group wants the controversial acquisition of 24 Hawk Lift aircraft and 28 Gripen Alfa jets from British Aerospace Systems (BAe) to be cancelled and has argued that it not only flouted the constitution, then Finance Minister Trevor Manuel also had no authority to borrow money offshore for procuring the aircraft.
“Should either of the invalidity claims succeed, the invalidity of the deal will involve returning the military hardware, with all money paid to date refunded,” Carol Bower, chairperson of the Quaker Peace Centre, said.
The organisation said a cancellation due to bribery and corruption had a penalty provision that entitled South Africa to 5percent of the purchase price of hardware as pre-estimated damages. In court papers submitted in April, the centre argued that the aircraft procurement was not equitable.
“They were the most expensive aircraft on offer in the tender process; are unsuitable for, alternatively of very limited suitability for, South Africa’s defence needs; are overpriced and were acquired through tender processes and procedures that were manipulated to favour success of the bid by the BAe by the adoption of what the then Minister of Defence, Joe Modise, called ‘a visionary approach’, whereby the cost of the aircraft was excluded as a factor for consideration in the procurement evaluation and adjudication process and the eventual award of the tender that culminated in the conclusion of the Procurement Agreement, thereby negating the constitutional requirement of cost effectiveness”, according to the court papers.
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The NGO also detailed how sound advice and recommendations from the South African Air Force regarding its actual needs were ignored, and that the procurement of the aircraft was not competitive, because lower and more suitable bids were rejected.
It also said the aircraft were not acquired in a transparent manner as, among others, lower bids from Italy and the Czech Republic were irrationally rejected in favour of the bid by BAe.
In terms of the bribery allegations, the US State Department charged BAe with violating its arms export regulations through its unregulated and covert use of an offshore company (which operated with specific “intent to circumvent the normal payments reviews”) and middlemen all over the world, including in South Africa.
In 2011, BAe settled, and agreed to pay a penalty of $79 million rather than face these charges.
According to the organisation, in 2010, BAe was fined $400 million (R5.28 billion) after pleading guilty to knowingly and “wilfully failing to prevent and detect corruption and bribery in its operations, as well as conspiring to impede the related US investigations”.
In addition, the UK’s Serious Fraud Office’s investigation of BAe’s use of agents and secret commissions worldwide, (including in South Africa) revealed that £103 million ( R1.77 billion) was spent on covert payments.
The group said it was also concerned about the phenomenon of state capture and has instructed its lawyers to pen a letter to President Jacob Zuma in which it requests that he acknowledges that he cannot appoint a commission of inquiry to investigate state capture because he is conflicted.