Litigation over the BAe arms deal

The action instituted by the Quaker Peace Centre (now
renamed the Cape Town Peace Centre) seeking
invalidation or cancellation of the BAe arms deal of 1999
was procedurally delayed by the taking of a technical
defence by the Government. It contended that it was
irregular to proceed by way of action and that the QPC
ought to have taken decision making on review. The
point was argued in August 2018 and judgment in favour
of the Peace Centre was subsequently delivered during
the year under review. There are issues in the matter
which lend themselves to preliminary determination,
both those raised by way of dilatory technical pleas to the
claims made and also in respect of the authority of the
minister of finance to sign the loan agreement
underpinning the deal. The possibility of settling the
matter on a commercially sensible basis has been raised
with counsel for the Government. Keeping a lot of
aircraft that are in mothballs, have no fuel, no pilots and
no mechanics to service them is not effective and
efficient governance, especially when each idle aircraft
cost R585 million. The ravages of the covid lockdown on
the economy make a strong case for returning
unnecessary and unused armaments to the arms dealers

makes economic sense. An attempt to get the issues in
the matter separated and for the pleas and authority
issues to be preliminarily determined is currently under
way while the matter is in the queue for hearing in
Pretoria.
The taxpayer will benefit considerably if the litigation is
a success or if a sensible settlement is negotiated. The
cancellation of all of the arms deals will result in a
refund of R172 billion plus interest to the treasury.

2. Litigating the Public Protector’s fitness for office
   After the complaint by Accountability Now concerning
   the failure of the SSA to follow up on suggested ways of
   recovering the loot of the end of apartheid, the Public
   Protector produced a report that was overturned with
   costs, including a partial de bonis propriis order against
   her. Long before the litigation, Accountability Now
   complained to the Justice Portfolio Committee that the
   Public Protector was showing symptoms of dishonesty
   and incompetence. The complaint was and has been
   ignored despite its renewal upon the commencement of
   the sixth parliament. After the Constitutional Court
   upheld the de bonis propriis costs award on 22 July 2019
   Accountability Now decided to become pro-active about
   the fitness for office of the Public Protector. The Legal
   Practice Council has been asked to investigate her
   misconduct with a view to striking her off the roll of
   advocates, which will render her ineligible for office; the
   criminal justice administration has been asked to
   investigate a charge of perjury against her arising out of
   the Court findings; the President has been asked to

suspend her; the JPC has again been asked to investigate
her and the high court was approached to afford
declaratory and mandatory relief in respect of her
misconduct and incompetence. While the application to
the high court failed, the court did find that it is in order
to have regard to the track record of the Public Protector
in determining her fitness for office. This finding will
come in useful when parliament determines her fate.
The public obviously benefits from having a good Public
Protector, not one who has been found to lie on oath,
conduct her reporting irregularly to protect politicians
and who costs the country billions.

3. Book Projects
   Confronting the Corrupt
   This book about the activities of Accountability Now has
   sold out. Its successor, the story about the litigation
   concerning the safety of rail commuters is under
   preparation
   Confronting the Corrupt has served a useful purpose in
   educating the public about the evils of corruption, the
   workings of the courts and the importance of public
   interest litigation as a tool for exacting accountability.
   Under the Swinging Arch
   This book about the Glenister litigation is all but
   complete. Bob Glenister is in the course of writing the

narrative that links the chapters produced by various
persons involved in the litigation.
The benefit of this book is a concentrated and multi-
author reprise of Confronting the Corrupt. Its focus on
the ins and outs of the litigation that has given us the
Hawks instead of the Scorpions is an insight into state
capture
The Second Edition of Know Your Rights, Claim Your
Rights.
This handbook on the constitution has been published in
electronic format with Gail Washkansky and Nic Van
Zyl as its new editors. It is available for free download
from the website of Accountability Now, which is the
campaigning name of IFAISA. If funding is made
available it will be possible to publish in hard copy for
distribution in schools, universities and civil society
organisations. With the necessary funding translations
can also be considered. The search for funding continues
in difficult times. There is also a prospect of the material
in the book being used at selected wi-fi hotspots for the
purpose of voter education and civic awareness of the
rights conferred by the Constitution.
The benefit of the handbook is that it affords access to
the functionally literate to the workings of the
constitution and is thus an educational tool in the hands
of the general public.
Countering the Corrupt

In collaboration with the Konrad Adenauer Foundation a
book detailing the content of several anti-corruption
conferences sponsored by the KAS since 2014 is under
preparation and will be published by KAS by the end of
2020.

4. State Capture
   The focus of IFAISA’s work on state capture has shifted
   now that the Zondo Commission is appointed and active.
   We have interacted with Adv Pretorius SC with a view to
   being supportive of the activities of the Commission and
   will, if invited to do so, make submissions:
   (a) regarding the prevention of state capture through
   the appointment of an Integrity Commission,
   (b) the need to end the illegal practice of cadre
   deployment in the public administration and state
   owned enterprises;
   (c) The advisability of urgently following up on
   recovery of the funds misappropriated in the
   course of state capture whether they are now in
   foreign jurisdictions or still within the Republic.
   We have also interacted with treasury and the department
   of public enterprises with a view to facilitating a modus
   operandi for recovery of the loot of state capture that has
   been exported from SA. Efforts are underway to secure
   interviews with the presidency and the ministry of justice
   on the same topic and on the effectiveness and efficacy
   of the establishment of an Integrity Commission under
   Chapter Nine of the Constitution.

The benefit of participating in the state capture
Commission’s deliberations and of interacting with
government is that the recommendations of the
Commission can serve to reform the weaknesses in the
system that led to the attempted capture of the state and
government can be better advised on counter-measures.

5. The ramifications of the Nxasana matter and the
   termination of the services of the NDPP
   Abrahams.
   The outcome of the appeals to the Constitutional Court in
   the civil litigation launched in the wake of the dis-
   appointment of Mxolisi Nxasana has reinforced the
   position taken by IFAISA that he was corruptly removed
   from office by former President Zuma and the Minister
   of Justice, who has constitutional final responsibility for
   the NPA. We continue to bring pressure to bear to get the
   NPA to institute a criminal case for corruption and
   defeating the ends of justice arising from this abuse of
   power by former President Zuma whose fear of
   prosecution drove him to replace the NDPP with a more
   pliable successor in a corrupt manner. We continue to
   bring pressure to bear on the criminal justice
   administration to do the necessary to charge those in the
   wrong.
   The benefit of such a prosecution will be that the rule of
   law will be upheld and the need for reform of the process
   according to which the NPDD is appointed will be
   highlighted. Interaction with the NDPP and her deputy,

Rodney de Kock is ongoing in relation to this and other
serious matters in which prosecutions are overdue.

6. SASSA and CPS
   We continue to liaise with the court appointed Panel of
   Experts in order to ensure that accountability is exacted
   from CPS in relation to interest earned on public funds in
   the possession of Grindrod Bank as part of the system of
   rolling out of grants to beneficiaries and recipients. We
   have provided a memorandum and have warned that the
   liquidation of CPS upon termination of the contract with
   SASSA could lead to the loss of funds by the state. The
   matter has been taken further by FUL and has been
   litigated in the high court.
   The benefit of this activity is to ensure that the court
   order that CPS cannot benefit from its provision of
   services in terms of an invalid contract is properly
   implemented in the termination process. A proper
   accounting is required.
7. Human Rights Infringements in Masiphumelele
   Our engagement in the land, housing and sanitation
   questions in Masiphumelele as itemised in our report in
   2019 continues. The sub-council responsible and the city
   of Cape Town have flouted the agreement they made
   with the Public Protector and the Masi Community by
   failing timeously to produce the “Greater Masiphumelele
   Development Plan” which is supposed to address the
   infringments of and threats to human rights as they occur
   daily in the informal parts of the settlement due to

neglect and failure of service delivery for which the city
is responsible. The Public Protector has been asked to
either enforce or cancel her agreement with the city due
to the failure to produce the plan as promised in June
2018.
The pandemic raised the spectre of hunger among the
poorer residents in Masiphumele; this aspect was raised
with the city, UCT and the churches by IFAISA. Relief
was obtained via timeous interventions and the idea of a
foodbank was explored with UCT and the staff of
FoodfowardSA. Draft legislation has been prepared to
regulate the unnecessary wastage of good food in SA and
the official opposition has been asked to champion it.
The benefits of this intervention remain the same as they
were last year: in short a better life for informal settlers is
sought. The food security legislation is an aspect of this
work.

8. Integrity Commission
   Our work on advocating the establishment of an Integrity
   Commission via an amendment to Chapter Nine of the
   Constitution continues. Public advocacy, presentations to
   interested parties and submissions to parliament have
   been tried with tangible progress to the point where it
   appears, prima facie, that the NEC of the ANC is now on
   the same page as IFAISA in relation to addressing grand
   corruption. The envisaged follow up litigation to enforce
   the gains made in the Glenister and HSF litigation over
   the creating of an effective and efficient anti-corruption
   entity of state to prevent, combat, investigate, prosecute

and punish serious corruption in an adequately
independent manner will not be necessary if the
resolution of the NEC taken in August 2020 is acted on
by government with the urgency the NEC requires.
IFAISA has offered to “thuma mina” with its draft
legislation and accumulated knowledge of the intricacies
of reform in this vital aspect of governance.
The benefit of this work is to promote constitutionalism,
respect for orders of court and to deal with corruption in
a way that puts an end to the culture of impunity abroad
in the land.

9. Criminal complaint against the corrupt Seth
   Nthai
   In September 2019 we laid charges of corruption, fraud
   and defeating the ends of justice against Seth Nthai
   arising out of his admitted attempts to bribe a group of
   Italian miners who were in litigation with his client, the
   Government of SA. It was hoped that the Investigative
   Directorate of the NPA would take charge of the matter
   and bring it to a speedy conclusion. Instead, the matter
   has been referred to the Serious Commercial Crimes Unit
   for investigation and prosecution. The NPA is apparently
   unwilling to be pro-active about the matter, but after
   some correspondence, has taken steps to progress the
   matter.
   The benefit of the charges is that a corrupt individual will
   not enjoy impunity, will not lightly be re-admitted to
   practice and that the public purse will benefit from the
   re-imbursement to it of the fees paid to Nthai for work

done in the matter that became irrecoverable due to his
malfeasance. His moonlighting as an advocate while
struck off will also be addressed.

10. General Media Work.
    Our directors continue to give comment on current
    affairs as they affect accountability on radio, television
    and in the press both printed and electronic. Our written
    output is collected on the website at
    www.accountabilitynow.org.za.
    The benefit of these activities is that the foundational
    value of accountability as expressed in Section 1 of the
    Constitution is constantly brought to the fore in the SA
    public imagination. The use of the term in the media and
    in public discourse in general suggests that some
    progress is being made via the efforts of our staff and of
    other organisations and institutions.
11. Advice line to the public
    Our work on queries we receive via our website
    continues with a view to addressing maladministration
    and other issues in a manner that has due regard for
    accountability. Often it is possible to refer applications to
    the correct channels in the public service and Chapter
    Nine Institutions so that the complainants learn how to
    help themselves with their queries.
    The benefit of this work is that constitutionalism is
    inculcated; self-help is discouraged and real life
    problems and challenges are addressed constructively.
12. Complaint to SAHRC regarding
    overcrowding in prisons.
    In September 2019 a complaint concerning human rights
    infringements due to overcrowded conditions in SA
    prisons was lodged with the SAHRC. It reverted in
    September 2020 to say that it would not entertain the
    complaint as the JICS is better positioned to deal with it.
    Correspondence with the JICS is ongoing.