Afriforum has applied for an urgent court interdict to prevent the defence force from transferring retired military helicopters to Zimbabwe.
This afternoon Afriforum lodged an appeal at the North Gauteng High Court asking for an interim interdict prohibiting the defence force from delivering any helicopters or spares to the ZDF pending an application for a review of the decision to donate them.
Court papers list the minister of defence, the National Conventional Arms Control Committee (NCACC), and the secretary for defence in her capacity as head of the secretariat of the NCACC as the respondents.
Afriforum's legal spokesperson Willie Spies said the group had asked for a temporary interdict, with a return date of the 19 February, when the respondents should return to court to give reasons why the interdict should not become a final interim interdict pending a review of the decision.
Spies said Afriforum, which had earlier heard rumours of the deal, had written to the defence department on 17 January, asking for details on it but had had no response.
Human rights concerns
The group decided to seek an interdict in court after learning that the defence department had confirmed that the helicopters and spares were "ready for dispatch".
In its legal papers, Afriforum argued that the deal contravenes section 15 of the National Conventional Arms Control Act, which requires that the NCACC "avoid contributing to internal repression, including the systematic violation or suppression of human rights and fundamental freedoms" and "avoid transfers of conventional arms to governments that systematically violate or suppress human rights and fundamental freedoms".
"They need to consider the human rights record of the country in question and the human rights record of Zimbabwe," said Spies.
Exports of military hardware from South Africa must be sanctioned by the NCACC, which is chaired by Justice Minister Jeff Radebe. But Radebe's spokesperson, Mthunzi Mhaga, said the Alouettes and spares did not "fall within the NCACC's parameters of control" under its enabling legislation.
The NCACC is apparently relying on the classification of the helicopters as "civilian" after their guns were stripped out, though both the giver and the recipient are military.
The deal has raised fears that the helicopters will be used in a military-backed campaign to put President Robert Mugabe and his Zanu-PF party back in power in polls expected this year.
But Spies said that this argument was "absolutely legally flawed argument" and that Afriforum had little doubt that it would succeed in its bid to attain the interdict.
Zimbabwe is scheduled to hold elections by the end of March, although they are widely expected to be delayed for some months. Apprehension is building in civil society and Prime Minister Morgan Tsvangirai's Movement for Democratic Change that the military will step in, as it did during the violent 2008 presidential run-off to save Mugabe.
The defence department has defended the donation, saying that it stemmed from "a decision that was taken by the former and first minister of defence, Joe Modise, in 1997 when [the Alouettes] were being phased out. How the donation of the spares to the ZDF relate to the forthcoming elections in that country is difficult to understand.
"The SANDF would like to place it on record that it has a bilateral agreement with the Zimbabwe Defence Force and a number of exchanges in various fields between the two defence forces have taken place and will continue."