Peace activist Terry Crawford-Browne’s long-running campaign against South Africa’s R54-billion arms deal (including the four maritime helicopters) reached a critical point in the Cape High Court in the third week in March. The case is being heard by Judge Dennis Davis.
In November 2001 Crawford-Browne launched a court bid to overturn the arms deal, based on the claim that it was unconstitutional.
His attorneys targeted Minister of Finance Trevor Manuel’s decision to enter into loan agreements to pay for the arms. They charged that the decision was irrational — financially, economically and strategically — and that the expense incurred would prevent the government from meeting its responsibilities towards the basic socio-economic rights of the poor.
Crawford-Browne claimed that Manuel had provided credit guarantees for the loans without parliamentary approval, thereby infringing constitutional provisions.
Responding on behalf of the government, Treasury director general Maria Ramos said the loan agreements were independent of the arms contracts and that no credit guarantees had been signed. She attacked the economic assumptions of Crawford-Browne’s assessment of the huge potential cost of the deal.
The government also raised three important legal hurdles. First it questioned Crawford-Browne’s standing to bring the application. Then it objected to the Cape High Court being allowed jurisdiction to hear the case, because cases against the national government are traditionally restricted to the Transvaal Division in Pretoria.
Thirdly it argued that Manuel’s decision was ‘executive action†not ‘administrative action†and not open to challenge in terms of the constitutional right to judicial review of administrative action.
Crawford-Browne’s lawyers asked the government to provide documents they needed to take the case further, including copies of the loan agreements, minutes of the Cabinet decision to buy the arms, reports containing the advice of financial experts on the projected costs of the deal and the associated financial risks, and copies of the purchase contracts.
The government refused. This week’s case is set to decide if the government will be forced to hand over the documents.
The State argues that the documents are confidential and that Crawford-Browne is engaged in a fishing expedition for information. The court will also decide if Crawford-Browne has a right to bring the court challenge and if he may bring it in Cape Town or in Pretoria.
Crawford-Browne’s advocates have argued that as a South African citizen he has an interest in ensuring that South African public bodies conduct themselves lawfully and within their powers.
In Crawford-Browne’s favour is the fact that the case is being heard by Judge Davis, widely considered to be a judicial activist. But that also means the government is almost certain to lodge an appeal, even if Judge Davis orders the State to make the documents available.