Economists Allied for Arms Reduction (Ecaar) says it intends to challenge Thursday’s Cape High Court dismissal with costs of its bid to have South Africa’s multibillion-rand arms deal scrapped.
”Obviously we’re disappointed,” said Ecaar spokesperson Terry Crawford-Browne. ”But the judgement is essentially just on procedural issues. In avoiding the merits of the case the judges have abdicated their constitutional responsibilities.”
Ecaar now has 14 days in which to lodge an application for leave to appeal, which it intends to do, he said. It will go to the Constitutional Court ”if necessary”.
Ecaar is seeking to have the foreign loan agreements and export guarantees Finance Minister Trevor Manuel approved to finance the deal cancelled because, it says, he failed to apply his mind before signing them.
It said in court papers that if finance and escalation costs were included, South Africa’s total liability for the arms deal could rise to R287-billion by 2010.
Ecaar cited President Thabo Mbeki as the first respondent, Manuel as the second and ”the national government of the Republic of South Africa” as the third.
Manuel welcomed the court ruling, saying it confirmed that the government had always been on solid ground with the arms procurement process, and that Ecaar’s attack was ”baseless and ill-informed”.
He said he was pleased the court ordered Ecaar to carry the costs, because individuals like Crawford-Browne should take responsibility for their actions and not expect the taxpayer to foot the bill.
”I want to be there when the costs are recovered,” he said.
The government’s legal team had earlier warned that if the court found in favour of Ecaar there could be ”catastrophic repercussions” for South Africa.
Judge Andre Blignault, with Judge James Yekiso agreeing, said in a 52-page judgement on Thursday that the real thrust of Ecaar’s complaint was that massive funds had been committed by the government to acquiring arms, which South Africa did not need, and that the money should have been used for poverty alleviation.
”That being so, [the] applicants’ attack should have focused on the real and effective decision to acquire these arms, namely that of Cabinet. That decision should have been made the primary object of the review application … the primary attack should have been directed against the Cabinet’s decision with, perhaps, a consequential attack on the secondary decision to raise funds.”
Blignault said as a result of Ecaar’s ”wrong strategy”, the merits of the Cabinet decision on the arms deal were not properly analysed in the Ecaar application.
”The Cabinet decision must accordingly be accepted as having been a valid decision. Once that is accepted the ratio for applicants’ attack on second respondent’s decision falls away.”
Blignault said Ecaar’s claim that Manuel acted irrationally was based on the existence of warnings in an affordability report compiled by a team in the Department of Finance.
However, these warnings had to be read in the context of the whole report, which was a document intended to provide advice to the government.
The object of the warnings in the report was to bring possible negative consequences of the decision to the attention of the decision-maker, not to kill off the deal, the judge said.
Other elements of the report were ”quite positive”, such as comments on the method of financing.
”It is relevant furthermore that the affordability report [with the warnings] was before Cabinet when it took the decision to acquire the arms in question. It must be accepted therefore that Cabinet approved of the arms acquisition with full knowledge of the warnings.”
He ordered Ecaar to pay costs including those of two counsel, but said costs of an earlier Ecaar application for discovery of documents should be shared.
In terms of the deal South Africa is to get frigates — of which two have already arrived — and submarines from Germany, fighter aircraft from Sweden, fighter trainer aircraft from the United Kingdom and utility helicopters from Italy.
Ecaar, an international NG0, has been campaigning against high military spending and military approaches to conflict resolution since 1998.
Democratic Alliance supporters staged a demonstration outside the court to coincide with the judgement, with posters saying ”the truth will out” and calling for jail for corrupt politicians. — Sapa
Manuel hails failure of application