Arms deal: Fakie ‘did not wilfully breach court order’

The Supreme Court of Appeal (SCA) heard on Wednesday that Auditor General Shauket Fakie had not wilfully breached a high court order forcing him to hand over documents relating to the government’s multibillion-rand arms deal.

The SCA was hearing argument in an appeal by Fakie in terms of a court order that found him, among others, in contempt of court.

The Pretoria High Court judgement under appeal declared that Fakie failed to comply with an earlier court order ordering him to give CCII Systems certain documents pertaining to the arms-procurement process.

CCII Systems was a sub-contracting bidder in the arms deal for the supply of two sub-systems of the combat suite for navy corvettes. It was successful in one tender.

Legal counsel for Fakie, Gilbert Marcus, submitted that by the time of the second application by Richard Young’s military technology company, there was compliance with the court order in four of the five categories of documents that had to be released.

”There was no culpable breach of the order,” Marcus said.

He also indicated that the auditor general had started compiling documents in terms of the court order after parties consulted on the relevant documents needed — which became known as the ”reduced record”.

However, there was disagreement over the fifth set, the ”draft reports” regarding the investigation launched by Fakie and two other government agencies.

Marcus submitted that in this regard there was no breach of the original court order and it was not wilfully submitted late.

The first judgement ordered the auditor general to hand over the documents within 40 days and was delivered on November 15 2002. The court order that found Fakie in contempt of court was delivered on October 24 2004.

Marcus also submitted that the contempt of court proceedings was inappropriate in the circumstances. ”We submit that there must be a substantial case. Proof beyond reasonable doubt must be proven.”

He argued there were ”less restrictive” measures that could have acquired the same results.

The judgement under appeal declared that the auditor general failed to comply with a court order and made a consequent declaration that he was in contempt of court.

It also imposed a sanction for contempt of imprisonment of one month suspended on condition that the auditor general timeously comply with the order allegedly breached. He was given four weeks to comply.

The hearing continues. — Sapa

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