The Supreme Court of Appeal on Friday unanimously overturned a finding of the Pretoria High Court that the Auditor General, Shauket Fakie, was in contempt of court in a matter related to the government’s controversial arms deal.
Fakie appealed against the high court judgement that declared he had failed to comply with a court order in which he was ordered to give CCII Systems certain documents pertaining to the government’s arms-procurement process.
CCII Systems was one of the sub-contracting bidders in the arms deal for the supply of two sub-systems — the system management system (SMS) and navigation distribution sub-system of the combat suit for navy corvettes.
The company was successful with the tender for the SMS.
However, following allegations that the process of the procurement of the arms had been irregular and corrupt, the auditor general conducted a preliminary review during the 1999/2000 financial year with the focus on the procurement process.
The auditor general’s report was submitted to the standing committee on public accounts (Scopa), which in return asked the auditor general together with the public protector and the national director of public prosecutions to investigate the claims.
A report was tabled in Parliament in November 2001.
CCII Systems was not satisfied with the report’s findings and instituted proceedings in terms of the Promotion of Access to Information Act, which was successful.
At a later stage the company instituted further proceedings, contending that the auditor general had not complied with the order. The Pretoria High Court in October 2004 found in its favour, declaring that the auditor general had failed to comply with the earlier court order. It also found that the auditor general was in contempt of court.
On Friday, the Supreme Court of Appeal also set aside a suspended sentence of imprisonment the high court imposed on Fakie.
The Bloemfontein court found that, given that CCII was content to have the matter decided on affidavits and did not ask for the auditor general to be cross-examined, it was impossible to reject Fakie’s explanations.
It can therefore not be said that the auditor general’s failure to obey the order was wilful. — Sapa