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Decision on new arms deal probe delayed

Arms deal activist Terry Crawford-Browne’s bid to force President Jacob Zuma to appoint a commission of inquiry into the R30-billion arms deal will have to wait for a few months longer.

The Constitutional Court postponed its hearing on Thursday to give both parties more time to gather information and present their cases and will hear argument again on September 20 before deciding whether to order Zuma to act.

Crawford-Browne’s application revives hopes of a probe into the arms deal, which was buried when the police’s crime investigation unit, the Hawks, opted to shut down the two remaining active legs of its investigation in October last year.

If successful in his application, Crawford-Browne would also compel Zuma to launch an inquiry into a scandal, in which Zuma himself was inconclusively implicated.

Crawford-Browne unsuccessfully petitioned two sitting presidents — Kgalema Motlanthe in December 2008 and Zuma himself in June 2009 — for an arms deal probe.

He now wants the Constitutional Court to decide whether the president has a constitutional duty to appoint an independent commission of inquiry in certain circumstances.

The dispute before the Constitutional Court centres on a possible conflict between two clauses in the Constitution: first, that the president is responsible for appointing commissions of inquiry, and second, that only the Constitutional Court can decide that the president has failed to fulfil a constitutional obligation.

In the heads of argument before the court Crawford-Browne’s legal team states: “The responsibility to appoint a commission of inquiry has to be exercised in a way that is constitutional. The failure to discharge the responsibility when the facts cry out for its discharge is equally unconstitutional.”

In his responding application Zuma argues that the right to appoint a commission of inquiry is “a discretionary power conferred upon the president, which is not constrained in any express manner by the provisions of the Constitution”.

On Thursday Crawford-Browne’s counsel, Paul Hoffman SC, engaged in a legal skirmish with Zuma’s counsel, Marumo Moerane SC, over whether the court had enough evidence before it.

Zuma’s legal team’s decision not to respond in its court papers to allegations contained in Crawford-Brown’s founding application, but rather to challenge the legal merits of the application, was partly responsible for the postponement. Moerane argued that his client cannot respond to particulars of claim and that a full affidavit from Crawford-Browne is required.

Before Chief Justice Sandile Ngcobo ordered a postponement, Justice Johann van der Westhuizen remarked that it was in the “interests of justice” for the court’s 11 judges to receive full factual representation from both sides before hearing the matter.

The M&G Centre for Investigative Journalism, supported by M&G Media and the Open Society Foundation for South Africa, produced this story. All views are the centre’s. www.amabhungane.co.za.

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