[DEBATE] : Fw: Terry's Solution to Mugabe
pbond at mail.ngo.za
Thu Jul 10 21:51:50 BST 2008
Dr D A Padayachee wrote:
> ----- Original Message ----- Terry Crawford-Browne
> Milnerton, Cape Town
I happened to just meet him at CT airport today for a discussion and we
agreed to disagree on a couple of these points: on whether the external
pressures of int'l finance were possible to mobilise against apartheid,
without massive internal grassroots protest; and on whether to call for
sanctions in the absence of a call by the Zimbabweans affected.
The material below which he just sent is really good, and I hope it gets
*IN THE HIGH COURT OF SOUTH AFRICA*
*(CAPE OF GOOD HOPE PROVINCIAL DIVISION)*
* CASE NO. 5156/08*
In the matter between:-
*TREVOR ANDREW MANUEL Plaintiff*
*TERRY CRAWFORD-BROWNE Defendant*
*DEFENDANT’S NOTICE OF OPPOSITION TO PLAINTIFF’S NOTICE OF EXCEPTION TO
PLEAS, AND PLAINTIFF’S NOTICE OF STRIKE OUT,*
I, the undersigned
do hereby make oath and say that I record that I will defend my plea and
criticisms of the Plaintiff as “fair, accurate and in the public
interest”. I do so either from personal knowledge or, as the context
makes evident, from public documents such as the Joint Investigation
(JIT report) and from parliamentary and other transcripts. I further
respond to the First, Second, Third, Fourth, Fifth, Sixth, Seventh and
Eighth grounds of exception (alternatively causes of complaint) that my
defence and pleas are neither vague, scandalous, vexatious nor
irrelevant, but are brought in the public interest to highlight the
Plaintiff’s failure to meet his ministerial and constitutional
obligations to the people of South Africa.
* 1.* *FAIR:*
1.1. The arms deal “affordability study" presented to cabinet ministers
in August 1999 warned them that the arms deal was a highly risky, indeed
reckless, proposition that could lead the government into mounting
fiscal, financial and economic difficulties. The Plaintiff, as Minister
of Finance, was responsible for the affordability and financing of the
arms deal. Paragraph 188.8.131.52 of the Joint Investigation Report into the
Strategic Defence Procurement Packages (JIT Report) notes:
The Ministers’ Committee regarded the affordability assessment that was
presented to them by the Affordability Team in August 1999, as a
professional and very precise document that could be relied on. The
contents of the assessment and the implications of the cost of the
procurement were extensively debated and considered. These debates and
considerations included issues such as the risk of the depreciation of
the Rand against other currencies over the life of the contracts, the
risk of interest rate increases in the economy and the risk of
non-performance by contractors in relation to industrial participation
commitments. These issues were fully addressed in the risk analysis that
was submitted to Cabinet in October 1999.
* *1.2. The 224 pages of the affordability report that are in my
possession -- albeit comprising less than 2.8 percent of the documents
of which discovery was awarded to me by the Honourable Court in March
2003 – also confirm beyond doubt that the Cabinet was warned about the
risks of the arms deal. The findings include:
the prospects both of a balance of trade crisis and of a financial
crisis about 2007/08. These warnings are now substantiated, albeit
dramatically worse than even the study anticipated.
that foreign exchange risks were for the account of the
government, and that foreign exchange markets are prone to shocks,
including political events. Such risks are illustrated by the
collapse of the rand against the dollar during 2001, and by the
collapse of the rand against the euro in the past two years by
almost 60%. The consequences are massive escalation in the cost of
the arms deal in terms of rand because the contracts are in
foreign currency, not rand.
that offsets could not be guaranteed, and to which I refer below
in sub-paragraphs 1.3 to 1.14.
that the negative economic impact was likely to lead to job losses
estimated at 115 000 jobs instead of a gain of 65 000 jobs as
publicly promoted. This, in a country with the highest rate of
unemployment anywhere in the industrialised world, and variously
estimated at between 23 percent and 40 percent.
that defence spending for the arms deal would crowd out spending
on social investment such as education, housing and welfare. The
consequences are now experienced in rioting throughout South
Africa because of the government’s “non-delivery” of social services.
1.3. Those risks included “non-performance by contractors in relation
to industrial participation commitments” (the offsets). The arms deal
was premised upon the economically-nonsensical proposition that
expenditure by South Africa of R30 billion on warships and warplanes
would generate R110 billion in offsets to create over 65 000 jobs, and
thus stimulate economic development. Offsets are internationally
discredited as a scam by the armaments industry to promote weapons
proliferation. Offsets are prohibited for civil trade transactions under
the rules of the World Trade Organisation because of their propensity
1.4. International literature on offsets is virtually unanimous in its
condemnation of this economic malpractice perpetrated by the armaments
industry. From the military perspective, offsets encourage the
proliferation of armaments and the purchase of excessively expensive
equipment against wildly exaggerated promises of economic benefits which
almost invariably fail to materialise.
1.5. From the perspective of economic and social development, almost
any other expenditure would be more beneficial than expenditure on
armaments against expectations of offsets for job creation and/or
infrastructural investments. It has long been proven that expenditures
on armaments are economically non-productive. Alternative expenditures
on badly needed infrastructural development -- such as health care,
housing and education – are prerequisites to poverty eradication. They
can also provide job creation focussed on the part of the population
that is economically disadvantaged.
1.6. In a nutshell, the most economically-illiterate person knows
better than to spend R30 in expectation of receiving back change of
R110. That any Minister of Finance and/or Minister of Trade and Industry
could pretend otherwise begs the question whether they were, at best,
criminally negligent or criminally incompetent.
1.7. South African law requires government policies to be conducted
with rational objectivity. Ministers are expected “to apply their
minds”. The only logical conclusion to be drawn from the arm deal offset
policies is that the arms deal was driven by bribes, and that the
Plaintiff “closed his eyes” to the corruption of his political colleagues.
* *1.8. The malpractice of offsets, yet made pivotal in 1997 to the
government’s economic development strategy, is incompatible with section
217 (1) of the Constitution which requires that government procurements
are conducted “in accordance with a system which is fair, equitable,
transparent, competitive and cost-effective”.
1.9. The Auditor General in September 1999 expressed his concerns to
the Cabinet that the offsets could not be guaranteed. His concerns were
repeated to Parliament in September 2000.
1.10. Organisations of civil society repeatedly alerted cabinet
ministers to the negative consequences of the arms deal. I met Mr
Jayendra Naidoo on 15 June 1999 to restate the opposition of the South
African Council of Churches, specifically because of the notoriety of
offsets for corruption.
1.11. As a former member of the African National Congress, I even used
the structures of Claremont branch to alert members (including cabinet
ministers), and was rebuffed by the ministers that the arms deal “was
the cleanest arms deal ever” and that built-in safeguards ensured that
corruption was impossible.
1.12. Given these anxieties, Archbishop Njongonkulu Ndungane’s press
statement dated 23 August 1999 endorsed “suggestions of a full (and
public) judicial investigation into the weapons acquisitions and offset
processes” (annexure A).
1.13. Predictably, the offset programmes have proved a dismal failure,
yet even members of parliament were prevented from investigating the
offset proposals under the spurious excuse that the contracts were
1.14. Not only was the Plaintiff responsible for the “affordability” of
the arms deal, but it is his signature as Minister of Finance of the
Republic of South Africa to foreign loan agreements which gives effect
to the arms deal supply agreements. South Africa now faces a financial
crisis, with dire socio-economic and political consequences for the
people of this country, simply because the Plaintiff failed to meet the
constitutional obligations of public office.
1.15. European politicians flocked to South Africa after 1994 to pay
tribute to our new democracy with one hand, and to lobby unashamedly for
weapons exports with the other. These included British Prime Ministers
John Major and Tony Blair, German Chancellor Helmut Kohl, French
President Jacques Chirac and Swedish Prime Minister Goran Persson. The
EU Code of Conduct on arms exports, including criterion eight which
deals with socio-economic conditions in recipient countries, was
disregarded. Our government ministers succumbed to these pressures from
European governments to prioritise the purchase of armaments before
social upliftment, and thus betrayed the struggle against apartheid.
1.16. The absurdity was rigorously promoted that the promised offset
benefits constituted a “Marshall Plan” for the “new South Africa” that
would fast track economic development. This is the real “scandal” of the
arms deal; that European governments knowingly unleashed a culture of
corruption, which now threatens the very survival of South Africa’s
hard-won democracy – and that the leadership of umkhonto-we-sizwe,
especially including the late Joe Modise, were suborned to that purpose.
* 2. ACCURATE:*
2.1 The 380 page Joint Investigation Report into the Strategic Defence
Procurement Packages (JIT report) confirms that all the arms deal
primary contracts were severely flawed by tendering irregularities. This
was true of the German warship contracts, the Italian helicopter
contracts and the British/Swedish BAE Hawk and BAE/Saab Gripen fighter
aircraft contracts. The report was also critical of the role and
involvements of the late Joe Modise, the former Minister of Defence.
2.2* *The BAE contracts (chapter four of that report) were most
especially flawed, the Auditor General having reported his concerns to
Cabinet in 1999 as well as to Parliament in 2000 that BAE had been
2.3* *Paragraph 4.1.13 reports that the British government in January
1997 tabled a package proposal for the BAE Hawk and BAE/Saab Gripen
fighter aircraft. Paragraph 4.1.14 reports that these aircraft failed
the requirements of the South African Air Force. Paragraph 4.1.15
reports that the President was advised in July 1997 why the British
proposal was not acceptable.
2.4* *Various performance and cost criteria were established, which the
BAE aircraft again failed. On pages 86 and 87, paragraphs 184.108.40.206 to
220.127.116.11 report that the Minister of Defence removed consideration of
cost from the tendering criteria. “Non-costed” options were introduced
to sway the decision to BAE. Paragraph 4.6.8 on page 99 reports that the
Minister of Trade and Industry confirmed this irregular decision to
exclude cost consideration was initiated by the ministerial committee.
Under no circumstances can a decision to exclude cost as a tendering
criterion for government procurements be reconciled with section 217 (1)
of the Constitution.
2.5* *Paragraphs 18.104.22.168 to 22.214.171.124 on pages 91 and 92 report that BAE
had radically inflated its offset programme for the Hawks on two
obsolete investment projects, and without which BAE had virtually no
national industrial participation package.
2.6* *British Prime Minister Tony Blair visited Cape Town in January
1999 specifically to lobby on behalf of BAE when arms deal offsets were
described as a “Marshall Plan”. The British government seconded a
British civil servant to the Department of Trade and Industry (DTI) to
ensure that South Africa could maximise the offsets gains. Church
leaders, including Archbishop Ndungane, wrote to Mr Blair to express
their opposition to the arms deal.
2.7* *Confirming support for the arms deal by the Plaintiff as well as
from DTI as pivotal to its economic development strategy, the Minister
of Defence, Joe Modise told Parliament on 9 March 1999:
I am heartened by the commitment shown to the acquisition programme by
both the president and finance minister in their keynote addresses of
this parliamentary session. Re-equipping the defence force is being done
in such a way as to add value to our economy. In return for our
expenditure, our economy will benefit by an estimated R110 billion of
new investment and industrial participation programmes; and the creation
of approximately sixty-five thousand jobs. The sceptics have suggested
this is wishful thinking. The following breakdown has been very
carefully calculated with the department of trade and industry. Of the
R110 billion, over R26 billion is made up of direct investment into the
project; R25 billion is estimated revenue from local sales stemming from
business projects that will be established, and R59 billion will be
derived from export sales. As to the concern that such transactions are
open to improper influences, I want to assure you that the bids have
gone through a fine- tooth comb to ensure an ethical outcome. It is
clear that this acquisition project will enormously benefit South
African industry as a whole. It will benefit the defence industry in
particular, which receives a new lease of life.
2.8* *Both the affordability study and the JIT report were also
critical of Mr Modise’s role in committing South Africa to the submarine
programme before the affordability study was complete. Chapter six of
the JIT report also confirms that this project was severely flawed by
tendering irregularities. The flagship offset project for the purchase
of three submarines was to be construction by Ferrostaal of a US$1
billion stainless steel plant at Coega that reportedly would create over
16 000 jobs. Assessment by Warburg Dillon Read was that South Africa
already had massive over-capacity in steel production, and that the last
thing the country needed was yet another steel plant. (also sub-paras
5.13 and 5.14).
2.9 Paragraph 126.96.36.199 of the JIT reports the military performance of
the German Submarine Consortium (GSC) tender ranked fourth, and last.
However, GSC was awarded the contract given purportedly massive offset
benefits from the Ferrostaal steel plant. The Ferrostaal steel plant was
cancelled only months later as being economically unviable, but South
Africa remained obligated to the submarine contracts.
*3 IN THE PUBLIC INTEREST:*
3.1. The preamble to the Prevention of Organised Crimes Act (1998)
There is a rapid growth of organised crime, money laundering and
criminal gang activities nationally and internationally, and organised
crime has been internationally identified as an international security
threat. Organised crime, money laundering and criminal gang activities
infringe on the rights of the people as enshrined in the Bill of
Rights. It is usually very difficult to prove the direct involvement of
organised crime leaders in particular cases because they do not perform
the actual criminal activities themselves.
3.2. Chapter 3 of the Act sets out the offences -- including failure to
report suspicion regarding proceeds of unlawful money laundering
activities – the penalties being determined as:
8. (1) Any person convicted of an offence contemplated in section 4, 5
or 6 shall be liable to a fine not exceeding R100 million, or to
imprisonment for a period not exceeding 30 years.
8. (2) Any person convicted of an offence contemplated in section 7(7),
shall be liable to a fine, or to imprisonment for a period not
exceeding 15 years.
3.3. The Bill of Rights in section 38 (d) establishes that anyone
acting in the public interest has the right to seek the protection of
the Court and the granting of appropriate relief. My involvement in
these matters results from my appointment by Archbishop Ndungane to
represent the Anglican Church at the Defence Review that was conducted
in Parliament during 1996 to 1998.
3.4. Allegations of corruption associated with the arms deal arose in
1998 when it was alleged during the Defence Review that BAE was bribing
Mr Tony Yengeni and others with a £1 million “first success fee”, and
that a further £3 million was being laundered via two Swedish trade
unions to bribe other politicians to support the arms deal. I reported
these allegations both in writing and orally to members of the
executive, including the Plaintiff, but no action or investigation was
3.5. Through Campaign Against Arms Trade in London, I also requested
the British government to investigate the allegations concerning BAE.
The then Secretary for Trade and Industry appointed the London
Metropolitan Police to the task, the eventual response being that it was
[then] not illegal in Britain to bribe foreigners. 3.6. I later informed
the British government that evidence of serious corruption relating to
BAE had been forwarded to Judge Willem Heath for investigation and,
pending his decision, that it would be fraudulent to proceed with the
financing arrangements that give effect to the BAE Hawk and BAE/Saab
Gripen fighter aircraft contracts.
3.7.* *Mr Yengeni was eventually sentenced to four years’ imprisonment,
the charges against him being watered down from corruption to fraud in
order to circumvent the bribery clauses in the arms deal supply
agreements. Mr Schabir Shaik, purportedly the “financial advisor” to
former Deputy President Jacob Zuma, was eventually sentenced to fifteen
years’ imprisonment, and the Constitutional Court on 29 May 2008
confirmed that Mr Shaik had bribed Mr Zuma. In his judgement before
sentencing Mr Shaik, Mr Justice Squires commented that Mr Pierre Moynot
-- the executive employed in South Africa by the French government
controlled arms company Thomson CSF -- admitted “with charming Gallic
candour” that it was general practice in the arms trade to rely on
political influence and bribes to secure arms deal contracts.
3.8.* *A London court on 10 April 2008 found that the British Serious
Fraud Office (SFO) had unlawfully succumbed to pressure by the former
British Prime Minister Tony Blair to squelch investigations into bribes
BAE paid to Saudi Prince Bandar to secure arms contracts with Saudi
Arabia. The case has highlighted just how ensnared British government
ministers, including Blair, are by BAE corruption that they were even
prepared to subvert the British judicial system. The SFO has been
investigating allegations of BAE bribery to secure arms contracts in
numerous countries, including Saudi Arabia, *South Africa*, Chile, Czech
Republic, Rumania, Qatar and Tanzania. Further illustrating its
importance, this landmark case will be referred to the British House of
Lords on 7 and 8 July 2008.
3.9. A massive international corruption scandal is unfolding in which
even heads of government are implicated and compromised. It transpired
that successive British governments have colluded with BAE to pay bribes
in excess of £1 billion to Prince Bandar, and that these bribes were
laundered via the now-defunct Riggs Bank in Washington DC.
3.10. Accordingly, the Federal Bureau of Investigation (FBI) in May
2008 against subpoenas detained the chief executive officer of BAE and
the deputy chairman of Barclays Bank for questioning when they transited
through Houston and Newark airports. The FBI also detained the former
head of the British government’s Defence Export Service Organisation
(which supervises the marketing of British arms exports) when he
transited Miami airport.
3.11. The further significance for South Africa is not only that
Barclays Bank is financing more than 50 percent of the arms deal, but
that it is the controlling shareholder of ABSA – South Africa’s largest
3.12.* *BAE bribes are now under investigation in at least seven
countries, plus the Organisation for Economic Cooperation and
Development (OECD) which has international supervision over the OECD
Conventions against Bribery of Foreign Officials.
3.13. British government minister in 2004 conceded that “commissions”
(for which read “bribes”) were paid to secure BAE’s arms deal contracts
with South Africa but, she pleaded, they were “within reasonable
limits”. It is now public record in Britain that BAE had intended to pay
£180 million in bribes to secure the South African contracts, but that
these were subsequently reduced to “only” £112 million (approximately
3.14. BAE is an organisation in which bribery and corruption are
standard practice. BAE well fits any definition of organised crime. It
operates through a world-wide network of front companies, bank accounts
and agents who do the “dirty work” on its behalf, thereby enabling it to
claim that it operates within the law. BAE can rightly be described as
the British counterpart of the Italian Mafia. Many of its agents in
South Africa have been named in Parliament by Ms Patricia de Lille MP,
as well as by the media, but no action has been taken against them.
3.15. After five centuries of colonialism, the malevolent influence and
impact of the war industry throughout British society – but especially
within the body politic and government -- are at last being exposed.
3.16* *In addition to the BAE investigations, authorities in Germany
were until last week investigating bribes by Thyssen Krupp to secure the
warship contracts with South Africa. Thyssen Krupp admits it paid
bribes, but even pleads that such bribes were then tax deductible as a
legitimate business expense. The German investigation was reportedly
called off because of a lack of cooperation by South African authorities.
3.17* *Irrespective of whether it was legal or illegal in Britain and
Germany to bribe foreigners, it has long been illegal in South Africa to
accept bribes. I have been fully vindicated in reporting my suspicions
back in 1998 and 1999 in the public interest to authorities both in
South Africa and Britain. Per sub-paragraph 1.12 above, Archbishop
Ndungane and others called in August 1999 for an independent judicial
investigation in response to my concerns during and subsequent to the
3.18. Allegations were rife before his death in November 2001 that the
late Joe Modise had been a recipient of bribes from many sources
including BAE to facilitate the arms deal. Researchers in England
believe that BAE’s personal bribes to Modise were transferred via a bank
in Saudi Arabia, from whence they were transferred through banks in
Algeria and Mozambique to South Africa.
3.19. The bribery clauses in the arms deal supply agreements authorise
the government summarily to cancel the contracts in the event of
convictions for corruption, and even to claim financial compensation,
but the government has instead repeatedly blocked and thwarted both
investigations into corruption and prosecutions.
3.20. An affidavit (annexure B) by Andrew Feinstein confirms that the
Plaintiff pressured him to drop the parliamentary investigation into the
arms deal, saying:
We all know JM [as Joe Modise was known]. It’s possible there was some
shit in the deal. But if there was, no one will ever uncover it.
They’re not that stupid. Just let it lie. Focus on the technical stuff,
which was sound.
3.21. The implication is clear. The Plaintiff knew, or at least
suspected, that Modise was the recipient of bribes yet, in violation of
the Prevention of Organised Crime Act, did nothing to report or
investigate his suspicions. Indeed, his testimony before the
parliamentary Standing Committee on Public Accounts (Scopa) in February
2001 illustrates how he deliberately frustrated parliamentary and other
investigations into allegations of corruption associated with the arms deal.
3.22. Whether the Plaintiff was or was not personally enriched by the
arms deal is immaterial and irrelevant. His failure to report his
suspicions and/or to assist investigations makes him complicit, indeed
an accessory, to such corruption.
*4. FREEDOM OF EXPRESSION:*
* *4.1. Section 16 (1) (a) and (b) of the Constitution guarantee that
“everyone has the right to freedom of expression, which includes:
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas.”
4.2. As the paragraphs 1, 2 and 3 above make evident, the executive
branch of government and the Plaintiff in particular have gone to
extraordinary lengths to squelch information from the public about the
irregularities and corruption associated with the arms deal.
4.3. The checks and balances enshrined in the Constitution have been
shredded because of the arms deal. This has resulted in a constitutional
crisis in every sphere of government. This includes the Judiciary as
evidenced by the current suspension of the Judge President of this
Honourable Court pending the Judicial Services Commission investigation
in the related matter of the forthcoming trial for corruption of Mr
Jacob Zuma -- the President of the African National Congress and former
Deputy President of South Africa.
4.4. The defamation action against me by the Plaintiff is yet another
manifestation of abuses by the executive of the powers of political
office. It is a spurious attempt to block public concerns about the arms
deal, and exposure through the media and other instruments of freedom of
expression of the Plaintiff’s crucial role in the arms deal.
4.5. My involvement in the arms deal issues stems from my appointment
by Archbishop Ndungane to represent the Anglican Church at the Defence
Review that was conducted in Parliament during 1996 to 1998. I did so
voluntarily and without financial remuneration, but in the public
interest I took these obligations and responsibilities seriously when
allegations of corruption arose.
4.6. I have no intention of defending my right of freedom of expression
as that of an irresponsible “don Quixote” with an eccentric propensity
to insult and defame authority figures. I submit that the issues of
which the Plaintiff complains are legitimate political comment in a
matter which is of enormous importance for the constitutional future of
South Africa. In this respect, I refer to the 2004 judgment in
Mthembi-Mahanyele versus the Mail and Guardian that “greater latitude is
usually allowed in respect of political discussion”.
4.7. Section 2 of the Constitution establishes that the Constitution is
the supreme law of the Republic: law or conduct inconsistent with it is
invalid, and the obligations imposed by it must be fulfilled. I
represent myself in this matter but do so in the public interest and,
accordingly, beg the indulgence of the Court when my affidavits are
4.8. I represent myself after an amicable withdrawal by legal counsel
mandated to defend the rights to freedom of expression, who admitted
that he lacked both institutional knowledge of the “arms deal”
complexities and the financial capacity to carry the case. The right to
freedom of expression is a very important aspect of this case, but
equally important is corruption as government’s deliberately intended
economic policy which, in respect of the arms deal, is a fundamental
violation of section 217 (1) of the Constitution.
4.9. The supremacy of the Constitution, I submit to the Court, trumps
any reliance by the Plaintiff and his counsel on legal points and
manoeuvres and/or applications to strike out any portions of my
testimony or affidavits. The Plaintiff’s conduct in respect of the arms
deal has, I submit, fallen woefully short of the requirements of the
*5. PLAINTIFF’S APPLICATIONS FOR STRIKE OUT UNDER RULE 23.*
* *5.1. The first and second grounds for strike out allege, without any
substantiation, that I am motivated by /animus injuriandi /and malice.
As evident from paragraphs 1.1 to 3.21, my involvement in exposing the
corruption associated with the arms deal stems from my appointment by
Archbishop Ndungane to represent the Anglican Church at the Defence
Review. I did so purely in the public interest, with absolutely no
personal malice against the Plaintiff, albeit I was and remain critical
of his crucial complicity in the arms deal scandal that has ensued
simply because he failed his constitutional obligations to the people of
` 5.2. The third ground for strike out pleads that the Plaintiff’s
reputation for financial probity has been irreparably damaged, both
nationally and internationally. I do not dispute that, but counter that
he should have considered that when he entangled this country in the
arms deal scandal. The warnings of the affordability study and by civil
society are now substantiated in the financial and socio-economic crises
facing South Africa. Accordingly, the damage to the Plaintiff’s
reputation is entirely of his own making, not mine.
5.3. The fourth ground for strike out attempts to obscure the reality
that the arms deal is a highly controversial political issue both in
South Africa, and internationally. A gagging order against me in South
Africa will have absolutely no impact upon investigations
internationally. Such an order would however, tend to confirm public
perceptions both in South Africa and abroad that heavy-handed measures
have been applied to conceal corruption at the highest levels of the
executive branch of government. Again, the Plaintiff’s alternative
remedy is a thorough and independent judicial investigation into the
arms deal, as called for repeatedly by leading voices of civil society
including Archbishop-Emeritus Desmond Tutu.
5.4. The fifth ground for strike out illustrates the malice with which
the Plaintiff has acted towards me as Defendant in this matter. He has
twice tried and twice failed to secure my financial sequestration. As he
is aware, I represented the Anglican Church at the Defence Review and
did so in the public interest without financial remuneration. As he is
also aware, I spent approximately R5 million of my own money in opposing
the arms deal and in exposing the corruption associated with it. I did
so willingly, albeit never considering that our government would go to
such extreme measures and contortions in its efforts to cover up the
scandal, or that it would deliberately drive me to financial exhaustion.
That is the reality of why my application 9987/01 failed to have the
arms deal loan agreements set aside.
5.5. Accompanying this affidavit, I shall be amending my plea and
counterclaim filed on 20 May 2008 to substantiate notice then given that
the judgement in that case 9987/01 was a miscarriage of justice due to
deliberate misleading of the Court by the Plaintiff. I shall amend my
counterclaim to include the matter of perjury, which is an extremely
serious criminal offence committed with deliberate intent to subvert the
course of justice.
5.6. In paragraphs 12.4 and 12.6 of his notice, the Plaintiff argues
that I have raised an issue in paragraph 20 of my plea which is not
relevant, and it should thus be struck out. The reality is that the
issue is highly relevant, and it goes to the core of his efforts to
mislead the Court. In that paragraph 20 I noted the declaration under
oath by Ms Maria Ramos on 6 March 2002 (with a confirmatory affidavit by
the Plaintiff) that “the agreements he signed are self-standing loan
agreements with binding force and not dependent on any other agreements
entered into by government”.
5.7. To a former banker, this declaration under oath was plainly false:
it was tantamount to arguing that the purchase of a house has nothing to
do with its mortgage. The statement was clearly intended to mislead the
court. On legal advice, I filed for discovery of documents to prove the
falsity. The Barclays Bank/Export Credit Guarantee Department loan
agreement in my possession, and verified as authentic, sets out the
purpose of the Barclays Bank loan agreement as the purchase and
financing in five tranches of the BAE Hawk and BAE/Saab Gripen fighter
aircraft. The BAE supply agreement, now also in my possession, further
proves the falsity.
5.8. This Honourable Court in March 2003 awarded discovery to me within
ten days of the International Offers Negotiating Team and Financial
Working Group papers pertaining to the arms deal. In so doing, Judges
Blignaut and Davis had considered and rejected the Plaintiff’s arguments
that it was not in the public interest to disclose how the government
conducts its financial business. Notwithstanding the court order, the
Plaintiff embarked upon extraordinary efforts during 2003 to frustrate
that order. Eventually, 224 pages of documents were produced in November
2003 albeit that I protested repeatedly that they fell far short of the
5.9. Accordingly, under case 7390/08 I filed for delivery of the
documents awarded to me in 2003. Although the Court on 2 June 2008
dismissed my application, it is evident that the Plaintiff (as
respondent in this related matter) again misled the Court in respect of
the compliance orders. Paragraphs 29 and 30 of the judgement by Mr
Justice Dlodlo confirm that he relied heavily on the affirmation by the
Plaintiff that he had complied with the order by Judges Blignaut and Davis.
5.10. The pagination of the documents in my possession (annexure C)
provides prima facie evidence that this is not so, and that I received
less than 2.8 percent of the documents of which discovery was ordered by
the Court in 2003. This indicates these documents exceeded 8239 pages.
That contention is also confirmed by pages 248 to 250 (annexure D) of
the JIT report, paragraph 188.8.131.52 of which notes:
The final affordability assessment was submitted to the Ministers’
Committee in August 1999. It was a *voluminous* document that dealt
comprehensively with all the relevant issues. It also superseded all
previous reports and inputs that were submitted on the matter of
affordability. It sufficiently equipped the Ministers concerned to make
a properly informed decision, as far as issues of
affordability were concerned. Affordability is ultimately a question
of political choice. The task of the Affordability Team was not
to make that choice, but to enable the ultimate decision makers to
make a well-informed choice about what the country could and could not
5.11. Whilst 8239 pages can rightly be described as *voluminous,* the
224 pages that I received in November 2003, and only after two court
applications, plainly do not meet such a description.
5.12. Perchance, page 8236 refers to the risk weighting for the
national industrial procurement (NIP) offsets, and notes “the high level
of uncertainty about these future projects.” This assessment seemingly
confirms international experience of offsets as reckless, corrupt and
economically-discredited. It is consequently unsurprising that the
Plaintiff went to such extreme lengths to frustrate discovery of the
International Offers Negotiating Team and Financial Working Group papers.
5.13. Pages 8238 and 8239 are even more scathing. The memorandum dated
19 July 1999 from Warburg Dillon Read asks whether
South Africa needs another steel plant. To be honest, my answer is
“no”, regardless the nature of projects, because of the structural
overcapacity problem in the country…. The South African steel industry
faces one of the most serious overcapacity problems in the world.
5.14. Yet, as noted in sub-paragraph 2.8 above, the selection of the
German Submarine Consortium to supply South Africa with three submarines
was driven by wildly inflated offset promises of a massive stainless
steel plant at Coega which, not surprisingly, has failed to materialise.
Paragraph 184.108.40.206 on page 168 of the JIT report confirms that the
presentation to Cabinet calculated the cost of three submarines at
R5.212 billion which would generate offsets worth R30.274 billion to
create 16 251 jobs. This was the “flagship” offset project for the arms
deal, and illustrates why offsets are internationally discredited as a
scam perpetrated by the armaments industry.
5.15. The submarine contracts are invoiced in Euros rather than Rands,
which in the last two years have depreciated by approximately 60
percent. In addition to the risks that the offsets would not
materialise, the affordability study also highlighted the foreign
exchange risks of the arms deal. These warnings were also ignored, with
consequent massive increases in costs of the arms deal in rand terms to
South African taxpayers.
5.16. The submarines are being financed by Commerzbank against
Bundestag guarantees for seventeen years, i.e. until the year 2016.
Given extreme volatility in foreign exchange markets, it is impossible
even to guess what the final costs will be in rand, except that they
will be very dramatically greater than R5.212 billion.
5.17. Confirmation by the Court that the Plaintiff did not comply with
the 2003 discovery order and that that he then deliberately misled the
Court would, I submit, constitute perjury. Perjury, as the Court is
aware, is an extremely serious criminal offence committed with
deliberate intent to subvert the course of justice, and very
considerably more so than defamation.
5.18. Judges Blignaut and Davis had considered and rejected the
Plaintiff’s arguments that it was not in the public interest to disclose
how the government conducts its financial business. This is the crux of
why he has gone to such extreme lengths against me including his
defamation application, and why he continues to suppress vital
information. The documents will prove to the country that the Plaintiff
and his cabinet colleagues were warned in 1999 that the arms deal was a
reckless proposition, and that recklessly they committed South Africa to
the arms deal scandal that ensued.
` 5.19. The reason for such reckless conduct was plainly the bribes paid
by BAE and other arms deal contractors that are now being exposed by
international financial investigators.
* *5.20. The sixth ground for strike out yet again confirms the
Plaintiff’s vindictiveness and his abuse of political power. He admits
that he has no prospect of financial remedy, yet he wastes the Court’s
time and resources in an effort to squelch public concerns and
criticisms about the corruption associated with the arms deal scandal,
and to divert attention from his complicity in the fiasco.
5.21. The seventh ground for strike out again attempts to obscure the
reality that the arms deal, and the Plaintiff’s role in it, is a
political issue not just in South Africa, but internationally. If the
Plaintiff is “embarrassed” as he has good cause to be, it is once more a
matter of his own making. Again, his appropriate remedy as a senior
member of the executive branch of Government, is a thorough and
independent judicial investigation into the arms deal.
5.22. The eighth ground for strike out is addressed in sub-paragraphs
4.1 to 4.9 above. This is an egregious assault on constitutionally
guaranteed freedoms of expression. The Plaintiff’s attempt to exclude
foreign media reports from the Court of international investigations and
action into BAE corruption, which are of huge relevance to South Africa,
further illustrates the absurdity of his defamation action against me.
5.23. The Federal Bureau of Investigation (FBI) in the United States is
now detaining BAE executives and the deputy chairman of Barclays Bank
for questioning about money laundering when they transit American
airports. A British court has been scathing in its judgement about
British government complicity in the laundering of BAE bribes, and its
involvement with BAE and Saudi Prince Bandar in deliberately subverting
the rule of law in Britain.
5.24. The Plaintiff’s pretence that the Court should not take
cognisance of these developments and realities makes a mockery of the
requirements under section 195 (1) of the Constitution setting the basic
values and principles governing public administration.
5.25 Irrespective of the Court’s eventual decision in this matter
between the Plaintiff and myself, international and South African media
investigations will continue to expose of the corruption associated with
the arms deal.
Sandown Crescent E105
Royal Ascot, Milnerton, Cape Town
c/o ST GEORGE’S CATHEDRAL
WALE STREET, CAPE TOWN
ATTN: MRS ANN COX
*TO: THE REGISTRAR*
* *HIGH COURT, CAPE TOWN
*AND TO; THE PLAINTIFF*
* TREVOR ANDREW MANUEL*
*C/O HIS ATTORNEYS*
* DCM GIHWALA/L. BALDJIEV*
* *Hofmeyr, Herbstein & Gihwala Inc
2 Long Street
I certify that:
1. the deponent has acknowledged that:
1.1. he knows and understands the contents of this declaration;
1.2 he has no objection to taking the prescribed oath;
1.3 he considers the oath binding on his conscience.
2. the deponent thereafter uttered the words “I swear that the contents
of this declaration are true, so help me God”.
3. the deponent signed this declaration in my presence at the address
set out hereunder on this 26th day of June 2008.
*COMMISSIONER OF OATHS*
*IN THE HIGH COURT OF SOUTH AFRICA*
*(CAPE PROVINCIAL DIVISION) CASE 5156/08*
in the matter between
*TREVOR ANDREW MANUEL PLAINTIFF*
*TERRY CRAWFORD-BROWNE DEFENDANT*
*DEFENDANT’S NOTICE OF AMENDMENTS TO PLEA AND COUNTERCLAIMS IN TERMS OF
*BE PLEASED TO TAKE NOTICE *in terms of Rule 28 that I serve notice that
my notice filed on 20 May 2008 is amended by explanation to paragraph 5
and by the inclusion of paragraph 7, and now reads:
1. The matter is an abuse of the Court in what is a political rather
than legal issue,
2. That the Defendant’s criticisms of the Plaintiff are fair, accurate
and in the public interest,
3. That the summons is an abuse of the constitutional right of freedom
of expression guaranteed by section 16 (1) (a) and (b) of the Constitution,
4. That by the Plaintiff’s own admission, he has no prospect of
5. Although Mr Justice Dlodlo on 2 June 2008 dismissed my application
7390/08, paragraphs 29 and 30 of his judgement confirm that he relied
heavily on the affirmation by the Plaintiff on 9 May 2008 that he had
complied with the discovery order in March 2003 by Judges Blignaut and
Davis. Documents attached to my affidavit filed on 26 June 2008 indicate
that this is not so, and that the 224 pages supplied by the Plaintiff in
fact constituted less than 2.8 percent of the documents of which
discovery was ordered.
Accordingly, the Court is requested to consider whether the Plaintiff
committed perjury with deliberate and criminal intent to subvert the
course of justice and, if so, to determine an appropriate remedy,
6. That the Plaintiff’s conduct is inconsistent with obligations imposed
by the Constitution in respect, inter alia, of section 92 (2) and (3)
(a), 195 (1), 216 (1) and 217 (1) of Act 108 of 1996,
7. My involvement in the arms deal issues stems from my appointment by
Archbishop Njongonkulu Ndungane to represent the Anglican Church at the
Defence Review during 1996 to 1998. I did so voluntarily without
remuneration and in the public interest, but I took my responsibilities
seriously when grave allegations and evidence of corruption emerged. The
summons brought against me by the Plaintiff is but the latest
manifestation of his vindictiveness against me, and represents his
further attempt in his capacity as Minister of Finance in the executive
branch of government to squelch widespread public concern about the
corruption associated with the arms deal.
I have spent an estimated R5 million of my own funds in exposing the
arms deal scandal. Accordingly, I now institute a claim in terms of
section 195 (1) against the Plaintiff for reimbursement of R5 million
plus interest calculated from 23 August 1999, being the date on which
Archbishop Ndungane called for a full and public judicial investigation
into the arms deal.
In terms of rule 28 (2), unless written objection to these amendments is
delivered within ten days of this notice is received, I request that
these amendments are effected.
DATED AT CAPE TOWN on the 7th day of JULY 2008.
Sandown Crescent E105
Royal Ascot, Milnerton, Cape Town
c/o ST GEORGE’S CATHEDRAL
WALE STREET, CAPE TOWN
ATTN: MRS ANN COX
*TO: THE REGISTRAR*
* *HIGH COURT, CAPE TOWN
*AND TO: THE PLAINTIFF*
* TREVOR MANUEL*
*C/O HIS ATTORNEYS*
* DCM GIHWALA/L BALDJIEV*
* *21^st Floor
2 Long Street
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