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Letter from President Thabo Mbeki to Judge Wilhelm
Heath
19 January 2001
Dear Judge Heath,
Re: The Strategic Arms Acquisition Programme
I thank you for your letters dated 24 November 2000, 20
December 2000, 16 and 18 January 2001.
I have also taken note of your public statements on this
matter.
In the opening paragraphs of the unanimous judgement of the
Constitutional Court in the matter of the South African Association of Personal Injury
Lawyers against you and the Government, the President of the Court said:
"This appeal concerns the constitutionality of
important provisions of the Act and of two proclamations issued by the President pursuant
to its provisions. It reflects a tension that often exists between the need on the
part of government to confront threats to the democratic state, and the obligation to do
so in a manner that respects the values of the Constitution."
"There can be no quarrel with the purpose sought to be
achieved by the Act, or the importance of that purpose. That purpose must, however,
be pursued in accordance with the provisions of the Constitution."
He goes on to state that:
"The separation required by the Constitution
between the legislature and executive on the one hand, and the courts on the other, must
be upheld otherwise the role of the courts as independent arbiter of issues… will be
undermined. The Constitution recognises this and imposes a positive obligation on
the state to ensure that this is done".
The Court, accepting that all the parties acted in good
faith in establishing the Special Investigating Unit (SIU), said:
"The fact that all involved acted in good faith
and in what they perceived to be in the interests of the country, does not make lawful,
legislation or conduct that is inconsistent with the separation of powers required by the
Constitution."
The Court then ruled that the section of the Act that forms
the basis of your appointment is inconsistent with the Constitution and invalid.
As a member of the judiciary yourself, I am certain
you will agree with me that there can be no doubt about the "spirit and essence"
of this judgement.
In trying to address the immediate problems of continuity
highlighted by the judgement, the Court decided to suspend the declarations of invalidity
for a period of one year. In this regard, the Court had the following to say:
"If the declarations of invalidity are suspended
provision can be made for an orderly transfer of the powers of the head of the unit to a
functionary who is not a member of the judiciary. That will require amendments to be
made to the legislation and time will be required for that purpose".
"If the legislature wishes to address all the issues
raised in this and other decisions… that may take a significant period of time.
Less time will, however, be needed to … appoint a functionary other than a
judge to head the SIU.
"…There are good reasons for the first
respondent’s position as the head of the SIU to be regularised without undue delay.
Time will however be required for the various committees of parliament to consider
what is to be done and for appropriate legislation to be drafted. Time must also be
allowed for a new appointment to be made, and for the first respondent to transfer his
responsibilities to the new head of the SIU in an orderly fashion. I consider that a
period of 1 year will be sufficient for this purpose."
Again, I am certain you will agree with me that the
"spirit and essence" of the ruling of the Court is that you be removed without
delay.
I had hoped that you, being a member of our judiciary,
would appreciate the sentiments of your colleagues on the Constitutional Court that we all
act urgently to ensure that the principle of the separation of powers, a principle that is
critical to our nascent democracy, is not further compromised.
The Minister of Justice is preparing the necessary
amendment that will enable us to appoint a non-judge to head the Unit. We will
request parliament to consider this amendment as soon as it resumes its sessions in about
three weeks.
I have considered your comments on the recommendation of
the Minister of Justice.
Let me, at the outset, state that the Special Investigating
Unit that you head is an instrument of this Government. You, as head of the SIU, are
therefore accountable to this Government.
The Constitution states quite clearly that the executive
authority of the Republic is vested in me, as President of this country. I exercise this
authority together with members of the Cabinet, which includes Minister Maduna.
Let me further state that this Government was brought into
power by more than two-thirds of South Africans.
You have an obligation to provide this Government with
whatever information you have relevant to a consideration of whether to issue a
proclamation or not. Neither the Minister nor I have the responsibility to seek
information from you, the nature of which we would necessarily not even know, seeing that
it is in your custody.
I do not understand on what basis you would reach the
conclusion that information, about this country, is more protected in your hands, than in
the hands of the President of this country.
In your letter of 16 January 2001 you state that:
"Should the information received by the Unit be
disclosed…", (this is to the Government),"… it could possibly
jeopardise (sic) the investigation as well as the lives of the informants. …In
addition to this should this information become public knowledge it could lead to a
‘cover-up".
Is it that this democratic Government, elected by an
overwhelming majority of our people; a Government that is responsible for creating SIU as
an instrument to root out the corruption that was endemic during the tenure of the
apartheid regime, is a Government that is prone to ‘cover up’"
Worse than this, you charge that once the information you
have was given to the Government, in this case the President, the ‘lives of the
informants’ might be jeopardised!
These are very serious charges, which you will have to
substantiate.
It is also interesting to note your statement that the SIU
is not overwhelmed by work. On 7 September 2000, when this case was heard by the
Constitutional Court, you agreed with the stated facts that the SIU was investigating over
100 organs of state involving 221 580 cases.
You now state, three months later, that "the SIU has
completed and closed a large number of cases" as a result of which you have four
staff members who can be released from their normal duties. I will be happy to
receive a detailed report in this regard.
The President of the Constitutional Court, speaking on
behalf of the entire Court, states as follows in the judgement:
"I accept that it is important that the head of the
SIU should be a person of integrity. But judges are not the only persons with that
attribute."
You are aware that the Constitution states that the Public
Protector has powers to investigate "any conduct" in state affairs. There
is no distinction made between matters of a civil or criminal nature. Likewise, the
Auditor General has extensive powers to investigate state institutions.
The courts in our country also have civil jurisdiction,
which jurisdiction extends beyond that of the SIU and the Special Tribunal. Every
person has access to the courts in this country. I do not understand on what basis
you state that ‘vital civil aspects’ of the investigation may be overlooked if
the SIU is not involved in the investigation.
There is no reason for you to be confused by Minister
Maduna’s statement that there is no legal basis for a joint investigative body.
This is true. Each of the agencies functions on the basis of its separate
legal basis. It is true that there is nothing that prevents the agencies from
cooperating in an investigation.
(The Director General in the Presidency has already
informed me of his discussions with you with regard to his press statement. I am
certain that the matter has been clarified. I am not aware of the nature of the
statements made by the Ministers. Any erroneous statements made in this regard must
have been made in good faith.)
Finally, and most important, Judge Heath, I am led to
believe that you know that you do not have even prima facie evidence that, in law, any
person or persons committed a criminal offence in connection with the matter under
discussion.
Indeed, members of your Unit have been operating under the
misapprehension that you, in person, when last we met, informed me that there was no basis
for the issuance of a proclamation authorising you to investigate any recovery of state
assets in connection with the defence acquisition.
This would have been the correct thing for you to do, which
you did not do. Instead you embarked on as unseemly campaign to "tout" for
work, with a level of desperation I am still trying to understand.
Given all the circumstances detailed above, as recommended
to me by the Minister of Justice, I have decided not to issue a proclamation for the
Special Investigating Unit to investigate the strategic arms acquisition programme.
Yours faithfully,
Thabo Mbeki
Judge Wilhelm Heath
The Special Investigating Unit
EAST LONDON
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Last modified: 16 November 2004 14:13:40.
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