Former judge Willem Heath has failed in a bid to challenge former president Thabo Mbeki's refusal to discharge him as a judge at the height of their spat over the controversial arms deal in 2001.
In a judgment handed down in the Western Cape High Court on Wednesday, Judge Patric Gamble said Heath's request to have the late filing of the review application condoned, was dismissed, as was the application for the review of Mbeki's decision.
Heath would also have to pay the costs of two counsel.
Heath believed that Mbeki was irrational when he refused to let him retire early, knowing that he could not be the head of the special investigating unit (SIU) anymore, and could not go back to the bench given his part in a ruling of unconstitutionality.
Heath was appointed by the late former president Nelson Mandela to help establish an SIU that would probe alleged government corruption and maladministration. Heath had initially investigated alleged corruption involving public money via a commission in the Eastern Cape, but the mandate of the SIU he had helped form eventually covered the whole country.
It went on to handle thousands of cases involving government departments.
However, the alarm was raised over how far Heath's powers went in a case involving the Road Accident Fund and personal injury lawyers accused of not handing money over to clients who had won claims. There was also concern over whether having a judge heading a unit conducting investigations was appropriate, given the separation of powers doctrine.
In 2000 the Constitutional Court found that a judge could not lead a long-term investigating unit and set a one-year deadline for the situation to be rectified.
In 2001 Heath asked Mbeki for a discharge from the bench after 30 years of service, 15 years of which were as a judge, in light of the Constitutional Court judgment. Mbeki turned him down on May 17 of that year, so he resigned in June.
A discharge would have come with benefits he was not entitled to after his resignation.
A new SIU was established in line with the legal changes the court had ordered, and was led by Advocate Willie Hofmeyr. Heath went on to start his own business, and was later also a government adviser.
However, before he resigned, Heath had also asked Mbeki several times for permission to investigate allegations of possible corruption in a multi-billion rand arms deal that is still dogging South African politics.
This was after former Pan Africanist Congress MP and now Cape Town Mayor Patricia de Lille had given him information she had received from a whistleblower. Mbeki turned him down and, according to court papers, the situation became nasty.
According to the papers filed for the review application, between the time of the Constitutional Court judgment and Heath's eventual resignation, there were private and public spats between the two over Mbeki's initial refusal to include the SIU into the arms deal probe. Heath said he had been called a "traitor" and a "liar" who was acting in a "scandalous" manner.
Heath's legal papers also said that Mbeki had made it look like Heath was attacking him in public by attributing things to him that he never said and accusing him (Heath) of creating a state of "ungovernability".
He had argued that he took so long to bring the review application (filed in August 2016) because he had taken time to think about it and seek advice, and also did not want to embarrass the Presidency and the judiciary.
The push by the opposition DA and some civil society organisations for the resumption of corruption charges against Mbeki's successor President Jacob Zuma emanates from aspects of probes into the arms deal.
Heath returned for a few days to head the SIU between November and December 2011, under Zuma, but resigned after reportedly alleging that Mbeki was behind the charge of rape that Zuma was acquitted of, and the corruption charges that are still shadowing the president.
Damage to reputation
When Heath's application for a review of Mbeki's decision not to discharge him was heard on October 20, his lawyer, Advocate Thulani Masuku, told the three judges hearing the application – judges Elizabeth Baartman, Daniel Dlodlo and Gamble – that Heath took a financial knock after his resignation as a judge.
He also felt his reputation as a judge had been impugned in his spat with Mbeki over the arms deal probe.
He had also asked for damages to be awarded in the form of the benefits he would have received if he had been discharged.
But at the matter's core, to Heath, was judicial independence and whether it was right for a president to hold sole discretion to grant early discharge.
During argument in October, counsel for the president and minister of justice Nceba Dukada, said Heath's claim that he was left in a bad position financially when Mbeki refused to discharge him was not true because he went on to form a private consultancy, and was paid millions for his work.
He said Heath had also waited too long to bring the application, and in terms of the law, the damages he was hoping to be awarded amounted to debt. The time to have made the claim for that debt had lapsed.
Heath was not in court for the judgment but his attorney, Darren Hanekom, said they would have to read the judgment and take instructions from Heath before commenting.