The former spy boss responded to being incriminated at the Zondo commission by threatening to expose the president. (Paul Botes)
In politics, timing is key. Arthur Fraser’s opening of a criminal case against President Cyril Ramaphosa came a fortnight before the expected release of the final instalment of the Zondo Commission Report, which promises to deal with the excesses of the State Security Agency (SSA) on his watch.
The list is long but the testimony directly implicating Fraser includes that he sidelined senior officials, bypassed the Joint Standing Committee on Intelligence when appointing deputy directors general and personally signed off on a R20-million payment to co-opt the media.
That is a fraction of the money that was allegedly illicitly diverted from the SSA, while Fraser was its director general, a post he held until 2018, when he was moved to correctional services, where he unlawfully approved medical parole for former president Jacob Zuma last year.
The amounts that flowed from the SSA led Chief Justice Raymond Zondo to exclaim: “R19-million, date given 15 December 2017. Then it says ‘collected R5-million’, R1.9-million, R900 000, R360 000. 18 December, R2.5-million, R2-million, R2.4-million, R1-million, R13 000, R1.3-million … cash just gets dished out!”
On the testimony of Loyiso Jafta, who succeeded Fraser, the money was used in part to fight factional battles in the ANC and to boost the party’s performance in elections. The SSA has struggled to recover firearms that went missing and feared that these may have been used to commit crimes.
Fraser dismissed all testimony implicating him, demanded the declassification of documents and applied to cross-examine four witnesses. And in the extensive legal to and fro that ensued with the commission, it became clear that he was threatening to release information damaging to Ramaphosa but was biding his time.
Among the 41 top secret files to which he demanded access was one containing information about the president’s “business, political and personal activities and associates”.
In July 2020, when he appeared before the Zondo commission, Fraser threatened through his lawyer Muzi Sikhakhane to reveal secrets about presidents past and present, as well as MPs and judges.
Sikhakhane said his client would have preferred to take these to his grave but needed to respond “reluctantly” to “complete the picture” for the commission, because those who testified before it had accused him of treason.
Last December, Zondo dismissed Fraser’s application to cross-examine witnesses in a ruling that stretched for nearly two hours and stressed that he avoided answering to the allegations against him.
Fraser did not fulfil the basic legal requirements for the right to cross-examination, Zondo said. The former spy boss did not specify, in the founding affidavit for his application, instances in which the witnesses had implicated him and pinpoint the allegations he disputed.
“He needed to have given a full version of his side of the story in regard to the allegations,” Zondo said. Instead, he said, Fraser gave a blanket denial and, in doing so, referred the commission to two unsigned statements he deposed, while admitting that these did not contain his full version of events.
“They should have been signed and they should have been under oath, but they are not,” Zondo said, before detailing Fraser’s disingenuous response to an offer by Jafta to release classified documents that were relevant to the scope of the work of the commission, if this could be done without breaching the law, and to expedite the process.
Fraser failed to respond to Jafta’s letter.
Instead his lawyers sent another demanding declassification and, in March last year, he launched an application to the commission to compel the intelligence agency and minister to hand over documents he needed to answer to allegations and allow him to expose “the true nature of state capture”.
Those he wanted to cross-examine included Jafta, former head of domestic intelligence Gibson Njenje and Sydney Mufamadi, who headed the high level review panel appointed by Ramaphosa to investigate state security abuses.
Njenje told the commission that Fraser was implicated as far back as 2011, when the Special Investigating Unit probed malfeasance in the National Intelligence Agency’s Covert Support Unit and Principal Agent Network. The allegations investigated included that a spyware server had been set up at Fraser’s home, in plain violation of legal prescripts.
But the investigation was stymied and Njenje, who said he uncovered fraud and corruption to the tune of R600-million, was sidelined and resigned.
Fraser also resigned but witnesses said there were indications that he maintained a close working relationship with the shadowy Special Operations Unit, run by Thulani Dlomo.
In 2016, Fraser was appointed director general of the SSA and the budget for the office increased from R42-million to R303-million, while a strategic plan was implemented to give him direct oversight of the domestic and foreign branches of the agency. The commission heard evidence that R225-million went towards special operations.
In his testimony Mufamadi said the high level panel was told that the SSA funnelled millions a month to Zuma from 2015 to 2017 as part of “Operation Commitment”. The amount increased from about R2.5-million to R4.5-million in the 2016-17 financial year.
He described Dlomo’s unit as “a law unto itself”, where operatives refused to report to intelligence structures and instead accounting to the Zuma-era executive. An investigation to clean up the SSA, code-named Project Veza, had uncovered the money flows and the names of agents illegally appointed by Dlomo, but these were locked away and the rest of the work was frustrated, with investigators reportedly removed after they gave evidence.
This fact and the rest of the testimony Zondo heard on an intelligence militia loyal to Zuma became more troubling still after the deadly July 2021 unrest, which Ramaphosa termed a failed insurrection and Fraser cited as one of the reasons for releasing the former president from jail.
When the president testified before the commission in August last year, he was asked by evidence leader Paul Pretorius whether the failure of intelligence structures to foresee and prevent the violence was the result of more than a decade of “redirection of resources” from their legitimate function to further private interests instead.
Ramaphosa replied that it was “not an unreasonable proposition” and that there had been a lapse.
But Pretorius did not accept this, saying the failure to act on ample evidence that there was a threat to the state pointed not to a lapse but to complicit action by members of the executive. He asked why investigations against those implicated in misconduct were lacking, among them Fraser, who was allowed to serve as a director general after 2018.
The president conceded that the implementation of the recommendations of the review panel had been poor and promised that it would gain momentum.
Fraser’s pre-emptive strike comes six months before the ANC national conference, with campaigns to dislodge Ramaphosa in full swing.
The damage inflicted may ultimately be mainly political. As messy as the image of money concealed in a couch is, the president’s legal bother lies in section 6 of the exchange control regulations, which states: “Every person resident in the Republic who becomes entitled to sell or to procure the sale of any foreign currency, shall within thirty days after becoming so entitled, make or cause to be made, a declaration in writing of such foreign currency to the treasury or to an authorised dealer.”
Contravening the regulations carries the risk of a fine of up to R250 000 or a prison term not exceeding five years.
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