Judge Joos Hefer should subpoena members of the intelligence agencies to testify before him, Hefer commission evidence leader Kessie Naidu argued on Monday.
”We should leave the ball fairly and squarely in the agencies’ court,” Naidu said.
”They are not entitled to any blanket protection from giving information.”
He added that summonsed intelligence members could object to certain questions put to them. Hefer would then rule on whether they must answer after considering their grounds.
Naidu was replying to a submission by the intelligence community on Friday. In it, George Bizos, SC, on behalf of the security services, admonished the commission to follow a prescribed application procedure to obtain intelligence information.
The commission needs apartheid-era documents presumably being kept by the intelligence agencies to determine whether national director of public prosecutions Bulelani Ngcuka was an apartheid spy.
However, the intelligence agencies were recalcitrant, leading to speculation that a showdown between the two parties can be expected.
Bizos maintained last week that current or former members of the security services also required permission before giving evidence before the commission. These included pre-1994 operatives of the former liberation movements and the apartheid government, Bizos said.
Naidu responded on Monday that the commission would not direct prospective witnesses to first obtain permission. He also refused to communicate with the agencies through their lawyer, as Bizos requested.
Ngcuka’s advocate, Marumo Moerane, SC, agreed with Naidu that the commission could and should subpoena agents with information relevant to its investigation.
Hefer refused that Moerane hand in as evidence a purported report by a former African National Congress underground unit on ”the activities of source RS452 within ANC structures”.
The judge said the report could contain classified information and it was better to keep it behind closed doors until Mo Shaik, one of Ngcuka’s main accusers, testified in two weeks time.
Moerane refused to name the source from whom his attorney had obtained the document. It was apparently one of the documents used by Shaik in a September interview with e-tv. In the interview Shaik alleged there was good reason to believe that Ngcuka was apartheid agent RS452.
The link to the identity phrase has since been denied, although the spy allegations have not.
Hefer postponed the commission’s public hearings to November 12 so that the necessary documents could be obtained.
In the meantime, he said, he would take ”whatever steps necessary” to manage this. It could include the calling of witnesses, he added.
The commission hoped to have relevant documents at hand when Shaik and Mac Maharaj, Ngcuka’s other accuser, delivered their opening statements on November 17, the judge said. – Sapa