National Director of Public Prosecutions Bulelani Ngcuka did not bother to attend the hearings investigating whether he was an apartheid spy this week. Well, whatever the reason, it was a good decision.
On the one day of the stop-start Hefer commission hearings in Bloemfontein, Ngcuka’s lawyers had little to say as a sideshow played itself out between the commission, lawyers representing state security agencies and the one representing Ngcuka’s accusers, Mo Shaik and Mac Maharaj, over whether the police and intelligence agencies should reveal documents that would help determine whether he had spied for the apartheid government.
So far the journalists involved in the story have refused to testify. The security agencies, which supposedly have records of apartheid-era spying, have shown the commission the middle finger. Ngcuka’s original accusers, Shaik and Maharaj, have given the commission the runaround.
This week veteran advocate George Bizos, who is representing the country’s security agencies, said the commission had ”an avaricious appetite for documents” and set about opposing it in every way. The agencies were not prepared to say whether such documents existed, nor even to give a yes or no. If they uttered a single word, he attested, they could be cross-examined.
An exasperated Judge Joos Hefer admitted to journalists that the plethora of excuses was making the commission’s work tougher.
In the past week the commission has sat for one day and listened to lawyers, instead of about nine witnesses who were expected to testify over three days. In a move that highlighted serious differences, even in the government, about how best to help the commission, the lawyer for Minister of Justice Pennuell Maduna insisted that the documents be produced and senior government officials be made to take the witness stand.
Highlighting the obstructive nature of the state agencies, Maduna’s lawyer, advocate Norman Arendse, said: ”Police commissioner Jackie Selebi cannot refuse to say who he is or to even say that today is a sunny day.”
Ngcuka would have enjoyed the sunny day as two other important developments pointed to the collapse of the case against him.
Firstly, there was a letter from the president’s office that effectively said that despite having access to intelligence information, President Thabo Mbeki had seen no documents that suggested Ngcuka could have been a spy.
”Regarding sources and agents, the president has unfettered access to all information in the possession of the state intelligence and security structures. These structures have made no allegations that bear on the matters being considered by the commission.” The presidency added that neither Maduna nor Ngcuka’s name was on a list of personnel who were employed in intelligence in 1994. The presidency politely directed the commission back to Shaik and Maharaj.
Mo Shaik’s brother Yunus, who acts as his lawyer, said he could face 10 years in jail if he were charged with possession of classified material. It emerged this week that Mo Shaik had consulted the National Intelligence Agency to clarify his position. Pointing out that the day of reckoning was near, Bizos said they had directed Shaik to follow his conscience. ”He has been advised to do whatever he wants. We cannot stop him from testifying. When he first made the allegations, he did not ask for permission. So why ask for permission now?”
But later Yunus Shaik said his clients would definitely testify after having initially asked for time to find documents that they could use as part of their testimony. They are expected to rely on information gathered by the ANC intelligence in the 1980s that was allegedly sourced from apartheid securocrats.
He has already pointed out that the strict attitude adopted by state agencies that no former intelligence member of even the apartheid government can testify or produce any documents may mean that even people such as Karl Edwards, the former handler of self-confessed spy Vanessa Brereton, may have difficulty testifying.
Former police commissioner George Fivaz said this week that he had sympathy for the police view that they cannot reveal their informers. Fivaz is expected to testify on his media remarks that he had never, while he was police commissioner, seen any evidence that suggested Ngcuka could have been a spy.
Bizos has maintained that the documents sought from the state agencies are so widespread that many other informers who are not germane to the current commission could be exposed and the whole security service may be under scrutiny.
”Since the commencement of the commission and the statements publicly made in the media that the intelligence services could be compelled to release the identities of sources, members and former members of the security services, alarming concern has arisen among them, and a significant number have indicated that if their identities are not going to be fully protected, they will cease their association with the security services,” he said in his submission. Judge Hefer has withdrawn the subpoenas against the state agencies, but warned that he may reinstitute them, depending on evidence from other witnesses.