Circus or serious investigation?

The Hefer commission, trundling to its predictable conclusion, has the whiff of a show trial about it — a legal circus designed to discredit National Director of Public Prosecutions Bulelani Ngcuka’s accusers, rather than to investigate seriously whether he was an apartheid agent or abused his office.

There are numerous pointers that raise this suspicion.

Firstly, there is the way in which the process has been weakened:

  • By President Thabo Mbeki publicly rejecting the allegations in his weekly letter to the ANC and promising the wrath of “the people” on those making such accusations;

  • By the presidency setting out three successive terms of reference for the inquiry, eventually narrowing its focus so that the commission was obliged to home in on the allegations made by Mac Maharaj and Mo Shaik, rather than using its own powers to investigate the broader issues independently;

  • By presidency Director General Frank Chikane sending a ludicrous letter to the commission in a bid to paper over the gaping hole at the centre of the inquiry — its failure to secure any official intelligence documentation or evidence.

    Chikane claimed that — because Mbeki has (theoretical) access to all such intelligence (there are truckloads of it remember) and because he has seen nothing that bears on the allegations — the commission need not bother. This intervention was both transparently self-serving and legally meaningless.

    Secondly, the choice of some of the commission’s leading players has raised eyebrows.

    Retired Judge Joos Hefer himself has a history that suggests he is a good bet to deliver an executive-minded decision. As others have pointed out, he was one of the apartheid era Appeal Court judges described as the “emergency team” chosen to preside over trials involving state security.

    University of the Western Cape law accademic Nico Steytler has said that Hefer “played a significant role in interpreting the emergency regulations, which provided for detention without trial, in a pro-executive manner”.

    So-called “evidence leader” advocate Kessie Naidu should arguably not have accepted this brief, given the obvious possibility of a perception of a conflict of interest.

    The initial terms of reference for the commission appeared to include an investigation of Minister of Justice and Constitutional Development Penuell Maduna, whose wife shares a number of business interests with Naidu. However, it should be noted that Naidu has represented Maduna’s and Ngcuka’s nemesis, Deputy President Jacob Zuma. Naidu also acted for Zuma when the latter had to answer questions from the Scorpions earlier this year.

    It was Naidu too who acted as a go-between in conveying a suggestion for some kind of “deal” between Ngcuka and Zuma.

    Naidu has also arguably been a shameless grandstander, stepping outside the usually more neutral role of an evidence leader to become one of the most effective cross-examiners for Ngcuka’s “defence”. His demolition of former City Press editor Vusi Mona has exposed Mona’s dubious motives, but has hardly ameliorated the concerns raised by Ngcuka’s detractors about the alleged content of Ngcuka’s briefing to editors.

    A third pointer has been the extreme way state intelligence agencies have resisted disclosing any information to the commission — and the commission’s feeble response to this.

    The sight of advocate George Bizos lending his reputation to defending the right of our intelligence community to be accountable to no one but themselves was one of the more distasteful ironies thrown up by this affair. Following Bizos’s rebuff, the commission has done almost nothing to test his assertions.

    It was only last Friday that the commission decided to use the channel suggested by Bizos to apply for permission for two former security policemen — Gideon Niewoudt and Bernie Ley — to be allowed to testify. Given that Niewoudt and Ley are crucial to probing the allegations against Ngcuka, this tardiness is surprising.

    It was Niewoudt who, while his identity was hidden, told that he had asked security branch headquarters to place a travel restriction on Ngcuka during the late 1980s. It was Ley who confirmed that he had done so and that he had subsequently been visited by two members of the National Intelligence Service who asked him to lift this restriction.

    At this stage no attempt has been made by the commission to obtain official permission on behalf of the ex-security agents, who allegedly also knew about this matter, named by Shaik as Colesky and Goch.

    Such a move by the National Intelligece Service — if it indeed occurred — would not of itself provide conclusive evidence that Ngcuka was a spy. It is quite conceivable, for instance, that the service wished Ngcuka to be able to travel to see where, and to whom, he would lead them.

    But this issue remains one of a number of, as yet, unexplained anomalies around Ngcuka whose significance has been raised by the way the commission has tended to ignore them.

    The fact that the commission has made no attempt to approach Jakes Gerwel, for instance, is strange, given that Shaik testified that Gerwel, the then Cabinet secretary, was aware of the allegations against Ngcuka prior to his appointment as national director of public prosecution.

    The decision not to subpoena Zuma is equally unaccountable, given that, as head of African National Congress intelligence, he would know whether and how Shaik’s initial suspicions had been taken further. Zuma has also enthusiastically offered his assistance to the commission.

    At the very least Zuma could deal with the submission by Ngcuka’s counsel that Shaik’s original report was likely very different to the one he later “reconstructed” and his assertion that he was flying someone else’s flag.

    If the commission concludes as it has proceeded, it risks doing both Ngcuka and the public a disservice. It will not exonerate Ngcuka, even if he deserves to have his name cleared.

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