The mountain has brought forth a mouse.
This was how Marumo Moerane, counsel for National Director of Public Prosecutions Bulelani Ngcuka, summarised on Thursday before the Hefer commission the outcome of allegations against his client.
It also summed up the positions of commission evidence leader Kessie Naidu and Norman Arendse, counsel for Justice Minister Penuell Maduna.
All, together with Ngcuka’s main accusers, Mac Maharaj and Mo Shaik, delivered their final arguments before Judge Joos Hefer on Thursday. It was the 23rd and final day of his inquiry into allegations that Ngcuka was an apartheid spy and abused his official powers.
However, Hefer indicated that he was still struggling to decide whether he could make a final finding that Ngcuka was not a spy for the pre-1994 government.
The judge told Moerane that he was convinced that Ngcuka was not Agent RS452, as originally alleged. However, his terms of reference required of him to also establish whether Ngcuka acted as any other apartheid government agent.
“My problem is, can I say he was not a spy?” Hefer asked, stressing the “a”.
His predicament presumably arose from the refusal of the country’s intelligence agencies to provide the commission with conclusive proof on the matter.
Evidence before the commission merely refuted the pillars of Shaik’s conclusion that Ngcuka was most probably an agent.
Moerane responded that the judge would have to rely on Ngcuka’s credibility — when he flatly denied during testimony that he was a spy. A lack of contradictory evidence should further strengthen such a finding.
“There is no basis to suspect that he ever was a spy,” Moerane said.
He added that Shaik, the primary source of the spy claim, had top security clearance and had worked for the National Intelligence Agency. If official intelligence documentation contained any proof of Ngcuka having been a spy, Shaik would have found and presented it, he suggested.
Naidu persisted with his recommendation that Hefer find Ngcuka was not an agent for the pre-1994-government.
He pointed out an earlier letter to Hefer in which President Thabo Mbeki stated that he had unfettered access to official intelligence documentation. He would not have appointed the commission if those documents contained any proof of the spy claim, Naidu suggested.
Only if there was at least some substance to Shaik’s theory, should Hefer have been worried about not having access to the intelligence files, Naidu argued. However, this was not the case.
Maharaj, on the other hand, told Hefer in a closing statement that the lack of access to intelligence files had “hamstrung” the judge in his duties.
Hefer concluded his public hearings and promised that he would finish his final report to Mbeki as soon as possible. — Sapa