National prosecutions head Bulelani Ngcuka ”probably never” acted as an agent for the apartheid government, the Hefer Commission of Inquiry has found.
”I have come to the conclusion that he probably never at any time before 1994 acted as an agent for a state security agency,” the commission chairperson, retired judge Joos Hefer, said in his final report, made public on Tuesday.
”… the suspicion which a small number of distrustful individuals harboured against him 14 years ago was the unfortunate result of ill-founded inferences and groundless assumptions,” Hefer found.
President Thabo Mbeki, in a letter to Hefer, has accepted the commission’s main findings.
The judge made no finding as to whether Ngcuka had abused his official powers, saying this part of his brief had been cancelled by the finding that the prosecutions head had probably not been a spy. The two legs of the probe had to be linked, Hefer said.
However, he described as ”most disturbing” evidence by one of Ngcuka’s main accusers — former transport minister Mac Maharaj — about leaks from the prosecuting directorate about a criminal investigation into Maharaj and his wife.
It was beyond doubt that such leaks did occur and it was highly likely that the guilty party was within Ngcuka’s office, Hefer said.
”Such a state of affairs cannot be tolerated,” the report states. ”Months have elapsed since Mr Maharaj was questioned by members of the investigating directorate (Scorpions) and, although Mr Ngcuka has assured me that the investigation has not been completed, no charges have yet been preferred either against Mr Maharaj or against his wife.
”In the meantime, press reports about the allegations kept appearing. In a country such as ours where human dignity is a basic constitutional value and every person is presumed to be innocent until he or she is found guilty, this is wholly unacceptable.”
Although matters ”do not appear to be what they should be” in Ngcuka’s office, Maharaj’s complaint in this regard was beyond the commission’s terms of reference, Hefer said.
The allegations against Ngcuka first surfaced in a City Press newspaper report last September. It turned out to have been based on a probe done by African National Congress intelligence structures in 1989 and 1990, which found he may have police Agent RS452.
The ANC investigation was led by Ngcuka’s other main accuser — Mo Shaik, now a Foreign Affairs Department official.
Hefer found that the 1989 probe was ”fatally flawed by unwarranted assumptions and unjustifiable inferences and by the blatant failure to examine available avenues of inquiry”.
The report was critical of the evidence of Maharaj and Shaik, describing it as ”most unconvincing”.
”Their allegations were ill-conceived and entirely unsubstantiated.”
The retired judge’s report expresses frustration over the refusal of state intelligence and security services to supply the commission with documents to prove or disprove the claims against Ngcuka.
”The situation thus created was insufferable,” it states.
Mbeki said legal opinion would be sought to determine whether the government needed to do anything to avoid such problems in future.
Hefer dismissed the evidence of former City Press editor Vusi Mona about an off-the-record briefing Ngcuka held with black newspaper editors last July. Mona claimed Ngcuka used the briefing to attack Zuma and Maharaj.
Mona’s credibility during cross-examination was ”reduced to nil”, the report states. But Hefer declined to refer Mona’s evidence to the prosecuting authority for possible perjury charges.
”I am satisfied that he has discredited himself to such a degree in the newspaper community that he will not find it easy to procure employment in that field again.”
Ngcuka’s spokesperson, Sipho Ngwema, told the Mail & Guardian Online that his department had never denied the possibility that there could have been a leak.
He added that it had done its own investigation and found no evidence of a leak. He said on Tuesday afternoon that he had not yet seen the report, so he could not comment about its findings. He thanked everyone who had been involved in setting up the commission. He also paid tribute to Ngcuka’s legal team, which he said had done ”sterling work”.
The Mail & Guardian Online tried to get comment from Zuma’s spokesperson, Lakela Kaunda, on Tuesday afternoon, but she did not answer her cellphone. — Sapa