'The battle is not over'

The Hefer commission report has resolved few of the legal and political issues that caused it to be set up, despite being portrayed as a vindication of Bulelani Ngcuka.

President Thabo Mbeki still faces a problem over what to do about Deputy President Jacob Zuma and the political battle raging within the African National Congress.

Commenting in the wake of the release of the report this week, political analyst Aubrey Matshiqi notes: “Mbeki still faces the same dilemma. After the elections, does he re-appoint Zuma and face the possibility that the Shaik trial will expose evidence damaging to the presidency and the government, or does he do without Zuma and expose himself to battles within the ANC and accusations that he is taking sides in the succession race?”

The trial of Zuma’s legal adviser, Schabir Shaik, is expected to start in earnest after the elections this year. Despite Ngcuka’s decision not to charge Zuma, Shaik’s indictment implicates the deputy president at every turn, and the Scorpions have indicated they may revisit the decision on Zuma should new evidence emerge.

On the other hand, complaints by Zuma and others to the public protector about alleged abuses of power by Ngcuka are still being processed; and Matshiqi, for one, believes that Zuma has emerged from the commission stronger than before.

“The battle is not over.
The battleground was moved to the Hefer commission, but it is inevitable that those battles will continue in another arena. To the extent that Zuma enjoys popular support within the ANC, I believe that support was reinforced, not weakened, by Hefer.”

Matshiqi believes the allegations against Ngcuka and the response to the commission by different factions within the ANC can be seen in the light of a range of tensions within the organisation. “Some of them date back to exile — the tensions between the ‘civilians’ in the movement, and those in intelligence and military structures and the allegiances formed then.”

He says another tension arises from political competition for the soul of the post-Mbeki ANC. “We can partly explain what happened in terms of an attempt to dislodge Zuma as a possible candidate to succeed Mbeki and the response to that.”

Built into this, he argues, is the lack of a visible succession plan, which encourages a political free-for-all as people jostle for power.

The commission, he argues, was an attempt by Mbeki to take these battles outside the ANC and deal with them via a formal legal process. But the commission has not really resolved any of the tensions in the organisation, Matshiqi concludes.

A close analysis of Judge Joos Hefer’s report — and Mbeki’s response to it — supports the view that even though the blows delivered to Ngcuka’s detractors were devastating, they are down but not out.

The report gives less comfort to Ngcuka than might have been expected from the display put up by his counsel, advocate Marumo Moerane, or evidence leader advocate Kessie Naidu.

Although the spying allegations against Ngcuka were comprehensively dismissed, the judge chose to express his formal finding in the weakest possible way, stating: “I have accordingly come to the conclusion that he probably never at any time before 1994 acted as an agent for a state security service.”

Although elsewhere Judge Hefer has said the probabilities “heavily favour” this conclusion, the fact that the finding is stated as a mere probability rather than a “fact” based on the overwhelming probabilities must be galling to Ngcuka. This wording perhaps reflects the judge’s irritation at being denied the conclusive evidence that might have been available from intelligence files and he describes the situation whereby he was denied such access as “insufferable”.

In his response to the report, Mbeki has agreed that: “We will seek legal opinion to determine whether the government needs to do anything to avoid a possible repetition in future.”

Mbeki has also agreed to follow up the matter of the leaks from the Scorpions, which Maharaj complained of and which the judge found credible evidence to support.

Indeed, despite the fact that his final terms of reference precluded any consideration of alleged abuse of office once the spy allegations had been dismissed, Judge Hefer nonetheless devoted a whole section of his report to a consideration of this issue.

Several findings do not reflect particularly happily on Ngcuka. In relation to the leaks, for instance, Judge Hefer states: “As previously mentioned, Mr Ngcuka testified that he ordered an investigation into the leaking of sensitive information, but that the outcome was inconclusive. His evidence in this regard was not particularly informative and created the impression that he wanted to disclose as little as possible.”

Judge Hefer accepted Ngcuka’s word that he had not condoned the leaks. However, he found that the situation faced by Maharaj where there was a series of media leaks that could only have derived from the investigation “cannot be tolerated”.

As the Scorpions have indicated their investigation of Maharaj continues, the issue of alleged abuse of power is likely to resurface.

One of the most fascinating insights provided by the report derives from extracts of correspondence between the judge and Zuma, over the issue of whether the deputy president would be subpoenaed to testify.

While Zuma has been castigated for in effect indicating he would defy a summons unless he was given “permission” by the ANC to testify, what also emerges is that Zuma clearly indicated he knew more about the spying allegations against Ngcuka than merely what Shaik had told him.

When Judge Hefer announced publicly that he had decided not to call Zuma because he could not add anything substantial to Shaik’s account, Zuma wrote to him to demand he set the record straight.

“The explanation given by the chairperson [Judge Hefer] does not accurately reflect the reasons I have consistently forwarded to the commission and instead make presuppositions about what I may or may not know. I got even more concerned when the chairperson stated as a matter of fact that I was not part of the [Ngcuka] investigation at that stage [in 1989/90] and that I could contribute very little to that part of the inquiry.”

If Zuma was begging to be subpoenaed and therefore to precipitate a challenge to the ANC position that he should not give evidence, he could not have made it clearer, despite the fact that he indicated to Judge Hefer that he would be obliged not to respect the subpoena, should the ANC not lift its embargo. Questions must be raised as to why Judge Hefer did not take up this challenge. Zuma’s stance also raises the spectre that even the spying allegations may not have been buried for good.