Acting chief justice Raymond Zondo on Wednesday dismissed an application by former State Security Agency (SSA) director general Arthur Fraser to cross-examine witnesses who implicated him in the wholesale abuse of the intelligence service in the Zuma era.
In a ruling that stretched for nearly two hours, Zondo said Fraser had failed to satisfy some of the most basic requirements for the right to cross-examination, in terms of the rules of the state capture inquiry.
This included failing to specify, in the founding affidavit for his application, instances in which the witnesses had implicated him and pinpoint the allegations he disputed.
“What he has done is simply to say these are the broad areas in which these witnesses have implicated me and I refute the allegations they have made against me as without any merit,” Zondo said.
This was in relation to the testimony of former senior intelligence figures Gibson Njenje, Moe Shaik, Mzuvukile Maqetuka and former minister Sydney Mufamadi, who chaired the high-level review panel on the SSA that reported to President Cyril Ramaphosa in 2019, whom he applied to cross-examine. He also wanted to cross-examine two intelligence operatives, who were identified only as Ms K and Mr Y to protect their safety.
“In his affidavit relating to his application to cross-examine these four witnesses he did not reference each one’s affidavit, tell the commission in which paragraph that witness implicated him and by what statements or evidence,” Zondo said.
“That is what would be required and that is what is well known among all legal practitioners when you respond to an affidavit. You identify the paragraphs that are important or that you dispute, or the paragraphs on which you have something to say.”
In short, it was up to Fraser to say which parts of their evidence he admitted or disputed. Instead, he gave a blanket denial and, in doing so, referred the commission to two unsigned statements he deposed, while admitting that these do not contain his full version of events.
“They should have been signed and they should have been under oath, but they are not,” Zondo said.
He began his ruling by referring to Fraser’s appearance before the commission in July 2020, where he threatened, through his lawyer Muzi Sikhakhane, to reveal secrets relating to presidents past and present as well as MPs and judges.
Sikhakhane said his client would have preferred to take these to his grave, but needed to respond reluctantly to “complete the picture” for the commission, because those who testified before it had accused him of treason.
Fraser subsequently, in August, demanded that then acting SSA director general Loyiso Jafta declassify 41 documents to help him to prepare his testimony to the commission.
Zondo said it was worth noting that in a letter sent to Fraser’s attorney on 21 September that year, Jafta agreed to give him documents relevant to the allegations against him, to the extent that the law allowed.
“The State Security Agency was prepared to give him documents if they were relevant to the scope of the commission or relevant to the allegations that had been made against him in the commission and if they could do so without being in breach of the law,” Zondo said.
Jafta also invited Fraser to meet with him and offered to expedite the process.
Fraser’s lawyers did not respond directly to the letter, Zondo said. Instead they sent one of their own in January 2021 demanding documents be declassified, and in March he launched an application to the commission to compel the intelligence agency and minister to hand over the documents he needed to answer to allegations and allow him to expose “the true nature of state capture”.
In the application he alleged that Jafta, among others, had ignored him and refused to provide him with the intelligence files he needed.
Zondo said it was puzzling that Fraser never took Jafta up on his earlier offer to give him documents.
“He has not explained why he has not done so in circumstances where he told the commission on affidavit that those documents that he sought were very important in order for him to complete his statement and to give this commission a complete picture,” Zondo continued.
“This is difficult to understand. However, these are not the only questions relating to the applicant’s application — there are more.”
Fraser is a long-time ally of former president Jacob Zuma and was appointed to lead the SSA in 2016. Witnesses told the commission that, on his watch, funding for the intelligence agency was subverted to influence the outcome of factional battles within the governing ANC, and that it became an instrument to achieve Zuma’s political and personal ends. The commission also heard testimony that Fraser personally signed off on spending R20-million to co-opt a media outlet.
Zondo’s detailed account of Fraser’s dealings with the commission suggested that these were disingenuous, at best. It also seemed to nod to the likelihood that Fraser may seek to bring a legal challenge to the commission’s final report, which is due at the end of December.
Fraser has made no secret of his antipathy towards Zondo, who is one of four shortlisted candidates to become South Africa’s next chief justice. In October, he filed a formal objection to Zondo’s nomination, describing him as not fit to be a judge, never mind the head of the judiciary.
In the letter to the panel assisting the president in sifting candidates, Fraser accused Zondo of inviting witnesses to implicate him without giving him a chance to present his version to the commission.