President Thabo Mbeki is facing some tough choices over the Hefer Commission as legal challenges threaten to delay its proceedings and the divisions within the African National Congress over apartheid-era spying deepen.

Deputy President Jacob Zuma bounced back this week with a stinging attack on his arch enemy, National Director of Public Prosecutions Bulelani Ngcuka, and the commission found itself thwarted by National Intelligence Agency (NIA) stonewalling over whether senior officials would testify.

Zuma, in an apparent bid to legitimise a continuation of his battle with Ngcuka, upped the ante by asking the public protector to investigate whether Ngcuka had abused his power in the corruption investigation into Zuma's affairs.

The conflict between the Commissions Act, which empowers the commission to subpoena senior security officials, and NIA regulations, which seek to protect its staff, could drag on for months or even a year, according to legal experts.

Sooner rather than later, Mbeki is going to have to decide whether to risk a de facto split in the ANC between the Zuma and Ngcuka camps or devise another short-term mechanism to cauterise the wound that could cause the ANC to bleed during a crucial election campaign.

The commission also began to draw fire from leading judicial figures and opinion-makers including retired constitutional court judge Johann Kriegler and Unisa vice-chancellor Barney Pityana.

Kriegler suggested that the commission was being used as a carpet under which politicians could sweep a controversial issue and Pityana said that the commission was a waste of taxpayers' money.

It is an open secret that the commission was badly received by several cabinet ministers including Intelligence Minister Lindiwe Mabuza, who fears the impact that spy revelations could have on the functioning of her department.

Constitutional expert Shadrak Gutto of the University of South Africa believes that Mbeki should start coming to terms with the fact that the commission may have been a mistake, and find another political solution.

"He can stop it," Gutto said. "It is just going to drain resources, which have to go to urgent needs and he could decide that the more information comes out, the more it may impinge on national security."

What was intended as a quick surgical solution to accusations of apartheid spying against Ngcuka, has laid bare the inner tensions of the ANC which hark back to the bitter internal fights of the liberation era.

Gutto said that the public protector may also opt to wait for the outcome of the commission, which is also probing alleged misuse of power by Ngcuka and justice minister Penuell Maduna.

Meanwhile, the scene is set for another set of delays for the commission when former and current intelligence operatives appear before it this week. The operatives subpoenaed are, in terms of the 1947 Commissions Act, not allowed to refuse to testify, while intelligence legislation bars them from doing so, a situation that could end up in the Constitutional Court for months.

"There are going to be plenty of constitutional wrangles and hold-upsa" Gutto predicted. "I would not be surprised if Judge (Joos) Hefer said in the end the task was impossible to carry out."

Gutto said Mbeki should make a critical assessment of the commission in a week or three, when it should be clear whether the accusers and intelligence agencies will testify.

"And on that basis he should say a judicial commission was the wrong tool to get to the bottom of the accusations, and that some other political solution should be founda" said Gutto.

But what price will Mbeki pay within the ANC if he is seen to be taking sides on the spy controversy? The accusations and counter-accusations of apartheid-era spying appear to stem from political dissatisfaction by Zuma's supporters with corruption investigations into his business dealings. Zuma's financial adviser, Schabir Shaik, and Mac Maharaj, former transport minister and struggle veteran, have led the charge.

Clearly untainted by the investigation in the eyes of his supporters, Zuma is said to be riding an unprecedented wave of popularity within the ANC while the fall-out is threatening to tear the ANC apart and provide the most formidable test yet to Mbeki's leadership. Insiders are, however, increasingly admitting that the spy saga could be the end-game of a bigger and more bitter power struggle within the ANC between doves and hawks that has simmered beneath the surface for years.

These tensions between the SA Communist Party-backed military leadership and the negotiators gathered around Mbeki were evident well before clandestine contacts with the former apartheid rulers began in the late 1980s. But they bubbled to the surface once the ANC began returning to the country in 1990 and the controversial Operation Vula was launched to ensure that the gains of the liberation struggle were not squandered by over-zealous negotiators.

If what has existed within the ANC over the years was a form of cold war, then there has been a balance at work, one senior ANC figure said this week. The "nuclear weapons" held by both sides would be secret and potentially damaging and embarrassing information, but this balance may have been disturbed by the recent accusations that Ngcuka was a spy.

"People have been sitting on files but now it may be out of control," he said.

This implies that many veterans of the anti-apartheid struggle - possibly including some of the accusers - may, at one point or other, have been compromised. As evidenced at the Hefer Commission, the intelligence services are clearly trying desperately to contain any leakages of potentially damaging information. However, at the same time, there is evidence that the divisions that may have given rise to the corruption and spying allegations also exist within the ranks of these services.

Former top agent Mo Shaik, for example, is among Ngcuka's accusers and, according to evidence before Hefer, a current NIA employee, Ricky Mkondo, tried to help substantiate the allegations.

Sources within the ANC and the criminal justice system as well as former MK members point to the late 1980s and early 1990s as well as Operation Vula as the source of the current conflict. Vula, in which Maharaj and the Shaik brothers played a significant role, was set up to ensure a continued underground military capacity within the country as security should the negotiations fail.

Evidence exists that Maharaj was unhappy with the way the negotiations developed. He resigned from Vula, the SA Communist Party and the ANC during the early 1990s. At the time the existence of Vula was exposed, apartheid operatives claimed it was a "red plot" and actively planted the "doves and hawks" divide theory in the media. This led to prompt denials by the ANC and its allies. But insiders are now re-assessing the tensions that emerged as a "ragged and tired" MK laid down arms for a compromise settlement.

Among the theories emerging to explain why these circumstances could have led to the accusations against Ngcuka, one has it that the then activist was instrumental in halting a Vula-inspired plot to derail the negotiations.

Much wilder speculation could be in circulation soon as the accusations simmer and the Hefer commission waits for evidence.

With acknowledgements to Christelle Terreblanche and Independent Online.