The facial expressions of National Director of Public Prosecutions Bulelani Ngcuka were a good barometer of yesterday's proceedings at the Hefer Commission.

There was no sign of a smile during yesterday morning's session, when Mac Maharaj presented his case. But yesterday afternoon, when Maharaj was cross- examined, the ghost of a smile returned to Ngcuka's face.

Essentially, what the former ANC transport minister's legal team did was to have Maharaj present a cleverly constructed argument. This argument invited the commission to take a step back and, instead of focusing solely on the allegations that Ngcuka had been a spy, to see a much broader picture in which Ngcuka had abused his power.

Underlying this was the implicit assumption that Ngcuka was seeking revenge for the ANC investigation of his activities in the 1980s. Maharaj said that an ANC intelligence unit (called the MJK unit), under the command of Mo Shaik, had had "sufficient reason to conclude that Ngcuka was most probably an (apartheid) agent".

This is a summary of what Maharaj told the commission:

In the late 1980s, Maharaj was the head of Operation Vula, an underground initiative to infiltrate ANC leadership into South Africa.

In the course of his activities he developed a need to speak to the leadership of the National Association of Democratic Lawyers (Nadel).

"A problem arose," Maharaj said. "Shaik said it would be unsafe because his information showed that there was an agent of the security forces in Nadel. He did not know who it was, but was investigating the situation urgently," Maharaj said.

"In 1989 Shaik said he had sufficient information to conclude that Ngcuka was the agent. He gave me enough to know what I should do," Maharaj said.

Maharaj then switched to February this year, when he received a call from Sunday Times journalist Jessica Bezuidenhout. She told him that he was under investigation by the Scorpions. The investigation related to contracts awarded to Nkobi Holdings and its boss Schabir Shaik at the time that Maharaj was minister of transport. The contracts were for the credit-card driving licences and the N3 toll road.

Maharaj said he was completely unaware of any investigation. He accordingly phoned Ngcuka, who replied: "Oh God, did they (the Sunday Times) come to you?"

Ngcuka then reassured him that there was an investigation, but the Scorpions could not find anything.

Maharaj said Ngcuka had explained to him that the investigation had arisen as part of the investigation into the country's multibillion-rand arms deal (centred around Schabir Shaik) and that he would make their conclusions known only once the investigations had been finalised.

"I could not remain silent," Maharaj said. He then issued a press statement denying any wrongdoing.

Maharaj noted that the documents which Bezuidenhout said she had could only have come to her from the Scorpions, who had earlier raided the offices of Nkobi Holdings and Schabir Shaik.

"Given that the documents had been removed by the Scorpions, they were not likely to have been given to the Sunday Times by Shaik," Maharaj said.

Several allegations were made against Maharaj and his wife.

"The Sunday Times story was a fundamental attack on my integrity, which is the only thing I have in life," Maharaj said.

An investigation by FirstRand Bank, of which he was a director, cleared him but Maharaj said the incomplete Scorpions investigation continued to hang over him.

"I had no way to clear my name. I offered to resign," Maharaj said.

Then Maharaj was summonsed to answer questions from the Scorpions in June this year.

"I looked at their questions and realised that there were startling similarities to those of the Sunday Times," he said. "I told Ngcuka there was a leak in the Scorpions - I told him to stop the rot," Maharaj said.

He said he was concerned that his answers to the Scorpions should remain confidential.

A month later, Maharaj received a phone call from the deputy editor of The Star, Jovial Rantao. Rantao told him that Maharaj's wife, Zarina, was about to be arrested and charged with tax evasion. Maharaj tried to find out Rantao's source. Rantao would tell him only that it came from the Scorpions - from a person whom Rantao "had no reason to doubt".

Maharaj then recorded a subsequent conversation with Rantao and confirmed that the information had come from the Scorpions and had been received in the preceding seven days.

Maharaj then phoned Ngcuka. Ngcuka denied that the story was true. As Ngcuka and Maduna were together, Maduna also spoke to Maharaj and told him that his wife was not about to be charged. Maharaj remembered that Maduna called him by his nickname "MacGaragie" (an allusion to his former position as minister of transport).

"We are not backstabbers," Maduna had said, according to Maharaj.

What followed was a problematical conversation with Ngcuka. Ngcuka said he had many problems with people criticising his family. Maharaj then asked: "What about my problem? There is a leak in the Scorpions".

To which Ngcuka replied: "But what about my problems?" Which left Maharaj to conclude, "We were not making any progress."

Shortly afterwards, Maharaj discovered that Ngcuka had an off-the-record briefing with six newspaper editors and was, according to Maharaj, the source of Rantao's information. At the briefing, Ngcuka was alleged to have said that Maharaj would let his wife take the rap for him.

"I have served my country without selling out a single cadre. I took all the torture, the prison and the investigations. I took it because I was not going to sell out anyone - least of all my wife. To this day my wife has not been charged. We live under that cloud. If that happened to me, who is Ngcuka's leader in the ANC, then ... What honour do we have? What honour do we have?" Maharaj asked, breaking down.

Maharaj then laid several complaints against Ngcuka. He also discovered, via the media, that the ministerial committee that was supposed to keep the Scorpions in check had never met.

Then, Maharaj said, Ngcuka phoned him. "Comrade Mac," Ngcuka reportedly said, "I need your help to get Zuma and Schabir Shaik to co-operate with the arms deal investigation. I need Zuma to answer questions. I need Shaik to admit guilt. Then we will mediate about your wife."

"I told him he was holding me to ransom," Maharaj said.

He, however, received a fuller proposal for mediation in August. Schabir Shaik's brother Yunis Shaik also received a similar phone call, Maharaj said. Maharaj appointed attorney Ismail Ayob to investigate the proposal. It transpired that the issues were the following:

Schabir Shaik must plead guilty and there would be a plea bargain about his sentence;

Zuma must answer questions from the Scorpions, but would not be charged;

There would be mediation about the tax charges against Maharaj's wife.

Maharaj said that when Ayob told him this, he instructed him not to respond to the proposals.

"I was not going to be a tool. There was nothing to mediate. I was in government when the National Prosecuting Act was passed. There was no room for mediation."

Maharaj further said Ngcuka's office later denied any attempts at seeking mediation.

Maharaj argued that the leaks to the press and the lies to his face represented a record of abuse on Ngcuka's part.

"I strived to understand why. When I confirmed that we investigated him for being a spy, I did so with great caution.

But I knew there was sufficient reason to conclude that he was most probably an agent."

After lunch, evidence leader Kessie Naidu SC began his cross-examination.

Naidu: Your evidence is tainted by bias.

Maharaj: I reject that contention.

Naidu: If you weren't investigated, would you have revealed the allegations of spying?

Maharaj: If I still had the view that what was happening was dangerous, I would have done so. I did not only do so in anger.

Naidu: Why then did you not say anything before?

Maharaj: You assume I have not.

Naidu: Did you?

Maharaj: I raised it in private. I brought it to the attention of high-ranking ANC members and the president (Thabo Mbeki).

Naidu: Did you tell anybody about it before you told the president?

Maharaj: I told the president ...

Naidu: You are not answering the question ... So the first time that you raised the spy issue was after you became aware of the investigation against you?

Maharaj: Yes.

Naidu then tried to find out what information Maharaj had seen about the spy investigation.

Naidu: Your conclusion is based on information from (Mo) Shaik?

Maharaj: Yes

Naidu: Did you get independent information?

Maharaj: No.

Naidu: But why did you not tell anybody before July/August?

Maharaj: I was giving Ngcuka the benefit of the doubt, until I realised that it was the head and not a member of the Scorpions (who was causing the trouble).

As Naidu concluded his incisive barrage of questions for the day, it was noticeable that Ngcuka looked slightly less troubled than he had in the morning. He even managed a small smile.

The Hefer inquiry and the main players

Terms of reference

To inquire into allegations by Mac Maharaj and Mo Shaik that National Director of Public Prosecutions Bulelani Ngcuka was an agent of the security services of the apartheid government under code name RS452 or any other code name and, as a result, improperly and in violation of the law had taken advantage of or misused the prosecuting authority and, in particular, abused, advanced, promoted, prejudiced or undermined the rights and/or interests of any person or organisation.

Venue

Supreme Court of Appeal, cor President Brand and Elizabeth streets, Bloemfontein.

Chairperson

Josephus Francois "Joos" Hefer.

Retired Supreme Court of Appeal president.

Appointed by President Thabo Mbeki.

Secretariat

Advocate John Bacon Assisted by advocate Solly Ngwenya.

Investigating company

PriceWaterhouseCoopers Evidence Leader Advocate Kessie Naidu SC.

Appointed by Justice Minister Penuell Maduna.

The subject

Bulelani Ngcuka - A City Press report stated that he had been investigated by an ANC intelligence unit for spying for the apartheid government. At the time, his Scorpions unit was investigating corruption allegations against Deputy President Jacob Zuma, Mac Maharaj and Schabir Shaik.

Thie chief accusers

Mac Maharaj - In an interview with the SABC, he confirmed the allegation of an ANC spy probe against Ngcuka, saying that he had seen the intelligence report himself. This followed media reports that the Scorpions were investigating corruption allegations against Maharaj and his wife, Zarina. A probe by FirstRand Bank cleared him of corruption but found that the couple had indeed received payments from Schabir Shaik. Maharaj resigned as a bank director.

Mo Shaik - Temporarily suspended special adviser to Foreign Affairs Minister Nkosazana Dlamini-Zuma and former Umkhonto weSizwe operative appeared on TV waving what he claimed were documents proving the spy allegation against Ngcuka.

Ranjeni Munusamy - Sunday Times journalist who passed on to the City Press a story claiming that Ngcuka had been investigated by an ANC intelligence unit for spying. This was after Sunday Times declined to publish the report. Munusamy was suspended and later resigned.

Counsel

For intelligence agencies :
Advocate George Bizos SC and Vincent Maleka SC.
Instructed by Nano Matlala (for SA Police Service, National Intelligence Agency, SA Secret Services and SANDF).

For Mac Maharaj and Mo Shaik :
Advocate Stephen Joseph SC
Instructed by Yunis Shaik.

For Bulelani Ngcuka :
Advocate Marumo Moerane SC
Instructed by Dumisane Thabathi.

For Penuell Maduna :
Advocate Norman Arendse SC

For Ranjeni Munusamy :
Advocate John Campbell
Instructed by Eric van den Bergh.

With acknowledgements to Estelle Ellis, Jeremy Gordin and The Star.