The spectre of the 1989 to 1990 Harms Commission - famously derided as the "toothless" commission - perched like an evil black bird in the minds of many of those involved in the Hefer Commission in Bloemfontein on Wednesday.

At a press conference after the close of Wednesday's proceedings, commission chairman Judge Joos Hefer, former acting chief justice, agreed the day's events had been worrying because they suggested his commission was being pushed into a toothless situation. He said he was aware there were echoes of the Harms Commission in what took place at his commission on Wednesday.

But, Hefer said, he did not intend to get into a similar situation. He would make certain that, whatever it took, he would fulfil the conditions of his mandate: to find out the truth about whether Bulelani Ngcuka, the National Director of Public Prosecutions, had been a spy or not.

The Harms Commission, appointed in December 1989 by the FW de Klerk government, under the chairmanship of Judge Louis Harms, to investigate whether death squads existed, was accurately castigated at the time by the Press for having "missing witnesses, missing documents, missing investigations and missing teeth".

Years later, a number of security operatives, including former Vlakplaas death squad commander Eugene de Kock, admitted before the Truth Commission that they had conspired to lie to the Harms Commission - which had found in November 1990 that death squads did not exist.

At the Hefer Commission on Wednesday, the morning began with senior counsel George Bizos. Appearing for the country's security agencies (the police, the National Intelligence Agency, the South African Secret Services and the SANDF), Bizos was responding to the subpoenas for documents served by the commission on his clients, and in particular on Commissioner of Police Jacob "Jackie" Selebi, recently.

Bizos said his clients were under no obligation whatsoever to produce any of the documents called for in the summonses. This was because the documents were related to the security interests of the country, were confidential in terms of the Intelligence Services Act, were privileged in terms of the Commissions Act and were protected by the Protection of Information Act.

The subpoenas also constituted a "fishing expedition", which was unacceptable, Bizos said. He said the documents could not be disclosed without permission of heads of departments (to whom no one had made any applications), and the production of them was likely to endanger the security of the country.

In any case, argued Bizos, the subpoenas were far too "wide" in terms of what they requested - they requested information that would require "a platoon of clerks" to dig out - and were far too non-specific about the kind of information required.

At this point Hefer noted that the subpoena to which Bizos was referring was not the same one as he, Hefer, had in his file. He agreed that the subpoena apparently served on Selebi was far too wide in its scope.

This being the case, Hefer said, he agreed with Bizos that the subpoenas should be withdrawn.

However, having withdrawn to chambers for discussions with all the various parties, Hefer reconvened the commission and had the evidence leader, senior counsel Kessie Naidu, read out the details of a few of the other subpoenas.

It then became clear that, in the judge's view, not all the subpoenas were "wide" in their scope. Excluding the one served on Selebi, most in fact asked for specific files, such as the ones held by the intelligence services on Ngcuka and Vanessa Brereton, the self-confessed spy, codenamed RS452.

Bizos said he nevertheless was applying for the setting aside of the subpoenas because it was simply against the law for his clients to present the required documents and to talk about them.

Senior counsel Norman Arendse, appearing for Minister of Justice Penuell Maduna, and who will continue to attend the commission even though the new terms of reference of the commission have removed Maduna from examination, then castigated Bizos. Arendse said Bizos's clients were being obstructive and unhelpful and their attitude was "causing the commission to run the risk of going the way of that discredited commission, the Harms Commission".

Arendse said that if Ranjeni Munusamy, the journalist, was required to give evidence, then so should the security agencies. He argued that the Constitution was clear that all South Africans were entitled to access to information and it was peculiar the security agencies were using laws promulgated before 1994.

"Mr Bizos is indulging in smoke and mirrors. This is simply not acceptable behaviour in our new democracy," Arendse said.

Following another break, however, Arendse - apparently with the agreement of the legal teams of the security agencies and that of Ngcuka - said he believed he had found a way around the "subpoena impasse".

Referring to the new terms of reference of the commission - "it has become necessary to make it clear that the commission was necessitated by allegations made by persons outside the state security services" - Arendse read a letter dated November 11 from Frank Chikane, director-general of the president's office.

The letter said: "the president has unfettered access to all information in the possession of the state intelligence and security structures. There would be no point in the president appointing a commission to pursue information to which the president already has access, in as much as the commission's mandate is to report to the same president."

In other words, said Arendse, it seemed unnecessary to pursue the security agencies, since it was clear that what required examination were the claims of Mac Maharaj, former transport minister, and Mo Shaik, a former security operative - the two men who have accused Ngcuka of having been a spy.

Naidu objected to this and said it still remained necessary to call the security agencies.

Hefer said he would set aside the subpoenas for the moment but reserved the right to resuscitate them, depending on what Maharaj and Shaik say when they give evidence on Monday.

With acknowledgements to Jeremy Gordin and the Pretoria News.