Are South Africa's intelligence agencies above the law?

This is the question the National Intelligence Agency, SA Secret Service, military intelligence and police intelligence and their lawyers have been pondering this weekend after the Hefer Commission took legal steps to force them to testify.

Subpoenas to the intelligence agencies were issued by Judge Joos Hefer this week.

Commission secretary John Bacon said on Friday the directors-general and heads of the various agencies were formally summoned to testify before the commission and submit all relevant documents in their possession to aid the commission's investigation.

'We have heard nothing from them since the subpoenas were served'

"We have heard nothing from them since the subpoenas were served," Bacon said. "It might just mean that they will come to the commission and give evidence."

The commission's public hearings are scheduled to resume by November 12.

The commission was set up in September by President Thabo Mbeki. He appointed former acting chief justice Joos Hefer to investigate claims that Bulelani Ngcuka, the national director of public prosecutions, was an apartheid-era spy.

The terms of reference for the commission were later extended to include the question of whether either Ngcuka or Penuell Maduna, the justice minister, had abused their power due to alleged obligations towards the apartheid government. The two main accusers in the commission, Mac Maharaj, the former transport minister, and Mo Shaik, a former ANC intelligence operative, are expected to give their evidence from November 17 onwards.

Since its inception, the commission has struggled to get access to a wide-ranging number of intelligence documents that investigators believe will shed some light on its investigations. Several meetings with the country's spy agencies did not yield a solution.

Hopes were pinned on the leader of the intelligence agencies' legal team advocate, George Bizos SC, who made the submissions on their behalf.

Bizos' contribution has, however, been labelled as "singularly unhelpful" and nothing "but a lecture about the law".

This week, after days of legal wrangling, Hefer instructed Bacon to issue subpoenas. The leader of the evidence at the commission, advocate Kessie Naidu SC, and counsel for Ngcuka and Maduna, Marumo Moerane SC and Norman Arendse SC, advised him to do so.

With acknowledgements to Estelle Ellis and the Sunday Argus.