Judge Josephus Johannes Francois Hefer's probe into whether Bulelani Ngcuka and Penuell Maduna were spies for the apartheid regime must be one of the greatest ironies of our time.

Hefer was a judge at the Courts of Appeal with a reputation for "maintaining the status quo of the apartheid government".

Ngcuka (now national director of public prosecutions) and Maduna (now minister of justice) were comrades in the liberation movement.

Now the retired judge has found himself being called on to head a judicial commission by none other than the leader of the ANC, President Thabo Mbeki, who spent most of his life fighting the likes of Hefer.

In the post-1994 democratic era Hefer served as president of the Supreme Court of Appeal.

To add to the irony, the already battle-scarred ANC's future could well be in the hands of Hefer, given the deep divisions between those who think Ngcuka and Maduna have deliberately dragged Deputy President Jacob Zuma's name through the mud, and those who think they were well within their rights to say there was a prima facie case of corruption against Zuma.

This faction stopped short of charging him in a court of law and giving him the opportunity to defend himself.

Depending on Hefer's finding, the ANC could either nurse its wounds and recover from the damaging internal battle, or it could be torn further apart.

Judge Joos (as he is better known) Hefer's probe into whether Ngcuka and Maduna - who is Ngcuka's political head - abused their offices because of past obligations to the apartheid government, starts in Bloemfontein today.

Hefer graduated from the University of the Orange Free State's law school in the early 1950s, practising as an advocate and a senior lecturer at the university in later years. In 1976 - the year in which students around the country rose to fight against apartheid education - Hefer was appointed to the Natal bench.

He became Chief Justice of the Transkei bantustan in 1981 and was also chairman of the State Council for then-South West Africa, later renamed Namibia.

Having been appointed as an appeal judge in 1984, at the height of the anti-apartheid struggle, Hefer quickly gained a reputation for supporting the National Party regime's oppressive laws.

"Judge Hefer provided the principal juristic thinking in upholding the infamous state of emergency," says Professor Halton Cheadle of the University of Cape Town's law school.

Cheadle said this was "abundantly evident in the case of State President vs United Democratic Front, and several others in the turbulent 1980s".

Nico Steytler, director of the Community Law Centre at the University of the Western Cape, said Hefer "played a significant role in interpreting the emergency regulations, which provided for detention without trial, in a pro-executive manner".

"His decisions could certainly have been interpreted as maintaining the status quo of the apartheid government," said Steytler.

"The point is not that he cannot be a decent judge now, but the irony is that at the time that the spying allegedly took place, Hefer was playing his part in upholding the legal edifice of the apartheid regime.

"It doesn't reflect on what he does now, it's just ironic," said Steytler.

With acknowledgements to Jeremy Michaels and the Cape Times.