The accusers of Scorpions chief Bulelani Ngcuka may have made themselves vulnerable to be criminally charged with contravening information laws.

It emerged on Friday from evidence led before the Hefer Commission of Inquiry in Bloemfontein, that certain documents and information may not be legally placed in the public domain.

The evidence suggested that particularly foreign affairs advisor Mo Shaik, who seemed to produce evidence on television that Ngcuka may have been an apartheid spy, could have contravened regulations guiding the conduct of former intelligence agents by revealing contents of an alleged intelligence document.

Well-placed lawyers have confirmed that the two may have broken the law.

The possibility of charges being laid against Shaik and co-accuser Mac Maharaj has apparently been talked about for some time in government circles. But it seems the charges will only stick if the documents they based their accusations on, including a microfiche referred to in a newspaper report, were genuine. Should these not be authentic intelligence material, they could however still be charged with fraud.

Veteran council advocate George Bizos made a submission to Judge Joos Hefer on behalf of the secret services, arguing that on the basis of secrecy legislation and the constitution, it cannot be given a blanket reprieve of procedures to access information that is protected.

From the arguments, it emerged that a number of contraventions may already have occurred in the spying saga.

The legislation that would make the commission's work difficult, and could have consequences for the accusers, includes sections of the general intelligence laws amendment bill and the constitutionally based protection of disclosures act, as well as regulations guiding the conduct of former intelligence agents, including those from the apartheid era conflict.

Bizos is acting for the ministers of safety and security, defence and intelligence, as well as the directors of their relevant security departments.

While pledging co-operation with the work of the commission, which has already requested a seven-page list of documents on behalf of Maharaj and Shaik, Bizos said the services would "concertina" the one-month legal provision for responding to requests, into the shortest time possible to speed up the work of the commission.

But he warned that not all requests might be granted.

"Those who have information contrary to the provisions of the legislation, know who they are," Bizos said.

"Former members know what they have to do once they want to disclose information."

He could not answer questions on whether Shaik had permission to disclose the documentation he referred to on television, but Bizos said the judge would need permission to make it public.

He argued that if the ANC statement that it handed over all intelligence to National Intelligence Agency (NIA), was true, the legislation compelled former ANC agents, such as Shaik and Maharaj, to keep it confidential.

Asked for response on the hints that the accusers may have broken the law, Shaik said: "I am consulting with a lawyer at huge private expense on whether I have broken the law, and I will abide by that advice. I will be guided by what is in the public interest."

Bizos told the commission that the request for "truckloads of information since the 1970s without properly motivated applications by the persons who wanted the information", such as the accusers, would make it difficult for the services to respond appropriately.

In legal argument, the commission's leader of evidence, Kessie Naidu, told Bizos that its terms of reference made it necessary to have information.

"Two to three months ago it became quite clear that a journalist obtained classified information and reference was made to a NIA microfiche, while Maharaj and Shaik referred to documents," he said, referring to the newspaper report that led to the establishment of the commission. Now ministers tell us we must be careful with information," Naidu said. "I am astounded that no steps were taken against the people who had it, if it was classified."

He said the commission was entitled to be informed whether such steps were taken and whether the accusers went through the steps necessary to obtain the information.

Bizos said he was not aware that any steps had been taken, but stated that the agencies did not want to become embroiled in the saga placed before the commission.

It is reliably understood however that the issue was under investigation in the secret services, but that differences of opinion existed on how it should be handled.

Bizos said their reticence did not mean the agencies were "not in the course of taking steps".

With acknowledgements to Christelle Terreblanche and The Star.