Comment

Judge Joos Hefer has no plans at present to call Deputy President Jacob Zuma to testify before his commission, Sapa reported yesterday. Hefer's secretary John Bacon said there was "at the moment" no need for Zuma's testimony".

It is high time for the Deputy President of South Africa, Jacob Zuma, to take a seat, swear the oath and testify at the Hefer Commission of Inquiry in Bloemfontein - and there are at least six reasons why he should do so.

These reasons flow from questions that have been left unanswered after evidence has been given by former transport minister, Mac Maharaj, and former ANC intelligence operative, Mo Shaik.

These are the two men who originally accused the national director of public prosecutions Bulelani Ngcuka of having "probably" been a spy for the apartheid-era regime.

But the most important reason is that, if Zuma does not testify, he will be undermining the purpose of the commission and tying together the hands of the commissioner - as both President Thabo Mbeki and the African National Congress have already done.

On November 11, the president amended the commission's terms of reference (for the second time), instructing it to examine only the spy claims made by Maharaj and Shaik.

Accompanying the emendation was a note from the presidency stating that it was necessary to make it clear that the commission had been necessitated by allegations "made by persons outside the state security services".

There was also a letter from the director-general of the president's office pointing out that the president has "unfettered access" to the archives of the services.

This followed the refusal by the state security services to assist the commission with either documentation or evidence. In other words, the president had investigated the documentation and it was therefore not necessary for the commission to bother about it.

Similarly, the ANC has now said twice that it is "unnecessary" for Zuma to testify because he has, according to the organisation, no records or information "relevant to the work of the commission".

Both parties, the president and the ANC, have thus put the commission in a Catch-22 situation regarding verification of certain evidence.

The commission has been told, on the one hand, that it cannot, or need not, see the security services's material and, on the other, that Zuma cannot be of any help.

Basically the ANC is telling Hefer: don't call anybody who can verify or refute the allegations with documentary evidence.

"This," a Johannesburg advocate said this week, "represents unacceptable political interference in an independent body supposed to have one goal only - the truth - and also a pre-empting of the actions the commissioner.

"It should be up to him to decide what other information is required. This could seriously damage the commission's credibility, which is presumably not what the president or the public wants."

Zuma can set this situation straight.

Last week Shaik said that he had been approached at a diplomatic reception in 2001 by Justice Minister Penuell Maduna who asked whether Shaik knew about a "spy" investigation into Ngcuka. Shaik told his former commander, Zuma.

According to Shaik, Zuma told him not to discuss the matter or hand over any documentation to Maduna.

Shaik also said he "distrusted" Maduna's motives.

It is pity that, in cross- examination, Marumo Moerane SC, appearing for Ngcuka, did not ask Shaik what reason Zuma had given for this non-co-operation nor did he ask why Shaik distrusted Maduna.

It is extraordinary that the deputy president would tell a relatively junior diplomat not to co-operate with his fellow cabinet colleague, the one responsible for the administration of justice.

Zuma should shed light on this matter.

In describing this incident with Maduna, Shaik also implied that Zuma knew of Shaik's illegal, secret data base, containing the names of 888 agents our sources. Did he?

Both Maharaj and Shaik said the original report, compiled in 1989, had been sent to Zuma, the ANC intelligence commander, in Lusaka.

Shaik said he received no reply. Maharaj also said he received no reply and therefore believed the information was accurate.

He nevertheless believed he had to continue trying to make contact with the National Association of Democratic Lawyers, one of the organisations in which, Shaik's unit had reported to Lusaka, Ngcuka was a government agent.

Zuma needs to tell the commission whether he indeed received the report.

Under relentless cross-examination, Shaik either demanded or requested three or four times that Zuma be called for this very reason.

Zuma must also say why he never reverted to Maharaj or Shaik on the subject of Ngcuka.

Maharaj tried to explain in great detail to the commission why, if he knew about the ANC investigation into Ngcuka in 1989, he did not oppose the appointment of Ngcuka to his present position in 1998 when he, Maharaj, was a cabinet minister.

Maharaj said he had simply forgotten, though whether this was accurate was thrown into question when he was cross examined by Norman Arendse SC, appearing for Maduna. Arendse noted that, besides saying he had forgotten, Maharaj had also said he had had "national reconciliation" in mind and that, in any case, Ngcuka had performed his ANC tasks diligently and well.

Arendse asked why "national reconciliation" could be a possible motive for not questioning Ngcuka's appointment - Ngcuka was an ANC member, and not from the previous regime or an opposition party.

Zuma needs to tell the commission why he, too, never questioned the appointment of Ngcuka in 1998.

It has been not-so-subtly suggested during cross examination that perhaps the report never existed in 1989, but was "constructed" recently by Shaik, and others perhaps, in the wake of corruption investigations into Schabir Shaik, Mo's brother, Zuma and Maharaj.

Shaik and Maharaj have clearly been deeply loyal to Zuma, even if this has perhaps turned out to be misguided.

Shaik has gone so far as to say he went public, with all its attendant risks, out of respect for Zuma.

The deputy president owes it to them, as friends and former comrades, to come and testify about the existence of the report.

And, more importantly, he owes it to the country.

Key questions he must be asked

Did Mac Maharaj send you a report in 1989/90 saying Ngcuka was probably a spy?

He says since he didn't get a reply he assumed you accepted the conclusion of the report. Did you do anything about the report?

Mo Shaik says that in 2001 you ordered him not to give information or documents about the spy allegations to the Justice Minister Penuell Maduna. Did you?

If so why did you take this extraordinary step to keep the man responsible for Ngcuka in the dark?

Did you tell Shaik the reason for this order. Shaik says he distrusted Maduna's motives. Did you? And if so why?

The curious role of the ANC

President Thabo Mbeki, who appointed the commission, has written to Hefer saying in effect there was no need to call intelligence agents as he had "unfettered access" to their reports.

The ANC has come out vehemently on several occasions, saying that Zuma should not be called as a witness. It said it had handed over all intelligence documents to the NIA.

At the same time it argues just as vehemently that the NIA must not be called.

In effect, since the ANC says both Zuma and the NIA are untouchables, it is telling Hefer he should forget about trying to get all the evidence the commission may need.

With acknowledgements to Jeremy Gordin and The Star.