Bloemfontein - Yesterday's public hearing of the Hefer Commission has placed the ball firmly in the court of the two main accusers of head prosecutor Bulelani Ngcuka.

Former ANC intelligence operatives Mac Maharaj and Mo Shaik were the first to publicly confirm newspaper stories that the national director of public prosecutions might have been an apartheid spy.

President Thabo Mbeki appointed Judge Joos Hefer days later to probe these allegations.

On Tuesday, on the eve of the commission's second series of public hearings in Bloemfontein, Mbeki amended its terms of reference. The changed terms now specifically list Maharaj and Shaik's televised allegations as events that sparked the commission's appointment.

In yesterday's hearing it was further revealed that Mbeki had not intended the commission to obtain documentary proof from the country's various intelligence agencies. Hefer has been trying in vain for weeks to achieve this.

Advocate Norman Arendse SC, for Justice Minister Penuell Maduna, quoted yesterday from a recent letter from Mbeki's office to the commission. According to this the president had "unfettered access" to all information in the hands of the intelligence agencies. There would have been no point in Mbeki's appointing the Hefer Commission merely to obtain information already available to him, the letter reportedly read.

Both Arendse and lawyers for Ngcuka consequently asked Hefer to set aside subpoenas ordering testimony and documentary evidence from senior intelligence members.

Hefer acceded and adjourned the proceedings until Monday, when Maharaj and Shaik are scheduled to testify.

This also excused journalists Ranjeni Munusamy, Elias Maluleke and Joe Thloloe from testifying this week.

With the intelligence and media communities ruled out as far as the provision of evidence goes, the commission is left with Maharaj and Shaik.

Their testimony was postponed on the first day of the commission's hearings, when they asked that certain intelligence documents first be obtained. They needed these to support their claims, the two held.

Yesterday, their predicament was clearly illustrated when the spy bosses repeated that it was illegal to disclose classified information without their permission.

Shaik earlier appeared in an e.tv interview brandishing documents that purportedly supported the allegations against Ngcuka.

The provenance of these documents is still unclear, but advocate George Bizos SC, for the various intelligence agencies, warned yesterday that Shaik would have to "face the consequences" if he disclosed confidential intelligence.

Bizos told Judge Hefer that Shaik had requested their permission to disclose confidential information. He was not granted indemnity for this.

"If he already put the information in the public domain, he will have to sleep on the bed he made for himself," Bizos said.

He added that "he who accuses must prove".

With acknowledgements to Sapa and the Cape Times.