Pitfalls Aplenty as Hefer Resumes [The Star, 2003-11-12]

Publication	The Star
Date	2003-11-12
Reporter	Estelle Ellis
Web Link	www.thestar.co.za

The Hefer Commission of Inquiry resumes its public hearings today, looking as if it's getting ready to do battle with the intelligence agencies.

As the commission enters its second month of investigation, it is battling more than just evidence-shy spooks.

In September, retired judge Joos Hefer was tasked to investigate allegations 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 an investigation of alleged abuses of power by Ngcuka and Justice Minister Penuell Maduna because of "obligations towards the apartheid government".

The allegations about the spy claims surfaced during the Scorpions' investigation into the controversial multibillion-rand arms deal and alleged contracts involving Durban businessperson Schabir Shaik - but the commission's terms of reference placed no part of the arms deal within its investigative reach.

How the commission is going to investigate allegations that Ngcuka has abused his power without, at the very least, alluding to the arms deal is not clear.

Allegations made by Shaik in court papers before the Constitutional Court seem to indicate that the alleged abuse of power on Ngcuka's side lies in his unleashing the wide investigative powers of the Scorpions against former comrades even though the police could also investigate allegations surrounding the arms deal.

The same goes for the smear campaign against Ngcuka, who has been on the receiving end of many allegations and rumours.

If the commission was set up to put a stop to the smear campaign, it might fail dismally. Hefer has already said he does not intend to do "first aid on the ANC".

Zuma has been credited, by at least one political columnist and editor of the Sunday Tribune, Barney Mthombothi, as being the source of spy allegations against Ngcuka.

"Surely the president must be aware that it is his number two, among others, who has been peddling this lie?" Mthombothi has said.

"The president can stop these whispering campaigns if he wants to. All he has to do is call in his deputy and tell him to stop it."

In her papers before the Bloemfontein High Court, former Sunday Times journalist Ranjeni Munusamy said: "These observations appear informed, considered and accurate."

Despite this, and despite the fact that he was the head of ANC intelligence at the time that the spy claims against Ngcuka were allegedly investigated, Zuma has not been subpoenaed yet by the commission.

Instead he has laid his own complaint of abuse of public power against Ngcuka. This time he has sought the involvement of the Public Protector, Lawrence Mushwana.

Mushwana now claims that his investigation will not overlap with the Hefer Commission, as his investigation will have nothing to do with anyone being a spy.

Despite two months of investigations and almost daily threats, documentation backing up spy claims against Ngcuka are as scarce as hens' teeth.

Police Commissioner Jackie Selebi and his intelligence chief Raymond Lalla, among others, still have not provided one page of the much-awaited "spy-list" and additional reports.

Neither has Mo Shaik, who was seen brandishing papers during an e.tv interview, giving the impression that it was the much-talked-about evidence.

The commission has been using its extensive powers of subpoena, but it remains to be seen what its attitude will be towards witnesses who refuse to hand over documents.

In terms of the Commissions Act, witnesses refusing to give evidence can be jailed or fined.

But what would happen if intelligence agencies refused to hand over the documentation required by the commission?

Without the "spy files", as they are referred to, the commission might end up with more legal wrangling. Counsel for Maduna, Norman Arendse SC, has already made it very clear that he will settle for nothing less than seeing the "spy-list". He has asked the commission to issue a subpoena for the list.

The attitude of the intelligence agencies is not entirely surprising, as they hampered the Desai Commission - which was established to investigate allegations of corruption in the Western Cape - with a similar approach, including giving only limited evidence on their activities at the Western Cape legislature.

The Hefer Commission was sparked by an article in City Press. The story was written by Elias Maluleka, but supplied by Munusamy. She was suspended by the Sunday Times and eventually resigned.

Both of them, as well as e.tv editor-in-chief Joe Thloloe, were subpoenaed to give evidence before the commission. Munusamy's legal team first asked Hefer to excuse her from giving evidence, or to order that she give evidence last.

When he refused, her legal team took his decision on review to the Bloemfontein High Court.

Legal teams for the journalists, however, indicated that the commission will not require them to give evidence before this judgment was handed down.

Yesterday the Bloemfontein High Court dismissed Munusamy's application. However, it looks certain that she will appeal against this judgment all the way to the Constitutional Court.

This might cause more delays in the evidence of the commission - especially as the leader of the evidence, Kessie Naidu, seemed keen to start with her evidence.

Former police chief General Johan van der Merwe and a former intelligence operative, Carl du Plessis.

Agent RS452's handler Karl Edwards. Human rights lawyer Vanessa Brereton has admitted she was the agent with the number RS452 - attributed to Ngcuka. James Taylor, a former police member, is also due to testify.

Mike Kennedy, retired National Intelligence Agency deputy director-general; Niel Barnard, retired NIA director-general.

It will be the turn of the two main accusers in the commission so far: former ANC intelligence operative Mo Shaik and former transport minister Mac Maharaj.