Bloemfontein - Pressure is mounting on Mac Maharaj and Mo Shaik to prove their claims that prosecutions chief Bulelani Ngcuka was an apartheid spy, following the withdrawal yesterday of subpoenas issued to the intelligence agencies by the Hefer commission of inquiry.

This withdrawal has dealt a blow to Maharaj, a former transport minister, and Shaik, a former African National Congress (ANC) and National Intelligence Agency (NIA) operative, as they prepare to testify on Monday.

They had hoped that the documents subpoenaed by the commission from the intelligence agencies would prove that Ngcuka was an apartheid spy, as was concluded by an ANC investigation in the 1980s.

However, the commission withdrew the subpoenas after a challenge from the agencies' legal representative, George Bizos SC, on the grounds that they were improperly issued and were too vague.

Bizos also told Judge Joos Hefer that the Commissions Act, on the basis of which he was appointed, did not give him the right to privileged documents and that his authority to call for information was not absolute. By refusing to give in, the agencies were protecting their statutory obligations.

"The rule is, the accusers must prove (their allegations) and not the commission doing an investigation on their behalf. Whether or not there are documents of relevance can only be ascertained once the accusers have stated their case," Bizos said.

This meant that even if the subpoenas were in order, or were specific to Ngcuka, the intelligence agencies were not at liberty to disclose information on their agents or methods because they were prevented from doing so by the Intelligence Services Act, the Protection of Information Act, the Defence Act, the Secret Services Act and the Security Services Special Account Act.

The law also prevents former and current NIA operatives from disclosing information, which leaves Shaik between a rock and a hard place. He will fall foul of the law if he discloses the information he has and will be in contempt of the commission if he does not.

It also emerged yesterday that the director-general in President Thabo Mbeki's office, Frank Chikane, told Hefer in a letter this month that the intelligence organisations had no bearing on the matters being investigated by the commission, since Mbeki already had access to information held by them.

"There would be no point in Mbeki appointing a commission to pursue information to which the president already has access, in as much as the commission's mandate is to report to the same president," Chikane wrote.

With acknowledgements to Xolani Xundu and the Business Day.