A top spy once closely linked to former president Thabo Mbeki saved ANC president Jacob Zuma’s political life.

The Mail & Guardian has established from three independent sources central to this week’s dropping of the criminal charges against Zuma that the National Intelligence Agency’s (NIA) deputy head, Arthur Fraser, was the man who leaked to Zuma’s lawyers the secret recordings that ultimately let him off the hook.

Reacting to the M&G’s questions, NIA spokesperson Lorna Daniels said there was “no basis to the allegation that [Fraser] handed the tapes to Jacob Zuma and/or his legal team. He will have a real problem if you publish that allegation because it’s unfounded and will damage his reputation and integrity”.

She declined to respond to the M&G’s questions about how Zuma’s lawyers obtained secret NIA tapes and whether action would be taken against Fraser.

“The matter is being investigated by the inspector general of intelligence’s office and we wouldn’t comment on this matter now,” Daniels said.

The National Prosecuting Authority (NPA) withdrew corruption and fraud charges against Zuma on Tuesday in the KwaZulu-Natal High Court after acting NPA boss Mokotedi Mpshe announced on Monday that the secret connivance between former Scorpions boss Leonard McCarthy and former NPA boss Bulelani Ngcuka amounted to an “intolerable abuse”.

The M&G was reliably told this week that Fraser did a “political flip-flop” and handed the NIA recordings, legally obtained during his probe of the Browse Mole report, to Zuma’s legal team.

“We understand Fraser felt the need to ingratiate himself with the new administration of Zuma and handed the NIA tapes over,” the M&G was told by a senior legal source with knowledge of the spy tapes.

Fraser is the brother of former public service minister Geraldine Fraser-Moleketi.

The leaked tapes were central to Mpshe’s decision this week to withdraw charges against Zuma.

The NPA presented the media with transcripts of conversations between McCarthy, Ngcuka and businessman Mzi Khumalo discussing the timing of reinstated charges against Zuma.

This came after Zuma’s legal team, as part of their representations to the NPA, gave the prosecutors access to “certain recordings” of alleged political meddling in the NPA’s work.

The M&G has established that Zuma’s team was in possession of recordings emanating from the NIA and the police crime intelligence services, but that the bulk of recordings used by Mpshe to justify dropping the charges came from the former.

This was confirmed by NPA spokesperson Tlali Tlali who told the M&G “only a fraction” of the recordings played to them by Zuma’s lawyers were not in the NIA’s possession.

Zuma’s lawyer, Michael Hulley, refused to disclose the source of the tapes at a press conference on Tuesday, citing client-attorney privilege.

According to Mpshe’s statement on Monday he commissioned his deputy, Willie Hofmeyr, and the acting head of the National Prosecuting Services, Sibongile Mzinyathi, to listen to the tapes in Hulley’s possession and “verify and investigate their contents”.

According to Mpshe the NPA was unclear about whether the recordings had been legally intercepted or were legally in Hulley’s possession. It contacted the NIA, which confirmed it had legally obtained recordings of “many of the same conversations” during its investigation of the production and leaking of the Browse Mole report.

It was transcripts of these the NPA made public on Monday.

Fraser was appointed by Mbeki and the National Security Council in 2007 to lead an investigation into the production and leaking of Browse Mole.

Written by former Scorpions investigator Ivor Powell in 2006, it alleged that Zuma had received funding from Angola and Libya and warned of potential insurrection should he not become president.

The document, described by Parliament’s standing committee on intelligence as “extremely inflammatory”, contained political intelligence and numerous allegations about Zuma and other prominent political figures.

Fraser’s initial investigation into Browse Mole was widely regarded in the NPA as flimsy and one-sided, and one of its key conclusions, that Powell was responsible for the leak, was never substantiated. A second probe by the Special Investigating Unit (SIU) cleared him.

But, according to law enforcement sources briefed on a fresh investigation sparked by the tapes, it is now felt that the SIU interpreted its mandate so narrowly as to avoid any possibility of uncovering wrongdoing by McCarthy.

Hofmeyr and the head of the police’s detective services, Rayman Lalla, are already working on a third probe of the report, focusing on McCarthy’s role.

A legal source told the M&G that Fraser changed his political tune “some time ago”.

Fraser also testified during the Ginwala commission of inquiry where he took the stand against suspended former NPA boss Vusi Pikoli.

“He testified against Pikoli, wanting to create the impression that he [Pikoli] didn’t do his job. It was clear from his testimony that he thought Pikoli was not a fit and proper person to hold office,” the M&G was told.

Fraser’s main gripe with Pikoli was the Scorpions’ alleged lack of cooperation in his Browse Mole probe. Significantly, Mpshe said on Monday that the NPA would “cooperate fully with the Browse Mole investigation into possible illegal intelligence gathering activities in the DSO [Scorpions], and has managed to uncover significant new information in the process”.

Fraser has 23 years of intelligence experience and joined the NIA in 1995. He worked as an investigator for the truth commission and was the NIA’s Western Cape head between 1998 and 2004.
Fraser could not be reached for comment. His secretary said he is “not in Gauteng, but in another province and can’t receive any calls”.

The Inspector General of Intelligence’s (IGI) office opened an investigation into possible wrongdoing by the NIA after the NPA asked it to investigate “possible illegality surrounding the recordings that were presented to it”.

The IGI’s operations chief, Imtiaz Fazel, confirmed the probe, saying the “circumstances surrounding the interception of the voice communications of certain individuals by the intelligence services is currently being investigated”.

The IGI’s probe would be limited to the conduct of the intelligence services.

On Tuesday the DA asked the North Gauteng High Court for a full judicial review of the NPA’s decision to drop the Zuma charges, reports Yolandi Groenewald.

In court papers DA federal council chairperson James Selfe argued that the NPA’s decision was not rationally connected with the information before it and that public policy considerations raised by the NPA did not approach the level required to justify a decision to discontinue prosecution.

“The decision is unlawful and unconstitutional,” Selfe argues, adding that Mpshe was not authorised to make the decision. He also argued that the NPA could be reasonably suspected of bias.

“The rights of the DA, its members and the public are adversely affected by the unlawfulness of the decision,” he said. The case will be heard on June 9.

The unanswered questions

• Why did National Prosecuting Agency (NPA) chiefs Mokotedi Mpshe and Willie Hofmeyr conclude there was an “intolerable abuse” of process by former Scorpions boss Leonard McCarthy if, in Mpshe’s own version, he was not influenced by McCarthy on when to recharge Jacob Zuma?
• How did McCarthy “manipulate the legal process”? The recordings make it clear that the alleged conspirators -- McCarthy, Bulelani Ngcuka and Mzi Khumalo -- differed over when to recharge Zuma, and Mpshe confirmed on Monday that he made an independent decision to recharge Zuma after the Polokwane conference.
• How did Zuma’s legal team plan to hand the intercepted recordings in to court if they were illegally in their possession?
• Why, if the tapes revealed illegal conduct, did the National Intelligence Agency hang on to them for almost 18 months, rather than handing them over to the NPA or justice minister?
• How did the NPA legally get around the Supreme Court of Appeal’s ruling in the Zuma matter that “a prosecution is not wrongful merely because it is brought for an improper purpose”?
• Who is the private intelligence operative “Luciano” that McCarthy corresponded with, and on whose behalf was “Luciano” communicating with the former Scorpions boss?
• Why were the transcripts not presented to Ngcuka, McCarthy and Khumalo for comment before they were made public by the NPA on Monday?
• Who was “the man” McCarthy met after the Polokwane conference to plan a “comeback strategy”, as disclosed in a voicemail to the Special Investigating Unit’s deputy head, Faiek Davids?
• Who is “the big man” at “Shell House” Ngcuka was to meet after the ANC’s provincial conferences showed overwhelming support for Zuma?