The Battle Against the 'Good Boys' [The Star, 2007-05-02]

Publication: The Star Issued: Date: 2007-05-02 Reporter: Maureen Isaacson

The Battle Against the 'Good Boys'

Publication	The Star
Date	2007-05-02
Reporter	Maureen Isaacson
Web Link	www.thestar.co.za

In February 2003 the Sunday Times published allegations of corruption against Mac Maharaj, writes Maureen Isaacson. It said that while he was the minister of transport, Maharaj had received a kickback related to a R265-million contract to produce the new credit-card driver's licence. The kickback also related to a R2,6-billion contract to upgrade the toll road between Johannesburg and Durban. Both contracts were awarded to consortiums to which Schabir Shaik's companies belonged. In Shades of Difference, Mac Maharaj and the Struggle for South Africa, Padraig O'Malley says the media failed to report that neither Maharaj nor the ministry of transport had any say in the awarding of either contract. Maharaj stepped down from his position at First Rand to allow it to investigate the allegations and later resigned. Bulelani Ngcuka, director of the National Prosecuting Authority, confirmed that Maharaj and his wife Zarina would be questioned, but not charged. Maharaj, acting in anger on information that the Scorpions had leaked aspects of their investigation to the media, revisited the shady world of intelligence. He made a connection between findings - by Moe Shaik's "Bible" unit, which sought to root out spies from the ANC's upper echelons - that Ngcuka had been an apartheid spy. President Thabo Mbeki appointed judge Joos Hefer to lead a commission of enquiry into these allegations, which resulted in Maharaj suffering further humiliation and loss.

Subsequent to the Hefer commission's finding that Bulelani Ngcuka, Director of the National Prosecuting Authority, "probably never at any time before 1994 acted as an agent for a state security service", I talked with key people from ANC Intelligence, and people from all branches of the former security forces, including officials who liaised with apartheid-era employees of the Department of Home Affairs, none of whom appeared before the Hefer commission. The interviews are embargoed until 2030.

Was Ngcuka investigated by Moe Shaik's Bible unit [set up to root out apartheid agents in the ANC's top ranks], and found" "probably to have been a spy"? Yes.

Was that report forwarded to Lusaka? Yes. Did ANC Intelligence in Lusaka accept that finding? Yes. Was Moe Shaik instructed to continue with his investigation? Yes. In the light of information available in 2003 was the ANC's finding - not Moe Shaik's - regarding Ngcuka incorrect? Yes. Indeed, one can go a step further and say with as close to certitude as one can get in the labyrinthine world of intelligence and counterintelligence, that Bulelani Ngcuka never worked for the South African Police *1.

Maharaj and Shaik erred in trying to prove that a 1998/89 finding could be proved to having been correctly arrived at with information available in 2003. Hefer erred in trying to show that Shaik (ANC Intelligence) should not have made the finding he did in 1998/89, because he either overlooked or did not studiously pursue information then available that would have led him to a different conclusion. Determining whether the 1988/89 finding was justified was not part of Hefer's remit. Beyond that, he was imminently unqualified to make any determination in the matter.

Operation Bible's conclusions were not based on "the suspicion of a small number of distrustful individuals" or on "ill-founded inferences and groundless assumptions". Leaving aside the issue of how he received the passport, one of the questions the commission had to address was how Ngcuka had renewed the passport in Geneva. In Geneva, he adopted a high profile anti-apartheid, pro-ANC posture and traveled across Europe castigating the apartheid regime. The ILO, the organization for which he worked, was monitored by the security services. Wanting to return to South Africa in 1987 and finding that his passport had expired, he went to the South African consulate in Geneva and had his request for renewal approved as a matter of routine. The resident NIS agent never flagged the application, it seems. Hefer concluded that there was nothing out of the ordinary in this. But my conversations with former security branch members, former NIS agents, and former employees of Home Affairs, regarding the ways in which passports were issued and renewed during the 1980s, make it clear that the granting of this passport, and especially the manner of its renewal, out of the ordinary, sufficient grounds, at the very least, to warrant suspicion. The new orthodoxy promulgated at the Hefer Commission that there was not extensive collusion between the Security Services and Home Affairs resulting in blacklisting individuals who were not to receive passports is simply as rewriting of the past.

Hefer's implicit conclusion that Moe Shaik alone conducted the Ngcuka investigation is incorrect. Others worked with Shaik on the Ngcuka file. Zuma knew that Ngcuka was under investigation. Zuma concurred with Bible's findings. Suspicions about Ngcuka were brought to Tambo's attention in November 1988 by Maharaj, was referred to again to Tambo and Slovo from Maharaj regarding confidentiality of information passing through London in February 1989; Tambo and Zuma discussed the matter of an investigation relating to Ngcuka and "a certain number" [RS452] in May 1989 and Maharaj himself discussed Ngcuka with Mandela in late April 1990 in the presence of Alfred Nzo. I have talked with one of the few persons who had access to the Vula communications and Tambo and he unhesitatingly corroborated the statement that it was his understanding that Tambo concurred with the intelligence finding that Bulelani probably was RS452.

Because he could not ask in the absence of anyone stepping forward, Judge Hefer could not confirm that Project Bible reports were routed through Shaheen Bawa, an ANC intelligence operative in London who had received specialized training in the GDR in ways to courier information to eschew detection or that Bawa delivered these reports personally to Zuma when the latter visited London or otherwise had them conveyed to him in Lusaka. And, again, because he could not ask, Hefer could not establish that Pingla Udit worked with Moe Shaik at the NIA, post 1994, upgrading Project Bible files. In the world of intelligence where information and disinformation have equal currency, the books are rarely closed, much like the way in which the NPA itself to operate.

Had Mac not been so protective, he might have informed the commission that many others had been investigated too - Siphiwe Nyanda and Susan Tshabalala, the Vula Operative infiltrated into South Africa in late 1989 - or that one of the SACP's highest ranking officials accused his wife, Zarina, of working for MI5, or that some of Cyril Ramaphosa's colleagues in the MDM believed that he worked for the CIA.

Absent from Hefer's report is any sense that there had been a mortal battle between an apartheid government obsessed with crushing the ANC using whatever means without regard for the life of anyone who stood in its way and a dysfunctional liberation movement often gripped with paranoia induced by the knowledge that the comrade who appeared to be the most motivated and driven might be working for the enemy.

("It seems to me," Hefer said, "that the whole organisation wasn't as good as it seemed on the face of it, well not as effective.")

In 2006, three years after his report was released, Hefer looked back and summed up: "There are questions which remain unanswered," he said, "and it's a pity that one couldn't see what's in the records because there is something there, they wouldn't have hedged like that if there wasn't something. There are still questions that I would like to see answers to."

While Mac maintains that Hefer's finding regarding possible abuse of power was a vindication of his decision to give evidence, the finding went entirely ignored and Mbeki never acted to address it.

Of more import, but as ignored, was a matter relating to Ngcuka's testimony. Under cross examination by Steven Joseph, advocate for Mac and Shaik, regarding the alleged remarks he made at his meeting with the black editors, Ngcuka refused to answer questions on the grounds that because the meeting was off-the-record and the editors bound to confidentiality, he, too, was bound by the same constraints of disclosure.

When asked by Judge Hefer whether he was aware of the consequences for refusing to answer questions put to him while he was under oath before a presidential commission of inquiry, Ngcuka answered that he was.

The consequences? [Spelled out to me by Judge Hefer]: not to answer these questions was prima facie evidence of a criminal offence. The NPA should have investigated the matter, acting in compliance with an order from its director, and a court of law had determined whether there was "just reason" ie whether it could be shown that the legal responsibility not to respond had outweighed the legal obligation to do so.

In the circumstances of 2003, this was tantamount to asking Ngcuka to investigate himself or, at the very least, to recuse himself while authorizing a deputy to do so. The fact that the NPA never carried out such an investigation went to the heart of the question of abuse of power: Who investigates possible wrongdoing on the part of the prosecuting authority when investigations of the kind called for are vested in the prosecuting authority itself? No doubt unwittingly, Ngcuka cognizant that he could, with impunity, given the powers of his office, afford to be in contempt of the commission, underscored the inherent potential for abuse of power that resided in the office of the national prosecutor.

Ironically, on this issue, Ngcuka was Mac's best witness. The man who had publicly proclaimed that he had a prima facie case of corruption against the deputy president himself committed a prima facie offence *1.

To support today what Maharaj said he accepted in 1989 is not an accusation that Ngcuka was a spy; it is to acknowledge that Mac confirmed in 2003 that an investigation had been carried out in 1988/89 and that he was made aware of its findings. The mistake Maharaj and Moe Shaik made was to attempt to find information in 2003 that would validate a conclusion reached in 1989.

… When Hefer released his report in January 2004, Mbeki informed the country in his weekly online "Letter from the President", that "the ANC knew of the allegations against Bulelani Ngcuka even before we returned from exile. We never took any action to isolate him or otherwise break his links with the movement ... The fact, however, is that this leadership was certain that it had never been presented with such convincing evidence as would have required it to act against the person accused, in defence of the revolution."

The president's statement is at odds with what the concerns of the likes of Oliver Tambo and what was brought to the attention of the likes of Nelson Mandela and Alfred Nzo and Joe Slovo and what can be attested to by at least one individual with access to ANC communications traffic at the time.

Mbeki's online admonishments beg the obvious: Why did he not share this information with Maharaj on 23 August? Or with Hefer? Why not ask Lindiwe Sisulu, then Minister of Intelligence, to check security files on Ngcuka's status? Why restrict Hefer to investigating abuse of power by the NPA only if he found that Ngcuka had been a spy, rather than allowing him to address the larger issue in its own right? Why his disinterest in issues of abuse of power by state investigative organs? Why not tell the Cabinet that Mac had come to him with Ngcuka's reconstructed file before asking for its imprimatur to establish a commission?

On 16 July 2005, nearly two years after last contacting him, the Scorpions came knocking on Mac's door again. More questions for him to answer.

A response to some questions the Scorpions posed would require great confidentiality, given their sensitivity in relation to aspects of the struggle against the apartheid government.

The Scorpions seemed unwilling to say they would provide assurances of absolute confidentiality, i.e. would not guarantee that strict measures could be put in place to ensure that neither some of their questions nor Mac's responses would find their way into the public domain without any accompanying context, thus further destroying his name and humiliating his family.

In the absence of assurances he could trust, Mac decided he would only answer their questions in a court of law, but that if charged him he would contest the constitutionality of Section 28 (6) and (10) of the NPA Act.

Other questions related to his associations with people back into the mid 1980s, people who played roles, although they were not aware of it, in relation to Vula activities. He was outraged. The NPA had no jurisdictional authority with regard to the actions of people that were designed to bring about the destruction of a state the liberation movement regarded as illegitimate.

The questions made it appear to him that the Scorpions were acting on behalf of a state that no longer existed.

He took the questions and his responses to them together with the requisite documentation to a committee of "ANC stalwarts," appointed by Kgalema Motlanthe. The stalwarts accepted that his actions, which led to the Scorpions' questions almost 20 years later, were performed on behalf of the struggle.

Mac's mind is at rest. Ready to do battle again - against the "good boys" this time, but sometimes the good guys, he believes, can get carried away with their own sense of self-righteousness - an observation he is well equipped to make.

With acknowledgements to Maureen Isaacson and The Star.

*1 The Hefer Commission left certain questions unanswered because its terms of reference were specifically drafted (and twice altered) to produce a particular finding, i.e. that "Bulelani Ngcuka never worked for the South African Police".

In the late 70s, throughout the 80s and in the early 90s, there were a range of covert collection agencies working more-or-less independently. There were the national intelligence services, police intelligence services, military intelligence service (both external and internal), provincial intelligence services, party intelligence services, Broederbond intelligence services, foreign intelligence services, as well as other completely covert outfits (most probably most being unlawful) reporting to various stakeholders that constituted the mess that was South African politics during that period. Apart from the official units, everybody wanted to formulate their own view on how the end game was going to be played out and wanted to influence this if they could - they therefore wanted their own intelligence gathering and analysis capability. It was also a time ripe for counter-intelligence and conflicts of interest.

*2 Not quite the same level of offence.