The Hefer Commission of Inquiry Report : Post-Mortem

by Judge Joos Hefer


Extracts :

The task of the commission as a matter of constitutional importance and public interest.

[14] Certain commentators believe that the inquiry is irrelevant and a waste of time and public money. On the one hand, there are those who hold the view that the question whether Mr Ngcuka was or was not a pre-1994 government agent is of interest only to the ANC or of factions within the organisation; or that the commission was appointed to divert attention from more pressing matters like the ongoing debate about the integrity of the socalled ‘arms deal’. On the other hand, there are those who find the terms of reference unduly restrictive in respect of the possible misuse of the Prosecuting Authority. They would have preferred an unlimited inquiry into the way in which Mr Ngcuka has been exercising his powers.

Complaints that were not considered.

[47] Because I was only mandated to inquire into the possible misuse by Mr Ngcuka of his office where it could be shown that it was the result of his having been an agent of the security services of the pre-1994 government, certain complaints were left out of consideration. The first came from Messrs Roger and Brett Kebble, the second from Mr Vusi Mona, and the third from Mr Richard Young. The first two were forwarded to me by the Public Protector with whom they were initially lodged. Both dealt with matters which the complainants regarded as instances of the misuse of his office by Mr Ngcuka. After discussing the Kebbles complaint with their legal adviser it was agreed that the allegations fell outside the scope of my terms of reference for want of a causal link with any pre-1994 activities on the part of Mr Ngcuka. For the same reason, and others which will be mentioned later, I left Mr Mona’s complaint out of consideration. Mr Young’s complaint suffered the same fate.

Mr Moe Shaik

[81] I mention Mr Shaik in connection with the alleged misuse of the Prosecuting Authority, not because he has really contributed to this part of the inquiry, but in order to show his motive for raking up old scores.

[82] It is common knowledge that the newspapers and other media abounded a few months ago with reports about an investigation by Mr Ngcuka’s office against the Deputy President arising from his association with Mr Schabir Shaik and the latter’s suspected connection with the ‘arms deal’. In a public interview held on 23 August 2003 Mr Ngcuka confirmed the investigation but also announced his decision not to prosecute the Deputy President.

[83] Mr Moe Shaik revealed in his evidence that, after many years, his interest in Mr Ngcuka was rekindled when he came to know of the investigation against Mr Zuma. His renewed interest, he says, stemmed from his complete faith in and undying loyalty to the latter. For this reason he reexamined the information about the 1989 investigation, proceeded to make further inquiries and eventually confided in Ms Munusamy in order to make the public aware of the 1989 investigation and findings. What he could not understand initially, was why Mr Ngcuka’s office was investigating Mr Zuma at all. But later, when Mr Maharaj was also investigated, it dawned on him that Mr Ngcuka might have become aware of the 1989 investigation and might have resolved to investigate the persons who had investigated him. This notion is so implausible that it deserves no serious consideration. Apart from anything else, if Mr Ngcuka were acting against those who had investigated him, one wonders why he has investigated Mr Maharaj who really had nothing to do with the 1989 investigation, and has left Mr Shaik alone. This supposition is in any event quite insufficient to bring Mr Shaik’s complaint about the investigation against Mr Zuma within my terms of reference.

Response :

Unit 3 Rosmead Place
67 Rosmead Ave, Kenilworth
Cape Town
P.O. Box 171, Rondebosch
South Africa

Telephone : (+27) (0)21 683 5490
Facsimile  : (+27) (0)21 683 5435
Email :


The Hefer Commission of Enquiry
Private Bag X938

Telephone : 012 309 7800
Facsimile  : 012 324 4759

Attention  : Mr Justice J.F.Hefer

Dear Sir

Hefer Commission of Enquiry regarding Adv B.T. Ngcuka and Dr P.M. Maduna

I refer to the aforementioned matter in light of one or more submissions that I may wish to make before the commission. In this regard I provide the following preliminary information to you for your consideration.

1. As you are aware, the National Director of Public Prosecutions, Mr B.T.Ngcuka ("Ngcuka"), convened a press conference and released a press statement on Saturday 2003-08-23 to advise the public of the decision by him as National Director of Public Prosecutions ("NDPP") of the National Prosecuting Authority ("NPA") not to prosecute Deputy President Jacob Zuma ("Zuma") on charges of bribery and corruption flowing from the Strategic Defence Packages ("SDPs"), or what has more commonly become known as the Arms Deal.

2. Shortly after Ngcuka’s press statement Motlanthe was quoted in the City Press newspaper of 2003-08-30 as stating that "the whole saga is aimed at destroying the political standing of Zuma" and that "according to the ANC, the source of the allegations surrounding the Deputy President lies in Richard Young", who is seen "as the real source of the current saga" [our bold emphasis].

3. Following Ngcuka’s press statement and Schabir Shaikh’s arrest for bribery and corruption, one Riaz "Mo" Shaikh has made a number of public statements in the press and on national television that Ngcuka was

4. Mo Shaik is none other than Schabir Shaikh’s brother.

5. Representing Mo Shaikh at the commission thus far is another Shaikh brother, attorney Yunis Shaikh.

6. Schabir Shaikh assisted MK and MK Intelligence during the 1980s and early 1990s by facilitating the supply of funds from abroad, arranging front companies for their operations and providing other logistical services.

7. Thus all four Shaikh brothers Schabir, Yunis, Mo and Chippy were operational intelligence agents of MK during the period of the early 1980s up until 1994.

8. The operational commander of the MK’s intelligence unit in the kwaZulu-Natal area during this time was one Mac Maharaj ("Maharaj").

9. Zuma was overall commander of MK Intelligence during the period of the mid-1980s up until 1994.

10. There are direct financial and intelligence links between Zuma, Maharaj, Schabir Shaik, Mo Shaikh, Yunis Shaikh and Chippy Shaikh.

11. Since the commission was constituted, the Minister of Justice, Dr P.M.Maduna ("Maduna"), who is also Ngcuka’s line manager, has expanded the commission’s terms of reference to include an investigation into the allegation that he also, was an "apartheid-era intelligence agent" and was consequently abusing the authority of his office.

12. Also since the commission was constituted, the leader of the official opposition party, the Democratic Alliance ("DA"), Mr Tony Leon, has called on the President to expand the scope of inquiry to include allegations of corruption against Maduna and Zuma.

13. In the light of the aforementioned, we are just as concerned regarding the allegations of corruption, especially those involving Zuma.

14. Our concern is heightened by the fact that the ANC sees Richard Young as the source of the corruption allegations which resulted in Zuma being investigated by the NPA.

15. On the one hand the NPA professes to have prima facie evidence against Zuma, but which is not enough to result in a winnable case, on the other hand the ANC views Richard Young as the person who is the real source of the saga surrounding Zuma.

16. In light of the facts and circumstances, including the lengthy passage of time and the implausibility of the National Director of Public Prosecutions being an apartheid-era intelligence agent, as well as the reality of the present situation where his accusers or their principals or their close family members are under investigation for corruption, it would be entirely possible that there are entirely different reasons for these allegations.

17. It is therefore our respectful request that the commission should also focus on the matter raised by Mr Leon and should, inter alia, investigate the following

18. I am prepared and available to do the following

We look forward to your response in due course.

Yours faithfully


Richard Young
Managing Director