The Hefer Commission of Inquiry Report : Post-Mortem
by Judge Joos Hefer
The task of the commission as a matter of constitutional importance and public interest.
 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.
 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
 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.
 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.
 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.
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The Hefer Commission of Enquiry
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Attention : Mr Justice J.F.Hefer
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.
1.1 In his press statement, Ngcuka’s decision not to prosecute Zuma was explained as follows "After careful consideration in which we looked at the evidence and the facts dispassionately, we have concluded that, whilst there is a prima facie case of corruption against the Deputy President, our prospects of success are not strong enough. That means we are not sure if we have a winnable case" [our bold emphasis].
1.2 At the same press conference, Ngcuka announced that Zuma’s close friend and financial advisor Schabir Shaikh, Chief Executive Officer of the Nkobi Group of companies, would be charged with the crimes of corruption, bribery, fraud and money laundering, all directly relating to the Arms Deal.
1.3 Schabir Shaikh is the brother of one Shamin "Chippy" Shaikh who was the Department of Defence’s ("DoD’s") Chief of Acquisitions and who oversaw the entire SDPs and, in particular, was intimately involved with the crucial decision-making process in the selection of the products and services of African Defence Systems (Pty) Ltd ("ADS") and their parent, French defence company Thales International ("Thales"), previously known as Thomson-CSF, for the combat suite component of Project Sitron.
1.4 Due to his brother Schabir’s interest in ADS and Thales International Africa, Chippy Shaikh had declared a potential conflict of interest and recusal from all decision-making in the combat suite component of Project Sitron. However, the Joint Investigation Team ("JIT"), which included Ngcuka, found and formally reported in their Joint Report into the SDPs that Chippy Shaikh had a material conflict of interest and his "recusal" was "no recusal at all".
1.5 The JIT also made findings of a litany of gross irregularities concerning the acquisition process of the corvette and its combat suite.
1.6 All or most of these irregularities occurred under the supervision of Chippy Shaikh as Co-Chairman of the Strategic Offers Committee ("SOFCOM"), Chairman of the Project Control Board ("PCB") and member of the International Offers Negotiating Team ("IONT").
1.7 The DoD failed to take disciplinary steps against Chippy Shaikh for acting in contravention of his recusal and conflict of interest.
1.8 However, in early 2001 the DoD did take disciplinary steps against Chippy Shaikh for contravening certain provisions relating to the prevention of disclosure of classified information relevant to the Arms Deal, the details of which were never publically disclosed by the DoD.
1.9 Chippy Shaikh was found guilty of these allegations, but whatever sanction was imposed upon him was also never publicly disclosed by the DoD.
1.10 Nevertheless, Chippy Shaikh in about May 2001 resigned from the DoD.
1.11 Schabir Shaikh was also charged in November 2001 for being in possession of secret Cabinet minutes and other classified DoD correspondence relating to the Arms Deal.
1.12 Chippy Shaikh is on public record admitting that he supplied his brother Schabir with these documents.
1.13 On Monday 2003-08-25, two days after Ngcuka’s press conference, Schabir Shaikh duly appeared in the Durban Regional Court and a Draft Charge Sheet detailing such charges was put before the court.
1.14 In particular, the Draft Charge Sheet describes the relationship between Schabir Schaikh, the Nkobi Group of companies, including African Defence Systems (Pty) Ltd ("ADS") and the French defence company Thales International ("Thales"), previously known as Thomson-CSF.
1.15 The Draft Charge Sheet and its schedule document a prima facie case of a corrupt relationship between Schabir Schaikh and Zuma and alleges, inter alia, that Shaikh was complicit in facilitating a bribe between Thales and Zuma.
1.16 The said bribe offered by Thales to Zuma was for an amount of R500 000 ("500kR") per year, "until ADS starts paying dividends" and in respect of Zuma protecting Thales during the investigation into the Arms Deal, in particular in respect of the Patrol Corvette component thereof, otherwise known by its project code name, Project Sitron (which is mentioned in Thétard’s encrypted facsimile).
1.17 Also alleged in the Draft Charge Sheet is that the African National Congress ("ANC"), a registered political party in South Africa and also the ruling party in the country since 1994, is an occult shareholder in ADS via a shareholding in the company called Floryn Investments (Pty) Ltd ("Floryn") which is a member of the Nkobi Group and one of the corporate accused on the Draft Charge Sheet along with Schabir Shaikh.
1.18 The person administratively responsible for the ANC is its Secretary-General, one Kgalema Motlanthe ("Motlanthe").
1.19 A further allegation of the Draft Charge Sheet is that Zuma himself is an occult shareholder in ADS via a shareholding in the company which is a member of the Nkobi Group.
1.20 Following my own investigations, I have reason to believe that this is entirely plausible and that the company in question is probably Clegton Investments (Pty) Ltd ("Clegton") which is a also member of the Nkobi Group and also one of the corporate accused on the Draft Charge Sheet along with Schabir Shaikh.
1.21 In the alleged criminal transaction, Thales was represented by its chief executive officer of Thales International Africa, Alain Thétard (also the chairman of ADS), who communicated by encrypted facsimile the details of the acceptance by Zuma of his bribe offer to his superior in France, Jean-Paul Perrier (the Deputy Chairman of Thales) and his immediate superior in Thales International, Yann de Jomaron.
1.22 Apart from Schabir Shaikh, the NPA has issued warrants of arrest for Thétard and Perrier. However, Thétard has fled his base of Mauritius to France to escape extradition and subsequently the French authorities have declined to extradite either Thétard or Perrier to South Africa to face charges with Schabir Shaikh.
1.23 It is common cause that bribery and corruption are binary crimes involving at least two parties and it follows that if a party such as Schabir Shaikh or Thales is charged, then the other party, in this case Zuma, should also face identical or similar charges.
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].
2.1 It is clear from these statements that the ANC has deduced that Zuma’s problems arose when one of the losing bidders in the Arms Deal, CCII Systems (Pty) Ltd, by way of its Managing Director, Richard Young, allegedly released information pertaining to the SDP procurement process.
2.2 On or about 2003-09-03, the City Press suddenly carried a report on allegations that Ngcuka was an apartheid-era "spy" and the situation escalated to such an extent that President Mbeki authorised the present commission of enquiry.
2.3 The spy allegations in the media also touched on Justice Minister Penuell Maduna ("Maduna") and the intrigue deepened when an official accused him of abusing his office. As you know, this has resulted in the scope of the commission of inquiry to be widened to include investigating abuse of power by Ngcuka and Maduna whilst in office.
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
3.1 "an apartheid-era intelligence agent";
3.2 "owed his previous masters certain favours";
3.3 was consequently "abusing the authority of his office".
4. Mo Shaik is none other than Schabir Shaikh’s brother.
4.1 Mo Shaikh is presently an employee of the Ministry of Foreign Affairs as a "special advisor" to the Minister.
4.2 Mo Shaikh was previously a senior member of the National Intelligence Agency ("NIA").
4.3 Before that, Mo Shaikh was a senior intelligence operative for the military wing of the ANC, Umkhonto we Sizwe ("MK").
5. Representing Mo Shaikh at the commission thus far is another Shaikh brother, attorney Yunis Shaikh.
5.1 Yunis Shaikh was also an intelligence operative for MK.
5.2 Yunis Shaikh used to represent a trade union-orientated entity, the Workers College.
5.3 The Workers College is a minority shareholder in Nkobi Holdings (Pty) Ltd, the holding company of the Nkobi Group, also a corporate accused along with Schabir Shaikh.
5.4 Yunis Shaikh represented Workers College in a number of shareholders’ meetings of Nkobi Holdings (Pty) Ltd and Nkobi Investments (Pty) Ltd and accepted their shares in Nkobi Holdings in his name.
5.5 Yunis Shaikh has admitted in recent court proceedings that he was at one time a director of Nkobi Holdings (Pty) Ltd.
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").
8.1 Maharaj was previously Minister of Transport. Under or shortly after Maharaj’s tenure as Minister, Schabir Shaikh and his Nkobi Group, specifically Proconsult (Pty) Ltd, Procon Africa Consultants (Pty) Ltd and Nkobi Transport Systems (Pty) Ltd, received very significant contracts from the Ministry of Transport, one in respect of toll roads amounting to about R2,6 billion and one in respect of credit card driver’s licence amounting to about R265 million.
8.2 Both of these contracts are suspicious in that payments to Maharaj from Schabir Shaikh’s group of companies have been found which indicate bribery and a generally corrupt relationship between Schabir Shaikh and Maharaj. These suspicions have been cause for the NPA to investigate Maharaj for bribery and corruption.
8.3 After Maharaj resigned as Minister of Transport he joined FirstRand Bank ("FRB") as its highest paid non-executive director.
8.4 FRB was also a beneficiary of the Ministry of Transport’s multi-billion toll-road contract.
8.5 Maharaj’s conduct involving his acceptance of payments and other favours from Schabir Shaikh’s Nkobi Group was internally investigated by FRB with such investigation finding that such payments were indeed made. This led to Maharaj’s resignation from FRB.
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.
12.1 Mr Leon motivated this request by saying that the current focus of the commission was only of historical interest. He further based this request on the public’s concern about whether Zuma and Maduna have been involved in corrupt or inappropriate practices and said that this would provide a forum for them to clear their names.
12.2 It is noted that the DA’s request has been declined by the President.
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
17.1 does the ANC believe Richard Young to be the source of the allegations against Zuma?;
17.2 if so, what is the basis for such belief?;
17.3 if not, what prompted its Secretary-General to state so publically?;
17.4 is there prima facie evidence of bribery and corruption against Zuma?;
17.5 if so, why is this prima facie evidence considered insufficient to bring charges against Zuma?;
17.6 if not, why did Ngcuka made a very public statement to the entire nation, indeed the entire world, that the NPA had prima facie evidence against Zuma?;
17.7 what are the true motives behind Maharaj’s and Mo Shaikh’s allegation that Ngcuka was an "apartheid-era intelligence agent"?;
17.8 what are the true motives behind Maharaj’s and Mo Shaikh’s allegation that Ngcuka was an "abusing his office"?;
17.9 what are the true motives behind Maharaj’s and Mo Shaikh’s allegation that Maduna was an "abusing his office"?;
17.10 even if it were found to be true that Ngcuka collaborated with the previous government in any way, in what way is this relevant nearly two decades later to the investigation and/prosecution of Zuma, Maharaj and Schabir Shaikh for bribery and corruption?;
17.11 as an employee of the Department of Foreign Affairs and therefore a public servant, what is the role of Mo Shaikh in this entire matter?;
17.12 who is paying Mo Shaikh’s salary and expenses to conduct this obviously time-consuming undertaking against Ngcuka and Maduna?;
17.13 has this been authorised by the Minister of Foreign Affairs and if so, on what basis?
18. I am prepared and available to do the following
18.1 meet with the commission on a confidential basis to substantially expand on the information that I have provided above;
18.2 provide a sworn affidavit to the commission on all aspects of the matters I have covered or specific aspects which the commission may find relevant;
18.3 provide documentary evidence to the commission on certain aspects of the matters I have covered or specific aspects which the commission may find relevant;
18.4 provide verbal evidence to the commission on certain aspects of the matters I have covered or specific aspects which the commission may find relevant.
We look forward to your response in due course.