This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
22 Apr 2005: Maduna, Penuell
POM. The question I had asked can I at this point call you Penuell rather than Dr Maduna after all these years, get a break? Well I'll interview Dr Maduna. I was talking about the press conference on 23rd August 2003 where you as Minister of Justice and Bulelani Ngcuka as the Director of Public Prosecutions announced that there was a prima facie case against the Deputy President, Jacob Zuma, but that they would not prosecute because it would appear that the case was not winnable. My question was would the President, Thabo Mbeki, have been informed of that decision prior to the press conference?
PM. No he was not informed and deliberately so. You wouldn't want the President of the Republic to be told about a decision that is ordinarily made in the course of work of the National Director of Public Prosecutions, and again my own suspicion is if we had done that, and of course at that point this question had not arisen, anyone who now says that there was a political agenda or a conspiracy against Jacob Zuma would be saying, you see even the President was informed. So luckily we didn't because there never was any reason to inform him.
POM. Even though it involved his Deputy President?
PM. No, look, you know I personally made sure that the thing was never politicised, so the investigation itself was conducted without informing the President or even asking for his permission because you can't do that. You can't say to him that there is a reason or probable cause to investigate this and your Deputy President is involved because anybody who picks that up is fully entitled to say, no, you were soliciting political approval, which you don't need. The constitution is very clear on this question, I think it's Section 179, sub-section 6, the minister responsible for the administration of justice is responsible overall for the functioning of the National Prosecuting Authority. Now that constitutional position does not require the imprimatur or approval of anybody, including the President. Once he's decided in his wisdom and in his pleasure to appoint you as his Minister of Justice you have all the authority that the Minister of Justice has under the constitution and the law in the country, and I didn't have any reason to go to him.
POM. When would he have been informed?
PM. No, not informed in that sense of the word. You see because, look, even though one didn't have this as a reason one was actually aware that one was dealing with a politically sensitive question. Now you know you wouldn't want anybody to say the President participated in discussing that politically sensitive matter because, you see, you would then be constrained to say why did you go to him at all and for God's sake you can't be right to say, no I went to tell him as a matter of courtesy because people are going to say to you, no, no, no, but you see Zuma alleges, openly so, there has always been a political agenda against him. Now you know you would want to spare the President all that. You're doing your work, Zuma knew he was being investigated because indeed he was informed, and indeed it became public knowledge eventually that there was this investigation. Maybe it was unavoidable but in fact the people who actually made it public knowledge himself. In his very first papers when he was contesting the application of certain provisions of the NPA Act of 1998 to him and to his case he then disclosed that the person referred to in the state's papers as Mr X, whatever, was actually none other than Jacob Zuma, the Deputy President of the Republic of South Africa. So any newspaper scrounging around for information would pick that up because these are public documents, and that's precisely what happened. Before then we, or the public rather, didn't know who Mr X was. I knew because I was Minister of Justice.
POM. But then when would would the President have learned what had happened after the press conference?
PM. You can go and ask him, he actually got to know about it as we appeared on TV, that indeed this was happening. He was aware that there was an investigation and to his eternal credit and to Zuma's eternal credit they never for once said to me we want you to politically account to us for this investigation. There was never any political influence, never any political pressure brought to bear upon me or upon any member of the staff that I worked with in this regard or in any regard whatsoever, and I am happy that that was always the case. I am a very, very happy person.
POM. In retrospect, I know this is like Monday morning quarter-backing or whatever, do you think in retrospect that it might have been better to have charged him at that time in view of the fallout and the allegations of the politicisation and that he was hung out to dry and he was proven
PM. I have yet to understand what this whole political noise was about. I have never understood it because normally when a person is told that the state has decided not to prosecute a person, the person actually is grateful look, I'm no longer having anything to bother about, normally. And again I think it would have been disingenuous on the part of Bulelani and for that matter the minister because as I've said the constitution says the minister is overall responsible for the functioning of the institution. It would have been disingenuous on our part to say in that kind of bland fashion, decision not to prosecute, because the public would have said, why aren't you telling us why you have singled Schabir Shaik and his companies out? They would have been entitled to ask that question. So Bulelani thought, and I accepted it when he told me, we are constrained to tell the country that the investigation had been concluded, that on the face of it there was indeed a very interesting story but that you could not find sufficient evidence to establish proof beyond reasonable doubt as is the requirement of our criminal justice system.
. So I accepted that and of course now the state has reviewed that and the state is within its rights to do that. I have no query with that at all, no problem with it at all. The matter was dealt with by Bulelani working together with me as best we could in those days. If the state now thinks it's got a strong case, the evidence is there, etc., I can only support the state, I can only support the state.
POM. Do you think that it was, and for lack of a better word I will call it the Shaik camp who politicised this? There was all this political fallout afterwards, the media saying to Zuma, "Answer the questions", and he was screaming, "Charge me, let me prove my (innocence)". Do you know what I mean?
PM. I wouldn't single out anybody as having politicised it because there are many people who jumped into the fray and politicised it and of course you know I don't want to ascribe ill intentions to anybody. I don't want to do that. I have heard, for instance, people say Zuma must be charged so that he can clear his name. I understand why these people are saying so. I understand Zuma himself because you would forever be sitting with a situation where his guilt has never been established as a matter of fact and as a matter of law and yet all of us would be saying by the way he was implicated in the Schabir Shaik matter, literally referred to on every page of that saga. The difficult one always has is you can't actually bring anybody before court unless you have the evidence. You can't, in other words, say to a court of law that we have deliberately charged this person with commission of the following offences because we want to enable him
POM. To prove his innocence, yes.
PM. That's not what the courts are used for. The assumption of the state is that they are dealing with a guilty person and it is left to the court to determine whether on the basis of the evidence led before it the person's guilt has been established. And the court is not looking for innocence by the way. It doesn't say we find you innocent. It says we find you not guilty. A very interesting thing, it may sound technical but no court finds a person innocent, it always finds a person either guilty or not guilty. It's very interesting. So courts are not there to clear anybody's name, so if the purpose, the sole purpose of charging a person is to enable that person to clear his or her name, then there's a problem, it's abuse of the system and in fact the judge is going to tell you why did you bring this matter here at all? You say, no it was because there was political pressure and a lot of political noise. So I don't think we would be right is using the system that way. In fact judges would dismiss us.
. But then again Bulelani's reading of the evidence, and you are not talking about one man, he was working with a whole panoply of skilled people, people with the necessary forensic skills. Their reading of the evidence, such as they had at their disposal, was that indeed you would be gambling if you charged him only to find that a court of law says, no he can't be found guilty because your case is weak. It's a very interesting thing. Now people who then would say you charged him for political reasons, they have a stronger case why did you ever charge a man when you never had the evidence? So you would rather err on the side of caution and say, look, we are not going to charge this person because we are not sure we can succeed against him or her, and that was the basis of this.
. But then you can't say publicly so because you see there was another element we had to deal with. You can't say, no, no, no, investigation concluded, won't charge Zuma and we won't explain why Zuma won't be charged.
POM. We'll charge Shaik then.
PM. We'll charge Shaik only and that's it. You could not
POM. And just silence on the rest.
PM. That's it, you could not pretend that you didn't have a problem. The problem you had was that the investigators were actually saying that they had a good case against Zuma. It's a very interesting thing. Now all police officers who pick up people and take dockets to prosecutors will tell you that they are convinced they have a good case. It's the prosecution that then decides whether or not they have the necessary evidence to establish the guilt of the person, and happily so, because you see according to the police everybody they pick up is guilty of an offence and it's not a peculiarity of South Africa. Now you did not want, without being certain that you had a good case, to expose a person of the calibre of Zuma, the status, with Zuma's status in society, Deputy President of the Republic of South Africa, that record and everything. We didn't want to do that because, you see, what if the court said, no, no, no, you have a good case against Shaik but no case against this one, or not as strong case against this one. So you didn't want to gamble because you didn't want to unleash what eventually, unfortunately, has happened, because people then suspect that we had ill intention when that announcement was made.
. I can tell you I was never party to any political agenda or any political conspiracy myself. I was never. I accepted what I read because I had all access, all necessary access to all documents I wanted to have a look at under Section 5 of the National Prosecuting Authority Act of 1998. I had all access, so I would be lying if I say I never paid attention to the matter. I did. I tried in all my life to be hands on in whatever I did so I went through everything myself because I didn't want us to take a gamble. Imagine if we had charged him and a court of law were to say no, the case against him is weak, for whatever reason, we would indeed have caused a crisis unnecessarily so in this country. So in other words you would have to be much more than careful in the way you dealt with a person perched at that level in any society. If indeed he had murdered somebody and you walked in and said, no, well here you are under arrest whether a Deputy President or not, here is the body, here is the weapon, here is the evidence against you, that's a different matter. But here you would be alleging that he was corrupt and things like that and yet you know all the evidence wasn't as strong. You would be saying to yourself, what if the court accepts his explanation?
POM. Now on that, and this is a question because I don't know the law very well, my understanding is that the 1992 Corruption Act doesn't regard it as corruption if payments are made to a public official as long as there is no quid pro quo, as long as he's not how do I put it? Let's say I was a minister and I was genuinely in financial trouble or whatever and you said, "Here Padraig, I've got ten million, here's a hundred thousand", and I walked away and I never heard from you again, and I got it and I used it and there was never any evidence at all of a quid pro quo, that was allowable under the 1992 Act, but that under the 2005 Act that changed. Is that right?
PM. Yes, yes. There is indeed a basic distinction between the 1992 Act and that one and that's the distinction. Now a benefit extended to a person, thus exposing a person to any sort of conflict potential or otherwise, would affect the application of the Act to that person today. So it's much tighter but the earlier one under which Schabir Shaik was charged, it wasn't as tight as that.
POM. So he was charged under the 1992 Act?
PM. Yes, the 1992 Act. He was charged last year. The 1992 Act, so it's corruption as defined in that Act and the charge goes into the question extensively, and I say convincingly so by the way, goes into the question of whether these were loans or not and remarks about that and then goes into a whole lot of things that were happening, the letters written by many people, including Jacob Zuma himself, in support of Schabir Shaik, the meetings attended, etc., and the judge says this indeed is tantamount to a corrupt relationship.
POM. There was a quid pro quo.
PM. That's it, yes. He said the quid pro quo is established.
POM. Now there was talk back in July of 2003 of there being some mediation process taking place, or trying to take place, involving Cyril Ramaphosa
PM. I was never involved.
POM. You knew nothing of - ?
PM. I read about it in the newspapers. I never was involved. In fact I was out of the country and when I came back I read about it in the newspapers. Cyril never raised it with me.
POM. Did you ever ask Bulelani about it?
PM. Well Bulelani in fact was with me in the US when there was the allegation that there was an attempt at mediation. He was with me in the US and we didn't know anything about it.
POM. My recollection is he denied it before the Hefer Commission.
PM. What was there to mitigate? Nothing.
POM. When the Hefer Commission was established was that established under the auspices of the Ministry of Justice?
PM. No, that was established under the Commission Act of 1947 by the President under the constitution.
POM. When the security agencies said they would not co-operate or support
PM. No, they never said they would never support.
POM. Sorry, co-operate.
PM. They never said they would not co-operate. They actually said, and the commission accepted this, that they were bound by the laws under which they operated not to disclose the information that they might have had at their disposal. That is different from saying, no, no, you can go to hell, because then indeed the judge would have quite correctly so under the law clobbered them in the head, subpoenaed them and if they refused he would have jailed them. He would have jailed them. They said, no, look we are not going to answer these questions because whichever way we do we will be in breach of these laws, and you know in fact it's a peculiarity of intelligence the world over
POM. That you don't disclose your sources.
PM. You don't disclose what you know. In fact no intelligence officer has ever been called upon to give evidence about the information they collected. That information is wherever necessary and appropriate passed on carefully to law enforcement people because you see your intelligence people are not law enforcement agencies, passed on to them and those may then say this information leads to evidence and they then build a case on the basis of the evidence that they're looking at. Courts of law and commissions look at evidence rather than information. That's very interesting. In fact the question was Mac Maharaj, Mo Shaik and them, all of you, do you have any evidence as opposed to information, because anybody could say I was told by so-and-so who knew so-and-so who slept with so-and-so that this one was an apartheid spy, and many allegations of that sort had been made. A startling allegation was made against me by Patricia de Lille in parliament. She said I was an apartheid spy, in parliament, and I said, "You repeat that outside, I'm going to sue your panties off."
POM. Was that why you were included in the second frame of reference?
PM. That's it, I insisted.
POM. I was wondering why you were in there.
PM. We got to know that the sources of that silly allegation Patricia de Lille was open about it but the ANC told me and we knew who told them, the little scumbags. So we knew, as I said, they now have an opportunity to tell it to this company in its entirety and the President withdrew those terms of reference and said nobody is talking about the minister, everybody's mentioning me. Even the Kebble family, father and brothers, never mentioned me, they said, no look, we're not making any allegation against him, we are saying there are all manner of things happening under him, which is different to saying he is doing these things himself. So the President said at this point of pursuing an investigation relating to you when nobody mentions you you get the point? Even Madam Patricia de Lille was asked by Kessie Naidu, in writing, when would it be convenient for you to come before the commission to give evidence that Penuell Maduna himself was an apartheid spy? She said, "I can't help the commission as far as this question is concerned."
POM. When the terms of reference of the commission were amended for the second time Judge Hefer himself said, "This commission has become ludicrous", I think that was the word he used in his report. Did you think it had become ludicrous?
PM. No it hadn't.
POM. Take the three things, if you take, say, Frank Chikane's letter to the President in November, I think 11th November, saying the President has all the information he needs.
PM. No it doesn't say so.
POM. It says he has all the information available in state intelligence.
PM. It says to all, and it doesn't have this information that this man was ever a spy. It's never been given to him.
POM. Well then what was the purpose of the - ?
PM. Well the commission was intended to allow Mac Maharaj and them to place evidence before it, before the public, that Bulelani was ever a spy.
POM. So they had to produce their own evidence.
PM. They were the only ones who had the evidence.
POM. So they couldn't go to the state and say well it's in the state files.
PM. This is it.
POM. And if you go in there you will find it.
PM. It's in that file, please bring it out.
POM. They couldn't do that?
PM. No they couldn't because it never was there. That was a very interesting thing. The so-called information was never placed at the disposal of the state. For God's sake, Mo Shaik himself says in his evidence that when I asked him as minister to give me that information so that I can intervene, I could go to the President and say, "Mr President, I have this difficulty. The state is in possession of this information that this man worked for the other side and he's sensitively placed in the system." So I wanted access to that information. Mo says he ran to Zuma and the two of them said, "No, no, let's not give it to that minister." So they were holding it and he said he held a lot of files which he subsequently surrendered to the state. Remember?
PM. Very interesting. So this was part of their own evidence that there was information they were hoarding. For what purpose or for what reason we have never known except to intimidate and blackmail and do all sorts of things obviously because you see if a person does something and you say, look, by the way you must be very careful, I have this on you. Right? Which the state would not want to do because in fact the intelligence people collect all sorts of rubbish most of the time, real garbage about who sleeps with whom, who goes where, who drinks with whom, who smokes what, cigars and things like that. They've got all that rubbish there. I was one time acting Minister of Intelligence, I used to read a lot of reports that you would never want to use against anybody, but you see the element that I am talking about would then would to keep that sort of information because it's useful in a lot of political gains they might want to play.
POM. It's like to say I've something on you.
PM. Yes, so shut up. You dare touch me, I have information on you. And that is what was happening. We have information that you were an apartheid spy, and you say, OK we've outsmarted them. Once we were before Hefer they forgot that I had full access to all the details that had been brought before the TRC, all the details that that department had once held because Intelligence was for a long time under the Department of Justice, like during the days of Kobie Coetsee when Roelf Meyer was deputy there it was under the Department of Justice and during Dullah's days it was also under the Department of Justice. So those records in the archives were easily accessible. We showed to Hefer what the so-called masters of Bulelani had said about Bulelani and what they had also said about me. They would never say what they said in the seventies about us in their own records if we were their spies. That's it. But again, I mean, I saw in one of the things
POM. Were you able then to since the Agent RS452 was being bandied around all the time, did the intelligence structures have information on who RS452 was?
PM. They did because they'd been paying that agent, yes. They had.
POM. So could they not have said at the very beginning that RS452 is not Bulelani Ngcuka?
PM. No, we asked them just to say no, it's not so-and-so, and they said, "No, we don't want to answer any question on this." You get the point? "Because then we would be saying it's not so-and-so but who is he? It would lead to somebody else."
POM. Sorry, what I'm saying is that the President would have known, as he said "I've access in the state structures", he would have said "Oh they're saying it's RS452. Have a look, I want to know. Have a look in the state archives who this RS452 is."
PM. Then again he can't say I now know it's not so-and-so because you see
POM. But he could say I know who it is.
PM. Let me tell you something. Wait. This thing was getting politicised. Now you know the President would have been defending Bulelani so it was proper for us to say, no, let's deal with this openly and we got to know who RS452 was. Don't ask me how. We had our own ways of getting that, we got to know.
POM. It would be in your files, right?
PM. Yes, and once we got to know we then said we shall confront so-and-so and say, "You were RS452." And she didn't deny it. She came out openly and said, "Look I was RS452." We said, "Tell Hefer that you were RS452." That woman there, RS452, had spied on me in Sweden.
POM. Had spied on you in where?
PM. Yes in Sweden, in Stockholm, she had spied on me, filed reports on me. Very interesting. And they knew all this.
POM. When you say 'they knew', who is they?
PM. Mac knew that Bulelani was never RS452 and Mo said so.
POM. Why do you say he knew he was never RS452?
PM. Did he know?
POM. Why do you say that he did?
PM. Didn't he know?
POM. Didn't he know? No, he says he didn't.
PM. He did, he did. He knew that Bulelani was not RS452. Munusamy was actually being used by them, says this past weekend according to newspapers, and she has yet to contradict it, yes Bulelani was targeted because the Scorpions were investigating whoever they were investigating, she says so in the newspapers.
POM. What paper was that in?
PM. I think Sunday Times, that's the one I read.
POM. Do you make a difference between or let me put it this way, Mo Shaik is quite clear that he came out with the investigation into Bulelani because he thought that Jacob Zuma was being trashed.
PM. I want you to go now, my next visitor is here.
POM. Let me just ask you this last question. Mac says that he was concerned about abuse of power, that there were leaks coming from the Scorpions
PM. No, no, no, look at his entire evidence.
POM. No, but then the judge found, Hefer found that even though he said, "It's not in my remit because Bulelani had to be found RS452 before I could do this, but it's in my remit and I am very concerned that there has been an abuse of power here."
PM. We were all concerned about leaks, yes.
POM. But did you, as minister, did you follow up on that and investigate where those leaks might have come from?
PM. No, no minister investigates anything. We want people to account, what are these leaks, etc? And they said, no, they didn't have leaks. I sat down with them and they said, "As we sit here with you we have never leaked any information." Right? But even now there are leaks. I mean how did we get to know that Zuma was going to be charged? Die Beeld on this day ran its posters all over town: Zuma will be charged and prosecuted. So somebody had already spoken to the paper. That's it.
POM. Three last questions. In your reading of the Hefer Commission do you think it says that Bulelani Ngcuka was investigated by Project Bible in 1988 and 1989 by Mo Shaik and that Mo found him probably to be a spy using the information he had, and that's as far as anything went? Or do you believe that Mo Shaik had evidence and concluded he probably was a spy, that he sent that to Lusaka and that Lusaka confirmed that they accepted - ?
PM. No, please, I was in Lusaka, Lusaka never confirmed that rubbish. Instead Bulelani was participating in many activities of the ANC. Instead, his wife was rising in the ranks of the ANC. She's now Deputy President of the Republic of South Africa.
POM. She is? She was appointed today?
PM. Yes, she's appointed today.
POM. She was? Yeah!
PM. She was rising. How could the ANC allow the wife of an apartheid spy to rise?
POM. What I'm saying is did Mo send his report to Lusaka?
PM. I don't know.
POM. You don't know.
PM. I don't know.
POM. Did Jacob Zuma as head of Intelligence
PM. I don't know what Zuma knew.
POM. OK. But then, what I'm trying to get at, the impression you get from Hefer is that Mo did this alone.
PM. Let me tell you something, whatever Mo did, Munusamy, the young journalist, Ranjeni Munusamy, according to the Sunday Times, if I'm not mistaken, last weekend says Bulelani was targeted because he was targeting people because of these investigations. You check the Sunday Times. That's what she says. That's it.
POM. Do you make any differentiation Mac says, "I confirmed the investigation, because I never investigated Bulelani, I confirmed that that report had been given to me by Mo and I accepted its findings." That's what he said. He said, "I went public because of my own situation and the leaks in regard to me, I believed that he was abusing his power." Do you believe that?
PM. No, look, Mac never said Bulelani was the leak. That's very interesting. He never said I have established that Bulelani himself was leaking information. He never said so.
POM. Last question, and this is one because I'm trying to ask everybody, people have talked to me a lot about friction between Thabo and Mac, that they never got on together.
PM. I don't know about it.
POM. In cabinet when you were there, did they get on together? Did they act in a collegial way?
PM. Oh yes.
POM. Because Mac says, "There was never anything between me and Thabo, it's all made up.
PM. This is it. No, no, I never detected it.
POM. "I don't know what people are talking about when they talk about all this stuff between us."
PM. I never detected it. Let me tell you something, the President is not a mean little fiend who sits somewhere and targets people, etc. It's his own enemies who say this. And when you say, but why or what evidence, they can't produce it. It's his own enemies. Let me tell you something, if I went to him and said your Deputy President is under investigation he would have chased me out of the office. He would have said why aren't you doing your work? I don't care who you investigate, I don't even want to know. I have appointed you and if these investigations are taking place under you well and good. In fact you can check the records of the ANC, I was never for one moment, even when it was publicly known that Zuma was under investigation, asked to account for it at any meeting of the ANC. Very interesting. No-one ever said to me, no, no, no, look, this is the Deputy President, please just tell us what's happening here, stand up and tell us now. That never happened. It's very interesting, very interesting. So I had, if you like, carte blanche.
POM. OK, thank you. I will send you a transcript and I will follow up, I will trace down who