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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Mac's closing statement
IN THE HEFER COMMISSION
SUBMISSION
May it please you, Mr Commissioner………….
For reasons which are not relevant Mr Joseph is not able to be with us today and it has been decided that I should address you on behalf of both Mr Shaik and me. If in doing so I demonstrate a lack of legal skills or a misunder-standing of the niceties and subtleties of what an address such as this ouqht to consist of, I trust that you, Mr Commissioner, will forgive me. I intend no disrespect for you, Sir, or for the unenviable task that you have been charged with.
The shadow of our collective past has hovered over these proceedings. It has shaped both the processes by which, this Commission of Enquiry was established and the content of and the manner in which the evidence was presented. While many would have expected that shadow to have dictated who was friend and who was foe in the struggle against Apartheid, the issues before this Commission of Enquiry have been dominated largely by the experiences of those who shared the same anti-Apartheid trenches.
Whatever the differences between the protagonists may be, there can be no gainsaying the fact and the degree of service all of us have rendered to the struggle for freedom and democracy. We would not want history to belittle the collective efforts of the democratic forces led by the African National Congress nor the efforts of individuals, including that of Mr Bulelani Ngcuka and his family, made in the struggle for the attainment of our very precious democracy.
The struggle against Apartheid caused enormous suffering and called for much sacrifice. There is a tendency amongst some, when dealing with individual suffering and sacrifice, to effect comparisons. In the tradition of the ANC that is incorrect. There is no yardstick by which we can measure one person's suffering against that of another. Furthermore, we have always maintained that that sacrifice is a concept that is not applied to our individual lives. Our families and we did what we did in the struggle for democracy, not as a sacrifice but as a matter of choice. We served the struggle not for any reward that might have come our way for that service.
We move from the premise that today, in the context of that precious and thriving democracy, all of us, including those who served in the liberation struggle, those who served apartheid and those who acquiesced or stood on the sidelines, have an equal duty to jealously protect and advance the collective interests of the Constitutional State known as the Republic of South Africa.
From the moment this Commission of Enquiry was appointed we took up the position that we would co-operate and assist it in fulfilling its mandate. We have adhered to this position even when the terms of reference were amended and when they were subsequently completely revised.
Obviously, the alterations in the terms of reference caused us concern. The fact of the matter is that each change to the terms of reference played havoc with our understanding as to how we could co-operate and assist the Commission in its deliberations.
We would venture to suggest, with respect, that you, Sir, also faced similar difficulties in understanding and interpreting the terms of reference, but that, Sir, is another matter and you have made your ruling in that regard.
We make this point not to cast aspersions on anyone but simply to underline the difficulties we faced. Whereas the initial terms of reference, dated 19 September 2003 required the Commission to investigate whether Mr B T Ngcuka had been an agent of the pre-1994 apartheid government security and intelligence agencies, the amended terms of reference, dated 7 October required the Commission to also investigate abuses of authority, "and, more particularly, abuses. related to past obligations". The further amended terms of reference dated 11 November 2003 changed the focus completely and required the commission to "inquire into" allegations made by Moe Shaik and me that Mr Ngcuka had been an apartheid agent and "that, as a result thereof" had abused his powers.
Each change to the terms of reference bore profound implications with regard to the tasks of the Commission and those of us who had committed ourselves to co-operating with and assisting the Commission.
Be that as it may, none of this altered my intention to be of assistance. We were strengthened in this resolve because at no stage did we understand or believe that the terms of reference imposed any onus of proof upon Mr Moe Shaik or upon me.
We have always understood that it was the Commission's task to inquire into and investigate the so-called spy allegations and the allegations relating to the abuse of power by the National Director of Public Prosecutions.
Accordingly Mr Moe Shaik and I made available all the information we had at our disposal, made suggestions as to where corroborative and further information could be accessed, and proposed witnesses who may bring useful information before the Commission.
Our public positions and our evidence before the Commission have always and consistently made it clear that it was the abuse of power by the NDPP that led us to confirm the historical fact that there had been an intelligence investigation that had concluded that Mr Ngcuka was most probably an agent. The reversal of this relationship between the abuse of power and the spy allegations simply makes no sense to us, with respect. It flies in the face of my evidence relating to the abuse of power and it engenders in us the perception that it is unimportant whether or not the NDPP has been and is abusing his powers.
We recognize that the evaluation criteria that the Commission has tome apply are different from the methodology of null hypothesis testified to by Mr Shaik. In the light of the information we made available as well as other evidence the Commission has received, the legal criteria of reasonable probability is likely to lead the Commission to different findings. We would accept the findings of the Commission. In this regard we need only note that to some degree the Commission has also been ham-strung in that the state intelligence agencies have not made available information they possess.
WHAT WERE THE ALLEGATIONS THAT WERE MADE
If we have regard to the preamble to the 11th November 2003, further amended terms of reference we see that the allegations made by Mr. Shaik and me in a television programme constitutes the basis for the enquiry to be conducted by the commission.
A letter was addressed by our attorney on 13th November 2003, to the Secretary of the Commission, seeking clarity as to which programme was being referred to in the preamble. However, it only became clear to us on 11th December 2003 during these proceedings that the only programme being referred to was the ETV broadcast transmitted on 17th September 2003. A transcript of this programme is part of the record and features in Exhibit " R" at pages 108-116.
What then were the allegations that we made. They were:
1.. That in the late 80's early 90's the ANC department of counter intelligence conducted an investigation initiated by its MJK unit operating within South Africa ;
2.. That the investigation was based on authentic documents accessed out of the files of the Security Branch and other state departments;
3.. The reports and conclusions of the MJK unit was forwarded to the ANC intelligence headquarters in Lusaka;
4.. The conclusion drawn at the time was that Mr. Ngcuka was the person most probably associated to the code name RS 452;
5.. Subsequently, information was received which indicated that RS 452 was a false flag operation;
6.. That the abuse of power by the NDPP was our primary concern, which led us to confirm the ANC investigation and its findings because we believed that it was in the public interest to do so and that it may help in developing an understanding of the possible reasons and agenda for the abuse of power that was then taking place.
It is common cause that the documents used in the investigation were authentic documents accessed from the state agencies; that the investigation was conducted on the basis of the null hypothesis methodology and that the false flag operation certainly occurred with regard to the reports of agent RS 452.
There has been an assertion by Counsel for Mr. Ngcuka that the conclusion drawn by the MJK unit that Mr. Ngcuka was most probably an agent was not the conclusion made at the time. In this regard we submit that no evidence was placed before the Commission to justify this contention or gainsay that which we said.
In presenting the evidence that has been in our possession on this matter we attested to an historical fact. And, we went further to state categorically that if any further evidence were to be presented to the Commission, which evidence you, Sir, were to find to be credible, we would accept the finding of the Commission and acknowledge any mistake in the assumptions and analysis made.
Much as we would have liked to, we were unable to participate in every sitting of the Commission. Nonetheless, we wish to simply draw attention to a few contradictions and inconsistencies that are evident from such evidence that was presented to the Commission.
We draw attention to the documents that we presented relating to Mr. Ngcuka's passport, the circumstances under which it was granted, the fact that it was renewed five years later and the information that was obtained with regard to his identity numbers. That has been accounted for by the evidence of an official in the department of Home Affairs presented as that of an expert.
The evidence proffered through Mr Vorster sought to explain those anomalies as being system issues. However, he described the procedures for Black people to obtain passports in those days in a manner that conflicts with the actual experience of Black people seeking to travel abroad. He testified that it was the sole prerogative of the Department to grant passports to Black persons, place endorsements on such passports and that no restriction could have been put on such passports by the security agencies of the apartheid state.
This is contradicted by the historical reality of the time and by the evidence of Mr. Shaik and Ms. Nonceba Tutu, because passports were indeed withdrawn even after issued and while still valid. For example Archbishop Desmond Tutu had to approach the courts to assert his right to obtain a passport. We draw your attention to the case of TUTU vs. Minster of Interior (1982) (4) SA 571 TPD.
The experience was that while the Department of Home Affairs was the issuing authority it only did so in the case of Black persons if the application received a written approval from the SAP (Security Branch) division. This is also evident in the documentation relating to the application made by Mr. Ngcuka.
It follows from this that the granting and the withdrawal depended upon influenced by the views of the Security Branch. We draw attention to the letter dated 25th November 1981 to be found at page …… in the Exhibit T which was a crucial requirement in the granting of the passport.
The evidence of Ms. Nonceba Duma-Tutu was to the effect that shortly after Mr. Ngcuka was granted a passport on 10th December 1981, and while he was in detention, a security branch official, Mr. A.R.C. Taylor approached her to retrieve the passport.
Counsel for Mr Ngcuka introduced the evidence from the prison files showing that the security branch perceived Mr. Ngcuka as a serious threat to the state.
Notwithstanding that perception, there is no evidence of any further efforts on the part of the Security Branch to retrieve the passport. On the contrary, its renewal was readily approved.
Whatever the finding the Commission may make ex post facto, the evidence reveals unequivocally that what we did was to attest to the historical fact of the investigation that was carried out as objectively as was possible in the circumstances of the time and on the basis of authentic information and the fact that that investigation and those findings were communicated by the MJK Unit to ANC HQ. The evidence also reveals that in addition, Mr. Shaik communicated the knowledge of the false flagging to the co-ordinator of intelligence as soon as he became aware of it.
We are mindful of the fact that the ANC counter intelligence section performed this work at a time of mass mobilisation and civil war. Those were times when the paramount consideration of the ANC counter intelligence was to protect the movement and to save the lives of our people. There was no room for inaction. Any information received had to be processed not only for long-term strategic significance but also to inform immediate operational decisions.
Counter Intelligence understood that if it ignored this information it could lead to the loss of life, which could have been prevented. At the same time if it acted on information that subsequently turned out to be incorrect it could also lead to the loss of life. Nonetheless our decisions and our actions had to be determined by the information at hand. This was a responsibility that Intelligence had to bear, a burden we had to live with not only at that time but also for the rest of our lives. That is why if we were to err, we had to err on the side of caution.
WHY WE WENT PUBLIC
It has been contended that we went public either because those close to Mr. Shaik or because I myself was under investigation by the NPA. That is to say we went public out of self-interest and to deflect attention from on going investigations. It is suggested that in so doing we engaged in smearing Mr. Ngcuka's name, to deflect and or discredit Mr. Ngcuka, the NPA and it's investigations.
We submit a simple chronology of events for the Commission to take into account. The evidence shows that the abuse of authority occurred on or before 23'd August 2003.
We only took steps to go public on the investigation that was carried out by the ANC intelligence section after we became aware of the contents of the briefing of editors held on the 23rd July 2003 and after we were convinced by the middle of August that Mr. Ngcuka had personally conducted that briefing and after we came to the realisation that the mediation initiatives taken by him constituted in themselves an abuse of authority.
About the middle of August we reserved to ourselves the right not to have the programme broadcasted. It was the events of the 23rd August, confirming and corroborating what Mr. Ngcuka had told the editors on the 23rd July namely that he would take a Pontius Pilate approach in the case of the Deputy President. This confirmed the rumours of what he had said to the editors on the 23rd July. This convinced us it was in the public interest that we go ahead with the broadcast.
We avoided anonymity, which is characteristic of smear tactics and disinformation. We eschewed the route of anonymous leaks that many of us experienced at the hands of the NPA. We went public by putting forward our names and faces.
We have always defended the right of the investigating agencies to investigate crime and corruption, even when it has involved some of us. Our public statements evidence this fact. In my own case I readily went to give evidence to the Scorpions when they approached me in June 2003.
However our concern was not about who was being investigated but the manner in which it was being done. It is our submission that procedural fairness is as important as the substantive issues. Mr. Ngcuka's evidence suggests that those who are the subject of an investigation raise procedural issues to deflect from the merits. However, his very actions suggest that he has scant regard for procedural fairness. Alarmingly so, this view is seemingly shared by the Minister of Justice.
In terms of the Constitution, section 33 (1) "every one has the right to administrative action that is lawful, reasonable and procedurally fair". It is trite X that procedural fairness is one of the cornerstones of due process and of the rule of law.
It is submitted that the following factors support a finding on the probabilities that Mr Ngcuka abused his power:
SUNDAY TIMES ARTICLE DATED 16TH FEBRUARY 2003.
With regard to the contents of the Sunday Times article, the only reasonable inference to be drawn is that the Sunday Times obtained its information from a source within the office of the NDPP.
Mr Ngcuka's speculation that the source could have been Mr Shaik does not hold water, moreover, for the following reasons. Mr Shaik was being investigated in respect of matters relating to the arms deal. There is no basis on which he could possibly have made available to the Sunday Times evidence implicating himself and me in corrupt activities relating to my tenure of office as the Minister of Transport.
On the other hand, it is common cause that the NDPP was in possession of the documents which form the source of the information on which the Sunday Times report is based.
Further, during cross-examination, it was put to Mr Ngcuka that Mr Schabir Shaik never applied for and never received copies of the documents which form the basis of the Sunday Times article.
It is submitted with respect that at the very least when Mr Ngcuka became aware of the fact that the Sunday Times had published the article which obviously had its source in the documents obtained by the NDPP, he condoned the leak, inasmuch as, it is quite apparent, notwithstanding the gravity of the offence on the face of it (regard being had to Section 41(6)), no meaningful investigation ever took place in order to determine who the guilty party was.
THE MEETING WITH THE EDITORS
Notwithstanding the fact that Vusi Mona's evidence was discredited in certain aspects, his evidence was not discredited insofar as it related to whether or not his memorandum faithfully recorded the material matters attributed to Mr Ngcuka.
It should be borne in mind that when Mr Mona was cross-examined, save for stating in general terms that his client did not make racist or disparaging statements (which is a matter of interpretation), Mr Ngcuka's Counsel did not challenge or attack Mr Mona's evidence in regard to his recordal of what was said by Mr Ngcuka during his evidence.
Moreover, regard should be had to the attitude of Mr Ngcuka under cross-examination, namely, a refusal to give evidence as to whether or not the contents of Mr Mona's memorandum correctly recorded the material aspects of what he had said during the meeting.
Mr Ngcuka relied on a privilege (unknown or recognised in law), which apparently follows on the understanding between Mr Ngcuka and the editors that what he was to say to them, was off the record. Notwithstanding the fact that no such privilege exists in law, it is a privilege, which Mr Ngcuka would have been able to waive. He refused to waive this privilege.
The only inference to be drawn from his refusal to waive the privilege and his refusal to answer questions in regard to the contents of the memorandum, is that he knew that under oath he would have been obliged to confirm that Mr Mona's recordal was materially correct, at least insofar as it related to me.
Secondly, his reliance on some privilege based on the fact that the memorandum contains matters, which relate to the investigation, does not bear up to scrutiny. While it is appreciated that a prosecuting authority clearly would have the privilege not to discuss matters relating to a prosecution which would in any way prejudice the prosecution, a perusal of the language attributed to Mr Ngcuka insofar as it relates to me, discloses that what is set out there cannot possibly in any way whatsoever prejudice the investigation against me or my wife.
What is attributed to Mr Ngcuka in this regard is simply an opinion, which he held. Three statements are attributed to him.
His reference to me as being a liar;
Basing this conclusion on the fact that I am supposed to have claimed to have paid for certain computers myself, whereas Mr Schabir Shaik claimed to have paid for these computers. By no stretch of imagination could the reference to this prejudice the investigation, regard being had to the fact that the contents of the memorandum is already in the public domain, for example, if one refers to the articles of David Gleason and the City Press article.
Lastly, the reference to the fact that Mr Ngcuka was of the view that I was naive in setting out my defence to the allegations, because this clearly had the result of placing my wife in jeopardy, exposing her to be charged for tax evasion.
None of these matters could possibly prejudice any investigation.
The only inference, as mentioned above, to be drawn is that Mr Ngcuka does not dispute the correctness of Mr Mona's recordal of what he said in regard to me.
I should in passing record that Mr Ngcuka was quite happy to state that he denied referring to me as a straight-faced liar. It appears that Mr. Ngucka is prepared to waive the privilege claimed only to the extent that suits him.
See: Record of Mona cross examination by Mr. Morane P.1351
Moreover, and what is common cause, despite Mr Ngcuka declining to answer the questions referred to earlier, he addressed the editors and advised them that he was investigating me. In other words, he made known to the editors that an investigation had commenced to determine whether or not I was guilty of corruption.
See Record.
The innuendo, which flows from advising journalists that an investigation by the NDPP into the activities of a person is patent and manifest. The layperson is not aware of the subtle differences between one type of investigation, for example a Section 28(13) investigation and another, for example a 28(1) investigation. The clear impression created would be that there is a reasonable belief that a person being investigated has committed a criminal offence.
Mr Ngcuka's professed reason for calling the meeting of editors was in response of the circulation of the anonymous e-mail. The editors who were selected were apparently the editors of newspapers who were telephoning the office of the NDPP to find out whether there was any truth in the e-mail or, one would assume, to obtain Mr Ngcuka's reaction to the e-mail. He decided that the best way of dealing with these inquiries would be to hold a meeting with these editors.
Had he confined his address to the editors to denying or giving his reaction to the contents of the e-mail, of course there could be no objection. However, he went further by at the very least mentioning that I was a subject of an investigation which had absolutely nothing to do with refuting the contents of the e-mail or the giving any other advice or information with regard to the contents of the e-mail. This could only have led to my dignity being impaired in the eyes of the editors. There is no logical reason why the question of the investigation was mentioned during the meeting if the purpose of the meeting was as deposed to by Mr Ngcuka.
The abuse of power we complain of and the violation of my rights, which I complain of, is the following. By leaking to the Press (the Sunday Times article) and by advising the editors that there was an inquiry into whether or not I was guilty of corrupt behaviour, Mr Ngcuka was party to my dignity being violated. Whatever the view of me was prior to the publication of the fact that there was an investigation, that view could only have been reduced in the eyes of all those who got to know about the investigation.
I claim no special right to preferential treatment and if there is material, which warrants an investigation, that should take place. However, it should only take place within the strict parameters of the provisions of the Constitution and the NDPP Act. That is the only right to which I lay claim as an ordinary citizen of this country.
Disclosing the fact that I was being investigated, cannot possibly be justified by Mr Ngcuka as being anything he was permitted to do regard being had to his powers and duties and the objects of the NDPP Act. He at all times must have been aware of this.
SELF INTEREST
We submit that the only reasonable inference to be drawn from those circumstances is that for some reason he took it upon himself to make known to the general public matters which he was duty-bound to keep confidential until his investigations reached the position where a reasonable suspicion existed for a prosecution.
On his own evidence to this day is that, since the investigation began in March/April 2002, the evidence available to his office is of such a nature that he and his office merely entertain a suspicion that I might have been guilty of some offence.
We submit therefore that the only reason why he would have made these matters public was that he was aware that allegations were made that he was possibly a spy and that he must have believed that I was amongst those persons who had something to do with those allegations.
We submit therefore that, in the circumstances, and as part of his effort to deny the allegations, Mr Ngcuka decided to disclose the information relating to me being investigated. This was intended by him to bolster and support his contention before the editors and the general public, bearing in mind that I was the person suspected of being corrupt, that no truth could be attached to the allegations. Although that he knew that I never made the allegations, but nevertheless appeared on the ETV program together with Mr Shaik, he associated me with the allegations.
In conclusion we submit that, Mr Ngcuka, making use of information, namely, that an inquiry had been initiated against me, which information was obtained during the execution of the duties of the officers of the NDPP in an entirely unrelated matter, has made that information public knowledge. By making that information public he has abused his power. He knew full well that he was not entitled to use that information whether or not it gave rise to a reasonable suspicion because of the manner in which it had been obtained. It matters not also that the information was disclosed in a "private privileged meeting' because the probabilities overwhelmingly suggest that nothing is secret when one talks to the press. He must have known at the time that the contents of that meeting would find a way of getting out because that is what newspapermen do best. And out it did come! In those circumstances we would submit that it is reasonable to infer that Mr Nqcuka fully intended the fact of the investigation to leak out and that he relied upon the ingenuity of the editors present to make sure that it did.
In terms of the Act, he has no authority whatsoever to make known, or condone his officers making it known, to the general public that an investigation is taking place. Having made it known, this constitutes a violation of my dignity, which is protected by the Constitution, and an abuse of power on his part.
He made it known to the general public that there was an investigation into me solely because he was of the belief that I associated myself with the allegations that he was a spy and made use unlawfully of information his officers had obtained during their investigations in order to discredit me and to besmirch my name as part of his effort to deflect the allegations made that he was possibly, a spy.
Moreover, it is quite clear that to his knowledge his officers made use of information unlawfully obtained (the documents relating to payments made by Schabir Shaik to myself, etc) in full knowledge of the fact that the search warrant which was used in order to seize and remove these documents, did not authorise the seizure and removal. He was obliged in law to direct his officers to return the documents immediately they became aware of the fact that they did not relate to the documentation specifically enumerated in the search warrant. This he did not do and that constitutes a violation of Mr Schabir Shaik's privacy and the making use of evidence unlawfully obtained in order to pursue an investigation against me with the view to prosecute me.
It is common cause that Mr Ngcuka advised the editors that an inquiry into allegations of corruption on my part was underway. The evidence he had in relation to these allegations constituted nothing more than a suspicion and to have disclosed that to the public through the editors constituted a violation of my dignity because the innuendo is defamatory, namely, that I am a dishonest man and not only am I dishonest, I was dishonest when I held one of the highest offices in the land, and he did this solely in order to refute the allegations in the e-mail.
Elements of the editors briefing as set out in the concerned citizen document found at bundle S at pages………. and the Mona affidavit is echoed in various articles published after the briefing and corroborates the statements made in that affidavit.
Re: Jovial Rantao
We provided evidence that Mr. Rantao received information from Mr. Ngcuka at the briefing of the editors to the effect that my wife was to be prosecuted for non-payment of tax. Under cross-examination Mr. Ngcuka conceded that it was possible that this briefing could have been the source of this information.
Re: Phalane Motale
Notwithstanding the fact that Mr. Motale refused to testify before the Commission, he nevertheless confirmed that Mr. Mona's recordal captured the content of the briefing of editors.
At the very least Mr. Ngcuka used the occasion of the briefing of the editors, and in many instances on the basis of mere suspicions to create a mindset amongst the editors present against the individuals he was investigating. That he succeeds in doing so is reflected in articles that appeared shortly after the briefing.
See Articles:
Mail and Guardian under the title...
Sowetan under the title.... dated 25th July 2003,
Sunday Times under the title dated 24th August 2003.
It seems that this technique of leaking investigations, which stand at the point of mere suspicions, and thereby generating articles in the media then in turn are used by the NPA to justify its further investigations on the ground that it is in the public interest. Such behaviour on the part of the NPA and its officials is at the very least unethical.
MEDIATION
The first issue is who initiated the mediation. In this regard Mr. Ngcuka's version and our version differ. We cannot take the matter any further in the light of the fact that the Commission has chosen not to call witnesses that may be in a position to corroborate our version.
The second issue relates to the issues that were the subject of the mediation exercise. Again the two versions differ. And without calling independent witnesses the matter cannot be taken any further.
However it is our submission that the suggestion mediation on the matter of Deputy President Zuma, Schabir Shaik and myself was coercive and not permissible in terms of the NPA Act. We raised the matter here from the perspective that such unlawful conduct is only reasonably explicable in the context of Mr. Ngcuka being aware of the investigation that was conducted by the ANC counter intelligence.
We submit that it is more than probable that Mr. Ngcuka was aware of the investigation conducted by ANC intelligence. Mr Moe Shaik's evidence is that Minister Maduna approached him in September/October 2001 for information about this investigation has not been challenged.
Mr. Ngcuka's own evidence is that he was in close and regular contact and communication with the Minister. In such interactions Mr. Ngcuka kept the Minster briefed about on going investigations relating to high profile individuals such as the Deputy President and me. It is inconceivable that the Minister would not have broached the subject with Mr Ngcuka given the personalities he was dealing with. At the very least it would have been prudent for the Minister to have advised Mr Ngcuka to adopt an extra-cautious approach given the fact of the intelligence investigation.
The inescapable inference, we submit therefore, is that the Minister shared his knowledge of the investigation that was conducted by ANC intelligence section with Mr Ngcuka and that Mr. Ngcuka, at the very least, was aware of that before the documents were leaked to the Sunday Times in February 2003.
Mr. Ngcuka claimed that he only became aware of the MJK investigation around the middle of August 2003 or shortly thereafter. Having regard to the persistent leaks to the media, the fact that a mediation exercise was attempted, the nature of the briefing to the editors, the almost half-hearted investigations into the leaks by his office, and the manner in which he failed to see how important correct procedural issues were in the respect of individual rights protected by the Constitution, the only inference is that he knew of and was party to the abuses of his office.
In our respectful submission any other explanation for his conduct makes no sense. His comfort was that it was he himself who had to investigate such abuses and decide whether or not there should be any prosecution for such abuse. That is to say he saw himself above the law by virtue of the office he holds.
A review of the conduct of NDPP during or about the period 16 February 2001, the date of the ST article onwards reveals a series of acts, which we submit is indicative of mala fides and bias.
The mala fides is best illustrated in the Pontius Pilate approach which he said he would employ with regard to the, Deputy President. Mala fides is also suggested by the fact that he would pursue Zarina Maharaj on the grounds of tax evasion. If the income was taxable it assumes the income was legitimately earned. On the other hand if it were presumed to be corrupt money, then the proper route would be to bring a charge based on corruption. He could not have it both ways. This submission ignores for the moment the fact that his suspicion is based upon documents illegally obtained by him.
In our respectful submission all of this certainly raised the legitimate
perception of bias and that he was no longer acting within the terms of the oath of his office, an oath of office that demanded of him that he be objective and impartial. It is our submission too that, acting as he did, he also transgressed the NDPP policy guidelines, which required him to act only on the basis of sufficient and reasonable evidence.
We submit therefore that the view that he had beached his oath of office, the view that he had transgressed the NDPP prosecution policy, the view that self interest motivated the briefing of the editors, the view that he, at the very least condoned the media leaks, and the fact that he ignored complaints, taken individually and collectively, all confirmed and reinforced the perception of bias on Mr Nacuka's part, that he had abused his power and that he was acting mala fide.
To summarise then; we went public at a time when we formed the view that in relation to the leaks there was no sign of any investigation, the leaks were not confined to a single instance but were on going, the complaints about the leaks were ignored and left unattended, that in certain instances such as the editors briefing Mr Ngcuka was acting out of self interest using his office in a manner clearly that was impermissible as he was promoting his self interest in a manner designed to discredit other parties. All of this suggested an element of vindictiveness and revenge thereby confirming our perception that it was the knowledge of having been investigated by counter intelligence that was driving his action.
The NDPP made it known to the general public that there was an investigation into the Deputy President and into me solely because he was of the belief that we were associated with the allegation that he was possibly a spy and he made use unlawfully of information his officers had obtained during their investigation in order to discredit the Deputy President and me and to besmirch our names as part of his effort to deflect the allegation that he was possibly a spy.
Most of these actions that he took were conducted before Mr Moe Shaik and I went public to confirm the historical fact of the investigation by ANC intelligence.
It is these actions that governed our thinking when we decided to go public.
During my own testimony and cross examination I have detailed the efforts I had made to redress these unlawful actions by the NPA commencing with the telephone call to NDPP on the 14th February, the telephone call on the 31st July when I also spoke to the Minster, my endeavour to lay a complaint and charge with the SAP and culminating in my briefing to the president on the 23`d August. All these efforts for reasons I cannot comprehend were to no avail and brought no relief. It remains an irony that I was asked to redirect my complaints to this Commission when clearly the terms of reference of this Commission, as you have held, Sir, precludes it from examining and pronouncing on his abuses of his office. We are mindful that the Commission is bound by its terms of reference and therefore have no intention of claiming that this is yet another instance of passing the buck.
By the time we went public we were convinced that the public arena had become the terrain used by the NPA to subject us to a trial by the media at times anonymously and at other times using the cloak of confidentiality
After the press announcement concerning "no winnable case" against the Deputy President, many jurists had begun to question whether there was some hidden agenda behind Mr Ngcuka's actions. It was certainly a new concept in criminal law and promises to be the subject much debate.
CONCLUSION
We recognise that the criteria that the Commission has to apply are different from the methodology of the null hypothesises. In the light of the information we made available as well as other evidence the commission has received the legal test of balance of probability may lead the Commission to draw a different inference and arrive at different findings. We would accept the findings of the Commission. In this regard we need only to note as we have said earlier that to some degree the commission is also constrained in that the state intelligence agencies have not made available information they possess.
It has been contented that our allegations of the abuse of power and our public confirmation that Mr. Ngcuka was investigated by intelligence section which concluded that he was probably an agent, was aimed at discrediting and undermining the NPA at a time when that institution is in its infancy. It is furthermore contended that such actions undermines the fight against crime and corruption in our society and constituted an attack on our young democracy.
Firstly, we acknowledge that such criticisms have to be handled sensitively and with circumspection.
At the same time there is an equally powerful case for the view that it is the actions of the NDPP that are discrediting the NPA.
More importantly, it is our view that any unlawful actions by the NDPP and or his officials should be addressed precisely when the institution is in its infancy, lest such wrong and unlawful conduct takes root in the NPA. Even in nature and equally more so in the case of institutions in society, when a sapling grows crooked the tree will forever remain crooked. It is therefore imperative to recognise that if such practices are ignored when the NPA is in it's infancy the price to be paid once these become embedded and routine, will be too costly if not too late to address later.
This, however, is in some way a matter beyond the mandate of the Commission. Nonetheless our country needs to find a way forward. What has been placed before this commission will reach the attention of our government and we remain confident that it will chart a suitable path to address the problem.
We conclude our submissions to you, Sir, with the assurance that we approached this Commission of Enquiry with openness and transparency. We have made every effort to deliver to you the truth, even to the extent that it harmed us. We did so in the honest belief that we were acting as responsible citizens and more so as lo. yal and disciplined members of the ANC. We could not stand idly by and watch the democracy that we struggled for become eroded by failing standards. If we have erred, then so be it. It we have erred, then those harmed in the process are deserving of nothing less than our sincerest apologies.
We stand firm to the view that this Commission of Enquiry has been good for our precious democracy. We have laid bare ourselves and we had hoped that others would do likewise. Sadly this has not happened.
We have unfailing trust that you, Sir, will report fairly to the President on the matters that have unfolded before you. We trust that you will tell him that we desire to continue to serve this country well, to the best of our ability. We trust that you will tell him that in those dark days the MJK unit operated under trying and difficult circumstances and, as the TRC has commented, served its masters well. We trust also, Sir, that you will tell him also how, despite being deeply disappointed with the amendments that were made to the terms of reference, we nevertheless respected his rights in that regard. And finally Sir, we trust also that you will draw to his attention the abuses of power that we have sought to highlight.
We therefore wish you, Mr Commissioner, well over the festive season and every success with the writing of your report.
We thank you.