This resource is hosted by the Nelson Mandela Centre of Memory, 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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
11 Oct 2005: Maharaj, Mac
POM Shouldn't you go and give evidence?
MM I chose not to. I said no, (a) it's too much work but (b) from my position I said I am not going to get involved, I'm not getting caught in just the details of Hefer and the allegations against me. How does it signify? That's a key question. I think we have some understanding of how South Africa in seeking to get a position of influence as well as a position of support from the outside world, particularly the powerful forces, needs to position itself around issues like corruption in governance. It is not withstanding that the country is putting those pressures, themselves are vulnerable on the question of corruption in governance. That's the agenda. I question whether the current President is not too preoccupied with his own legacy and therefore has chosen corruption to be the thing on which he builds his legacy because anything else is too long in delivery.And I'm certain, from where I sit and what I've experienced, having helped to build our democracy, my concern is whether that democracy will deepen and will be entrenched or whether it will become like any other democracy.
Along that line the crucial issue for me is the issue of the rule of law. If you look at the rule of law and the way it is understood today I find that the emotions are so high and people have taken sides and therefore their opinions are all short term no matter how much they pretend it's long term. It goes for the Peter Bruces, it goes for the Xolela Mangu's and all the commentators, they are unable to get on top of the matter on a long term perspective. Then you interpret the rule of law as simple: there is nobody, whatever their status in terms of the powers to hierarchy or in terms of resources and funds, who is amongst there understanding the rule of law. It is a deeper question.
Guarantee of the liberties that we have fought for resides now in the institutions that we have created from the executive to the legislature to the judiciary and the independent organs that they should conduct themselves in such a way and be held accountable so that they never abuse their power to transgress the liberties of the individual. Because that's the history of humankind. It is people holding institutions whether by usurpation or through an electoral process and abusing that power, people gathering resources, money and capital whether by theft and robbery or by hard work, but using that to now exercise their clout and influence developments. When that is done to the detriment of the liberty of the individual then you have a crisis developing and your freedom gets endangered.
Now, the case of the Scorpions is one such instance and the rule of law means first and foremost that as the guardian of our liberty that nobody will be investigated and charged and tried in the public arena without a proper investigation and a proper charge. The Scorpions turn round today and say this is how successful we are, look at our conviction rate. Is that the correct test of their function? Does it mean that when they prosecute and a court finds that that accused is not guilty that that's a failure? No. The success of justice is that people will be found guilty and people will be acquitted but it cannot be the rate of conviction that becomes the critical statistic to prove that you're doing your job well because your job is defined as an upholder of justice. That's where the prosecution is.
So now I'm saying when they do not carry out their functions in accordance with the law there has arisen a great danger to future liberty. That does not minimise the problem of corruption but it does say that in the humankind's pursuit of freedom whilst corruption subverts it, the abuse of power completely destroys that individual liberty.
You can go further, but I'm just pointing to the fact of how commentators are oblivious Peter Bruce, for example, has gone so far as to argue that its record shows that even if it has done things incorrectly at times the problem of corruption is so bad that it must be kept. Now that's the present position he's taking because he sees the attacks going on and the criticism. He never questions it because the NPA Act says that the people in the National Prosecuting Authority cannot use information that they have gleaned from their investigations and to use it in other areas. They cannot even use it in a prosecution, the statements that you've made under Section 28.
POM Sorry, they can't use?
MM They cannot use my answers under Section 28 in the prosecution against me.
POM What have they got to do?
MM That question is simply to enable them to determine what lines of investigation they want to pursue but they cannot use my testimony against me in a court of law. It's in the Section 28 Act.
POM Just tell me what Section 28 says.
MM Section 28 says that you are obliged if you are subpoenaed to come and answer questions under oath and the protection that you normally enjoy of the right to silence when answering questions that may be self-incriminatory you do not have.
POM Under Section 28.
MM Even if it is self-incriminatory you must answer because whatever you say under Section 28 under oath cannot be used against you in court except for contravening the very Act in that you did not answer truthfully. That's all. Now, because it was given an extremely powerful instrument it means that if I called you, Padraig, and I asked you questions whose answers would incriminate you, you have no right to say I refuse to answer that question. You must answer the question. That's a violation of a right that sits in the Bill of Rights.
POM This was never tested in the Constitutional Court?
MM No, no, no. It was accepted because your answer cannot be used against you in a court.
POM I have a problem with it.
MM Well I'm saying these are the issues that come up. But look at the commentators: is everybody debating it? Look at the evidence before the Kampepe Commission. Is the question arising, the abuse of power has arisen, but has it arisen in the context of its endangering the right of a citizen's liberty? Not Mac's liberty, any citizen's liberty. Not Mac's privacy but any citizen's privacy.
Now, for me therefore when I look at the conjunction it has been a question from the time I've retired, and it's not new, I've said to you long ago before these things blew up, possibly even before there was this issue in the Sunday Times about me, I think I've said to you that I went to India and in my visits to India I kept asking the question: when did corruption become systemic and endemic to the Indian system? Obviously corruption worried you. And with my retirement in 1999 it became an interesting issue for me, given that there is corruption, will it reach a point where it becomes systemic? That's when it becomes a problem. It's there in every society from the US, Canada, everywhere, so I have said this, but these incidents that have arisen have concerned me.
POM It's systemic in India?
MM Yes. The question of corruption was something that worried me from 1999 onwards, pre-1999 too but I began to follow it up by looking at other countries' experiences and probing it. But these instances, and the starting point of these instances were the leaks to the media, and it's incontrovertible to me that mine was not something that was either the first time or that it was something accidental. It is clear that the Scorpions had developed a strategy of leaks, they had cultivated a relationship with the media and they had secured their lines by doing this fairly unashamedly. And I saw that as a starting point that opened my eyes to this question of abuse of power and its relationship to the liberty of people. It's taken me further. It's taken me further where I laid a complaint with the Commissioner of Police to say here is evidence of the leaks and information that they are not supposed to divulge even to a courtroom, they are leaking to the media. It's a crime and in the Prosecuting Act that crime carried a minimum sentence of 18 years.
POM So you laid this complaint with Jackie Selebi and nothing happened? Did he never follow up?
MM Selebi. Yes, he ended up by sending a message to me that he had sent his docket to the Prosecuting Authority, because he has to do so because they are the ones that decide on prosecution.
POM So they would decide whether there was enough evidence for them to prosecute themselves?
MM Yes. They take that decision. Their response was we see no point in pursuing this matter, Mr Selebi.
POM I want to be clear on this. You go to the Commissioner of Police. You lay a complaint against the NPA that its actions are in violation of its statutory obligations and it is committing a crime. Does he investigate this?
MM He investigates.
POM He investigates, and then he sends the results
MM Puts together a docket.
POM A docket. And what did he say in his docket?
MM Sends it to the prosecutor, I don't know what he said but presumably he said he will only send it with a recommendation that please, National Director of Prosecutions, consider prosecution.
POM Then the authority that allegedly has committed a crime is now asked whether or not it should prosecute itself?
MM And its answer is, Commissioner of Police we don't think it is worthwhile your pursuing this matter. What they don't say, again Padraig, what they don't say is that we refuse to prosecute because in law, South African law, if the prosecutor says I refuse to prosecute Padraig on this docket, nullus proseco, I will not prosecute Padraig. That opens the door to me as a private citizen to prosecute Padraig. With that nullus proseco certificate I can at my own cost prosecute.
POM Would this be a civil action?
MM It would be a criminal action.
POM An individual under South African law?
MM As an individual I can now pursue a criminal action against you at my own cost but I need that certificate from the prosecutor saying, 'I have decided not to prosecute'. So he doesn't give you that, he simply responds to the Commissioner of Police and says, "Look, I'd advise you not to bother in pursuing this investigation." What has emerged, the way he's conducting it he's blocking me with my ultimate rights as a citizen to carry out a private prosecution. But secondly, Padraig, it raises the question: who decides to prosecute the party that's committed the crime? The debate is again has anybody said Mr Ngcuka, you may have spoken confidentially to eight editors but you used information obtained in your investigations and you've used that information contrary to the law. The journalists are bound by silence but you are committing a crime and as the upholder of justice your conduct is why the sentence is minimum 15 years, which then raises another very important question for the shape of our democracy in the future.
Are there other independent institutions which enjoy that same degree of unaccountability? If not, what are the accountability mechanisms in the other cases? And thirdly, if we had combined in this case prosecution, investigation and intelligence gathering because we were dealing with a particularly serious, widespread form of organised crime, did we not make a mistake for the sake of efficacy and successful prosecution, did we not make a mistake by combining these functions in an institution which put it above the law? Is that debate open? Nobody comes, not even the Institute of Strategic Studies has come and argued that. Only it has argued that it accepts that there should be specialised agencies. No, no, no, we're not talking about specialised agencies, we're talking about a specialised agency which is the countrywide decision maker on prosecution combined with investigative capacity, combined with intelligence capacity, because then you have opened a chain where I can pursue an agenda within that system. In pursuing that agenda what you've done is you've endangered the citizen's right.
I had raised when I experienced this problem and I had to defend myself, I raised by looking at the world experience examples and took the FBI example of J Edgar Hoover. If you look at the problem now Hoover was just FBI. Hoover pursued a personal agenda to maintain his power. If Hoover had then pursued that with a wider agenda of being the determinant of who becomes the next president, who becomes this person, who becomes that person, then the problem would have been even more serious. America has survived that onslaught because Hoover pursued just an agenda for himself.
POM This begs the question of like who are the Scorpions on whose behalf are the Scorpions pursuing an agenda?
MM That talk, there has been speculation, one of the people who's dead now is Brett Kebble, they say that on a film he was prepared to name the business interests from within the ANC who are pursuing that agenda, and he named them. And you see in Brett Kebble's case if you look at his papers, and I'm not defending Brett Kebble here, but he is the one who went on record and he said, "Listen, Mzi Khumalo, why is he not investigated?" He said, "Because he's a friend of Bulelani Ngcuka."
POM Who is Khumalo?
MM Mzi Khumalo was with Brett Kebble, he made his first money in Harmony Mine, he took the shares of the empowerment partners that he was with, he took their shares, sold it and pocketed and made a billion in one transaction. He today runs a private jet of his own from Virginia Airport in Durban.
POM He runs a private jet?
MM Yes.Ex-Robben Island. Brett was insistent, he said, "Here's an example, there are so many transactions where Mzi has been involved which are questionable and which raise questions whether it was lawful. He's never been investigated." He says, why not? Because he is part of that clique. That clique is not interested in just making money but it's interested in being the kingmakers of this country. That's what he's claiming. Zuma says there is an agenda but he says, "I will speak in my proper time."
I say from my experience I'm caught in some crossfire which I don't understand, but I believe it is a crossfire where I am an easy target but also a target if they can pull me down it's a warning to everybody else. Nobody is safe.
POM But many people would believe that they've already pulled you down. I mean, why have they not moved on?
MM Yes sure.But then why are they still continuing?
POM I know. Why?
MM Why? Because to them the answer is the evidence must be known.
POM People there now Bulelani is gone, so
MM Who believed that Bulelani alone was the sole operator?
POM Well OK, then who is? Let's go through a couple of things here that in the Scorpions well one of the allegations made is this is where a lot of the old order are embedded, the old security people.
MM The evidence given before the Kampepe Commission just the other day, according to the newspaper reports, is that the National Intelligence Agency in its evidence has complained that the people in the Scorpions who came from the old order and the Office of Serious Economic Crimes, etc., were never subjected to a vetting that Intelligence is required to do.
POM The NIA said this?
MM Yes. Because it is the NIA's function in law to do that vetting. But you do find a good number of the old guard in there. Right? It complained that the NIA outsources its investigative work to the private sector.
POM Who would that be? The Scorpions outsource their investigative work?
MM To the private sector, mainly the auditing houses but in particular the international company called Kroll, an American based company, and it is claimed that that company has close relationships with the American intelligence agencies. We know it says because these crimes need very high accounting forensic ability it gives the work to Price Waterhouse Coopers, KPMG, De Loitte & Touche. Question: when I hire you, Price Waterhouse Coopers, you assign a team, does each member of that team have to get a National Intelligence clearance? Second question: if you are doing that, check who those people are. They're not people from a struggle component, they are primarily from the old guard. You will find they were prosecutors and have become forensic investigators. As they found Krappies Engelbrecht, his company was contracted by the Scorpions. Right? It's just come out by accident. And in the papers this weekend Vusi Pikoli is reported to say maybe they made their mistake because even on the raid on Jacob Zuma's house they have outsourced it to a private company.
POM The raid?
POM They had? Who conducted it?
MM Some private sector company.
POM Oh come on!
MM I'm serious about it, it just came out this weekend. It's a little two sentences, "Maybe we've made a mistake and we got the wrong people to do that raid."
POM What paper was that in?
MM Oh I don't remember.
POM He says the wrong people but does he mean that these are not kind of full time members of the Scorpions?
POM With full benefits and
MM Where's my paper?
POM That's important.
MM You see, Padraig, you can keep on writing the book over and over.
POM I know, but that's an important sentence.
MM (Over the weekend I seem to have read in the papers somewhere that Vusi Pikoli says that maybe they selected, they got the wrong people to do the raids on Deputy President Zuma. It seems a private sector company was hired to do that job. Did you come across that? Kampepe Commission and then Vusi Pikoli did say that maybe they got the wrong people to do it. But it implied that the raid, because it said that that private sector company saw the documents and everything. OK, thanks very much. Bye.)
Yes, he confirms, he says it was evidence before the Kampepe Commission by the National Intelligence and that the private sector company that was involved in the raids on Jacob Zuma was KPMG.
POM That's the company that is that not the company that Matthews Phosa worked for once?
POM But when you say they carried out the raid, they didn't arrive with the guns. Did they arrive with the guns? Do they carry guns?
MM No, it was people from KPMG were the ones who were going through the documents to decide which ones are relevant to the warrant and which ones are not.
POM That's a joke.
MM What I'm asking is, I'm asking are those people bound by the code of conduct that the state investigators are bound by? Are they bound by the Official Secrets Act, by the same terms as a person working for the public service? Do their loyalties go first with their company? Do they share their information? What do they do with the information they have acquired? Because it is accepted that the private sector companies' loyalty is to their shareholders. No question. Oh yes, the Intelligence went further and complained.
POM The NIA?
MM Yes. They complained that in the raids at the Deputy President's offices at Tuynhuys and Union Buildings those private sector company were involved.
POM At the raid at Union Buildings?
MM Yes and Tuynhuys in Cape Town.
POM These all now come under Ronnie Kasrils?
POM He's on my list too, I'm going to see him next week too.
MM What I'm trying to get to grips with and today I think it's too preliminary, I haven't thought through these issues, how you end and you're saying maybe it's my voice, I'm saying these are some of the critical issues that affect the outcome of the struggle in creating a democracy with the fundamental Bill of Rights as part of the constitution. South Africa's way forward cannot be based on a retreat on those fundamental rights. Mandela at his inauguration says, "Never, never again." Now the question is how do we move this democracy forward, deepen it so that the 'never, never again' stands, but secondly go forward so that those rights fully blossom? Today you have an atmosphere, and I know many people very high in government say it's nonsense. I know it, I know it, and I have faced problems in these past three years. There have been people who have said to me, "I am prepared to help you financially." They have said, "We don't want to be seen helping you. So I'm prepared to give you here cash a hundred thousand on condition you don't say I gave it to you. But I'm not prepared to give you a cheque." I say, "Why?" They say, "Because if I give you a cheque they will come and start investigating me even if I've done nothing wrong. For my business, just for my name to appear in the newspapers that I'm being investigated harms my business."But on the other hand if I took the hundred thousand and I went to the bank to deposit it or went to pay anywhere, under the new banking laws the question arises: where did you get the hundred thousand from? It must be dirty money. But that answer from the person who says I feel for you, I want to help you.
POM I don't want to be seen.
MM Yes. That's one type of thing. What about the other type of fear where you witness the self-censorship that I'm speaking of? How much of a threat to liberty is that factor? I come to the view that a struggle for democracy in this modern era of itself, just democracy, the right to vote, etc., is of very little consequence unless it is enmeshed and firmly interlinked with liberty, with freedom. Your desire, the goals of this century cannot be spelt out in simple terms of fighting for democracy.
POM OK let's not get to the goals of the century. We're trying to get into the global debt.
MM That comes to South Africa.