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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
07 May 2004: Ayob, Ismail
POM This is the matter that concerns his representation on behalf of Mac Maharaj to Bulelani Ncguka concerning the investigation by the National Directorate of Prosecutions into matters relating to Mac.
My understanding is that you had at least one conversation with Bulelani concerning Mac's matters. Maybe you could just refresh me in some way as to your version of that conversation as against Mac's assertion of what the conversation was.
IM Yes I remember the meeting that I had with Mac, I made notes at that meeting.
POM Sorry, with Mac or with Bulelani?
IM Initially with Mac. Mac told me that he had received a call from Bulelani who said to him that he was being destroyed; he wanted Mac to help him stop the campaign against him.
POM Sorry, he got a call from oh Mac said that he called Bulelani?
IM No, that Bulelani had called Mac.
POM And said?
IM And said that he wanted help from Mac to stop the campaign against Bulelani. Mac then spoke to Kgalema who met with Bulelani.
POM Kgalema is?
IM Kgalema Motlanthe, the Secretary General of the ANC. Kgalema Motlanthe said to Mac that he spoke with Bulelani who said that he would only intervene to help Mac if Mac did two things; first that Mac would contact Bulelani and to say to Bulelani what intervention was required and what elements were required, what could Mac do for him. And the question came up, what about Jacob Zuma and what about Schabir Shaik, what could be the conviction, what could be a plea bargain, what could be the crime, what is the penalty? Then Mac said to me that I needed to contact Bulelani and put it to him whether he would meet with me, whether he would contact First Rand Bank by nine o'clock the next morning and to confirm with First Rand that they had found nothing against Mac. Bulelani in return wanted the smear against his name to be cleared or Mac should use his influence to stop it.
POM When Mac says Bulelani called him to say that he, Bulelani, was being destroyed, was that after the allegations that he was spy had come out?
IM I'm speaking from memory. I think that was the smear he was speaking of. Mac was speaking of what Bulelani had said to him.
POM OK, so this was before Bulelani had got when did this conversation take place? The date of the conversation?
IM 6 August 2003.
POM So this is the day before?
IM The same day, it was around lunch time. I then telephoned Bulelani's office and they told me that he was not in the office so I left a message for him. Then I got through to him on his cell phone and he said he was on his way out to East London. He then called back that afternoon and told me that he was in East London but would be returning that evening and we arranged to meet at the Sheraton Hotel next morning, on 7 August. I met with Bulelani on 7 August and I have some scribbled notes from that conversation. I put to him that was talking about a total package - that he made a statement which would have some integrity. Bulelani had made overtures in the past which were rebuffed, Mac and company now had to make some proposals. The questions around Mac were the licence of the toll road and he, Bulelani, was satisfied on both of these issues that Mac did nothing wrong, there was no way that these could be linked to Mac, the decision was not flawed.
POM Sorry, the decision that Mac made was not flawed?
IM Yes. However, Mac received a lot of favours from Schabir Shaik which appeared to be kickbacks and there were explanations that he sought. The explanations are suspect but he can't lay charges on these. There were different versions given by different persons. There are two problems that he had; because it's in the public domain a report has to be released and he will have to explain why no charges are being brought. The real issue is Mac's wife. She had a company, she did not comply with the Companies Act and do the tax returns. He will allow her to pay an admission of guilt. Her failure to prepare financial statements is a technical offence. There is an issue of tax evasion. There's either half a million or three hundred thousand or two hundred thousand. He will deal with the Companies Act on the admission of guilt basis and refer the tax issue to the South African Revenue Service.
Jacob Zuma and Schabir Shaik must be persuaded to stop their vilification I would imagine. Schabir Shaik should be barred by negotiation, charges will be put to him and then it can be discussed. Jacob Zuma should respond to the questions which will make things easier and Kessie Naidu will discuss these with Bulelani before the questions are answered.
POM Sorry, who will?
IM Kessie Naidu. I think he was the lead evidence taker at
IM Schabir Shaik to drop the appeal and he is to plea bargain by negotiation. Jacob Zuma to respond to questions and they can discuss these beforehand. There's no problem about making a call to First Rand Bank and he will confirm
POM There was no problem?
IM No problem, he had no problem about telephoning First Rand Bank and to confirm that no charges will be proceeded with against Mac but there are suspicions but not enough to sustain charges, and Zarina to agree to an admission of guilt for failing to keep financial records and the tax matter will be referred to SARS.
POM So when Mac says that Bulelani said there were no charges against him, Mac, he is correct in saying that?
IM Oh yes. He said there are suspicions but not enough to sustain a charge or to support the charge.
POM Now this is off the record but I'm interested in it from the point of view of a story, a hilarious story, in the Mail and Guardian today.
IM Oh I haven't seen it.
POM Well it said what's the name of the Premier from Limpopo?
IM Mhlangu, the one who said it's OK to lie?
POM No, the rising star, the Premier of Limpopo.
IM Ngoako Ramatlhodi.
POM Yes. Well he didn't get a place in the cabinet because
IM He's been redeployed at ANC head office.
POM Because he's being investigated for possible corruption in Limpopo. There's an article in Noseweek.
IM Oh yes I remember, there was some Greek builder.
POM Yes. Now he didn't get a place in the cabinet but he's scheduled, according to the story, which Mac had said too way back before, that he would take over from Bulelani. Bulelani is negotiating his exit package and part of what Bulelani is negotiating is that he get amnesty for any possible civil suits against him arising out of actions he may have taken as state prosecutor or the country prosecutor. But first of all Ramatlhodi has to be cleared of the charges against him before he can take over the job so he's being investigated by the Scorpions that they clear him that he gets to be head of the Scorpions.
IM Sounds like fun.
POM Yes. It's all in the story. So it would just seem to me that the fact that Bulelani has not said since this whole thing was over that there are no charges against Mac, we've dropped them.
IM He said so at that time to me and he's done nothing about pursuing any charges against Zarina Maharaj either.
POM So to leave them both on the hook, really no-one would employ Mac.
IM Mac is how old now?
IM You know it's tough to get a job at that age.
POM Yes, well, but it would be easier if he didn't have a potential cloud even if he were going to advise somebody in some way. It would be easier if you didn't have a cloud hanging having over your head, he's still being investigated. That's a violation of his civil rights.
IM I agree. I agree. If there is a cloud over your head nobody will touch you.
POM Yes. So I was saying to him, "You know Mac, you ought to sue him for violation take it to the Human Rights Commission. It's ages, that you've been investigated for over a year and no determination has been made about any charges to be brought against you."
IM You see there's a distinction between criminal charges where proof has to be adduced beyond a reasonable doubt and a civil action where it's on the balance of probabilities. Now it's an important distinction because for Bulelani to say I can't sustain the charges but I have suspicions -
POM That's no good.
IM Now suspicions are enough to throw it into a civil action and even if he loses it, it makes it difficult for that to come up in Mac's favour because they've been thrown in there. I don't know what suspicions he's speaking of. He says that there's money been paid in but the explanation given at the time by Zarina Maharaj is that she was acting as a consultant to Schabir Shaik and she was paid these very large sums of money. I can't recall whether it was two or three hundred thousand rand. I think that's what Bulelani was speaking of. And then it was paid into the account of a company that she owned. She did not do any financial statements and also did not make payment of any taxes in that company. If a company earns R300,000 as fees acting as a consultant to someone else
POM Do people here file their taxes, if you're a married couple can you file - ?
IM If you're filing your tax returns you have a choice. A husband and wife can file jointly or separately.
POM So would he have a tax charge against the Maharajs if they filed jointly?
IM No, again I'm speaking from memory, the money was paid into the banking account of the company in which she was the shareholder. So the charge is not against her or Mac, the charge would be against that company not complying with the Companies Act, that it did not file it's financial statements. And second, pursuant to that, the company needed to pay tax on the revenues that it received and the public officer I am almost certain, and just guessing that if it's a one person company, Zarina Maharaj would have been the public officer. That's a defined term because the Revenue Services in all companies want to know who is the public officer. The public officer is the person who takes responsibility for paying tax so if a company is prosecuted there's nothing you can do to a piece of paper but there is a person who says, I take responsibility for the company, and that's where I think Bulelani said, "First you did not keep records. I want you to accept an admission of guilt." And then the second part is that if you have not paid your taxes then the public officer of that company must come to court and pay a fine. You don't go to jail normally for that kind of offence.
POM Could that be settled directly between SARS and the individual?
IM Yes. Oh there's a special court, it's in the magistrate's court. I've appeared there on occasion because one slips up, you don't do a tax return and when you don't do a tax return then you pay a fine and you pay the tax return. But if you've not paid tax then you've got to pay the tax that was due times three up to that. The magistrate actually orders you and then he fines you.
POM So there's nothing, how would I put it, it's no big blot on the character of somebody.
IM No. That's why I'm saying to you I wouldn't admit to a criminal conviction. I've appeared there and I can't even recall, it must have been about six months ago, one of the companies slipped up on a VAT return for a few months.
POM So essentially you're saying that Bulelani said to you that after investigating Mac for whatever length of time it was, "We have no charges against him but we suspicions. We have no charges, we can't charge him, we wouldn't get a conviction." Therefore there's no criminal case.
POM Two, with regard to Zarina, she's in violation of company law, failure to
IM I would call these technical offences. The one is not keeping your books and secondly not paying the tax.
POM Then he said he would call First Rand and tell them that.
IM And he would confirm it but he was going to add on the rider to say, "I have suspicions." So I don't know, and I'm almost sure that telephone call was never made by Bulelani.
POM Now let me ask you, this is just like we're kind of speculating. Why do you think he never made that call? Why wouldn't he, if the idea was the smear campaign against him would be dropped and all the stuff stopped dead?
IM That particular morning Mac was in a meeting with senior people at First Rand and when I went from Bulelani's meeting straight to First Rand, because I called him and I just made a little note of what my discussion with Bulelani was, and I gave him that note. I met, I saw the Chairman just as he was passing through the corridor but I had the impression that senior people in First Rand were present at that meeting with Mac, but I didn't go into the meeting. I simply made my report to Mac and then I left. Shortly after that, I can't remember how shortly after that, an announcement was made that Mac was leaving the bank.
POM That would have been on OK, the day that he held his press conference when the bank released their report.
IM But the bank had already started the internal investigation.
POM Oh yes, that went on for a long time. There were two investigations and they found nothing that he had done wrong. Bulelani conducted an investigation, he didn't find he did anything wrong.
IM I think in fairness to Mac the tender process, it's possible that it can be abused but there are so many people involved in considering a tender, especially a large tender.
POM He says that the Road Commission does it, that his department had nothing to do with it.
IM But even in a normal tender there are just so many people, it's such an open process. I'd be a bit sceptical about one person being able to award a tender.
POM But then that was for, if I recollect again, was that Schabir's company was just a small piece of a larger conglomerate of companies, that it was the larger unit that got the award.
IM That's correct.
POM And he came in under that. So they would have had to say for him to do a favour to him, OK, you're a small little player way down here and we're going to go which company are you attached to? You're attached to up here, to this thing? OK, we're going to give it to this thing and pull you in. It doesn't make sense.
IM I'll tell you that I have some direct experience of that particular tender. I was invited as one of a number of law firms to furnish legal advice and I attended some meetings at DVSA and then at a certain point I had to disclose my interest and they came back to me very courteously to tell me that I'd just disqualified myself, I was a director of Minigree Insurance which was a reinsurer at a very remote level of the project. I was also a director of Thebe Investment Corporation which was also one of these little companies somewhere there. So I lost out on the legal tender, I never gave them any legal advice.
POM I'm looking at it even on the civil side. He would have said, "It appears Mac got", he's working almost backwards saying, "It appears Mac got favours from Shaik."
IM There was an issue of hotel accommodation.
POM That was in Florida, the Florida thing. I mean, God, R19,000. God, can you really go to jail for that? For being at Disney World? For God's sake let it at least be for something decent.
POM For a first class Jaguar or something. Not in a Ferris Wheel, right? So even on probability it looks like you would be saying that, you say, God, he got a trip to Florida. That's R20,000. This company A got the award and he had 5% of this company, therefore it appears to be a kickback. That in return for amorphous favours to be given in the future to this huge entity of which you are the little bit. It doesn't make any sense. And given the relationship between the Shaiks, I mean I would expect Schabir Shaik if he had money to say, "Here Mac, you need something? You have it from us any time you want it."
IM I don't think, I would accept that there was money in Zarina's account or her company's account but for that to have played a role in Mac influencing a decision there's something else that I recall now. In fact his company lost a tender somewhere else while Mac was the minister, somebody else got it. Again it's something that I have a vague recollection of. But as far as this one is concerned I think Bulelani would have been clutching at straws to say that Mac had been bribed to award the tender to Shaik's company.
POM Not only did he have nothing to do with it, it was the Commission, his department didn't do the tender, it was the Road Commission that awarded the tender. Anyway, that's all I really wanted to establish, that what Mac said was in fact true. I have to check him, like everything else.
IM You're quite right, that cloud is there and it makes it impossible for him to ever get a job.
POM And his reputation, and that's not fair, that's not right.
IM No, that I agree. But at his age, at 70, it's hard enough getting a job.
POM It's not the job, it's the reputation. You give 40 years of your life to something and you're to exit, the tenth anniversary of democracy in the country that you're sitting there unemployed with a cloud over your head. That was worth getting tortured for? It's eating itself, better watch out, dangerous stuff. Not you, I mean the country had better, that's dangerous stuff.
IM I agree.
POM Like a family turning inwards and says, "OK, let's eat each other. See who can take the larger bite."
IM Ten years into democracy, they make mistakes.
POM I wonder - I asked him a question, or I put it to myself, when he in the sixties was being tortured by Swanepoel and had his penis being put on the table and he said, "It's OK Mac, when freedom comes you'll have your day. And ten years afterwards, guess where you'll be on the tenth anniversary?"
IM Imagine it. Nobody could have imagined it.
POM That's my business. You'll get this back and I will get on and I'm dealing with it head on in the text. From the point of view of somebody who is recording the history it makes me wonder at so many different levels. I just wonder. A good play or a good tragedy. I mean not just Mac, the way different elements of people were intimately involved in the freedom.
IM For Mac it's particularly sad.
POM It's his family, his kids. It was his whole life.
IM Yes. It's what I see with Frene Ginwala, her whole life, her entire life, one career. I think she was ready to leave but not as dramatically as it was done. We will see what happens later today.
POM There is a nastiness, an ugliness.
IM Isn't this the life of a politician worldwide? You suddenly get dropped from the cabinet, you lose an election. I'd rather be a civil servant any time.
POM But the way you get dropped from a cabinet, particularly for a country emerging out of the past, it seems like somehow old scores are settled.
IM It's a less caring society. But it happens in the corporate world as well, exactly the same thing. If you make a loss in two quarters you're gone.
POM Well, but you understand the rules of engagement. Here they're all comrades, people just stop calling each other comrade, they're debasing the word.
IM The Brits have got it right. They send you upstairs to the House of Lords.
POM That's right.
POM Who volunteered? It was an entrepreneurial thing. You went in, you had the idea, you create it and he ran it on his own. He comes out of that, goes to jail, comes out, goes into negotiations, is a minister, runs that, comes out. What I was thinking of with regard to Mo, it's no reflection on anybody, but during the Hefer Commission what he said about Intelligence
George Tenet in early March or late February went to Georgetown University to defend the intelligence gathering methods of the CIA, he gave a talk, and he said exactly what Mo said at the Hefer Commission; intelligence is a matter of probabilities. First you gather, you use the null hypothesis, that's the way it works. Now that's the way intelligence agents work. Now poor Mo managed to turn the null hypothesis into a laughing matter. But from an intelligence point of view the guy knows his business, that's what we do.
I was wondering, here is this guy who spent nine months in solitary confinement, nine months, survived, came out alive after nine months alone. (He's questioned) by a lawyer, I don't know if you know Kessie, you probably do, small world. I asked him what did he do during the struggle, with his cufflinks sparking off the screen with the gold. I said there's something wrong there, it's not right. There's a moral question involved here, there's a morality, the morality of the struggle, maybe there was none.
IM Can I turn on something else that I've been thinking about from time to time? Adelaide Tambo once told me that when she was a student nurse in her training period, and I'm assuming that this was sometime in the late 1940s, the only reason she was treated as aristocracy was that she knew Nelson Mandel. So many other student nurses just got on with the job. They were married to people who were politicians but no other enjoyed that kind of glory. Then when I fast forward, Adelaide Tambo flees the country and lives in London.
Winnie Mandela is left here when Nelson Mandela goes to jail with a large number of other people. Throughout his imprisonment Winnie Mandela is in the forefront of the struggle but alone. Adelaide Tambo wasn't here but Albertina Sisulu was and so were a large number of other wives in the struggle. Not one created the UDF was launched, she was not invited to it, she was excluded. When a whole range of activities were being conducted throughout the seventies and the eighties, Winnie Mandela was excluded. She was never part of the broader prison communication. I was there. She was always isolated but her support level was, she told me, Chris Hani on the outside and internally the young people. The reputation and the charisma of Nelson Mandela in prison - by and large she was alone.
She handled the reputation, or enhanced the reputation, I would say to be fair because if Evelyn was already a big name in the 1940s, Winnie enhanced the reputation of Nelson Mandela, but he did something in his stubbornness, he defied the movement in saying, "I will talk to government." The ANC were unhappy about this man living alone in Pollsmoor, having some kind of discussion which nobody quite knew what was happening. It seemed very much as if government wanted him to be the new leader as the ANC was so powerful in Lusaka and it was easy when he came out to be the leader. The ANC, the exile movement, came back plus the national movement here did something quite amazing. He went off to South America with Winnie, he came back to find himself as the PR officer of the ANC. Walter Sisulu was the number one man. He ran the country for the following four years and stood down. Oliver Tambo was the one who held together the movement, who created the opposition worldwide, who received young people out of the country and gave them training right across the spectrum, education, military, diplomatic, the lot. Nelson Mandela sat there in prison as the - it almost was there's a prisoner, he's the leader in South Africa, but he has the support of whether it was love or respect or fear I don't know, maybe a combination of all, but he created the modern South Africa and he's going to create the modern Africa.
Post Thabo Mbeki, Thabo Mbeki might be an important figure on the African continent or he may be on the world stage, but it's Winnie who created the image of Nelson Mandela that we have now.
POM Mandela, when he went to South America with Winnie and he came back to find that Walter was number one?
IM There was a meeting and you need to go back into your records. I'm speaking only from memory. A meeting took place here when appointments were made and he was no longer the leader. Oliver Tambo was the President, he wasn't Deputy President. Walter Sisulu became Deputy President of the ANC but Nelson Mandela was relegated downwards into some kind of position which was quite meaningless and that would have affected him and even more affected Winnie that they were friendless in the upper echelons of the ANC, at the main podium but below. And secondly, Nelson Mandela was mentioned in the same breath as F W de Klerk in the acknowledgements to say, "I welcome my three mothers, former Presidents Mandela and De Klerk", and no mention again of Winnie. Later that afternoon Nelson Mandela was not present but F W de Klerk was. No mention was made of former presidents except that Kenneth Kaunda no sorry, Joachim Chissano made a speech and he said, "A man who sits in our presence is well deserving of the Nobel Prize, F W de Klerk who made it possible to have ten years of freedom today." Mandela played no role whatsoever on a poster, a leaflet or a speech in the past election. Nelson Mandela made two speeches, one in the Indian settlement of Chatsworth and another one also in KwaZulu Natal. Nobody asked him for help, he did not appear on a single poster, nor was he mentioned in a single speech, nor did he campaign for the ANC in this past election. It was all Thabo Mbeki and interestingly enough he had 10% more of the percentage votes than Nelson Mandela had got.
POM And more people are poor than ever.
IM That's absolutely true but then he's a Sussex trained economist. He says we must go hungry to become rich later.
POM But you know what Keynes said.
IM I don't know what happens to those who die of hunger in the interim waiting for the good days.
POM You know economists always talk about short term analysis and the long term. There was Keynes who said with regard to that whole debate that was going on over the equilibrium, short term equilibriums and long term equilibriums and stability and all these models, that's what it said.
IM I don't know. It's something that I'm thinking about more and more. I'm not sure this view of history that I'm taking
POM Views of history are
POM Yes, and that's why I'm going to such care now to double check and triple check everything because I'm interested in establishing a record that other people can draw on when this generation has passed on. But the true record of what really happened will emerge maybe in thirty, forty years.
IM In the meantime lesser heroes have become major heroes and dishonest people have built tremendous reputations of honesty and those who sacrificed in a tiny way came to practice law and, I think I might have told you this earlier, what I did I did for myself and I think I survived in this law firm because of that, that I never said nobody thanked me for what I did. You can't expect thanks for something that you do for yourself. There was an expectation that one day change will come and then I will take my rightful place. It goes all the way to Mr Leon because some of the great liberal values that he espoused for so many years and his party espoused happen to be the policies of the ANC and he's got no role there.
POM We will meet again.