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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Extract from cross examination of Bulelani Ngcuka by Joseph Francis
AT THE HEFER COMMISSION
MR. JOSEPH………………briefing in respect of the investigations and/or prosecutions around those cases so that we can put in context some of the decisions that we have taken or not taken, why we took certain decisions and why we did not take other decisions so that we can put that thing in context. Those are the two reasons.
May I then summarise it briefly by using the following language and once again I invite you to contradict me if I am wrong. In the first instance you were exercising your right to a reply in regard to scurrilous rumours or statements which had been made by people directed against you, is that correct, that was the right of reply? Well, you can put it like that. I did not think that I was exercising a right of replying.
Let us use it as a shorthand and secondly, to give information relating to investigations which had taken place? -- Yes.
You had the opportunity I am sure to have considered the contents of the memorandum drafted by Mr Mona and that appears at page 128 of the record. That is at page 128 of the record. We have the document before us. Now I was not present when Mr Mona gave his evidence but I am advised by my learned friend Mr Naidu that when Mr Mona was cross-examined by your counsel your counsel put to Mr Mona that at the meeting your said nothing which was racist and nothing that violated the Constitution, is that correct? – That is correct.
I want to ask you in broad terms whether Mr Mona, it begins at page, the part of the article that I am interested in begins at 130. I want to ask you in broad terms whether Mr Mona has faithfully recorded what you said at that meeting? - - No, no sir.
He has not? – This thing is full of distortions, inaccuracies. No, not at all.
Let me ask you this question. I think there were actually eight editors at this meeting. – I think seven.
Seven? – I think so.
Your intention in assembling them was in order to bring to their attention your views, your attitudes, your attitude in regard to two matters that you have mentioned to us. One, the scurrilous rumours and two, the progress of the investigation relating to the arms deal. - - Any other high profile matters.
And other high profile matters - - Which the media was interested in.
When we talk about the scurrilous rumours I restricted to the rumour relating to your activities during the pre-1994 regime, you know what we are talking about, those allegations. – Sure.
Who did you think was or were the people behind the rumours that you in fact had behaved in this manner which finds no favour with anybody today? -- ,,,
I do not want …..(intervenes)……In this………(intervenes)
I do not want to be obtuse, I just cannot use that language over and over, you know what I am talking about.
COMMISSIONER : I am sorry, I do not know what you are talking about Mr Joseph.
MR JOSEPH : I beg your pardon, the spy allegation. I am sorry, the spy allegation.
COMMISSIONER : Had the spy allegation been made by the time of the meeting?
MR JOSEPH : In the e-mail – I frankly at that stage did not know.
You did not know the sources? - - I did not know at the time.
May I, unfortunately this might be a long exercise but we will try and go through it. If you turn to page….(no continuation) there is the name of the deputy president. Did you address the meeting of editors in regard to the deputy president, was he the subject matter of your address? - - Adv Jacobs……(intervenes).
No, it is Steve Joseph - - Sir, I am sorry. I am very sorry sir.
No, you do not have to apologise. - - Let me say this, I called a briefing that was off the record and with the senior editors and made it clear that the information that is given to them is not for publication, must not be for publication. I will not be in a position to deal with any of the matters because by so doing I will be now violating that agreement. I will not be in a position to deal with that.
Let me understand your answer, let me pay due respect to the attitude you adopt. Your attitude is this, if I understand you and once again you will correct me if I am wrong. Your attitude is this, it is because before I discussed matters with these editors I said that this meeting is an off the record meeting. - - Yes.
That creates, may I call it a covenant between yourself and the seven gentlemen. - - Yes.
That whatever was said over there would never be repeated again. - - That is correct.
That is the covenant that …..(intervenes). - - That is correct.
That was made? - - That is correct.
And as I understood my learned friend Mr Moerane's cross-examination weeks ago, there is some type of protocol that exists between state officials and newspaper editors. - - No, it is not state officials, I think it is an internationally recognized principle, the confidentiality of off the record briefings. It also covers the business community and all walks of life.
Just as on the ……(intervenes) - - I think it does include also the legal fraternity.
Just as on the side, I received a phone call yesterday from a journalist who began the conversation by saying this is off the record. I do not have the same confidence as you have so I terminated the conversation. The matter will then go to the hands of the commissioner and my learned friend Mr Naidu because I am not going to bang my head. Your attitude is simply this, it is because this covenant was struck you are not prepared to admit or deny or comment on anything that might have been said during that meeting? - - That is correct.
And so that I understand you are one hundred percent, if in fact of the four or five pages written by Mr Mona which on the face of it records perhaps cryptically things that you said, even if there is something he has written which you know has been accurately recorded and is in your favour you are not prepared to admit or deny it? - - Yes, that is correct. I even advocate you know, shortly after the publication of this…
I am sorry? - - Shortly after the publication of this in the City Press I issued a statement which merely said that this document is full of distortions, it is out of context. It says some wrong things about a number of people. I think I am prepared to go to the context of saying I never said that your client is a straight faced liar.
COMMISSIONER : You did not say what? - - His client is a straight faced liar. I never said that but I am not prepared to go into any of these things, yes.
Let us clear up now once and for all. I understand your position today that you want to honour your ………(intervenes).
MR JOSEPH : I am sorry, Mr Bacon has taken up an unfortunate position and I cannot hear.
COMMISSIONER : I understand your position that you want to honour your undertaking to the editors. - - Yes.
But as a lawyer I think you realize that for us there is no privilege in such a discussion. So I must leave the decision to you. Obviously I cannot force you to speak. - - Yes.
I must leave the decision to you to decide whether you are going to answer questions about what you said at the meeting. - - Yes.
And I say again, the decision is yours. If you tell me that I refuse to answer the questions there is nothing I can do but you know what that really entails. - - Yes.
MR JOSEPH : I never heard the last words.
COMMISSIONER : I am not going to repeat it again Mr Joseph.
MR JOSEPH : I think, I am told that your last words were you know what that means?
COMMISSIONER : Yes.
MR JOSEPH : Yes, I never heard it, that is the only reason why I ask. If I understand what the learned commissioner means by that language is this, it is that an adverse inference can be drawn against you.
COMMISSIONER : No….(intervenes) - - That is correct.
That is not what I mean. I mean that he is committing an offence.
MR JOSEPH : He is committing an offence?
COMMISSIONER : Yes, unless there is a just reason for refusing to answer the question.
MR JOSEPH : Thank you for…. This then is a difficulty that you face. - - Yes.
Is that you are compelled to answer the questions which are relevant, at least the ones that are relevant and if you refuse to do so without a just excuse then prima facie you have committed an offence. - - Well, unless I have a just excuse.
Yes.. - - Yes.,
Now the just excuse that you rely upon is the off the record briefing. - - That is the first one, yes.
Do you know….(intervenes).
COMMISSIONER : Is there a second point?
MR JOSEPH : You ….(intervenes).
COMMISSIONER : Sorry. - - The second point is that some of the matters that are dealt with there relate to ongoing investigations and that information is a privileged information which cannot be disclosed.
MR JOSEPH : The I unfortunately, subject Mr Commissioner to your guidance, I am going to respect your wish that what is said over here is not made public. – Yes.
I think that is your wish, is that correct? - - Yes.
And then I will just then refer you to paragraphs and ask you whether you confirm that the paragraph as recorded is substantially correct or substantially incorrect and then it is then out of my hands if you refuse to answer the question then you ….(indistinct). And I am going to make this invitation, I am going to offer this, Mr Ngcuka may I just say this to you… - - Okay.
You are subject of course to the ruling of the commissioner and my learned friends, you are more than welcome to ask for an adjournment to consult with your legal advisors.
COMMISSIONER : I think they have done so already, haven't you Mr Ngcuka? - - Yes.
MR JOSEPH : Let us deal with the deputy president, you have it over there? - - Yes.
The first paragraph, does that in…..(intervenes)- - No I, let me say that I do not want to discuss this matter relating to the deputy president because that is a matter that is one, it is sub judice, it is coming up in court in Durban and so I do not want either to confirm or deny what is in there because this matter is sub judice.
I am afraid it is not as easy as that because the first paragraph has nothing to do with any court case. It is your impressions of the man. - - But the issues revolving around this have a bearing on the case that is coming up.
May I approach my learned friend?
MR NAIDU : Sir, I think my learned friend's difficulty is that he requires a ruling from you regarding ….(intervenes).
COMMISSIONER : There is no ruling I can give. All I did is what I told Mr Ngcuka.
MR NAIDU : Yes.
COMMISSIONER : That is about all I can do. I have no powers of acting against a witness who refuses to answer a question.
MR NAIDU : Except so…(intervenes).
COMMISSIONER : What I can do is to remind him of the consequences.
MR NAIDU : Except so if respect you could be called upon to indicate whether the reason advanced by the witness ….(intervenes).
COMMISSIONER : Nok, that is for the, if he is eventually charged, it is for the courts to decide that, not for me.
MR JOSEPH : Well, then it is, with due respect, I understand your position to be precisely as you have indicated it. It is a matter which is then taken up by some other authority.
COMMISSIONER : Someone must decide whether he is going to prosecute Mr Ngcuka.
MR JOSEPH : You refuse to answer any questions relating to whether or not what is set out in this document purporting to be a faithful recording of what you said at the meeting, you refuse to answer any questions in that regard? - - Yes, that is correct.
And the basis ….(intervenes).
MR MOERANE : I have a problem with part of the formulation of the question, purporting to be a faithful recording. We have heard evidence about that and the witness who drew up this document in fact said under oath that this was not a faithful report.
COMMISSIONER : That is so. Portions of it he admitted were not correct.
MR JOSEPH : I am sorry, I cannot hear?
COMMISSIONER : The witness, Mr Mona, admitted that portions of this document are not correct.
MR JOSEPH : Okay, portions. Then by implication there are other portions…(intervenes).
COMMISSIONER : Just frame your questions some other way. Mr Ngcuka, do I understand you to say we have before us a document prepared by Mr Mona. – Yes.
In which he made certain allegations about what you said at the editor's meeting. - - That is correct.
You do not want to confirm or deny the correctness of what he said in that document? - - That is correct.
Is that your stance? - - That is my position sir.
MR JOSEPH : The basis of your refusal to admit or deny is you rely on two principles of law as I understand it. One principle of law is that what is written over here relates to some type of investigation, is that correct? - - Yes.
And the other principle? - - As I have said, is the issue of I believe that I have a justified excuse because this is a matter that is information that was disclosed on the basis of confidentiality to a limited group which was not for publication and therefore in terms of, I believe in terms of the law I can limit the number of people to whom the information is disclosed and the others are not allowed to disclose that information. I never gave Mr Vusi Mona any permission to disclose the information that I imparted to him to anybody. And so there is a limitation to the people to whom the information was conveyed and he had no right to do that.
The other one concerns me more from a legal point of view is that is you say some of the information over here relates to ongoing investigations. - - Yes.
Let me understand this off the record briefing. As a lawyer are you able to point to any authority which creates a privilege….(intervenes).
COMMISSIONER : You need not answer the question. Next question please?
MR JOSEPH : Was Mr Jovial Rantoa at the meeting of editors? - - Yes.
He was there? - - Yes.
How did you come to select these gentlemen, what was the criteria? - - I think we invited people who had received the e-mail and people who had contacted us to enquire about it.
And they all happened to be of the same race? - - Yes, they are the ones who had contacted us about the e-mail.
Is this how you came to get hold of them. Now let me deal with the conversation between Mr Maharaj and Mr Rantoa. That took place on the 31st July this year. Mr Rantoa had information that Ms Maharaj was going to be charged with tax evasion, any idea where he got that? - - No I do not know. I think is ………….why I, when I spoke to Mr Maharaj I said to him Rantoa is wrong and he must tell Rantoa to call me so that I can correct that ….(indistinct).
Rantoa was wrong? - - Yes, when Mr Maharaj phoned me and he said this is what is going to happen I said no, that is not true, Rantoa is wrong and I went further, I said to him you can tell Rantoa to call me so that I correct that wrong impression that he has.
What strikes me is this, is that there was a consideration in your office or a suspicion had been aroused in your office to charge Ms Maharaj with tax evasion. - - Yes.
Once again you claim this ignorance, you do not know where it came from? - - The what, I do not know. There was no consideration to charge Ms Maharaj at that stage.
And today? - - That matter is still under investigation. It is what I have been saying to you sir.
Is there a suspicion that she might be guilty …(intervenes). - - There is a suspicion, yes.
Let me take you back to Mr Mona's memo because you have to an extent made reference to it. You deny that you said that Mr Maharaj is a straight faced liar? - - Yes.
What is correct is that you must have said to the meeting that when, and I am reading from the document, what you must have said at the meeting was that when the Scorpions confronted them to explain an expensive computer Mr Shaik had bought for him Mr Maharaj says there was no way Mr Shaik could have paid for the computer. Did you mention that at the meeting? - - You see, mister ……(intervenes).
COMMISSIONER : Mr Joseph, please. I think we have made the position clear. The witness is not prepared to answer questions about that meeting. Let us accept that now. He will stand the consequences of that.
MR JOSEPH : I am just trying to see if there might be one aspect….(intervenes).
COMMISSIONER : He said he is not….(intervenes).