THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) Case No. 13698/18 In the matter between: INSPECTOR GENERAL OF INTELLIGENCE First Applicant SETLHOMAMARU ISAAC DINTWE Second Applicant and MINISTER OF STATE SECURITY First Respondent DIRECTOR GENERAL Second Respondent OF STATE SECURITY AGENCY MINISTER OF FINANCE Third Respondent JOINT STANDING COMMITTEE ON INTELLIGENCE Fourth Respondent PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Fifth Respondent SE eee ne ee eee eee oc eee eee! NOTICE OF MOTION Stee EEE eee re Sete eect ete ete arate tate eee PART A: INTERIM RELIEF TAKE NOTICE THAT the applicants intend to apply to the above Honourable Court at 10:00 on Tuesday, 17 April 2018 or so soon thereafter as counsel may be heard, for an order in the following terms:3. In respect of paragraphs 2.1 to 2.4 above, the second respondent is directed to: The forms and service and ordinary time periods provided for in the rules are dispensed with and this application is dealt with as one of urgency in terms of Rule 6(12). Itis ordered that:~ 2.1The second respondent is interdicted from giving effect to his decision to revoke the security clearance of the applicant. 2.2The applicant is permitted to carry out all powers, obligations and responsibilities attaching to his office. 2.3The second respondent is interdicted from interfering in any manner whatsoever with the functions of the Inspector General of Intelligence as set out in the intelligence Services Oversight Act (Act 40 of 1994). 2.4 The second respondent is ordered personally, and/or through the State Security Agency to co-operate with the current investigations lodged with the Inspector General of Intelligence. 3.1 Provide any intelligence and information requested by the Inspector General of Intelligence for the purposes of fulfilling his official function in the cases attached as in “annexure A” to this notice.3.2Comply with any outstanding request for information within 72 hours of this order or such longer period as the Court may deem reasonable. 3.31n respect of any future requests for intelligence and information that might arise in the interim petiod the second respondent and/or the State Security ‘Agency must comply within a reasonable time period as stipulated by the Inspector General of Intelligence in'any request that he may make. 3.4Implement all reasonable requests from the Second Applicant to ensure that his security is not compromised. 4. The orders sought in paragraphs 2 to 3 above shall operate immediately, pending the final determination of the application, in terms of part B as set out below. 5 Further and/or alternative relief. 6 Costs, in the event of opposition. TAKE FURTHER NOTICE THAT the attached affidavit of DR. SETLHOMAMARU ISAAC DINTWE together with the annexures attached thereto, will be used in support of this application. ‘TAKE FURTHER NOTICE THAT the applicants have appointed the offices of ADAMS & ADAMS ATTORNEYS at the address set out below, as the address at which they will accept notice and service of all process in these proceedings.TAKE NOTICE FURTHER THAT if you intend opposing this application, you are required to: a) Notify the applicants’ attorney in writing and by emait of your intention to oppose on or beforé 16h00 on Wednesday, 11 April 2018. b) Appoint an address that complies with the requirements of Uniform Rule 6(5)(b) at which you will accept notice and service of all documents in these proceedings. ) File your answering affidavit, if any, on or before 1600 on Thursday, 12 April 2018 0 as'to allow the applicant to deliver replying papers, if any, by Friday, 13 April 2018. KINDLY enroll the matter accordingly.PART B: FINAL RELIEF KINDLY TAKE NOTICE that the applicants intends to make application to this Court on a date to be determined by the Registrar for an order in the following terms: 1. Itis declared that the Director General of the State Security Agency has no authority to grant, revise or revoke the security clearance of the Inspector General of Intelligence. 2. The Minister is directed to take the necessary steps to ensure that the Regulations envisaged in section 8(f) of the Intelligence Services Oversight Act 40 of 1994 are passed within 6 months of this judgment, or such longer period as may be directed by this Court. 3. Inthe alternative to paragraphs 1_ and 2 above, it is declared that section 7(10) of the Intelligence Services Oversight Act (Act 40 of 1994) is unconstitutional to the extent that it empowers the Director General of the State Security Agency to grant, revise or revoke the security clearance of the Inspector General of Intelligence. 4, Itis declared that section 2A(1) of the National Strategic Intelligence (Act 39 of 1994) is unconstitutional to the extent that it provides for the issuing, degrading, withdrawal or refusal of the security clearance of any candidate for the position of Inspector General of Intelligence to be undertaken by, or under the direction of, the Director General of the State Security Agency.5. Itis declared that pending any amendment to the legislation or the process envisaged in paragraph 2 above, the National Assembly, acting through its Joint Standing Committee on Intelligence or any special sub-committee appointed for that purpose, shall be responsible for the granting or revoking of a security clearance ‘of the Inspector General of Intelligence. 6. It is declared that section 7(4) of the Intelligence Services Oversight Act (Act 40 of 1994) is unconstitutional to the extent that it provides for the removal of the Inspector General of Intelligence without a parliamentary inquiry and without being subjected to ‘two-thirds approval by the National Assembly. 7. Itis declared that section 7(13) of the Intelligence Services Oversight Act (Act 40 of 1994) is unconstitutional to the extent that it does not provide for the budget of the Office of the Inspector General of Intelligence to be separately allocated to that of the intelligence services. 8. The National Treasury is directed to allocate a separate budget for the Office of the Inspector General of Intelligence. 9, The National Treasury is directed to take the necessary steps to recognize the Office of the Inspector General of Intelligence as a schedule 1 constitutional entity in terms of the Public Finance Management Act (1 of 1999). 10.The costs of this application are to be paid, jointly and severally, by any respondents opposing it.11. Further and/or alternative relief. TAKE FURTHER NOTICE that in respect of PART B of this application: - Any respondent wishing to oppose the relief sought is required to notify the ajiplicants thereof within 15 days after service of this notice of motion. - Within 15 (fifteen) days after you have given your notice of your intention to oppose, deliver your answering affidavits, if any, TAKE NOTICE FURTHER that if no notice of intention to oppose is given, the application for the relief sought in Part B will be made on 5 JUNE 2018 at 10h00 or so soon thereafter as counsel may be heard. DATED AT PRETORIA on this the 10th day of April 2018. ADAMS & ADAMS Applicants’ Attorneys Lynnwood Bridge 4 Daventry Street Lynnwood Manor PRETORIA 0001 Tel: 012 432 6000 Fax: 012 432 6550 Ref: JSM/ANM/TDM/LT3962 Email: Jac.marais @ adamsadams.com Andrew.molver@ adamsadams.com ‘Thando.manentsa @ adamsadams.comTO: REGISTRAR OF THE HIGH COURT Pretoria ANDTO: THE MINISTER OF STATE SECURITY BY EMAIL: Imafokos!@outlook.com hroos @ssa.gov.za clo The State Attorney Mmotshweni @ justice.gov.za TNengwenkhulu@ justice.gov.2a RVenkatsamy @justice.gov.za BYHAND: THE STATE ATTORNEY Attorney for the First Respondent 218 Floor SALU Building 316 Thabo Sehume street Pretoria 0001 AND TO: DIRECTOR GENERAL OF STATE SECURITY AGENCY BYEMAIL: da@ssa.gov.za clo The State Attorney Mmotshweni @justice.gov.za TNenqwenkhulu@justice.gov.za RVenkatsamy @justice.qov.za BY HAND: THE STATE ATTORNEY Attorney for the Second Respondent 218 Floor SALU Building 316 Thabo Sehume street Pretoria 0001 AND TO: THE MINISTER OF FINANCE BY EMAIL: Thembekile.plaatjie@treasury.qov.zaBY HAND: AND TO: BY EMAIL: BY HAND: AND TO: BY EMAIL: BY HAND: clo The State Attorney Mmotshweni @justice.qov.za ‘TNengwenkhulu@ justice.cov.za RVenkatsamy @justice.gov.za THE STATE ATTORNEY Aitomey for the Third Respondent 21° Floor SALU Building 316 Thabo Sehume street Pretoria 0001 JOINT STANDING COMMITTEE ON INTELLIGENCE engakula@parliament.qov.za nmbuge @parliament.gov.za SPEAKER OF THE NATIONAL ASSEMBLY speaker @parliament.gov.za clo The State Attorney Mmotshweni@ justice.gov.za ‘TNengwenkhulu@justice.gov.za RVenkatsamy @justice.gov.za THE STATE ATTORNEY Attorney for the Fourth Respondent 21% Floor SALU Building 316 Thabo Sehume street Pretoria 0001 PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA malebo @presidency.qov.za THE STATE ATTORNEY Attorney for the Fourth Respondent 215 Floor SALU Building 316 Thabo Sehume street Pretoria 0001ww annexure A” *! oS asedlt “Hd dlii WoHy PaRjSoer OSUOTSS! oFENBOpE ON +,See|6! 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[BOYJO a4) Je AjuNoVs OBIS PUB UOKOoJOUd |BUOSIed sIy ]noGe ‘suie0U00 SIy posted UleBe eOU0 ey LIEIEYM DA oY} O1 Jehe| JeyToue oom O] uy ‘gLoz Alenuer Zz UO eywewe|duy! 1oneu sem 11 U9 eoejdor 0} UoIsIOSp ay ‘padwidai oq 0} SIO}OO}Og q{IA SIU JUBM JOU SOP oY JU} PayBOIPUI |] Sy] “YONRIINsUCD ynol WSS Aq uolspep feseyellUN ey) UO sseuiddeyun siy jNoge WSS eu Jo JequeW B PEWUOJUT [DI SUL WSS PUE IDI UeEMag UORESUNUIWOD JO P10d9H uondy9s9q, NOLLWINHO-NI HO SONSOITIALNI 01 SS399V_ SONSOITIALNI 4O TVH3N3O HOLOSdSNI HL ONIANSG AONSOV ALIUNOTS SLVIS 40 TWHINSD-HOLOSYIG SHI 4O SALLVOIGNI LONGNOD: «Wn FUNXANNYTHE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) In the matter between: INSPECTOR GENERAL OF INTELLIGENCE SETLHOMAMARU ISAAC DINTWE and MINISTER OF STATE SECURITY DIRECTOR GENERAL OF STATE SECURITY AGENCY MINISTER OF FINANCE JOINT STANDING COMMITTEE ON INTELLIGENCE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Case No. 13698/18 First Applicant ‘Second Applicant First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent FOUNDING AFFIDAVIT |, the undersigned, SETLHOMAMARU ISAAC DINTWEO do hereby make oath and say that: 1am an adult male employed as the inspector General of Intelligence and conduct my duties and responsibilities at Bogare Building, Corner Lois and Atterbury Road, Menlyn Central, Pretoria. 2 The facts contained herein are, except where otherwise indicated, wholly within my personal knowledge and are to the best of my belief both true and correct. Where | make legal submissions | rely on the advice of my legal representatives on record. 3. Lam responsible for the Office of the Inspector General of Intelligence (“OIGI”) and am therefore duly authorised to depose to this affidavit on its behalf. THE PARTIES 4 Lam the applicant in these proceedings in my official and representative capacity. | was appointed by the President in accordance with the provisions of Section 7(1) of the Intelligence Services Oversight Act 40 of 1994 (‘the Oversight Act’) on 15 March 2017. My mandate, and that of my office, is described more fully below. 5 The First Respondent is the Minister of State Security (‘the Minister’), cited in her official capacity as the Minister responsible for State Security at a national and ministerial level and, more specifically, responsible for the control and direction of the State Security Agency. The Minister is cited c/o The State Attorney situated at wr Sd 1121% Floor SALU Building, 316 Thabo Sehume Street, Pretoria, within the jurisdiction of this Court, The Second Respondent is the Director General: State Security Agency (“the Director General”) who is the Head of the State Security Agency (“the SSA") with its offices at Joe Nhlanhla Street, Rietvallei 377-Jr, Pretoria, 0181 c/o The State Attorney situated at 21* Floor SALU Building, 316 Thabo Sehume Street, Pretoria, within the jurisdiction of this Court. ‘The Third Respondent is the Minister of Finance, cited in his official capacity as the Minister responsible for Finance at a national level. The Minister is cited c/o The State Attomey situated at 21% Floor SALU Building, 316 Thabo Sehume Street, Pretoria, which is within the jurisdiction of this Court. The Fourth Respondent is the Joint Standing Committee on Intelligence (‘the JSC); a parliamentary commities established in terms of section 2(1) of the Oversight Act. The Committee is cited c/o The State Attorney situated at 21% Floor SALU Bullding, 316 Thabo Sehume Street, Pretoria, No substantive relief is sought against the Committee and itis cited on account of Its interest in the matter as the relevant parliamentary oversight body. ‘The Fifth Respondent is the President of the Republic of South Africa, cited in his official capacity. The President is cited c/o The State Attorney situated at 21% Floor SALU Building, 316 Thabo Sehume Street, Pretoria. No substantive relief is sought i 12Oo against the President and he is cited on account of his interest in the matter as the relevant office bearer empowered with the removal of the Inspector General of Intelligence. THE ESSENCE OF PART A OF THIS APPLICATION — PRIMA FACIE RIGHT 10 As apparent from the notice of motion, this application is brought in iwo stages. First, 1 | seek urgent interim relief preventing the Second Respondent (the Director General of the State Security Agency, also referred to infra as Mr Arthur Fraser) from acting unconstitutionally, unlawfully and motivated by bad faith. Second, | seek a range of declaratory and interdictory relief on a final basis relating to the powers of the Director General, the legislative environment that is operative and has enabled the Director General to act in the manner aforesaid. These orders are sought as against the Director General and the other respondents. Ordinarily, 1 would have been content to institute these proceedings in the normal course, But, bearing in mind the developments of the past few days, time has become of the essence. | am compelled to seek urgent relief now. The extraordinary nature of the decision taken by the Director General - to prevent me from gaining access to my office and executing my constitutional and statutory responsibilities — requires the immediate intervention by this court. The decision by the Director General has implications not only for me as an individual, but for the proper functioning of the Office of the Inspector General of intelligence and the broader a 1312 13 public interest. As such, intervention by this court is warranted not only to vindicate my individual rights, but the public interest as well. In relation to the interim order that | seek, not only do | contend that the Director General lacks authority to revoke the security clearance of the Inspector General, | also submit that the manner of the exercise of the power to revoke the security clearance of the Inspector General must take place through the prism of the Constitution and the legislative provisions that guarantee the setting up and operation of the Inspector General of Intelligence. A key function of the Inspector General is to maintain oversight of intelligence services of the country. That oversight is only possible if the Inspector General can exercise the full extent of the powers that are mentioned in the legislation. Of crucial significance is the independence and autonomy of the Office of the Inspector General. By purporting to revoke the security clearance of the Inspector General, the Director General has infringed upon the constitutionally and statutorily protected independence of the Inspector General of Intelligence. So, regardless of whether on a literal interpretation of the powers of the Director General he is entitled to grant, consider or revoke security clearances, | submit that the exercise of those powers cannot trump the requirements of independence of the Office of the Inspector General. In this case, the Director General has effectively abrogated the independence of the Office of the Inspector General and rendered it subject to his whims. 1444. This is precisely what the legislation sought to prevent when it imposed an over- 15 arching mechanism to serve as oversight over the intelligence services. It was to ‘engure that these services are accountable and exercise their powers according to the Constitution and the law. A particularly disconcerting element of the illegal decision of the Director General is that he is the subject of an investigation. The details of the investigation are set out below. Suffice to mention at the outset that the allegations against the Director General are of an extremely serious nature and are damaging to the standing of the intelligence services and are harmful to the public interest. 15.1 15.2 These allegations include the allegation that the Director General allegedly fraudulently copied the signature of the then Minister for intelligence Services, Mr Ronnie Kasrils, when establishing an illegal intelligence programme, known as the Principal Agent Network. Furthermore, Mr Fraser Is alleged to have improperly awarded tenders and contracts to persons associated with his family and other individuals through the Principal Agent Network, If these allegations are true, not only will they infringe the provisions of statutes such as the Public Finance Management Act, 1 of 1999, they would also amount to forms of “gratification” as defined in the Prevention and Combating of Corrupt Activities Act, 12 of 2004. As is apparent from the provisions of that statute, gratification includes the awarding of privileges to persons that may be directly or indirectly associated with the decision-maker, in this case the Director General. 1516 7 18 15.3. Finally, Mr Fraser is alleged to have been party to the establishment of an intelligence gathering unit outside the provisions of the statute that governs intelligence gathering. Not only does this amount to serious and gross misconduct, itis also a criminal offence under the applicable legislation. The Director General is aware that he is the subject of investigation. Since May 2017 it had been public knowledge that the opposition party, namely the Democratic Alliance, had lodged complaints against the Director General with the Office of Inspector General. Later, on 18 November 2017, the Director General addressed a threatening letter to me in which he claimed that he was aware that | was in possession of certain “classified? information submitted to my office by the Democratic Alliance. This is illustrative of the extent of the abuse. The information referred to by Mr Fraser was prima facie evidence of illegal conduct by himself. By labelling the information as “classified’, Mr Fraser sought to prevent me from making use of the information in the very investigation against him. What he apparently did not take into consideration was that any disclosure of information to my office is expressly permitted by statute. It is impossible for me to execute my responsibilities to investigate intelligence services unless | have access to all types of information, including classified information. Incidentally, by revoking my security clearance, the Director General is acutely aware that this is a ground. upon which the President may revoke my appointment and terminate me from my . S$ 16O 19 20 Pa) position. In the interim however, the effect is to steriise me from performing my functions. It also means, again another fact which cannot escape the Director General, is that he is effectively unaccountable at all. The Director General has misconstrued his powers, in any event. He has overlooked the fact that | am not accountable to the Director General in any aspect of my responsibilities. | am accountable to Parliament through the Joint Standing ‘Committee on Intelligence. The issuing of security clearance to the Inspector General of Intelligence is not governed by the legislation that creates the intelligence services. It is instead governed by the legislation that establishes the Inspector General of Intelligence. In section 8(f) of the Intelligence Services Oversight Act, 40 of 1994, it is envisaged that the Minister “acting with the concurrence of the Committee’ would make regulations regarding, inter alia, the “security clearance for the Inspector General and members of the Committee’. What is apparent from the statute, particularly given the requirement of independence, is that the legislature intended that the security clearance of the Inspector General and the members of the Joint Standing Committee on Intelligence would be governed through regulations passed by the Minister with the conourrence of the Committee. It was never intended that the matters of the security clearance of the Inspector General and indeed members of the Committee would be dealt with 1723 24 by the self-same intelligence service which is accountable to the Committee and indeed is overseen by the Inspector General. Accordingly, when the Director General purported to issue, revise and revoke ‘the security clearance of the Inspector General, he did not have any authority in law for doing so. | am advised that, as matters stand, there is a statutory /acuna with regards to the granting of security clearance in relation to the Inspector General. | submit, however, that the legislative lacuna on its own is not sufficient to enable the Director General to grant or refuse the security clearances of the Inspector General. The substantive justification for the revocation of my security clearance is utterly irrational and unreasonable. The Director General claims that my security clearance is being revoked because | am a threat to security. The reason why itis alleged that | am a threat to security is because | am supposedly in possession of classified information. By definition, my role is to be in possession of classified information. It is impossible for me to exercise my responsibilities unless | have access to all types of information, classified or not. The Director General cannot contro! the manner in which I exercise my functions by determining the classified nature of the information accessible to me. Furlher underscoring the irrationality is the obligation introduced by the Director General that | have an obligation to report to him the receipt of classified information. I have no such obligation, where | am executing my functions. He cannot claim so, particularly where he is the subject of the investigation. In order for my Office to wh 1825 26 10 perform its functions and discharge its mandate properly, the Constitution requires that any interpretation must protect the independence and autonomy of the Office of the Inspector General. Any interpretation that would require me to inform the Director General or for that matter to seek his consent before | can make use of classified information in the course of my investigation simply defeats the purpose of the investigation. Manifestly, the Director General is aware of this. Thus, the only purpose for revoking my clearance is to prevent me from conducting an investigation against him. This is misuse of public power and misuse of State resources to achieve improper ends. The application relates to sensitive documentation and information. | have applied my mind to ensure that no classified information or documentation is disclosed as part of these papers. Where reference is made to a truly confidential document in my affidavit, | have not attached a copy or relied on the contents of the document, ‘These documents can, howaver, be made available to the Court and, to the extent necessary, directions in respect of the dissemination (If any) of such documents will be sought. URGENCY 27 | submit that the application is of extreme urgency. 27.1 First, the facts illustrate gross abuse of public office in order to achieve improper ends. | have shown above that to his knowledge the Director 1927.2 27.3 n General is the subject of investigation. He obviously knows that if he can revoke my security clearance, | will have no entitlement to access the necessaty information. Therefore, the Director General is in effect attempting to block an investigation into himself. Second, the nature of the allegations against the Director General are extremely serious. The intelligence services play a vitally important role in this country. They are the first port of call in relation to matters of intelligence gathering which may include covert operations. It is therefore important that the Office is occupied by persons of utmost integrity against whom there are no suspicions or allegations of impropriety. On what | know, there is at least a prima facie case for Mr Fraser to answer. If, by his conduct, he is preventing the ventilation of that case through a statutorily created body, itis of extreme importance for a court to step in and prevent the apparent illegality perpetrated by a body that should be upholding the law. Third, the investigation into Mr Fraser is ongoing. It is wrong to effectively put the investigation on ice based on nothing but the whims of the Director General. It might be argued that the investigation need not stop simply because my security clearance has been revoked. But the fact of the matter is that through his action the Director General has rendered himself indispensable to the discharge of the function of any Inspector General. That is because anybody, including a person appointed on an acting capacity to the Office of the’ Inspector General, would need access to classified documentation to discharge their functions. If the Director General continues {\ 20274 275 12 in this fashion, any person appointed to the Office, whether on a temporary or permanent basis would need the specific endorsement of the Director General. This simply cannot be the law. The Inspector General must be independent from the Director General. The Director General cannot render an oversight body subservient to him through the device of granting or withholding security clearances. | therefore submit that it is urgent for a court to step in and to protect the integrity of the Office of the Inspector General in the wider public interest. Fourth, in the nature of the work of the Inspector General, there is inherent and inbuilt urgency. The prime function of the Inspector General is to conduct investigations into improper conduct by members of the intelligence community. There is a range of investigations currently lodged with my Office. Until my security clearance is re-instated | am simply unable to perform any functions. In fact, | am not able to enter the building at all. It is not as if Parliament may appoint a person on an acting basis. The authority to appoint ‘an acting Inspector General of intelligence can be exercised when I am suspended. | am not suspended, yet |.am unable to execute my function through the illegal device of the Director General. What this means is that the entire operations of the Office have ground to a halt. But | am earning my salary and therefore being funded at taxpayers’ expense despite not being able to discharge my functions. 0 21O 28 29 13 27.6 Fifth, itis not as if the reinstatement of my security clearance will cause harm to the public interest. The reason that has been advanced in correspondence as to why my security clearance has been revoked is that | am a threat to national security because | am in possession of classified information. | have ilustrated why that contention is plainly absurd. Quite apatt from the irrational basis upon which my security clearance has been revoked, there is immense prejudice to the public interest as a whole. ‘The urgency of this application is manifest, for the reasons traversed in the rest of this affidavit. My ability to fulfil my mandate and ensure a functional and independent OIGI, and to investigate and report on complaints (most notably against Mr. Fraser himself) has been prohibited with immediate effect based on an unlawful decision taken by a Director General in an untenably conflicted position. If | cannot obtain the urgent interim suspension of the Director General's decision the relief | seek in Part B may never be prosecuted and the OIG! will once again be a headless body, and one that is toothless and utterly redundant. This is ultimately detrimental to the public. Inaddition, the grounds for urgency have been precipitated by the Director General's threat to remove my current security detail who | have come to know and trust and to replace them with protectors who | can only imagine will serve the interests of the Director General. This threatened action coupled with the dilapidated security measures at my residence and the anonymous threats | have received in my line of hy 22Oo 30 14, work serves to intimidate me in the prosecution of my constitutional mandate and presents a very real threat to my personal safety. | submit therefore that not only do | have a strong prima facie case, the case is extremely urgent. The intervention by this court is warranted. In the next section | shall set out the full background to the case. Although the background is set out here, | submit that it will become relevant only as contextual material in relation to part A. It would constitute proper factual foundation only for part B, which | submit should be heard in due course, BACKGROUND FACTS — INTIMIDATION BY MR ARTHUR FRASER 31 | have been subjected to various forms of intimidation by the Director General, with the clear aim of deterring me from investigating complaints against him. The Director General's conduct in this regard has been enabled by the abovementioned legislative anomalies which contradict and undermine the independence with which the Constitution and the Oversight Act intend to clothe the Inspector General. They have culminated in the revocation of my security clearance. ‘The unlawful revocation of my security clearance follows what was itself an unlawful re-vetting of my security credentials undertaken following the launch of an investigation directed at the Director General. The Director General is the subject of a complaint lodged with the OIG! by John Steenhuisen MP, the Chief Whip of the Democratic Alliance, on 18 May 2017; and of corruption charges instituted on 14 ay 2334 15 November 2017. This complaint places squarely into focus the danger inherent in the unintended statutory influence given to the Director General in relation to the Inspector General and the OIGI. | set out further below the manner in which the Director General has sought to render the OIG! a de facto department of the SSA, thereby frustrating my efforts to properly investigate the complaint lodged by Mr Steenhuisen. However, before doing so itis critical that | first deal with the intimidation that 1 have faced from the Director General in an attempt to undermine the independent and impartial exercise of my duties without fear, favour or prejudice. The Director General's conduct in this regard is pivotal in appreciating the urgency of the relief sought in Part A of this application. It is my sincere belief that the intimidation | have been facing from the Director General is occasioned by the investigations | am undertaking into the complaints: laid against him. To the extent that these allegations are in the public domain, they are recorded by investigative journalist Jacques Pauw in his book The President's Keepers. | attach copies of the relevant portions of Mr. Pauw’s book to this affidavit marked “SD1”, which set out various allegations of corruption by Mr Fraser at the SSA between 2007 and 2009. These allegations include forgery, fraud and various offences in terms of the Prevention and Combating of Corrupt Activities Act. The following specific allegations are made in the book: 2416 34.1 Mr Fraser is alleged to have established an illegal rogue intelligence programme, known as the Principle Agent Network, by allegedly copying the signature of the then-minister Ronnie Kasrils; 34.2. Mr Fraser is alleged to have improperly influenced the awarding of contracts to his family members and other individuals through the Principle Agent network; and 34.3. Mr Fraser is alleged to have created an alternative intelligence capacity, which constitutes a criminal offence. WITHDRAWAL OF SECURITY CLEARANCE 3 36 Iwas granted a security clearance before the assumption of my duties. The vetting process which preceded my appointment was conducted at the instance of ihe Director General. | was granted a “Top Secret Security Clearance’ which is valid for a period of five years; and in this regard, my security clearance certificate expires in January 2022 However, after lodging of the above-mentioned complaint in respect of Mr. Fraser, | received the following correspondence which indicates an intention to have my employment terminated. The correspondence set out below clearly shows that there was no basis for the Director General to initiate a re-vetting process in terms of the relevant legislative provisions. The only reasonable inference that can be drawn in the circumstances is that the re-vetting process had been initiated by the Director wh 2537 38 17 General to lay the basis for my security clearance to be withdrawn and to ultimately procure my removal from the OIGI. I received a letter from the Director General dated 8 November 2017. The letter is attached marked “SD2” and siated that | had received classified information from political parties in Parliament which information relates to the State Security Agency and its activities. The letter further stated that the Director General believes that members or former members of the SSA unlawtully disclosed information to these political representatives of Parliament and that the Director General is of the opinion that | have an obligation to report and disclose receipt of classified information to the Director General. The Director General averred therein that by receipt of the said classified information, ! and members of the SSA who unlawtully acquired the said classified information are violating the following: “Section 26 of the Intelligence Services Act, 2002 (Act 65 of 2002) and section 4 of the Protection of Information Act, 1982 (Act 84 of 1982) and undermines the Agency's ability to fulfil its counter-intelligence responsibilities as defined and set out in section 2(1)(b) of the National Strategic Intelligence Act, 1994 (Act 39 of 1994), which includes information security.” ‘The abovementioned letter was followed by another dated 13 November 2017, in which the Director General reiterated that | am in receipt of unlawfully obtained classified information from representatives of political parties in Parliament. He mentioned that the information was received on the occasion when Mr. J Steenhuisen, the Chief Whip of the Democratic Alliance, lodged a complaint with me during May 2017. The letter made reference to section 7(10)(a) of the Oversight Act, which decrees that the Inspector General “shall comply with all security na 2639 40 41 18 requirements applicable to the employees of the Agency’. The Director General further mentioned that he believed that this placed an obligation on me to report the breach of security or conduct of members of the SSA to his office. A copy of that etter is attached marked “SD3”. ‘On 15 November 2017, | received another letter informing me that the SSA would be re-vetting me owing to the fact that | have not reported or disclosed to the Director General the fact that | was in receipt of unlawfully obtained classified information. A copy of that letter is attached marked “SD4. On 24 November 2017, | received a telephone call from a person who identified himself as Chester Mudinda Dau, who informed me of the SSA's intention fo conduct ‘a re-vetting investigation on me. | informed Mr Dau that as far as | was aware, my existing secutity clearance was still valid and, as such, that | did not take kindly to any attempt to conduct a security clearance investigation on me. Ina subsequent letter dated 3 December 2017, a copy of which is attached marked “SDS” the Director General advised me of an impending investigation by the SSA regarding the leakage of a classified OIGI report. He further mentioned that he had been informed that | had been “uncooperative” with the re-vetting efforts of the SSA. Reference was made to the General intelligence Laws Amendment Act 11 of 2013 and the letter further informed me to cooperate with the SSA in the process of my re-vetting and the imminent investigation. The Director General further indicated that: 2742 43 19 “.. the above notwithstanding, your attention is drawn to the media reports of today, 3% December 2017 in the “Sunday Times", concerning classified reports of the Office of the Inspector-General for Intelligence. (the IGI). It has now become as (sic) cause for concern that classified Teports of the IG have been leaked some 4 years after its finalisation. You are hereby advised that the matter of the said leakage will be investigated and as such the cooperation of the office of the Inspector- General of Intelligence is required.” The information pertaining to my re-vetting came in haphazardly, via innuendos and incoherently as shown by the contents of the above-mentioned letters received from the Director General. | was simply informed that the Director General was to conduct re-vetting of me upon receipt of disturbing information impacting upon my security competence. No clarity or detail was provided except for insinuations and prevarications. My so-called re-vetting was based on the false allegation that | received classified information from Mr. Steenhuisen. In the event that these allegations were correct, it could imply that the Director General is conducting surveillance on both me and ‘on the operations of the OIG! in the discharge of my responsibilities in terms of the Constitution and the Oversight Act. It is relevant to refer to Section 5 of the Oversight Act, which prohibits the unauthorised disclosure of intelligence or classified information or documentation except in circumstances where the disclosure is made to a person who of necessity requires it for the performance of functions in terms of the Oversight Act, This implies that in instances where | receive intelligence or classified information from whomsoever, which | require for the performance of my mandated functions in terms 2845 47 20 of the Oversight Act, | arn not permitted to disclose it unless it is necessary for the performance of a function under the Oversight Act. The Director General maintains that in receiving information falling within the ambit of section 5, 1 am now in contravention of that section and other statutes. This cannot be the case. Section 5 of the Oversight Act is amplified by Paragraph 3 of Chapter XXV of the Intelligence Services Regulation, which provides that: “classified information may not be used to conceal violations of law, inefficiency, administrative errors, prevention of embarrassment to a person and / or organisation; prevent or delay the release of information that does not require protection in the safety or interest of the Republic of South Africa; or for any other information that does not fall within the categories mentioned in Paragraph (2) of the same Regulation” My responsibility under the circumstances is to abide by the MISS (Minimum Information Security Standards) document regarding the security of such classified information in my custody, which | have done. ‘One of the main responsibilities of the Inspector General is to investigate corruption ‘and malfeasance in the intelligence services. The mandate of the Inspector General makes provision for members of the public and members of the intelligence services to report complaints for the consideration of the Inspector General and if need be further investigation. This implies that the core function of the Inspector General decrees that | am required continuously and anonymously to receive classified information forming the basis of complaints. The Director General seems to suggest that in circumstances where he may be the subject of the lodged complaint, | am required to disclose to him the source of the information, thus compromising the 2948 at identity of the complainant, or further compromising the process of the investigation that | may conduct. The erroneous belief by the Director General that I should report the receipt of all classified information to his office is at cross-purposes with the mandate of the Inspector General, defeats the reason for the creation and existence of the OIGI and reflects a complete misunderstanding of the legislation governing the powers and duties of the Inspector General. It is completely reasonable that | chose not to reveal information to the Director General conceming a complaint in which he is the accused. For the Director General to claim the right to this information is incompatible with the statutory role of the OIGI. in this regard | wish to point to one comparable example in another jurisdiction. ‘Australia, like South Africa, has an oversight body headed by an Inspector General of Intelligence and which is separate from any state intelligence agency. Under section 18(1) of the Inspector General of Intelligence and Security Act, No 101 of 1986, the Inspector General must inform the responsible Minister and head of the intelligence agency before commencing an inquiry into that agency. However section 15(2) provides that the Inspector General is not required to advise the head of an intelligence agency that he or she proposes to conduct an inquiry that relates directly to head of the agency. The Inspector General must in those circumstances merely inform the responsible Minister. The Oversight Act, unlike the Australian Act does not even require the head of an agency to be informed before an investigation is undertaken, however | point to it as an example of an instance where an Inspector General may have a statutory obligation towards a Director General which is 3049 50 51 22 superseded in circumstances where the Director General is the subject of an investigation by the Inspector General. Beyond the clear conflict of interest apparent in the Director General's claim to information in this instance, the Director General has misunderstood his authority in general. | do not report to the Director Generali; | am accountable to the JSCI. The Oversight Act empowers me to receive classified information despite the manner of ‘acquisition of such information, On receipt of classified information, my responsibility is to ensure the safe custody of the information and to ensure that the information is not unlawiully disclosed, which includes untawtul disclosure to the Director General. There is no legal provision requiring me to account to the Director General on any information acquired in the course of the discharge of my duties. The attempt by the Director General to conduct a re-velting of me owing to the fact that | did not report the receipt of classified information to him is nothing more than an attempt to interfere with the discharge of my mandated constitutional oversight responsibilities and reflects a gross misunderstanding on the part of the Director General of my powers and duties. The conduct of the Director General is illegal, unconstitutional and violates the provisions ‘of the Oversight Act, and the Constitution. The Director General has a counter-intelligence mandate and is attempting to use this against me in an abuse of his powers with the clear intention of interfering with 3152 53, 23 the scope, functions and discharge of my responsibilities. In this regard his decision to re:vet me was irrational and unlawtul and clearly motivated on improper grounds. Following the invalid decision to re-vet me, | then received a letter from the Director General on 28 March 2018, while the process of launching this application was already underway, revoking my security clearance. The letter is attached marked “D6”. The Director General purported to revoke my secutity clearance through the Protective Security Directives applicable to members of the intelligence services, specifically PSD.03, on the grounds that | have not co-operated with the request for re-vetting. It records the following: “It therefore stands to reason, that as your security clearance has been withdrawn, in line with the provisions cited above, you are no longer authorised to access any level of classified information and restricted premises, inter alia ail intelligence offices, including the Office of the Inspector General of Intelligence, with immediate effect,” [Emphasis added] The Director General sought to revoke my security clearance and prohibit my entrance into my office with immediate effect. On 6 April 2018 | received another letter from the Director General, attached marked “§7”. Apparently my security clearance was now being withdrawn on substantially different grounds to the 28 March 2018 letter. The letter states: “5, The Director General is invoking his prerogative in terms of Regulation 8(1) of the Chapter XXVI of the Intelligence Services Regulations, to withdraw your security clearance with immediate effect, based on the following reasons: 3257 24 5.1 Failure to exercise your duty to report, and action, breaches of disclosure of classified information in or from the Office of the Inspector General of Intelligence; 5.2 Failure to execute your fiduciary duty as the Inspector General of Intelligence, towards the Intelligence Services, by obstructing the due administration of justice; 5.3 Defeating or obstructing the ends of justice by such failure; and 5.4. Failing to comply with the request fo submit to re-vetting.” The letter records the same reasons for revoking as the Director General's purported reasons for re-vetting as contained in some of his earlier correspondence. For the reasons given above | maintain these claims are fallacious and misinterpret my obligations towards the SSA. The developments regarding the aforesaid revoking points to the usurpation of my powers. Although | currently remain IGI in title, the withdrawal of my security clearance has sterilised my ability to undertake my investigative duties and to oversee the office of which | am the Administrative Head. It is also a ground on which the President under s 7(4) of the Oversight Act may remove me from office. It therefore has significant implications for my security of tenure. The clear intention of the Intelligence Services Act and Regulations is to provide for withdrawal of security clearance on a reasonable basis, It states: “if the Director- General is reasonably of the opinion that an applicant may not ... continue as a member without the possibility that such an applicant could be a security risk or ‘could possibly act in any manner prejudicial to the security interests of the Republic of South Africa.” WS 3358 59 60 25 Therefore, a re-vetting and revoking cannot be undertaken for no reason, or for a fallacious reason. It must be prompted by a genuine concern that the person poses a security risk or could act in a manner prejudicial to the security interests of the Republic. It cannot be prompted by me merely fulfling my constitutional obligation tohold the SSA andits head to account. At best for the Director General, his decision is irrational. The Oversight Act could never envisage that | must inform the Director General about complaints relating directly to him as this would undermine the oversight mandate | am given under the Oversight Act and the Constitution. There is real likelihood that the Director General's decision was in fact motivated by his position as the direct subject of a complaint before me. The regulations that | have quoted above requires the Director General to act reasonably in the re-vetting process. It can never be reasonable to commence a re- vetting process on me personally when | have simply executed my legislative obligations Beyond the unreasonableness of the re-vetting and revoking in the present circumstances, there is no legal basis on which the Director General can undertake either action. To the extent he assumes this power through either the Oversight Act or the National Strategic Intelligence Act he is wrong. The Intelligence Services Oversight Act clearly envisages that the Minister and JSC! will regulate the manner in which security clearances are issued. To the extent the Oversight Act or the National Strategic Intelligence Act provides the Director General with the power, in the absence of the requisite regulation being promulgated, this is unconstitutional 3461 62 26 For this reason, in Part B of this application | seek a declaratory order to this effect, alternatively to challenge the current statutory framework which allows the Director General the authority to grant or withdraw an Inspector General's security clearance. In the interim, the purported effect of the 28 March 2018 and 5 April 2018 letters must be suspended to protect the independent functioning of my Office pending the final determination of this matter. It is imperative that | can still access my office and undertake my duties in the intervening period. In addition to the illegal withdrawal of my security clearance, | have been subjected to different form of harassment at the hands of Mr Fraser relating to withdrawal of security. | dwell on this below. WITHDRAWAL OF SECURITY 63 64 ‘The Conditions of Service of the Inspector General regarding VIP Protection and other incidental security details are guided by the Ministerial Handbook. I, in my capacity as Inspector General, am entitled to physical protection and other related secutity. Furthermore, the SSA is mandated to fulflll and coordinate the national counter-intelligence functions in order to identify any threat or potential threat to the national security of the Republic of South Africa or its people (Sec 2 (1) (b) of the National Strategic Intelligence Act, No 39 of 1994). | refer below to correspondence and documentation relating to the state of security at my residence. The information contained in the correspondence and documentation is of a sensitive and confidential nature, and the correspondence wh 35O 65 67 68 27 and documentation have accordingly not been attached to this affidavit. All the correspondence and documentation referred to will be made available to the Court and directions in respect of its dissemination will be sought. On 10 April 2017, the OIG! received a security appraisal report conducted by the SSA at my official residence. It is an established practice that the security assessment of an official residence is conducted on an annual basis or as the need atises in order to identify and establish any emerging security threat. On 20 November 2017, | wrote a letter to the Director General requesting him to conduct a security appraisal and to consolidate security measures to address the dysfunctional security measures at my official residence that required immediate attention (as detailed in the security appraisal report). | made reference to an earlier meeting held on 16 November 2017 between the Director General and myself, where | requested him to enhance and increase security to include static security at my official residence. | further requested the Director General to expedite the process and provide such security while an appraisal was still underway. On 21 November 2017, | received a response from the office of the Director General noting my communiqué and stating that the Director General was away on official business and that the correspondence would be brought to his attention. On ¢ January 2018, Mr, Tifflin, an employee of the OIGI, sent an email to the SSA wherein he referred to a meeting held on 14 December 2017 at my official residence 3669 70 7 28 and to undertakings made for immediate implementation by the end of December 2017. The said undertakings were in relation to security upgrades of cameras, alarm beams, electric fencing and the alarm system. On 22 January 2018, I wrote another letter to the Director General wherein | once again raised my concems about my personal protection and static security at my official residence, which had remained unattended to. | informed the Director General that | had initiated the process of consolidating the said security situation. My concerns in this regard were exacerbated by telephonic threats that | had continued to receive, which | had previously brought to the attention of both the Minister and the Director General. | also informed the Director General that the South African Police Service (SAPS) VIP Protection Unit had allocated two members to assist the current VIP Protectors assigned to me by the SSA. While SAPS assigns these protectors, the necessary resources they require to undertake their protection duties, such as cars, cellphones and airtime, must be provided from the OIGI budget. | am currently unable to access any funds from the budget for these necessities and they are being paid out of my private funds. On 25 January 2018, the SSA wrote an email to Mr. Tiffin of the OIG! and apologised for the delay in installing the electronic security systems at my official residence. The letter stated that the technicians responsible for the installations were on leave and would return on 29 January 2018 to commence with the 3772 73 74 29 installations. Mr. Tifflin responded on 26 January 2018, requesting that the technicians commence work after 30 January 2018 owing to the fact that service providers had already committed to render their services at the official residence on the same day. 0n31 January 2018, Mr. Tiflin reported to the SSA on Physical Security members who visited my official residence on 30 January 2018, to conduct an assessment of the requirements and upgrades to be done. The members also indicated that they would commence with upgrading the electronic security installation on 31 January 2018. Mr. Tifflin requested the Project Plan indicating what would be done and an approximate timeframe for the project. On 31 January 2018, an email was received from the SSA stating that the process ial residence would of upgrading the electronic security installation at my o! commence on the same date of 31 January 2018. The said email served to inform me of the two appointed technicians and the project plan for the electronic security installation. It also served to inform me of the process of upgrading of the electrical fence and the names of the persons who would attend to it. | qualify for VIP protection as | undertake dangerous investigations. The provision of this protection falls under the Director General's purview. On 12 December 2018 a representative of the SSA informed the Inspector General that a decision was taken to rotate two of the four VIP protectors that were assigned to the Inspector General. The protectors had been in the position for eight months. In support of the 38 s330 removal it was claimed that “rotation” of protectors is a common practice. However, when I requested proof of a rotation policy in this regard the SSA was not able to point to any such policy. | have made it known to the Director General that | am wholly opposed to removing my current security protectors but he Is intractable in this regard. 75 | therefore seek urgent relief ordering the Director General to take reasonable steps to ensure my security is not compromised and prohibiting the Director General from removing or re-arranging my personal security protection. CONDUCT UNDERMINING THE OIGI AND MANDATE OF THE INSPECTOR GENERAL 76 Since my appointment as Inspector General | have endeavoured to ensure an efficient and effective OIGI. This has been hampered by the combative and often legally unsound position taken by the Director General. Below | set out four areas in which the SSA, and/or Director General, has undermined the OIGI's mandate. Denial of Access to Intelligence or Information 77 Upon my appointment as the Inspector General and on commencement of my duties ‘on 15 of March 2017, | embarked on the process of evaluating the status of all complaints that were lodged with the OIGI. | established that certain complaints lodged before my appointment were still pending and had not been finalised. | p> SJ 3978 31 immediately developed a “complaints process flow” as a guideline for the processing and handling of all complaints lodged with the OIGI. | began the process of allocating the complaints to my support staff with “bring-forward dates” for purposes of ensuring the speedy resolution of lodged complaints. My approach was that upon receipt of any complaint, a letter should forthwith be written to the Intelligence Service in respect of which the complaint is directed, in which the Head of the intelligence service or Director General is informed about the receipt of a complaint against that intelligence service and further requesting certain relevant and necessary information from the sald head of the intelligence service or Director General. The information is requested for the purposes of enabling and affording my office insight into all circumstances pertaining to the complaint for the purposes of investigating the matter. Furthermore, the information request is to provide the head of the intelligence service or Director General with the allegations forming the subject of the complaint and to request the official version of the intelligence service in response to the allegations levelled against it. It is not uncommon for my office to request further documentation from the concerned intelligence service, in support of their version. Members of my office and | have however been experiencing restricted or managed ‘access to information from the Director General as evidenced through protracted delays and/or lack of response to our numerous requests for information. On those few instances that the said Director General responded, the responses are inadequate and a mere acknowledgement of receipt of my correspondence without provision of the information requested by my office. This conduct has resulted in 4079 32 my office not being able to finalise investigations within set timeframes and certain investigations have been adversely affected by the restricted or managed access to information by the Director General. The instances mentioned below are an illustration of the conduct of the Director General in response to requests for information. The Director General's recalcitrant and obstructive conduct is not limited to these instances. Deployment of SSA members to perform functions at Functions and/or Meetings of Political Parties 80 In 2014 the OIGI received two complaints lodged by Mr. Stubbe who is a member of the Democratic Alliance and a member of Parliament, The complaint received from Mr, Stubbe concerned a number of claims which were raised in the media regarding allegations of abuse of State resources and allegations of the use of State Intelligerice operatives at functions and meetings of political parties. Pursuant to the aforementioned complaint, on 30 June 2017 | wrote a letter to the Director General, a copy of which is attached marked “SD8”. As authorised under the Act, | proceeded to request information about any possible deployment of SSA members at functions/meetings hosted by political parties within South Africa during the month of January in the years 2014, 2015, 2016 and 2017. Two weeks later on 14 July 2017 | received a letter of acknowledgement from the Director General, @ copy of which is attached marked “SD9". In the said letter, the Director General requested that he should be afforded a period of three weeks to complete the assignment regarding my information request. 41Oo 81 83 33 {ater received another letter from the Director General, dated 26 July 2017, in which he requested my Office to provide “adalitional information concerning our information request’. A copy of this letter is attached marked “SD10*, I then wrote a letter dated 28 July 2017 to the Director General responding to his two letters dated 14 and 25 July 2017 in which 1 provided further and detailed particulars regarding the information request contained in my earlier letter dated 28 July 2017. A copy of this letter is attached marked “SD11”. Since this date | have not received the requested information from the Director General. | wrote a follow-up letter dated 18 September 2017 reminding the Director General of my previous letters and indicating that the information request is long overdue and | once again implored the Director General for a response as a matter of extreme urgency. It had at this point been over two and half months since | made my original request. A copy of this letter is attached marked “SD12", On 22 September 2017, at my request, | met with the Director General and raised the abovementioned matter and the fact that | was not receiving the requisite cooperation from his office regarding a number of matters forming part of my mandate. | also stated that this behaviour is viewed as intentionally dilatory, and that it adversely affects the discharge of my intelligence oversight mandate. The Director General undertook urgently to respond to all outstanding information requests regarding this matter and all other outstanding matters. Notwithstanding all efforts on my part as referred to above, | have to date not received any response from the Director General. | then wrote another letter to the S35 4284 34 Director General dated the 8 November 2017, in which | placed the abovementioned issues on record and further indicated that notwithstanding all efforts to nudge his office to oblige to my lawful official requests, | had not received any or adequate responses (as the case may be) from the Director General. A copy of the letter is attached marked “SD13". This letter was copied to both the Minister of State Security ‘and the Chairperson of the JSCI. It was only after writing the abovementioned letter that I received a reply from the Director General with his response to the information requested as per my initial letter four months earlier. The sald letter received from the Director General and dated 15 November 2017 was also copied to the Minister and the Chairperson of the JSCI, Due to the sensitivity of the contents of the letter, a copy of this letter is not attached to this application and will be made available to the judge for directions in respect of its dissemination. The contents of the letter is, in any event, not relied upon for the relief sought in the Notice of Motion. On receipt and perusal of the Director General's letter of response, | deemed it necessary to request further and additional information as per my letter dated 29 November 2017. A copy of the letter is not attached due to its sensitive nature and will be made available to the judge for directions in respect of its dissemination. The contents of the letter is, in any event, not relied upon for the relief sought in the Notice of Motion. In response to my aforesaid letter, the Director General as per his undated letter of December 2017 enquited as to “why | am requesting additional Information from the SSA”. The Director General further requested my Office “to elucidate as to what specific function in terms of section 7(7) of the Intelligence Services Oversight Act the requested additional information relates’. In the said sd 4335 letter, the Director General further wanted clarification from my Office “as to the relevant provisions and area of my oversight function’ that the follow-up and additional information was required for. A copy of this letter is attached marked “sp14". Receipt of the abovementioned response confirmed my perception that the Director General has, wilfully or otherwise, misunderstood my mandate as Inspector General and the legal prescripts relating to my unconstrained and unfettered access to intelligence and information held by the intelligence services. Requests for information: Human Resource information and Ministerial Delegation of Power and Direction of Payment (MPD). 86 87 On 19 March 2018, after receipt of a complaint by my Office regarding an allegedly irregular appointment of a member made by the SSA in contravention of a moratorium that was placed on all appointments, | directed a written request to the Director General to be provided with the Human Resource file of the member in question. The request is straightforward, and the Human Resource file should be readily available. A copy of the said letter is attached hereto as annexure “SD15.1". On the same day, | also sent another letter to the Director General. The letter states that | was conducting an investigation in respect of the Ministerial Delegation of Power and Direction of Payment (MPD) that was published on 6 March 2018, and called for a response to five pointed questions: a)"Who was involved in the SS 4488 89 36 development of the said MPD?" b) “Who recommended it for approval by the Minister of State Security?” o) What process was embarked upon for its development and final approval of the MPD? d) Was there a task team involved and if in the affirmative kindly provide the names of persons comprising the task team and whom it was headed by? e) Which structures in the State Security Agency were consulted in the development of the MPD?. The information requested fall squarely within the knowledge of the Director General. The Director General responded to both the aforesaid letters on 19 March 2018. Instead of complying with the requests, the Director General draws my attention to certain sections of the Oversight Act. He goes on to unilaterally impose a condition for complying with both the aforesaid requests as well as “all other complaints received for feedback by the SSA”, that the SSA should be provided with “details of the complaints by the complainant{s)...in order to be assured that the IGI is indeed acting in accordance with his legislated mandate and is performing his function in good faith and without fear, favour, bias or prejudice.” The Director General is seemingly under the impression that he should perform an oversight role in respect ‘of how | should:perform my functions and that, unless he is satisfied that | am complying with my empowering legislation, he would not comply with requests that | directed at him. A copy of the Minister's letter is attached hereto as annexures “$D15.2" and “SD15.3" respectively. Furthermore, the Director General, advises in his response that it would be “prudent” for me to refer my questions in respect of the MDP to the Minister (as opposed to 4590 1 37 responding to the questions himseif). The Director General's response is anathema to the principle of accountability. He is of the view that | can only conduct an investigation into the SSA, and that he will only co-operate with my investigation if he has approved of the investigation and after | have satisfied the conditions that he would impose. Section 7 (8) of the Oversight Act provides “that the Inspector General shall have access to ay intelligence, information or premises in the control of any Service...... and he or she shall be entitled to demand from the Head of Service in question and its employees such intelligence, information, reports and explanations as the Inspector General may deem necessary for the performance of his or her functions”. Section 7(9) of the Oversight Act provides that “no access to intelligence, information or premises contemplated in subsection 8 may be withheld from the Inspector General on any grounds.” The Director General has no authority to refuse to comply with my aforesaid requests and no legal basis exists for him to impose conditions that | have to meet before he complies with my requests. His conduct, is demonstrated by his response to my requests, is patently unlawful and in defiance of my powers under the Oversight Act. It is in the fight of all the instances set out above, | note the futility of further constructive engagement with the Director General regarding the provision of intelligence and/or related information in the custody of the SSA. The Director General has not adequately responded to my lawful official requests for information 4692 93 94 38 ‘and has erroneously assumed the power and authority to prescribe the kind of information that may be disclosed to me. I have come to the conclusion that there has been a conscious move on the part of the Director General to progressively and incrementally restrict or manage my access to information within the SSA in order to frustrate the OIGI's intelligence services oversight mandate. This has left me with reason to believe that the Director General does not want to be rendered accountable to my Office. The Director General’s conduct has direct implications for the discharge of my oversight mandate in terms of section 210 of the Constitution and section 7(7) of the Oversight Act. For this reason, | seek an order, on an urgent basis, that the second respondent is ordered personally, and/or through the SSA of which he Is the Head, to co-operate with all ongoing investigations pertaining to the SSA and lodged with the OIGI, and in respect of any future complaints that may arise in the interim period, including but not limited to the provision of intelligence and information requested by me for the purposes of fulfilling my official function. The SSA has had ample time to source and report on the information my Office has requested on ongoing investigations and complaints. There is no reason wy, if this Court so orders, they cannot make immediate provision of this information. In respect of future complaints that may arise while Part B to this application is pending, the Director General should be ordered to comply with the reasonable time periods set out in my formal requests. i) 4739 Challenges Related to Oversight Engagements 95 Ina letter dated 18 September 2017 | duly notified the Director General of my intention to commence with our oversight engagements with the SSA starting from 15 September to 31 March 2018. A copy of this letter is attached marked “SD16”. The annexure to the letter contains confidential information and has not been attached. This letter was copied to various heads of programmes to ensure that the relevant heads could timeously inform the management of SSA structures operating under them. This was done to ensure that the structures Identified for oversight engagements were timeously informed in view of the stricter timeframes for engagements. To this extent | also requested the Director General to appoint nodal points (oversight liaison officers in respect of each SSA programme) to facilitate the oversight engagements and provision of information between SSA and OIGI. ‘Attached to the letter was a schedule of all oversight engagements with dates of engagements in respect of each structure. This is a standard process which | conduct on an annual basis with all intelligence services. However, on the date identified for the oversight engagements, my oversight teams discovered to their dismay that the relevant SSA offices identified for oversight engagements were not {ully informed by the Director General as requested in my aforesaid letter. To my jeam’s embarrassment, they had to return to their offices and reported to me this unfortunate state of affairs. | immediately contacted the Director General with a view to setting up a meeting. qu40 The meeting took place, on 22 September 2017 and | duly raised my concerns with the Director General regarding my teams having not been allowed to commence oversight engagements as per communicated plans to SSA. The Director General responded indicating that the scheduled engagements were at short notice and that all communications from me to his office should not be copied to the Deputy Directors General responsible for the areas | intended to communicate. On my request for the appointment of nodal points within each programme, the Director General disagreed with me and indicated his decision Is that there should be only ‘one nodal point in respect of all communication between OIGI and SSA with regard to oversight engagements. | acceded to the Director General's decisions in the hope that these could be mutually beneficial and workable proposals. | must indicate that | was taken aback when the Director General in that meeting indicated that he had decided to allocate a member of the SSA, who is stationed at the Director General's parliamentary office in Cape Town, as the sole nodal point in respect of O1GI-SSA communication, This decision was surprising to me as the SSA and OIG! head offices are both situated in Pretoria and yet my Office was now required by the Director General to send all communications regarding oversight engagements from Pretoria to Cape Town. Further, the decision meant that the allocated member would then communicate information from my Office to the SSA structures which are mainly based in Pretoria. The SSA structures in Pretoria would then communicate to the allocated SSA official who would in turn relay the response to the OIGI's offices in Pretoria. This is despite the fact that the SSA and the OIGI headquarters in Pretoria are less than 15km apart and there is adequate communication pe 4997 A infrastructure between the two headquarters. Despite this | respected the Director General’s decision and resolved to give this arrangement a chance despite my concerns, on the basis that if it did not work | would be able to approach the Director General with ample evidence to that effect. Itis obvious that this arrangement does not work well as it has resulted in extensive and unnecessarily burdensome administrative protocol and red tape. This has an impeding effect on the discharge of our oversight activities within SSA from both a procedural and substantive perspective; not only does it make the oversight engagement process overly tedious, but the consequential delays stand to undermine the accuracy and effectiveness of our oversight. Filling of Vacancies in the OIGI 98 Ina letter dated 7 November 2017, a copy of which is attached marked “SD17”, | notified the Director General of the intention to commence with a recruitment drive for the OIGI. The recruitment drive was intended to fill 6 funded and critical vacant posts in the OIGI. One of the posts became vacant due to retirement of the head of the oversight structure responsible for Defence Intelligence. The letter was necessary to request the Director General to release the relevant funds to fill the mentioned posts. The Director General responded to me in a letter dated 07 December 2017, a copy of which is attached marked “SD18", stating that: "Regrettably, the State Security Agency is unable to adhere to your request for funding of the posts as identified in your letter. The State Security Agency has adopted and endorsed its Strategic Development 5099 100 42 Plan (SDP) Vision 2035 and as a consequence thereof, realigned its organisational structure and strategy. This process is underway and In its final stages. Once the final confirmed structure has been approved, It will inform the recruitment process as to what the priorities are in terms of filing of vacant posts.” ‘The abovementioned response from the Director General is a clear misinterpretation of the provisions of section 7(12) of Oversight Act. This manifested in the Director General purporting to clothe himself with authority which is not vested in him. The decision to recruit staff within the OIG! lies solely with the Inspector General as the Head of the OIGI. Staff appointments in the OIG are done by the Minister after consultation with the Inspector General. The role of the Director General is to play a supportive role by availing my Office with resources for the purpose of recruitment, for so long as our budgetary allocation remains within the purview of the SSA, and also to provide support in relation to the recruitment process as prescribed in the applicable regulatory framework. The OIGI as a constitutional body has its own Vision 2022. The strategic goals of the OIGI and the Inspector General Vision 2022 are not in any way subsumed under the Strategic Development Plan (SDP) and Vision 2035 of the SSA. The latter is one of the intelligence services overseen by the Inspector General in terms of the Constitution and the Oversight Act. Accordingly it is unlawful, irrational and entirely untenable for the Director General as head of the intelligence service being overseen, to purport to be the sole determinant on how | should capacitate my office and, furthermore, to dictate when | may capacitate my office. This would mean that the Director General can overrule the Inspector General on matters pertinent to how ny 51101 43 the Inspector General must run his or her office and may further dictate the Inspector General's ability to oversee his or her intelligence, The conduct referred to above runs counter to the spirit of the Constitution and the independence with which my Office is vested. The Director General has no power and authority to make employment decisions in respect of the OIG! as such authority is vested in the Minister after consultation with ihe Inspector General. The Director General's response is accordingly wrongful and constitutes unlawful interference with my capacity to perform my legislated oversight functions. The Director General's conduct is made all the more egregious by the fact that his obstruction of my efforts to capacitate my office directly undermines my ability to exercise my oversight function in respect of the Intelligence Services under the Director General's control. The Director General has a palpable conflict of interest. Budget Allocation to the Office Inspector General of intelligence 402 As highlighted in the preceding section, for the OIG! to have independence in capacitating and operating as an effectively functioning office requires me to have autonomous access to a ring-fenced budget. This is currently lacking. ih SJ 52103 104 44 On 21 February 2017, before | took up my position, Mr. Tifflin, the Corporate Services Manager of the OIGI, wrote a letter to the Director General for a budget request for the 2017/2018 financial year. He informed the Director General that the OIG! was without an incumbent and that a draft Annual Performance Plan had been. prepared as is required for purposes of submitting a budget request. He requested a budget of R12 718 878 for Opex and Capex, stating that the personnel budget will be allocated centrally at the SSA, based on the current staff of OIG! as at 31 March 2017. Mr. Tifflin also informed the Director General of the staffing plan for vacant posts totaling R7 368 124, apportioned to R6 487 082 per expected appointment periods aiter the projected appointment of the Inspector General of Intelligence. He further informed the Director General that section 7(14) of the Intelligence Services Act, impliedly prevents members of the OIGI from performing any mandated function of the Inspector General without written delegation and authority from the incumbent of the position. He requested that the Director General should approve the proportionate budget to meet the contractual obligations and limited operational budget of the OIGI, He also informed the Director General that on appointment of the Inspector General an adjusted budget request would be submitted in order to meet the reviewed objectives of the OIGI for the 2017/2018 financial year. A copy of this letter Is attached marked “SD19". The letter contains confidential information that has been redacted. 53O 105 106 107 45 | wrote a letter to the Director General on 9 October 2017, a copy of which is attached marked “SD20”, requesting additional funding. In this letter | stated that “ ‘The OIGI was allocated a minimal operating budget for the 2017/2018 financial year and after its review of its planned activities for the remainder of the financial year requests the Director-General for additional funding to support the planned activities. *» The OIGI is need of two million four hundred and sixty-six thousand eight hundred and seventy-five rands (R2 466 875) to support the oversight activities and functions as mandated by the Intelligence Services Oversight Act, 1994 (Act 40 of 1994).” On 2 November 2017, | followed up with the Manager: Management Accounting to submit the Capex requirements to responsible structures at the SSA after the meeting of the Budget Management Committee. On the above-mentioned date the SSA informed me that no budget had been allocated to ICT Gapex requirements (3 party needs) for 2017/2018 and that, due to budgetary constraints, only critical projects linked to SDP would be funded. The SSA advised that for CAPEX was centralised and that any CAPEX requests would be handled by the SSA logistics department. On 22 November 2017, Mr. Mtila, who is a budget controller of the OIGI, informed the SSA that the request for transfer of funds for Bogare structures (Ministry of State Security, National Intelligence Coordinating Committee, OIG! and Intelligence Council for Conditions of Service) for official communication for a total transfer of R6, 980,677.32 had been initiated and | had recommended for transfer of OIG! funds. He also informed the SSA that the OIG! had a negative balance of R922, 598.26 on travel related General Ledger accounts as at 22 November 2017, and KW Sd 54108 409 110 46 enquired as to the progress on the request for additional funding that was submitted as part of the Mid-term review. On the above-mentioned date the acting budget controller of the SSA informed Mr. Mtila that the request ‘submitted for the Mid-term, Review was not approved for allocation by the SSA. The letters dated 4 December 2017 and dated December 2017 are attached marked “$D21" and “SD22” respectively. On 30 January 2018, the OIGI received a communiqué from the SSA informing me that R10 million had been approved for the Ministry of State Security and OIG collectively and for me to send one General Ledger account for Capex and One General Ledger for Opex. On 31 January 2018, the SSA clarified that the R10 million was approved only for the Ministry of State Security and that because the OIG! request was not approved no additional funds. would be allocated to OIGI. A copy of the correspondence exchanged on 30 January 2018 and 31 January 2018 is attached marked as annexure “SD23,1" and “SD23.2”. The aforesaid interactions clearly demonstrate how the deprivation of resources can be used to curtail the oversight obligations of the OIGI. The PFMA recognizes the functioning of constitutional institutions. Section 35 of the PFMA provides that: “(1) Every department and every constitutional institution must have an accounting officer” (2) subject to subsection (3) 5547 (b) the chief executive officer of the constitutional institution must be the accounting officer of that institution. 111. As the head of the OIGI, | am required by the PFMA to be its accounting officer. It follows from a conceptual perspective that in order for section 7(13) (which relates to the budget of the OIG!) to have proper effect | am required to be the accounting officer of the OIGI. Thus, although a separate budget is not allocated for the OIG! its budget must be appropriated from the budget of the intelligence services and allocated to me, as accounting officer, for these funds to be expended in accordance with the provisions of the PFMA. 412 For this reason | seek in Part B to have the OIGI’s budget separated from that of the intelligence services so | will no longer have to approach the SSA in order to fill vacancies in my Office and for the necessary legislative reforms to be enacted to recognize the OIGI as a schedule 1 constitutional entity in terms of the PEMA. FURTHER GROUNDS FOR INTERIM RELIEF 113 Against the background described above, | submit that | have made out a proper ‘case for interim relief sought in the notice of motion. | elaborate on the reasons for this submission below. Prima facie right 144 Much of what is sought in Part B to this application is declaratory orders concerning the independence of my Office. | am required by law to serve impartially and independently and perform my functions in good faith and without fear, favour or 56115 116 48 prejudice, This requires the protection of the basic tenets of an independent institution, namely the manner of my appointment, my security of tenure (and due to the nature of my work, my security of person), the budget of my office and the manner of, and grounds for, my removal. The importance of these features for an independent, autonomous and efficient office is underpinned by international best practice and has beén applied by our courts to corruption fighting institutions and oversight bodies of other state institution. My mandate covers both such scenarios and I submit, therefore, that there are strong prospects of success that | will succeed in Part B relief either on a plain interpretation of the Oversight Act or in a Constitutional challenge in respect of certain provisions that are clearly antithetical to an independent and efficient oversight office. For the OIG! to be an independent office it must be effective. For it to be effective it must have the necessary financial and human resources to fulfil all of its functions, The Director General of the SSA clearly cannot be the person authorised to release the funds necessary for an effective oversight mechanism over him and his agency. For this reason | have a right to the declaratory relief sought in Part B. In respect of access to information specifically, | submit that the Oversight Act Is clear that | must have unfettered access to information and intelligence | require in the performance of my functions. If not provided immediately this intelligence and information must at least be provided within a reasonable period to enable my investigations to be undertaken in an efficient manner. If this is not the case my authority to request information will be a toothless power in the face of the 57 iv SS117 118 49 obstructionist and recalcitrant attitude taken by the Director General and the consistent delays that, by this point, amounts to his constructive refusal to acquiesce tomy requests. Inthis regard | have a clear right to the information | have requested in respect of ongoing investigations and may request on the basis of any future complaints that may be lodged. In respect of my security clearance, | seek in Part A to suspend the decision to revoke my security clearance taken by the Director General. | submit that the legistative scheme that allows for the Head of the SSA to have the authority to grant or remove the security credentials of the very person charged with monitoring and investigating his alleged malfeasance is ripe for a constitutional challenge in the present circumstances. Furthermore, even on the present statutory framework | am entitled to this relief. The Director General's decision was clearly irrational and has been instituted in an unlawful manner. Itis motivated by the Director General's direct interest in compromising my ability to investigate complaints against him and is designed to intimidate me. i have a right to VIP security protection and to security provisions at my official residence. This has been infringed by the delay in ensuring the required security upgrades to my official residence can be undertaken and by the Director General’s threats to replace my current security protectors. 58oO 50 Irreparable harm 119 120 ‘The harm engendered by the suspension of my security clearance has been laid out at the start of this affidavit. The harm to the independent, effective and efficient functioning of the OIG! and to our ongoing investigations is manifest. In the present circumstances | am sterilised from continuing to undertake my duties. My Office is largely sterilised by having no separately allocated budget, staff shortages that are prevented from being filled, and no co-operation from the SSA in regard to investigations and requests for intelligence and information. In respect of ongoing investigations the longer an investigation is hampered and delayed the less likely it is that the true state of affairs will be uncovered, In addition, there is the real prospect that harm may be occurring within various intelligence services while the OlGI's attention is diverted by having to fight for a semblance of authority over the bodies it seeks to monitor. In addition, | face threats to my personal safety given the highly charged nature of the investigations | undertake and the intelligence spheres In which | undertake these investigations. For this reason, itis imperative that | be provided with adequate security measures for my official residence and person. The Director General's pressures to remove my current security detail and the SSA's refusal to allocate budget to ensure adequate security measures are in place at my official residence ‘occasion the increased threat to my safety. Should the interim relief | seek not be granted the harm | face is undoubtedly irreparable. i sh 59St Balance of convenience 424 122 | submit that the balance of convenience favours the granting of relief in these circumstances. The prejudice to the OIGI, to me and to the public if relief is not granted is serious, manifest and potentially irreparable as set forth above. Conversely there is minimal harm to the respondents if the interim relief | seek is granted. | remain accountable to the JSCI as required by the Oversight Act. Any expenditure | make in regard to staff or security will need to be accounted for. The information I require from the SSA is information itis obligated to provide, the rights of the SSA are therefore not affected in any way. No alternative remedy 123 124 Regulation 8(3) of Chapter XXVI of the Intelligence Services Regulations provides a tight to appeal the Director General's withdrawal of a security clearance. | submit that this provision does not apply to me. It is based on the assumption that the Director General has the power to issue or revoke the security clearance of the Inspector General. The correct position is that he does not. He has purported fo act as if he does. At any rate, the main issue in this case is that regardless of whether | have the right to lodge an internal appeal, the reality is that in my position the revocation of my security clearance has enormous implications for my ability to access the office and to perform my functions. Although it is my intention to exercise whatever remedies lie at my disposal, including an internal appeal if necessary, any appeal will not Bib sd 60125 126 52 ‘suspend the revocation or entitle me to access my office and confidential information while itis under consideration. If it will be argued, on behalf of the respondents, that | have the right to an internal appeal, they are invited to confirm that pending the exercise of any right to an internal appeal, my security clearance shall be reinstated forthwith. In addition, for the reasons given above it is in conflict with the mandated independence of my Office for either the revocation or the appeal process to be in the hands of the Director General or the Minister who both fall under my oversight mandate to varying degrees, The re-vetting and any subsequent revocation of secutity clearance and removal from office must be done through Parliament. This is the rellef sought in part B and until such time as the Courts have determined that relief it is necessary to suspend the revocation immediately. In respect of the other relief sought | submit there is no satisfactory alternative remedy. The granting of interim interdictory relief Is necessary to ensure my Office is funded and capacitated, my requests for information are complied with, my employment is secured while | undertake a highly politicised investigation into the alleged corrupt conduct of the Director General, and my personal security is not compromised. This cannot be achieved in any other manner. CONCLUSION 127 In light of the contents of this affidavit, | submit that: 61oO 53 427.11 have demonstrated a clear right, or at least prima facie right, to the declaratory relief / alternatively the constitutional challenge brought in Part 8 to this application; 127.2 Ihave a reasonable apprehension of irreparable harm should the interim relief sought in this application not be granted; 127.3 The balance of convenience favours the granting of interim relief; and 127.4 The interdictory reliet is the only appropriate remedy. 428 There has been a constant decrease in support for my Office and an increase of pressure and intimidation on me personally as Inspector General leaving me isolated and unprotected in the intelligence arena | am tasked with monitoring. It is in the interests of justice that this application be granted. WHEREFORE | seek the orders as prayed for in Part A of the notice of motion. Deponent: Setlhomamaru Isaac DINTWE hereby cerify that the deponent knows and understands the contents of this affidavit and that itis to the best of the deponent’s knowiedge both true and correct. This affidavit is signed and sworn to before me at PRETORIA on this the \\_ day of APRIL. 2018, and that the Regulations contained in Government Gazette No. 1258 as amended by Government Notice Regulation 1648, Government Notice Regulation 1428 and Government Notice Regulation 773 was fully complied with. 6263 Wisse 3 COMMISSIONER OF OATHS u FULL nanesaeaeg Cerelne jotme DESIGNATION: cesctady e ADDRESS: 977 . ae9 “TWO ; Projects Vodka, Pack and Psycho Two days after I arrived in Moscow, Paul Engelke agreed to see me. “Meet me at Arbatskaya station, It’s close to Red Square. I will wait for you in the smiddle of the platform,” he said. It’s near impossible to meet someone ina. 4 par or restaurant because names are displayed in the Cyrillic alphabet and are impossible to decipher. When you ask for help, most people simply ignore you or shrug their shoulders. Moscow metro stations are astonishing feats of engineering, construc- tion and art, On the instructions of Joseph Stalin, their architects created a subtetranean and opulent communist paradise. When I walked off the train, I was standing in: one of the most beautiful of all Moscow metro stations: a baroque celebration of Stalinism with white arched ceilings, bronze chandeliers, ceramic bouquets of flowers, red marble decorations and glazed tiles. * I recognised Engelke from his Facebook profile picture, which shows him standing on Red Square. He stood a few metres away from me, glancing up and down the pinkish granite floor. Around seven million Muscovites use the metro every day - more than London ynd New York combined. Engelke is a stocky man with genial features and a boyish expression. He rushed me out of Arbatskaya, across Red Square, past the GUM shopping palace and down a side street. Uriderfoot was slippery and I must have looked like a drunkard trying to skate for the first time. It’s an art to negotiate the iced pavement and brown sludge, and Engelke had.lived in Moscow for long enough to have mastered the art. 26 sf{hye and shape of Lenin’s mausoleum searched my bag before we were 4 downstairs. The restaurant was packed with Russia's new young why brash and cocky, ‘assured and refined. They were decked in he ‘stablishment.. ; |= gyhen communism died, it was replaced by something far more alluring: ‘it a time. This gave rise to the so-called oligarchs: businessmen, senior “I servants and army generals of the former Soviet republics who rapidly (CJumulated wealth during the eva of Russian privatisation in the after- ‘th of the dissolution of the USSR in the 1990s, It looked as though it “their offspring that had gathered in the bar. Do you come here often?” I asked Engelke. A waitress with booty shorts +t flaunted her endless legs drifted on high heels towards our table. She ‘ia bottle of iced vodka in each hand. ‘«pye been here once to watch the rugby,” he said. “I think the’ owner is titish and they show the rugby. But it’s not really my kind of place.” | Fifty years old, Engelke was an advocate before joining the old South + African Defence Force'as a legal officer in 1992. He left ten years later as a colonel and the head of the School of Military Law. He was also a pros- itor at the National Prosecuting Authority (NPA) before being recruited ito the National Intelligence Agency (NIA). He was initially an undercover agent and tasked to work on the Boere- imag. This gang of Afrikaner separatist right-wingers had conspired to “overthrow the ANC government and to reinstate a Boer-administered republic, Engelke was given a false identity and a cover as a member of an army commando (a Defence Force civil unit) who ostensibly: had to investi- gate the high rate of farm murders. He soon made contact with Boeremag members and started gathering intelligence. He was in regular contact with former police death squad commander Colonel Eugene de Kock. After bombs exploded in Soweto in 2002, more than twenty right-wingers were arrested and charged with high treason and murder. More than a thousand kilograms of explosives were found in their possession. 27 65Two Towards the end of 2015, Engelke left the State Security Agency (which is what the-NIA became in 2009) as a senior law adviser. He had been offered a yéar-long contract to teach forensic law at the prestigioys Mos- cow State University. He was getting divorced at the time and was looking for “something different”. | Engelke’s sense of adventure had also paid off on a personal level: he was engaged to a Russian woman, about ten yéars younger and also recently divorced, He faced a most pressing predicament in that he had to ask for her hand. Her old man was a formidable retired army general in both the old and new Russia. I later met her; she was no “Russian bride” but educated and independent with an iron will. She spoke English fluently. Engelke was hungry for news from home; about the dismal antics of the Springboks and whether Allister Coetzee was going to be sacked; the stellar performarice of the Proteas against Austré ind the latest episode of state capture by Zuma and his cronies, He didn’t know any other South Africans in Moscow and hadn’t spoken Afrikaans in several months. He said he was homesick, It was late at night and after several vodkas that I prodded Engelke about the SSA and Fraser. “With that man,” Engelke-said and looked around him, “you don’t mess. He's far too powerful.” “Why is he so powerful?” I wanted to know, “He's-very close to Zuma,” said Engelke as he leaned forward and dropped his voice. “I’ve got two children back home. If I talk to you I might never see them again.” “What can you tell me about him?” “L have to be very careful. I’m bound by an oath of secrecy. I'm afraid I cannot say much.” “[ understand,” I said and put my hand in the air to signal to the high- heeled and leggy waitress, “Why don’t we have another vodka and discuss this?” 28 66 SyPROJECTS VODKA, PACK AND PSYCHO e NIA had just been restructured by security minister Siyabonga Cwele was now known as the SSA. The target of the auditors was the rational headquarters of the Principal Agent Network (PAN) pro- mme, a top-secret state intelligence programme that had guzzled as ‘with immigrants), “Media Production” (the influence of the media), “Vodka” “Qussian activities), “Pack” (Pakistani nationals), “Psycho” (‘concerned with = psychological assistance to PAN”), the ominous-sounding “Crims” (working “ on,‘political intelligerice”), “Kwababisa” (Alexandra township mafia, Gauteng : oases government and corruption) and the ominous “SO” (political telligence and organised crime). The only project that was probably worth anything was “Mechanic”, “because PAN had purchased 293 cars ~ ranging from BMWs, Audis and Golf GTIs to smaller sedans ~ for their 72 agents, which they stored in three warehouses across the country that had been leased for R24 million. ‘They also leased and purchased properties for R48 million and imiported three “technical surveillance vehicles” from the UK for more than R40 million, And this was just a drop in the ocean. ‘The auditors at Route 21 had hit upon enough discrepancies and scams to report back to their superiors that the PAN programme was riddled with wastage, corruption and nepotism and warranted a full-scale investi- gation. One of the reasons why the PAN spooks were. caught with their na 67Oo Two pants on their knees was that they had done a dismal job at covering their tracks. i Sometime later, a disgruntled PAN agent handed the auditoss CCTV camera footage of their audit.“A PAN surveillance technician who had been instructed to plant cameras in the boardroom to monitor the audit installed them the'previous night but forgot to switch them off after he'd tested the system. The footage showed how agents worked through the night in order to generate invoices and documentation for the audit the next day. They also shredded records they didn’t want the auditors to see. Agents manus factured documents by copying and pasting signatures. In their haste to deceive the auditors and with the clock ticking away, they put documents in the wrong files, accidentally shredded some of the manufactured papers and got everything all mixed up: The auditors found devastating evidence in the files and were at the PAN offices for four days. When they left to report back to their director- general, the lid had been lifted on corruption and wasteful expenditure that far exceeded the shenanigans at President Zuma’s private homestead of Nkandla. But this was, after all, the hazy world of smoke and mirrors that they call state security, where the Intelligence Act is manipulated to shield marauders and veil miscreants. A few days after the audit, the $SA’s head of domestic intelligence, Gibson Njenje, called a meeting of his legal advisers in his plush office at the agency's headquarters. The complex, known as Musanda, is top secret and the public is not allowed to know how many people work there or how much money those in pursuit of state security drain from the fiscus every year. To the public, all that is visible of Nfusanda - affectionately known as “the Farm” by those who have basked in her veiled glory - is a sprawl of buildings with an array of satellite ears that point skywards. Among those who attended Njenje’s meeting were the head of the agency's legal department, Kobus Meiring, and SSA advocate Paul Engelke. 68 » Ss)PROJECTS VODKA, PACK AND PSYCHO Meiring was an intelligence old-timer with an impeccable record and ‘gre than thirty years in the service. Engelke had vast experience as a jgsécutor at the NPA, was an advocate in private practice and had served ‘geen years at state intelligence. Both Meiring and Engelke had a top- ret clearance. Njenje had only recently assumed leadership of the domestic branch of ‘the SSA and was laigely unaware of PAN, which resided under the Covert ‘Support Unit (CSU) and ultimately under the director of operations. The ‘jst warning that public money was being shovelled into a black hole amerged when the CSU overspent its budget and PAN agents threatened ‘e agency with legal action for not getting. paid. Oe polite and reserved Njenje was an intelligence legend, albeit a sntroversial one. An Umkhonto we Sizwe veteran, he was appointed by ssident Thabo Mbeki as NIA head of operations but was then suspended, sng with spy boss Billy Masetlha, in 2005. This followed an investigation the inspector-general of intelligence, who found that Njenje had acted in- appropriately after spying on Saki Macozoma, ANC National Executive ‘Committee member and Mbeki confidant, as part of a political intelligence- 2 gathering exercise called Project Avani. It included hoax e-mails designed to ‘suggest a plot against Zuma to prevent him from running for the presidency. Njenje initially tried to challenge the suspension, but resigned after “reaching a settlement with intelligence minister Ronnie Kasrils. When Ima became president in 2008, it was payback time and he appointed “ Njenje as the director-general for domestic intelligence at the SSA. There _ “was unhappiness in some government and ANC quarters about Njenje’s » appointment. He was prior to his official posting a founder member and director of Bosasa, a facilities management company that, according to a Special Investigating Unit report, was corruptly awarded multimillion- rand tenders by the prisons department. Njenje told Meiring and Engelke that he wanted them to investigate the PAN, programme as it might have gone rogue, misappropriated millions and even endangered the safety of the state. He said that security minister Siyabonga Cwele had given the go-ahead for a full investigation. ot 69Two ‘\Engellce was appointed team leader and was joined by a senior audito ‘and a human‘resources official. They in turn reported to Meiring, The investigation was top secret and on a strictly “need-to-know” basis. ‘The PAN programme was the brainchild of Njenje's'predece§sor, the director-genieral Manala Manzini, and his deputy and national operations director, Arthur Fraser. Manzini was eager to expand and enhance the NIA’s covert collection capacity. He shared this with Fraser, who concocteé the PAN programme. Fraser suggested that PAN employ NIA members who would resign or take severance packages, former NIA members, members from other government departments who would resign, and new recruits from the private sector. They submitted their plan to the minister of intelligence, Ronnie Kasrils, who agréed with the concept of the network as it was traditionally understood. A principal agent network is intelligence jargon for spy handlers (the principals) who engage, manage and deploy spies ‘(agents) to perform specific services or functions on behalf of the agency. There was nothing cutting-edge about Fraser’s proposal and it should simply have meant the employment of more spies and handlers. As.it later turned out, he may have had something completely different in mind: a parallel and detached intelligence network that operated in- dependently of the NIA. In doing so, Meiring and Engelke later found, Fraser may have committed treason. Jane Duncan says in her book The Rise of the Securocrats that intelligence services ballooned in the early 2000s under the ministerial direction of Lindiwe Sisulu, Kasrils's predecessor. She contended that NIA needed more resources and capabilities and should be expanded. This proliferation co- incided with the issuing of a directive by the Presidency requiring an expansion of the NIA’s mandate in 2003 to include political and economic intelligence. A host of new spies and agents were appointed. The ministry of intelligence concluded in 2007 that there were no serious threats to the country’s constitutional order, although organised crime remained a concern, as did the need to secure major events such as the upcoming 2010 World Cup. There was also no indication that South 32 70 R&yPROJECTS VODKA, PACK AND PSYCHO. frica was either a major target of or safe haven for terrorists or religious snatics. Why, then, was there a need for a further expansion of the NIA? jas the PAN programme truly to the benefit of national security, or did its architects and proponents have ultérior motives? i of the first breakthroughs the PAN investigators made was when i¢y discovered that the signature of Ronnie Kasrils had been copied ‘and pasted onto a document that gave birth to the programme. The docu- ent was co-signed by director-general Manala Manzini, ‘operations ‘director Arthur Fraser, Covert Support Unit (CSU) operations manager ince Makhwathana, and CSU financial officer Martie Wallace. It autho- ised the PAN top structure to identify projects and targets of national interest, appoint assets (agents and spies), purchase cars; lease safe houses and incur whatever cost was necessary to get the venture off the ground. When Engelke unearthed the document, he said to his co-investigators: “This is it. This was their passport to do whatever they wanted.” © Their first stop was Kasrils, who had resigned in September 2008. He has always been to his detractors a leftist rabble-rouser; to his devotees the archetypal counter-revolutionary. He confirmed that he hadn't signed (fhe document. Ele also made it clear that he had only approved the concept of a PAN and did not authorise the implementation of the programme. When the investigators confronted Manzini (then retired), he retorted that he had complete trust in his former operations director, Arthur Fraser. He looked at Engelke and added: “I don’t like your tone, my boy. I will sort you out.” In the end, all roads led back to Fraser. Little is known about him,’ but he was born onthe Cape Flats, one of six children of a factory worker mother and a teacher father. The SSA website simply states that he “joined the ANC underground structures early in his life", was an investigator at the Truth and Reconciliation Commission, headed the immigration branch of the Department of Home Affairs, and has an honours degree in video 33 71 SJO O Two and film production from London University. He is the brother of former cabinet miriister Geraldine Fraser-Moleketi. When the team confronted Fraser, he refused to offer any explanation”, but was surprised-when shown the copy-and-paste attempt of Kajils’s | signature and said he knew nothing about it, A few days later, he was suspended, after which he offered his resignation - certainly not the’action of an innocent man. PAN was shut down and the SSA, which had replaced the NIA, was compelled to integrate the programme's agents into the agency. The manager of the CSU, Prince Makhwathana, and most of the PAN mangers were also suspended. Njenje accepted Fraser’s resignation. With Fraser being history, the | investigators broke PAN open and bared a gluttony of depravity that per- meated right to the top, One of the first to confess her connivance in wrongdoing was Martie Wallace, the financial officer at the CSU (Wallace was her “agent” name). She made an affidavit and said that both her / brother and her husband were'appointed as PAN agents. She admitted that | shé had taken R1.2 million in cash, bought a townhouse and registered the property in her brother’s name. The property was then leased back to PAN - for R1.2 million! With Wallace on board and singing, skeletons tumbled out. Several SSA officials had resigned and were reappointed as PAN agents at a, much higher salary. One of them registered a company and got R18 million in cash to buy six upmarket properties — including in Waterkloof in Pretoria — and leased them back to PAN. ‘This practice was repeated several times across the country. An invoice for nearly R6 million was forged for a leased property and the money was then paid into a private bank account. The investigators found that agents had committed forgery, fraud and various offences in terms of the Pre- vention and Combating of Corrupt Activities Act. As far as the appointment of agents was concerned, the investigators found “wide-scale financial mismanagement, fruitless expenditure, nepotism and corruption”. Makhwathana had signed the employment contracts of the 72 PAN agents, although he did not have the authority to do so. The 34 72 uy aPROJECTS VODKA, PACK AND PSYCHO Jary bill came to R33 million annually, which amounted to almost 40,000 per agent per month: fter PAN had purchased 293 vehicles for their 72 agents, they needed “rehouses to store them. They entered into an agreement with a private company that-belonged to Arthur Fraser's brother, Barry. PAN paid him | Rod million for the’rental of the warehouse, Some of cars had been unused. a almost four years. There were other Fraser family members working for JAN. Arthur's son Lyle became the floor manager at the warehouse while another, Ms C.E. Fraser, was also a PAN agent. Both Barry Fraser and Fraser were board members of a community-based organisation that It with conflict resolution at schools. PAN contributed R10 million wards the organisation although it had nothing to do with national ecurity. "PAN imported state-of-the-art surveillance vans from the British-based ‘gimma Group for an amount of R45.7 million. Gamma is a high-tech ‘anufacturer that counts the world’s foremost intelligence agencies among tg dients. Their surveillance vehicles contain equipment for the “video and Judio processing of targets”, “grabber” surveillance machines and “command “and control software”. Engelke found that the “correct supply chain man- agement procedures” were not followed in their purchase. The vehicles om also registered in the name of the agency, which created the danger at should anyone check their number plates; their cover would be blown. The investigators found that Fraser had told an NIA agent, John Gallo- way, to resign and start a security company to supply PAN with high-tech equipment. Galloway was paid R11 million while he was still an NIA employee and before the company was set up. This already amounted to * another R47 million. He conducted his business from home, had no em- ployees and provided services that the investigators said wére of “poor quality”. Galloway purchased within a span of 20 months property worth R11 million. ‘Wallace revealed to the investigators that enormous amounts of cash - up to R10 million at a time - were delivered to the PAN offices on a regular 35 fraud. He left the service in March 2008, set up G-Tech and was paid 73 JTwo basis. Packets of money were wrapped in tinfoil and packed in bags. The: investigators produced an internal audit report that revealed that there: were discrepancies on temporary advances to the amount of R85 millio More than R200 million was unaccounted for. 4 Both Manzini and Fraser were fingered as having “forced” the chi financial officer of the NIA to release millions of rand to the Cove Support Unit by way of verbal approvals, which was in complete contr: diction with the regulatory framework. When the investigators evaluated the projects, they found little of value Two drug addicts were, for example, recruited to work on Project Emigré:/ and spy on immigrants. They did nothing. Project Kagee was supposed focus on “counter-terrorism”. PAN paid an informant R12 million f information that “could have been obtained through open sources”. The informant used his hard-earned dosh to buy a stake in a BMW dealership: ‘The investigators said the projects were badly planned, managed and» conducted and were costly to the NIA because any agent could have gathere the information. None of the projects had individual authorisation, oper- ational plans or budgets as required. They were often initiated on the verbal instruction of Fraser and wads of money were thrown at them. The investigators did lifestyle audits of the PAN managers and found that several seemed to have won the Lotto. Their personal wealth had: increased dramatically during the lifespan of PAN. One of the managers, who lived in a townhouse upgraded to a three-storey mansion and bought his wife a Range Rover Evoque for almost a million rand. 5 One of the most damning findings of the PAN investigation was about Fraser himself. The investigators stated there was “an intention to create :j an alternative intelligence capacity”. Said the report: “An expensive com- | munication system was put in place at Mr Fraser's fi residence and he has been the sole recipient of information gathered by the PANs.” PAN agents had sent their intelligence reports in an encrypted elec- tronic format to Fraser's personal server instead of submitting them to ‘/ the NIA mainframe where they could be checked, analysed and verified, and then disseminated and integrated into the agency's information man- agement system. 36 74 S$PROJECTS VODKA, PACK AND PSYCHO ype SA removed the server from Fraser's house. When they analysed re pe device, they found 800 intel reports that he had failed to send to the gency’s mainframe. The investigators said this was in contradiction of internal régulatory framework and transgressed the Protection of Infor- ‘mation Act. Asa result, the investigators concluded, Fraser could probably charged with’ treason. “T€ also gives clear indications of the intent to ‘sfablish an alternative intelligence structure for purposes unknown.” When Engelke challenged Fraser about the server, he refused to discuss “ speculation was rife that Fraser was a double agent or that PAN had an eerior motive: to keep the Western Cape in ANC hands. a Engelke and his team confronted one manager after the other, most of ‘ent in the presence of their lawyers. The manager of PAN's operational ordination unit, Graham Engel, allegedly said to Engelke: “Somebody is ng to get hurt here, and that one is not me. Do you know who you are lealing with? This goes right to the top.” “When Paul Engelke and Kobus Meiring handed their report to Njenje, ey concluded that there was “wide-scale financial mismanagement, fruit- ss expenditure, nepotism and corruption”. In their view, there was « sufficient proof to prosecute Manzini, Fraser, Malchwathana, Wallace, Engel d ten other managers and agents for a host of alleged crimes. eS see ‘Arthur Fraser was bulletproof. This was because he had probably saved Jacob Zuma from prosecution and thereby enabled the ANC leader to ascend to the highest office in the land, In the mid-2000s Zuma was fighting for his political survival and standing trial on 783 charges of | fraud, racketeering and corruption. The case emanated from bribes *. that he had received from arms manufacturers during South Africa's ©. controversial arms deal of the 1990s and 2000s. The money was paid to Zuma’s financier and banker, Schabir Shaik, who in turn paid it over to JZ. >. “Tn 2005 Shaik was convicted of similar charges and sentenced to 15 years’ . imprisonment. This gave President Mbeki an excuse to fire Zuma as 37 sj 75crime-fighting unit called the Directorate of Special Operations, widely! Two deputy president, thereby burying his ambitions for highest office. Zum: in turn, was on his knees and holding on for dear life. The contest betwee: the two was South Africa's Cold War: the political landscape was Hittere with skulduggery, hatchet jobs, sleights of hand and smear camprign Both sides were sneaking and snooping on one another. In 1999 Mbeki and NPA boss Bulelani'Ngcuka established a new, crack! known as the Scorpions, in the NPA. The Scorpions had to combat organised: crime, taxi violence, politically motivated vidlence and drug-related crimes, ‘There was from the outset bad blood and turf wars between the police an the Scorpions. The unit achieved a tremendous conyiction rate but was accused of cherry-picking and pursuing only winnable cases. The Scorpions’ had a reputation for going after dodgy politicians and senior civil servants ~ like police commissioner Jackie Selebi and Jacob Zuma. ; The Mbeki camp unleashed what should have been the killer blow. Ii May 2007, a top-secret report was leaked that purported to prove that ‘Zuma's presidential ambitions were fuelled and funded by corrupt African leaders, among them Angola's Eduardo dos Santos and Libya's Muammar Gaddafi. Marked ‘top secret’ and known as the Browse Mole report, it alleged that Zuma had travelled to Libya on at least three occasions to meet with senior Libyan figures. Browse Mole also alleged that the Zuma backers had met at the Great Lakes in April 2006 to discuss military inter- vention to unseat Thabo Mbeki. If true, the réport implicated Zuma in treason. Mbeki agreed to institute an investigation into the report and appointed Arthur Fraser, who was then operations head of the NIA. The Mail & Guardian said that Fraser's initial investigation into Browse Mole was widely regarded in the NPA as “flimsy and one-sided”, and one of its key conclusions, that a Scorpions special investigator was responsible for the leak, was never substantiated. A second probe by the Special Investigating Unit cleared the investigator. Parliament's Joint Standing Committee on Intelligence found that the report was a hoax and drawn up by the Scorpions in a bid to discredit 38 76 SsPROJECTS VODKA, PACK AND PSYCHO mar The committee said it.was “extremely inflammatory” and “very {srous” for South Africa’s national interests. revelations in the report had backfired. Jacob Zuma’s political career finally saved by the vety report that was designed to destroy him. gupporters argued that it was evident that there was a political piracy against him and therefore the charges against him were also ‘ted. As Martin Plaut said in his book Who Rules South Africa?, it ‘proof that “somewhere in the bowels of the security apparatus, sbiody was watching Zuma’s back”. t “somebody” could well have been Arthur Fraser. During Fraser's tigation into the Browse Mole report, the NIA tapped the phones of ‘several high-ranking officials mentioned in the report, including those of {dka’and Leonard McCarthy, the Scorpions boss. On the tapes, they assed when would be the most politically damaging time to charge a. Fraser had unearthed what amounted to gold for Zuma. ‘What is astonishing about these recordings is that they were, according [A othe inspector-general of intelligence, legally made, but the intelligence e ‘mninister knew nothing about them. Ronnie Kasrils said afterwards: “The ‘NIA were obliged to report this to me as minister. They never did. I knew ‘nothing about it.” But the Zuma camp did know about the tapes. Enter Moe Shaik, a man 'Cyho has been integral to getting Zuma off the hook and into the Union Buildings. Shaik has been many things: he served under Zuma as an under- ‘ground MK operative, was an ANC negotiator during the talks of the early 1990s, an ambassador to Algeria, and an intelligence and foreign affairs “ministerial adviser. When his brother Schabir went to prison, Moe. took charge of his businesses. Moe Shaik was involved in the Zunia camp's own dirty tricks campaign. Two weeks after the state had annotinced that the NPA was about to hurl Schabir Shaik before a judge, Moe Shaik identified prosecutions boss Bule- lani Ngcuka as apartheid spy RS452. He later said he'd made the allegations in order “to defend the honour of the deputy president of this country” ~ Jacob Zuma. 39 77 y ssMoe Shaik’s revelations were later exposed as a smear campaign when Eastern Cape human rights lawyer Vanessa Brereton admitted that she was agent RS452. Shaik had, however, guaranteed himself a plum position in the future Zuma administration. « 4 When Shaik heard that Fraser had stumbled upon evidence that could help Zuma in his corruption trial, he went to see him to persuade Kim to part with the tapes. The two already knew each other by then. Shaik, today an executive at the Development Bank of Southern Africa, confirmed the 4 meeting with Fraser to me. I asked him what he told Fraser. This was his response: “I told him to do the right thing. I said to him that you are sitting on these things and that it is in the national interest.” “And what did you tell him to do with it?” “I told him to do the right thing and give the tapes to the National Prosecuting Authority.” “And did he?” “As far as I know, yes.” There were two sets of tapes at the time: those of the police’s crime intelligence unit and the NIA. I asked Shaik about the police spy tapes. “I i j \ | | | 4 | don’t know about the crime intelligence tapes. I don’t think they were of | good quality and NIA had more tapes.” The NIA tapes reportedly found their way to the deputy national director of the NPA, Willie Hofmeyr, who was a key defender of the conspiracy — theory and a central character in the decision to withdraw the charges against Zuma. Again, Fraser failed to inform the intelligence minister. The Mail & Guardian said they had evidence that Fraser also handed tapes to, Zuma’s attorney, Michael Hulley, although he has denied the allegation. According to the newspaper: “Fraser did a political flip-flop and handed the NIA recordings to Zuma’s legal team. We understand Fraser felt the need to ingratiate himself with the new administration of Zuma and handed the NIA tapes over.” In April 2009, the new NPA boss Mokotedi Mpshe said the evidence on the tapes amounted to an “intolerable abuse” and abandoned the case against Zuma, Zuma’s road to the presidency — barring a small legal pre- dicament or two —‘was now paved in gold. 40 78 S): » THREE " The shadow state “J Cabinet ~ and therefore Jacob Zuma ~ must have been informed about ‘ie PAN investigation. Paul Engelke saw security minister Siyabonga Cwele ‘least ten times during the two years that he investigated the PAN yroject. The minister was initially shocked and in disbelief and instructed the investigators to get to the bottom of the rot. Ata meeting at OR ‘Tambo International Airport in November 2010, Cwele agreed that the PAN matter should be referred to the relevant authorities for possible prosecution. ‘The investigators also made a presentation to the minister of justice, Jeff Radebe, in his office in Cape Town, Cwele was also present. The investigators said in their report that even before the conclusion of their presentation, Radebe indicated that he had “heard and seen enough and thatit is a prima facie case that must be dealt with by law enforcement”. In January 2011, Lieutenant-General Anwa Dramat, the head of the Hawks (which by then had replaced the Scorpions), arranged a meeting for the investigators with Major-General Hans Meiring, in charge of the Hawks’ commercial crimes unit. Meiring allocated a Hawks colonel to evaluate the evidence. He concluded that the case was “too big for us” and recom- mended that the matter be taken further by a multidisciplinary task team comprising the police’s commercial crimes unit, the Crimes Against the State unit of the Hawks, the Asset Forfeiture Unit (AFU) and the Special Investigating Unit (SIU). It was agreed that the SIU was best suited for the investigation. 41 79 SSTHREE Two.months later, the SIU presented a “business plan” to the State Security Agency (SSA) that included an independent forensic investigation by PricewaterhouseCoopers that would cost R15 million. Gibson Njenje, head of domestic intelligence, personally entered the negotiations and later told the investigators that he had managed to bring down thé cost of the audit to R6 million. Although Engelke believed there was already enough evidence to charge and convict the PAN top structure, he realised that nobody, except for » Njenje, had the stomach to take on the might of the SSA. Can you imagine charging one of the most powerful people in the country with treason and those around him with fraud and corruption? Such trials had the potential to rip open the underbelly of the SSA and unmask those we entrust to guard the Republic as nothing but a coterie of thieving and squandering thugs. Although the state could city national security to hold prosecutions behind closed doors, details of the debauchery would leak to the media and prompt uncomfortable questions about the antics at “the Farm”. Spooks prefer to skulk in the shadows of anonymity for as long as possible. Engelke refused to capitulate and turned to the only law enforcement agency that at the time would have the guts to cross swords with the SSA: the South African Revenue Service (SARS). The service was by far the most efficient law enforcement agency in the country and had pursued the like of’ Julius Malema, Radovan Krejéfi and Lolly Jackson with a hyena- like relentlessness and would have gone where the Hawks and the SIU feared to tread. Furthermore, NIA and SARS had signed a cooperation agreement where- by they would share information and engage in joint operations. In April 2011, Engelke wrote to the SARS forensic service investigations and re- quested them to probe nine senior PAN managers and agents and several companies for their declared income and the taxes they had paid. Among them were Fraser, Engel, Makhwathana and Wallace. SARS investigators and analysts compiled profiles of the managers/ agents as well as their spouses and connected the dots between the com- 42 80 casiTHE SHADOW STATE nies and their directors, Although most of the PAN transactions and ayments were done in cash, it was clear that several of the “persons of terest” had feasted greedily during their terms at PAN. One of the PAN agents who acted as a service provider had eight vehicles sgistered in his tame, including a R1.3 million Mercedes-Benz, a Range ‘over Sport, an Audi Ad, a Pajero and a Harley-Davidson, He was an active “and former director of more than twenty companies. One of these com- vanies received 27 government payments worth R5.6 million; another 7 government payments worth R10 million. The latter company still owed = R5.6 million in unpaid taxes. ).« The profiles of the other persons of interest showed how millions of yand of taxpayers’ money flowed into the bank accounts of their companies, "which had service provider contracts with PAN. They bought farms, jet skis, imported motorcycles and 4x4s. ‘The profile of Arthur Eraser, however, didn't show excessive wealth. He ‘owned two BMWs and a house in Observatory in Johannesburg and was a director of a couple of companies. He did, though, receive two government "tenders of R81,000 while he was the operations director of the NIA: But the profile of his wife, Natasha Fraser, made for more interesting reading. She became a director of a security company by using her maiden name of | © Taylor. After she resigned from the company, it received’240 government ‘Ovpayments between 2005 and 2010 to the value of R7.4 million. It also owed SARS almost R4 million in unpaid taxes. I have no doubt that there was great anxiety in the security agency around the SARS investigation. It had to be stopped. work When Zuma came to power, he was dealt an enviable hand because he had vacancies to fill in most of the key criminal justice institutions, which meant he could appoint his allies and cronies to them. He had to select anew police chief, a new national director of public prosecutions, a new intelligence chief and the head of the Hawks. A former intelligence hand himself, Zuma has always relied on his 43 81 ical)THREE intelligence and security chieftains to infiltrate the state apparatus while have little regard for law and order and for keeping the Republic safe. Instead, they have mostly been reduced to squads of hooligans that are prepared to harass’and hound any Zuma adversary into submission. fat the same time safeguarding him from revolt and overthrow. These stooges A pattern of appointing cronies and loyalists in key positiotis emerged at the outset of Zuma’s presidency. He was mindful that he could still be 3 brought to book-for corruption in the future, and set in motion a shadow security state that would undermine the independence of the police and = the National Prosecuting Authority (NPA). After Siyabonga Cwele became state security minister, Zuma appointed three loyalists as his intelligence chiefs: Gibson Njenje as head of domestic intelligence, Moe Shaik as head of foreign intelligence, and Jeff Maqetuka as so-called super-director-general. Unexpectedly, the trio sooh showed an alarming sense of independence when they became intent on investigating the influence of the Gupta family on the government and the state. This was after press reports that the family had offered former ANC Youth League leader Fikile Mbalula a ministerial post. ‘Cwele flew his three administrative heads to Cape Town and ordered them to halt the project. ‘They refused and he ordered them to resign. With Njenje gone, Engelke had lost one of his only allies. He wasn’t ready yet to throw in the towel. He had a further appointment with the SIU, who told him that they were awaiting authorisation from the new spy boss, acting SSA director-general Dennis Dhlomo, to request the audit. Nothing was forthcoming. Cwele also began to change his attitude towards the investigators during the latter half of their probe. He told Paul Engelke that he didn’t trust him. any longer and that he held a vendetta against Fraser. The investigation was on the rocks. At the time Cwele himself was under siege: His wife, Sheryl, was convicted of drug smuggling and sentenced to 12 years’ impris- onment, later increased by the Appeal Court to 20 years. Opposition parties called for Cwele to step down, arguing that if he was not aware of his wife's illegal activities, he should no longer oversee the country’s intelligence- a4 sianaanaicbainiac ici 82 ssTHE SHADOW STATE sering. There were also reports that the minister ordered that his wife forded intelligence protection for the duration of her trial. She was Snsported to and from court in official vehicles and protected by intelli- gency officers.