An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Around the time when former President Thabo Mbeki fired the director-general of National Intelligence Agency, Billy Masetlha, a visibly angry Mbeki accused some of his intelligence agents of “manufacturing intelligence” and lying to him merely to please him. “The president as head of state and head of government is the principal client of civilian intelligence,” Mbeki fumed. “Now you can imagine what would happen if the president is fed false information”.
Masetlha, in court papers, called Mbeki a liar in return but lost that battle when his dismissal was confirmed by the Constitutional Court.
Masetlha was blamed for authorising the unlawful surveillance of ANC executive and businessman Saki Macozoma under the pretext that he was involved with foreign intelligence; for being involved in the fabrication of the e-mails that purport to implicate senior government and ANC officials in a plot to side-line and incriminate embattled former deputy president Jacob Zuma; for being highly involved in party political squabbles by colluding with politicians in the divisive succession battle that, at the time, was polarising the ruling party between Mbeki and Zuma camps; and for acting unlawfully in bugging and intercepting individuals’ communications for the same purpose, which could have contributed to the fabrication of the e-mails.
Later it transpired that the intelligence services were bugging the phones of various former and current law enforcement agents, including Bulelani Ngcuka and Leonard McCarthy (we were told this was done legally but no hard proof was ever provided for this claim), which tapes were then mysteriously leaked to the current President and his lawyers and was then used to justify the politically inspired dropping of criminal charges against the President.
Around the same time the Review Commission on Intelligence, chaired by former Deputy Minister Joe Matthews, found that intelligence services regularly infringed on the right to privacy through intrusive methods that are unconstitutional. For example, it found that the NCC, which intercepts electronic signals such as cell phone conversations, is engaged in eavesdropping that is unconstitutional and unlawful. This is because the centre fails to comply with the requirements of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002, which prohibits the interception of communication without judicial authorisation.
More recently news reports suggested that several high profile appointees in the intelligence services have resigned after clashes with the Minister of State Security, allegedly in part sparked by disagreements with the Minister about the unlawful misuse of the intelligence services to spy on political opponents of the ruling Jacob Zuma-factions within the governing ANC.
In the intelligence world, a world filled with subterfuge, lies and counter-lies, misinformation and secrets, it is never easy to know which side is talking the truth. But surely all these stories do create a picture of a highly politicised set of South African spy agencies who have, for the past several years, been involved in illegal activity – some of it relating to succession battles inside the ANC.
It is not as if they have not had access to lots of scandalous or suspicious facts (not fabrications) about the political opponents they were targeting for being on the “wrong” side of the ANC factional battles. Zuma was bribed by Schabir Shaik, there were some very ambitious and greedy people who were not happy with Mbeki’s leadership of the ANC, Zuma did have sex with the daughter of an old struggle friend and for undisclosed reasons he did visit Angola and Libya when his legal and political troubles started, former NPA boss Bulelani Ngcuka did chat to the head of the Scorpions about the timing of laying corruption charges against Zuma.
But the fact that the intelligence services were involved in collecting and then, in some cases, leaking this information must surely have had everything to do with them taking sides in the succession battles inside the ANC and absolutely nothing to do with protecting the security of the state.
These facts came back to me when I read the front page story in the Sunday Times yesterday, which reported that Deputy President Kgalema Motlanthe’s partner, Gugu Mtshali, has been implicated in soliciting a R104-million “bribe” to obtain government support for a South African company trying to clinch a R2-billion sanctions-busting deal with Iran. My interest was further piqued by the revelation in the story that the Sunday Times had access to recordings of confidential discussions when the “bribe” was solicited as well as of confidential documents (which was “understood to have also been obtained and analysed by US intelligence agencies”).
Who made these recordings? On whose instructions were they made? Were South African intelligence operates involved? How did the US intelligence obtain the material (or was this a red-herring provided by those who leaked the story)? Why has this information been leaked now, so soon after President Zuma has managed to dispense with his other opponent, Julius Malema? Is it a co-incidence that Kgalema Motlanthe is seen by many is the most credible opponent to face President Jacob Zuma at the party’s election later this year at Mangaung?
Of course if the intelligence services were in any way involved in a smear campaign against the Deputy President (and as always, smear campaigns work best when there is real dirt to smear somebody with), it would suggest that they are firmly in the Zuma camp and that they are prepared to abuse their power to secure another term for their “boss”.
If the Secrecy Bill had been in place it would have been impossible ever to find out whether the intelligence services were involved in this or not. This is because the Bill would prohibit anyone from leaking any information about their involvement (unless that person wanted to spend between 10 and 25 years in jail) in such a case. It would literally pull a veil of secrecy over the work done by the intelligence services and would make it impossible to know or reveal whether they are involved in anti-democratic smear campaigns against the political opponent of the President (or whomever is in control of the intelligence services).
It might be that this information came out now because one of the parties involved in the “bribe” is unhappy because the deal eventually fell flat. But attempting to bribe somebody is already a criminal offense, so it would be very stupid for such a person to leak information to a newspaper about his own criminal activity – unless he is pretty sure that he will be protected, either because he was involved as an agent of the intelligence service from the start as part of a sting operation, or because he knows that the various security services will protect him because this was cleared out with somebody high up in the Zuma camp.
Which just goes to show: there might well be good reasons (apart from taking a principled stand) why Kgalema Motlanthe and other leaders of the ANC are reportedly opposed to aspects of the Secrecy Bill. They might well be worried that when this Bill is passed, the dirty tricks by the intelligence services against anyone who opposes the dominant clique inside the party will be stepped up and that it will become impossible ever to reveal such dirty tricks without facing a very long prison sentence.
And once the out of control intelligence services are protected by the Secrecy Bill, one will only be able freely to take bribes and be corrupt without fear of prosecution or exposure, if one remained a loyal supporter of the political leader who happens to be in charge of the intelligence services. And what a nuisance that would be.BACK TO TOP