As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Over at Politicsweb the following exchange of letters were published today. Maybe I am wrong, but it seems to me it provides a very strong indication that the Inspector General of Intelligence is incapable or unwilling to do her job as required by the law. I print the letters here without further comment. (After all, I would not want to be called a pervert again by Mr Paul Ngobeni, that guy who is a fugitive from justice in the USA and seems to know more about US than South African Constitutional Law.)
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Text of exchange between DA MP and IG of intelligence on Paul Ngobeni matter
Letter from David Maynier, MP, to Advocate Faith Radebe, Inspector General of Intelligence, January 31 2011:
Advocate FD Radebe
The Inspector General of Intelligence
P0 Box 1175
Dear Advocate Radebe
COMPLAINT CONCERNING PAUL NGOBENI, SPECIAL ADVISER TO THE MINISTER
OF DEFENCE AND MILITARY VETERANS LINDIWE SISULU, IN RESPECT OF HIS
I am writing to request a progress report on the investigation into the security clearance of Paul Ngobeni, Special Adviser t the Minister Of Defence and Military Veterans, Lindiwe
I was in contact with your office personally on 07 December 2010, 10 December 2010 and 14 December 2010 to make enquiries about the investigation into Mr Paul Ngobeni. I was promised, on each occasion, that a Mr Mpo Tshabaleng, if I recall correctly, would be in contact with me. However, he did not bother to respond.
I am now fed up with your office and am considering calling on Mr Cecil Burgess, Chairperson of the Joint Standing Committee on Intelligence, to convene an open meeting of the committee for you to provide a progress report in respect of the investigation into Mr Paul Ngobeni.
This will be an ideal opportunity for you to explain, not only the dysfunction in your office, but also the reason the investigation has dragged on for more than a year without any end in sight.
I hope this matter can be resolved and that you will provide me with a progress report as a matter of urgency.
Should you have any queries, please do not hesitate to call me on (021) 403 3337 or 0715346398.
DAVID MAYNIER MP
cc. Mr Cecil Burgess MP, Chairperson of the Joint Standing Committee on Intelligence Mr Theo Coetzee MP, Member of the Joint Standing Committee on Intelligence; and Mr Dirk Stubbe MP, Member of the Joint Standing Committee on Intelligence.
Letter from Advocate Faith Radebe, Inspector General of Intelligence, to David Maynier, MP, February 1 2011:
1 February 2011
Mr David Maynier (MP)
DA Shadow Minister of Defence and Military Veterans
P0 Box 15
Dear Mr Maynier
Complaint Concerning appointment of Mr Paul Ngobeni
Your letter dated 31 January 2011 was received by us via facsimile transmission on the 1 February 2011. The belligerent tone of the letter is noted with dismay. We however refrain from responding to the language therein used in the interest of professionalism.
Kindly be advised that after thorough consideration of your aforesaid complaint it has come to our attention that your complaint in the main pertains to the alleged action by the Minister of Defence and Military Veterans.
We are mandated in terms of Section 7(7) of the Intelligence Services Oversight Act 40 of 1994 (hereinafter referred to as the Act) to:
Monitor compliance by any of the designated Intelligence Services with the Constitution applicable laws and relevant policies on intelligence and counterintelligence.
To review the intelligence and counter-intelligence activities of the designated Services.
To perform all functions designated o us by the President or any Ministers responsible for each of the Services.
To receive and investigate complaints from members of the public and members of the Intelligence Services on alleged maladministration abuse of power, transgressions of the Constitution, laws and policies on intelligence and counterintelligence, the commission of certain offences in terms of the Prevention and Combating of Corrupt Practices Act, 2004, improper enrichment of any person through an act or omission of any member.
Upon consideration of your complaint, we are of the view that your aforesaid complaint is not against the actions of a Service as contemplated in the aforesaid Act but rather against the aforesaid Minister.
We are accordingly not mandated by the aforesaid Act to investigate your complaint against the aforesaid Minister.
We thank you for having made your enquiry and regret that we are unable to assist with your complaint against the Minister concerned.
Ambassador Adv FD Radebe
INSPECTOR-GENERAL OF INTELLIGENCE
Copy to; Adv Cecil Burgess (MP), Chairperson of the Joint Standing Committee on Intelligence
Letter from David Maynier, MP, to Advocate Faith Radebe, Inspector General of Intelligence, February 4 2011:
Advocate ED Radebe
The Inspector General of Intelligence
PC Box 1175
Dear Advocate Radebe
COMPLAINT CONCERNING PAUL NGOBENI, SPECIAL ADVISER TO THE MINISTER OF DEFENCE AND MILITARY VETERANS, LINDIWE SISULU, RELATING TO HIS SECURITY CLEARANCE
Thank you for your letter, dated 01 February 2011 concerning your investigation into my compliant concerning the securfty clearance of Mr Paul Ngobeni, Special Adviser to the Minister of Defence and Military Veterans, Lindiwe Sisulu.
It is astonishing that, after more than twelve•months, you have chosen to misconstrue my complaint, and on that basis conclude that in terms of Section 7 (7) of the Intelligence Oversight Act (No. 40 of 1994) you do not have a mandate to investigate this matter.
The complaint clearly concerns the conduct of the intelligence services in providing a security clearance to Mr Paul Ngobeni, who is a Special Adviser to the Minister of Defence and Military Veterans.
My original complaint, dated 11 December 2009, stated very clearly that my request was for your office to “investigate whether the NIA [National Intelligence Agency] erred in any way in providing a security clearance to Special Adviser in the Ministry of Defence and Military Veterans Paul Ngobeni”.
My complaint was repeated in a letter dated 19 July 2010 which very clearly requested your office to “investigate my complaint and determine whether the NIA (or any other intelligence service) erred in any way in providing a security clearance to Special Adviser in the Ministry of Defence and Military Veterans Paul Ngobeni”.
How then can you possibly conclude that my complaint “pertains to the alleged action by the minister”, “is not against the actions of a service” or that it amounted to a request to investigate a “complaint against the [aforesaid] minister”?
A logical consideration of the facts shows this conclusion to be entirely erroneous.
Moreover, your claim that your office is “not mandated” to investigate my complaint is made all the more mysterious by the fact that, some months ago, your office was mandated to investigate my complaint, which is evidenced by the fact that your office has already begun an investigation into Paul Ngobeni.
In a letter, dated 31 August 2010, you advised me that your office had made enquiries and concluded that:
“The SSA’s [State Security Agency] Domestic Branch has indicated that the Security Clearance Investigations on Mr Paul Ngobeni the Special Adviser to the Honourable Minister of Defence and Military Veteran, was not conducted’.
In my reply, dated 06 September 20010, I then requested you to continue your investigation in order to:
“…determine whether Paul Ngobeni received a security clearance from an intelligence service other than the State Security Agency … and if this proved to be the case … whether that intelligence service erred in any way in providing the security clearance and whether there was a breach of any legislation, regulations or policy”.
Once again, the request for your office to complete the investigation was clearly focused on the conduct of the intelligence services.
Considering this, how could you draw any other conclusion than that my complaint was clearly directed at the conduct of the intelligence services in providing a security clearance to Mr Paul Ngobeni, and that it is therefore covered by the mandate set out in Section 7 (7) of the Intelligence Services Oversight Act (No. 40 of 1994) which includes investigating:
“… complaints from members of the public and members of the intelligence services on alleged maladministration, abuse of power, transgressions of the constitution, laws and policies on intelligence and counter-intelligence.”
One can only surmise that you have misconstrued my complaint in an effort to extricate your office from completing this investigation.
I would therefore urge you to dispel this notion and complete your investigation as a matter of urgency.
The matters we need investigated include:
whether Mr Paul Ngobeni received a security clearance;
if so, which intelligence service vetted Mr Paul Ngobeni; and
in doing so, whether the respective intelligence service erred in any way in providing the security clearance and whether there was a breach of any legislation, regulations or policy.
Ultimately, the public need to know how it was that our intelligence services provided a security clearance to Mr Paul Ngobeni who is reportedly a fugitive from justice in the United States.
DAVID MAYNIER MP
DA SHADOW MINISTER OF DEFENCE AND MILITARY VETERANS
cc. Cecil Burgess MP, Chairperson of the Joint Standing Committee on Intelligence; Theo Coetzee MP, Member of the Joint Sta