The accused, Mr Billy Lesedi Masetlha, (hereinafter also referred to as "the accused") was charged on 20 October 2006 with contravening the provisions of Sections 7 (8) (a) and 7 (9) read with Section 7A of the Intelligence Services Oversight Act, 40 of 1994, (hereinafter referred to as the Oversight Act) for withholding information.
The state alleges that on or about the period between October 2005 and February 2006 and at Menlyn in the district of Pretoria, the accused intentionally, wrongfully and unlawfully withheld information and/or intelligence from the Inspector General of Intelligence by failing and/or refusing to provide explanations and responses to questions put to him by the Inspector General of Intelligence which he, the Inspector General of Intelligence, deemed necessary for the performance of his functions.
The court, normally presiding over disputes originating from within the Brooklyn police district, sat with two assessors Ms Leatitia Mphothulo and Mr Phineas Masemola. The defence had no objection. The court normally sits with one assessor except on Thursdays when it is assisted by two, a practice in place since 2005 when I adjudicated at Atteridgeville. The accused pleaded on a Thursday, 7 December 2006.
I wish to thank everyone involved for assistance, support and co-operation during the course of this trial. I wish to thank the investigating officer for his diligence; the court personnel and the assessors for holding out under big strain in this highly charged matter. Also the media for balanced reporting on sensitive issues exposed here. I'm also grateful to the chief prosecutor of Gauteng North, Mr Matric Luphondo and the defence team led by Adv Neil Tuchten, SC for displaying exceptional ability and diligence. Proper and well versed heads of arguments were prepared by both sides. It helped the court much to get a view of the big picture whilst also having regard to the detail. It augurs well for our legal system and those involved in it. Importantly I wish to thank the witnesses for testifying under strenuous circumstances. It is rare that the court can safely say that all witnesses seemed to have probably testified honestly and sincerely. This is such an exceptional case where opinions differed most probably because of misunderstandings and system failures. Wherever necessary we should look at that and fix it.
Mr Masetlha pleaded not guilty upon which his council noted his defence in terms of section 115 of the Criminal Procedure Act, 51 of 1977 (hereinafter referred to as the CPA).
The accused noted mainly five defences. He denied that section 7 A of the Oversight Act creates an offence in the circumstances underhand. He alleged further that the Minister of Intelligence had no power and competency under the provisions of the Oversight Act to order an investigation of a complaint. It was also contended that the Inspector General of Intelligence (hereinafter also referred to as the IGI) sought the demanded information or intelligence to further an unlawful scheme by the Minister of Intelligence to drive the accused from office and damage his public reputation. Mr Masetlha fourthly denied that he had failed or refused to provide explanations sought or demanded by the IGI. He also denied that he had criminal intent in his dealings with the IGI and acted strictly in accordance with the legal advice from his legal team intending at all times to obey the law as laid down by the courts, as advised by his legal team. The defence also pointed out that the state is obliged to prove that the Minister had designated the IGI to conduct the investigation.
The Oversight Act has its origins in the constitutional principles as agreed upon by the founding fathers of our Constitution and as finally culminated in section 210(b) of the Constitution of the Republic of South Africa, 108 of 1996, (hereinafter referred to as the Constitution).
Such Inspector General, as appointed by the President of the Republic of South Africa in terms of section 7 of the Oversight Act, derives his prime duties and obligations from section 7 (10) (b) thereof. It states: "the IGI shall serve impartially and independently, and perform his/her functions in good faith and without fear, favour, bias or prejudice".
The court had the opportunity to listen to and view the evidence of 6 witnesses, 4 on behalf of the state and 2 defending the accused. A large amount of documentary evidence were put before court, amongst others some of a highly sensitive and confidential nature. At times the court sat in camera and ordered that some exhibits and recordings of the in camera hearings be kept in a separate envelope to which access is restricted.
Because of the extra ordinary circumstances it was not always possible to strictly control witnesses regarding evidence which might otherwise be described as hearsay or irrelevant. However, eventually it was fairly possible to distinguish what was relevant and what not, although belatedly.
The judgment needs to be handed down in open court, however in the summary of the evidence some aspects, figures, names of individuals and code names were excluded due to the secrecy thereof as well as for operational reasons of the National Intelligence Agency of South Africa (hereinafter referred to as NIA).
The IGI, Mr Zolile Ngcakani, testified that he was appointed to the post with effect from 1 January 2004. He stated under oath that the Minister of Intelligence, Mr Ronnie Kasrils, tasked him in a letter dated 20 September 2005 to carry out an investigation into a surveillance operation conducted by NIA. It became common cause that this operation was a Counter Intelligence surveillance operation in which Mr S Macozuma was a subject. NIA admitted that the operation was a flop. Mr Macozuma did not appreciate explanations given to him and lodged a complaint with Minister Kasrils.
The IGI testified further that he investigated the nature of the surveillance, the reasons for undertaking it and whether NIA operatives had followed the correct procedures. He testified that some procedures were not followed and that he adduced the reasons for that. A report was compiled and submitted to the Minister of Intelligence. Following on this the Minister briefed the IGI again and requested further investigation on the nature of the operation and the legality thereof.
Mr Masetlha was then interviewed on 28 September 2005 and according to the IGI he indicated that he had information regarding a very crucial aspect of the operation or the reason for having carried it out. He undertook to provide the IGI with information. The IGI said further that Mr Masetlha did not provide him with this required information despite written reminders being sent to him on 11 October 2005, 20 October 2005 and 25 October 2005.
On 20 October 2005 the Minister of Intelligence also addressed a letter to Mr Masetlha in which he was suspended by Minister Kasrils. Mr Masetlha sought legal assistance and engaged the advice and services of his current legal team who immediately in a letter dated 27 October 2005 informed the Minister of their legal brief and requested certain documents.
Mr Ngcakane was thoroughly cross-examined by the defence counsel, Mr Tuchten. In general the IGI confirmed his evidence about the events. He denied that he was used in a conspiracy to get rid of Mr Masetlha. His version was that he received a request from the Minister and he was doing his job as required by the Oversight Act.
Mr Ngcakane stood his ground well under fierce and penetrating cross-examination although he was questioned over the course of several days. He confirmed that the critical information required from Mr Masetlha was that Mr Macozuma and a foreign agent knew one another and had previously met. The IGI testified that he never received the Intelligence from the accused to support such allegations. Other NIA personnel could also not provide this information.
On 17 October 2005 the IGI reported to the Minister of Intelligence that Mr Masetlha and his subordinates involved in the surveillance on Mr Macozuma had misled the Minister and that the NIA surveillance team had acted against the norms and practices of the Agency. The IGI recommended that disciplinary steps be taken against Mr Masetlha.
The defence counsel put the IGI under severe pressure regarding his knowledge and application of the Oversight Act and pointed out that the IGI might himself have contravened the Act. Sections 7 (8) (b) (i) requires that the IGI may only disclose intelligence or information after consultation with the President and the Minister and subject to appropriate restrictions and conditions. The IGI made his report to the Minister whilst he should have consulted the President first. Obiter, I wish to point out that this section perhaps places an unreasonable burden on the IGI given a situation where the President may not be readily available and the Minister needs to be informed about something serious urgently. It appears from the evidence of the IGI that Minister Kasrils also did not observe this legal requirement and did not warn the IGI to first consult with the President about Mr Masetlha before disclosing the report to him.
The defence counsel had a point of contention regarding the interview the IGI and his task team had with Mr Masetlha regarding the inclusion of Ms Millard, a legal adviser in the office of Minister Kasrils, onto the task team. The IGI explained that he is permitted to take secondments. He said he appointed Ms Millard as a scribe in good faith and she assisted to make sure that some questions were asked and to help the task team with Intelligence background. The IGI felt that he had acted impartially but perceptions were raised with the accused that Ms Millard had been included wrongfully and represented the interests of Mr Kasrils who sought his downfall. Mr Ngcakane insisted that her inclusion would not have influenced him, however in hindsight it appears from his evidence that he would not have included her had he known of the complications that might have come about.
Defence counsel alleged to Mr Ngcakane that accused did not receive the IGI's letter of 11 October 2005. The IGI stated that according to his information Mr Masetlha had received the letter. It is important to note that in this letter the IGI requested the accused, as the then DG of NIA, to supply the task team with information which would prove what Mr Masetlha was referring to during their consultation of 28 September 2005. The IGI wrote to Mr Masetlha on 20 October 2005 that such allegations would: "ad a dimension to the investigation which can not be ignored". This was the first of two important documents that, allegedly, had not reached its destination and therefore caused a serious breakdown in communications which probably could have led to the procedure in this tribunal.
Mr Ngcakane confirmed under cross-examination that the real purpose of requesting further information from Mr Masetlha was to establish if genuine Intelligence existed to show and confirm that Mr Macozuma and a foreign Intelligence agent knew another and had met previously and further, to establish if Mr Macozuma had links with foreign Intelligence. Mr Ngcakane concluded that he found no such Intelligence. Mr Ngcakane however agrees that his report had deficiencies.
Mr Ngcakane testified that he knew about an allegation by Mr Masetlha that he had delivered a highly secret report to the President in which Mr Masetlha made serious allegations. This so-called "President's eyes only" report was required by Minister Kasrils in his letter to Mr Masetlha, to be handed over to the IGI.
Mr Ngcakane testified that he did not receive the information from Mr Masetlha as was requested. He reported to Minister Kasrils on 17 October 2005. On 20 October 2005 Mr Kasrils wrote back to the IGI and extended the terms of reference of his investigation. On the same day Mr Kasrils also wrote to Mr Masetlha and suspended him.
Mr Masetlha then sought legal assistance and his current legal team got involved. During roundabout this time Adv Govender was also appointed as the legal adviser to the investigating task team inquiring about the surveillance on Mr Macozuma. I must say from here on I detected a much higher degree of accuracy in the documentation and legalities in the procedure that followed. However, it also brought the procedure to an almost standstill because the defence's legal team advised him of his rights and the various personalities and sides came head to head. Battle lines were now firmly drawn, especially with the letter of the defence attorney dated 27 October 2005 in which further particulars were requested and proposals made for the upcoming interview being arranged for 29 November 2005. A major stumbling block cropped up in that the IGI's task team had a problem with the attendance of legal practitioners on the side of the accused because of possible access to classified information. The stumbling block was later overcome but the task team had a further concern about Mr Masetlha's lawyers wanting to participate in the deliberations and their demand to make submissions. The IGI felt that conditions were set by the defence, regarding their participation in the interview, which he found unacceptable.
On 28 November 2005 the defence turned to the High Court on a Notice of Motion procedure to force the IGI to provide the accused with certain documents and to allow him to have legal representatives present during the upcoming interview with the IGI. Fortunately the action was avoided. The IGI decided to withdraw his request that Mr Masetlha attend an interview although by now Mr Masetlha stated that he wished to be interviewed and believed that the IGI could not complete his statutory mandate without hearing his side of the story.
On 30 January 2006 Adv Govender, on behalf of the IGI wrote to the defence and inquired what role the lawyers were to assume during the interview. She attached to this letter the letter of Mr Kasrils dated 20 October 2005 disclosing the terms of reference to the IGI as was earlier requested by the defence.
More correspondence followed between the parties but to no avail. The interview that could clear up the question and avert much speculation in the media did not take place. However, the questions embodied in the documents sent to accused and his attorney still stood. Towards September 2006 criminal charges were formulated against Mr Masetlha for failing to provide information that would explain the surveillance of his department on Mr Macozuma.
Mr Ngcakane finally, in cross-examination, stated that the accused had still not answered to the questions posed to him in the letter of request dated 11 October 2005.
The second state witness, Adv Govender, testified that she joined the office of the Inspector General of Intelligence on 8 March 2005 as legal adviser. Before that she practiced as an attorney for three years and then as senior state advocate for 12 years. Ms Govender said she became involved in this matter towards the end of October 2005 when the IGI appointed her onto the task team. She perused all related documents and basically took control of the legal documents and legal negotiations when the accused acquired legal representation. She testified how the processes followed and how documents were exchanged between the parties. She basically confirmed what the IGI testified and explained the processes that were followed and finally led up to the prosecution of Mr Masetlha. She also explained the problem of access by the legal team of Mr Masetlha to the premises and confidential documents under the control of the IGI. She explained that state security and its assets could be compromised. She testified that because the accused insisted on legal representation being present during the interview set up for 29 November 2005 the IGI withdrew his request to interview the accused. On that basis that matter never proceeded.
The courts could then be reduced to paper tigers with a ferocious capacity to roar and to snarl but no teeth to bite and no sanctions to execute their judgments which could then simply be reduced to pieces of sterile scholarship, or futile exhibitions of toothless wisdom.
The ultimate power of the courts must therefore rest on the esteem in which the judiciary is held within the psyche and soul of the nation and in the confidence it enjoys within the hearts and minds of potential litigants in search of justice. That esteem and that respect must substantially depend on the independence and integrity of judicial officers. No public figure anywhere, however otherwise popular, could afford to be seen to defy the order of a court which enjoys, within the nation, a perception of independence and integrity. His or her own future would then be in mortal jeopardy".
Adv Govender also stated that the accused then demanded to be interviewed and insisted on legal representation as well as that other conditions would be met. By 30 January 2006 the IGI had reassessed the issue regarding legal representation and the role it would assume at any proposed interview that may follow. She said the IGI later agreed to lawyers being present but only to protect the rights of the accused against self-incrimination and not to make submissions, present arguments or pose questions to task team members. She said by mid February 2005 a breakthrough to resolve the matter had not been made and that eventually the required information from the accused had still not been received and that he had not co-operated. She also stated that the required information was not delivered by sub-ordinates of the accused. The matter was then reported to the police and Mr Masetlha was charged for contravening the provisions of the Oversight Act.
During cross-examination Ms Govender agreed that the sticking point on the holding of an interview could have been legal representation. She also said that access to certain documents presented problems as well because they were under the control of the Minister of Intelligence. However, she stated emphatically that, seen against information received by the task team Mr Masetlha had information to his disposal which was required by the task team which information he did not hand over.
Mr Enthias Faizel was the third state witness. He serves as the chief operating officer at the office of the IGI. He is a qualified chartered accountant specialising in corporate finance and forensic investigations. He joined the IGI in 2004 and served on the task team investigating the Macozuma surveillance matter. He confirmed the evidence of Mr Ngcakane and Ms Govender regarding the subject matter in great detail. He stated that accused did not respond to various requests posed to him by the IGI task team. He testified that on 20 October 2005 he approached Mr Masetlha after his meeting with the IGI on that day and handed him a letter dated 20 October 2005 which came over from the ministry. It was the letter announcing Mr Masetlha's suspension and also requiring him to co-operate with the IGI on outstanding issues regarding the Macozuma surveillance.
Mr Faizel stated that the accused told the IGI and the task team on 28 September 2005 during the interview that Mr Macozuma and the foreign operative knew each other and had met before. He said further that they satisfied themselves that such information could not have been correct.
Mr Faizel confirmed under cross-examination that Mr Masetlha required legal representation to be present during the second interview being arranged. He described this requirement as a condition set by Mr Masetlha. He also said that Mr Masetlha was not prevented from presenting the required information although the IGI had finished his first report. The door was never closed for the accused before 14 March 2006 when the investigation was finalised.
Mr Faizel also explained the processes of document delivery from his office to NIA. He said although he does not know to whom it was delivered, an acknowledgement of receipt of the letter to Mr Masetlha dated 11 October 2005, was available at his office.
The fourth state witness, Ms Vera Motshoane, testified that she worked as office manager in the office of the director-general of NIA during the time when Mr Masetlha served as such. She described her office functions which included the "handling of the document and information floor in terms of how documents would come into and leave the office". She acknowledged her participation in the transfer of the IGI's letter dated 11 October 2005. She described the system at NIA in detail and said that in mid October 2005 there were a lot of disruptions at the office. She said in practice she would put documents, like the letter of 11 October 2005, in a system file and put it on the desk of the DG. She could not confirm that Mr Masetlha had seen the letter of 11 October 2005 during that period. She said that the specific document does not a ring bell to her and after two years she can not recollect that she had seen it.
The State then closed its case upon which the defence moved for the discharge of the accused in terms of section 174 of the CPA. After much deliberation on points of law and facts and the state's objection to an acquittal the court ruled that there was evidence that Mr Masetlha did not supply the IGI with the information required and that he has a case to answer.
This case was then adjourned to resume on 11 September 2007. However, in the meantime, on 19 July 2006 the court received a Notice of Application for its recusal. It hinged around a visit to my chambers on 22 May 2007 by Adv Govender, who had finished testifying, during which she delivered a written request relating to disclosure to the media of certain confidential material contained in the exhibit marked: "Defence Bundle". At the time I decided to deal with such request on a "need for it to be dealt with" basis. Adv Govender, although a witness in this case, is an officer of the court and had a right to approach it with a different subject matter. I was satisfied that we did not have a private discussion about the case against Mr Masetlha. Perhaps she could have sent someone else with such application but I have no control over who walks through my door. The State opposed the application for recusal and amongst others addressed the court on the independence of our courts and referred, amongst others to a note which I, as the then National Secretary of the Judicial Officers Association of South Africa (JOASA) wrote in its newsletter of mid 2002 and in which I commented on the Constitutional Court decision of Van Rooyen versus The State and Others, 2001 (4) SA 396 T. The Constitutional Court found in this case that: "the core of judicial independence is the complete freedom of individual judicial officers to hear and decide the cases that come before them with no outside interference or attempt to interfere with the way in which judicial officers conduct cases and make their decisions. Individually, judicial officers must be free to act independently and impartially in dealing with the cases they hear and at an institutional level there must be structures to protect courts and judicial officers against external interference". I further proposed to my colleagues that we should assert our independence which is, importantly, also a frame of mind. We have sworn an Oath of Office to "administer justice to all persons alike without fear, favour or prejudice".
This is a highly sensitive case in which senior political figures and members of the executive are involved and it could be felt that the court may be influenced by the pressures that it may bring. I am aware of such perceptions worldwide however the following needs to be taken into consideration. In an address to Magistrates and Judges on 26 June 1998 the former Chief Justice of South Africa, Ismael Mahomed, stated in the above regard: "Unlike Parliament and the executive, however, Judicial Officers, do not have the powers of the purse, the army, and the police to execute their will. All the courts put together in the country do not have a single soldier. They would be impotent to protect the Constitution or to execute the law if the agencies of the State which control the mighty physical and financial resources of the State, refused to command those resources to enforce the orders of the courts.
In considering my position regarding the application for recusal I had regard to the perception that the accused might have had. But bearing in mind the volumes of work completed, the resources of the State and the defence it stood to loose and the fact that Mr Masetlha is an experienced figure which is well represented and could probably deal with his perceptions knowing that the court deals with facts and the law in deciding guilt or innocence and certainly not perceptions; I rejected the defence's application. It can be almost as big an injustice to withdraw from a case without proper reason as it may be to remain on if real reasons do not exist. Court cases are expensive and adjudication should be swift, honest and dealt with competently as best as we can to achieve justice. The air was cleared and we proceeded to hear the case for the defence on 12 Sept 2007.
Mr Masetlha testified under oath. He gave background regarding his youth and early involvement in politics at the age of 15. He joined the ANC at 18 which means that he has been a member of the movement for 35 years. During this period he served in various capacities, met many people and traveled to many destinations. He studied intelligence in the former East Germany which led him to work in intelligence in Zambia where he met President Mbeki previously, in April 1979 and with whom he formed a comradeship. He testified that he got to know Mr Mbeki well. He also met Mr Jacob Zuma in 1985 who was head of intelligence of the ANC at the time. Mr Masetlha described how he ascended up in the ranks and the ladders of the ANC until he was appointed by President Mandela as DG of the South African Secret Service in 1996. In 1999 he was redeployed to the Department of Home Affairs where serious problems like corruption and theft occurred. Mr Masetlha says President Mbeki appointed him as DG to salvage the situation and set systems in motion to secure proper administration. He stated further that he was soon redeployed to help bring peace in the Congo where war broke out and his contacts and expertise were needed. After that mission was accomplished he returned, was appointed by President Mbeki to serve as a security adviser until he was redeployed as DG of NIA in December 2004.
According to Mr Masetlha he and Minister Kasrils, the political head of NIA, disagreed about NIA's presentation to the Kgampepe Commission about the position of the Directorate of Special Operations, the so-called Scorpions, as to where they should fit in the intelligence community. He said Kasrils made a public statement in July 2005 condemning him. Mr Masetlha described it as malicious and vindictive. Mr Masetlha testified that although Mr Vusi Pikoli agreed, as DG of the Department of Justice and Constitutional Development, that the scorpions should move to the police, he later when he became head of the National Director of Public Prosecutions, changed direction. He added that the Commissioner of police, Mr Jackie Selebi, became furious about this.
Mr Masetlha testified further that on 14 June 2005 Mr Jacob Zuma was relieved of his duties as Deputy President of the Republic of South Africa and according to Mr Masetlha an uneasiness settled in amongst certain parts of the country.
Mr Masetlha explained the existence and concept of project Avani which was conducted as a result of activities around the country in relation to service delivery protests, amongst others. He said some opportunists took advantage of the situation. Obviously it had to be investigated. He further testified about a fire that gutted the sixth floor of Ntuli House where the headquarters of the ANC is located. According to Mr Masetlha certain things occurred during this period in 2005 which led him to believe that there were signs of counterrevolution and that, amongst others, his downfall was being planned. He compiled a report for the President's eyes only which he privately handed to Mr Mbeki on 26 September 2005 after Minister Kasrils failed to arrange an official meeting for him alone with the President. He said the President never referred back to him in this regard although he had promised to do so. Obviously Mr Masetlha does not wish to say what the report contains; save to say that there is reference in this report to Mr Kasrils.
The Macozuma surveillance followed in late August 2005 and then the first report of the IGI. Mr Masetlha says he met the President again on 19 October 2005 and told him the IGI's report is fundamentally flawed because the conclusions cannot be covered by facts. He stated that he advised the President that Mr Kasrils does not have the legal and constitutional authority to dismiss the DG and the DDG of NIA and that it is only the President that can do so. He said the President agreed.
On 20 October 2005 Mr Masetlha, Minister Kasrils and the IGI met with the President. Mr Kasrils took out a file and read a letter that suspended Mr Masetlha. The scene was now set for accused to defend his reputation and position as DG of NIA. He was also the centre of an investigation by the IGI regarding the surveillance on Mr Macozuma, which he himself described as a botched operation.
Mr Masetlha testified that Operation Fairwood was set up to deal with foreign agents who masqueraded under diplomatic cover to establish contacts with important South Africans in a bid to influence the composition of government and to try and influence direction. It was therefore necessary to launch a counterinsurgency operation, which is what Operation Fairwood in actual fact was. He testified that it was important to sniff out diplomatic operatives that could play a role in compromising South Africans. Counterespionage was important to protect South Africans and South African assets. It appears according to the evidence of Mr Masetlha, that Mr Macozuma was in danger of being sucked into what appears to be a foreign conspiracy. He and South African assets had to be protected. This is how I understood the crux of Mr Masetlha's evidence on this point. However, it appears that Mr Macozuma was not contacted by the NIA operatives and enlightened regarding the situation. Instead the NIA operatives conducted themselves totally unprofessional although the most experienced operations manager was involved.
Mr Masetlha testified that he immediately inquired from his subordinates what was taking place when he received the Macozuma complaint from Minister Kasrils. As a result of which he put a stop to the surveillance and took steps to establish what the full facts were. Mr Masetlha gives the impression in his evidence that he did not know entirely about the Macozuma surveillance because it was conducted by NIA operatives some levels below him. He wrote a letter to Minister Kasrils on 29 September 2005 in which he reports in detail what had taken place during the surveillance on Mr Macozuma.
Mr Masetlha testified that he attended an interview on 28 September 2005 with the IGI task team investigating the Macozuma surveillance. He said the Avani and Fairwood reports were discussed with the emphasis on the Fairwood report.
Mr Masetlha testified that Ms Millard was very active during the interview and wrote questions to Mr Faizel and the IGI to such an extent that he, Mr Masetlha, got irritated because he considered it procedurally wrong, irregular and illegal and that she could not be a constituted member of the task team. According to him she set up provocative and very personal questions which he nevertheless answered. He testified that the interview felt like a kangaroo court and that he also told the President so.
Mr Masetlha said the IGI requested the Fairwood report which he then sent under cover of a letter typed by his personal assistant at a meeting outside Rustenburg around 30 September 2005. He uncovered this letter, exhibit "H", during the course of this trial. It was noted as being received by the office of the IGI, however, the IGI upon being recalled to testify about this document denied that he personally had received it which meant that he never saw it. The IGI admitted that it appears to have been received by someone at his offices.
Mr Masetlha testified further that the required information regarding the crucial question about the surveillance on Mr Macozuma was contained in this document by way of the Fairwood report. It appears from his evidence that Mr Masetlha assumed, that Mr Macozuma and the foreign agent knew one another and had met before, upon reading the analysis in the Fairwood report in which it is stated that Mr Macozuma and the agent were seen in the same restaurant where they had greeted another.
The letter written at Rustenburg by Mr Masetlha dated 30 September 2005 and its annexure, the Fairwood report, formed another crucial basis of the defence of the accused. He was severely cross-examined about this document and its authenticity. The IGI and Miss Motshoane, the NIA personal assistant in the office of its DG, corroborated Mr Masetlha about this document.
The prosecutor cross-examined Mr Masetlha extensively from all angles about his failure to present himself for a further interview and for not co-operating with the IGI. The accused denied that the surveillance on Mr Macozuma was done with his specific knowledge and that it was unlawful. Mr Masetlha said he knows Macozuma very well and have no reason to falsify anything about him, that he would never lie to the IGI and that the conclusions to which the task team came was incorrect.
Mr Masetlha confirmed that he only saw the letter dated 11 October 2005 in court as part of further particulars obtained from the state. He stated that the requirements of the letter would be easy to adhere to in comparison with other very serious requests that he had answered during his term of duty at NIA.
In cross-examination the prosecutor inquired from the accused if he, Mr Masetlha, and minister Kasrils were involved in a scheme to drive the previous DG of NIA, Mr Vusi Mavimbela out of office. Mr Masetlha denied it and explained that Mr Mavimbela was his brother-in-law and that he would never conspire with Mr Kasrils or even the President or anybody to drive someone from office and that it was not his way of doing things. At this point Mr Masetlha wanted to make further confidential disclosures and requested to do so with the court sitting in camera. Mr Masetlha was allowed such opportunity.
Back in open court Mr Masetlha stated that after the IGI task team interviewed him on 28 September 2005 he knew what the IGI wanted and met with some of his NIA staff on the same day. They gave him the necessary reports which was attached to the letter of 30 September 2005 and duly delivered to the offices of the IGI. He explained why this document does not bear a full date and only states September 2005. He said that if the IGI did not receive his letter with the required information it must have been due to system failure.
Mr Masetlha reiterated that he dictated the covering letter to his personal assistant at the Rustenburg meeting and a driver was dispatched to deliver it to the IGI's offices with the Fairwood report attached. According to him the Fairwood report included information required by the IGI to finish the Macozuma surveillance investigation. He stated further that he also elaborated to the IGI on the actual nature of project Fairwood in order to assist the IGI as to who were targeted persons.
The defence requested that the IGI be recalled to testify regarding the receipt of exhibit "H" to his offices. The defence also, by way of a subpoena Duces Tucum, uplifted the original of exhibit "H" from the files of NIA. The National Intelligence Agency of South Africa opposed the subpoena but the court ruled that in all fairness the document had to be made available. It was duly done and the IGI also returned to testify.
The IGI testified that although it appears that Mr Masetlha's letter of 30 September 2005, exhibit "H", and attached documents were received at his offices he personally did not receive it and therefore did not see it.
There were concerns about the date of the creation of exhibit "H". From NIA system files it appear that it was created on 5 October 2005 although it was alleged to have been typed on a laptop at Rustenburg by Miss Motshoane on 30 September 2005. She could not be recalled due to her late stage of pregnancy and it was agreed to accept an affidavit from her on this aspect. She stated that she was indeed part of the team that drafted the letter at the bush meeting during 28 to 30 September 2005. She stated that the laptop on which she typed the document was not linked to the NIA computer network and that it was later, on her return to the offices of NIA, downloaded to the network system. This probably explains why the system displays the creation date as 5 October 2005.
She further stated that when letters were typed space was left for the DG to approve the document and fill in the date himself. She said Mr Masetlha signed the second page of the letter and dispatched it to the IGI by one of his drivers.
The defence also presented the evidence of the instructing attorney Mr Haffergee. He testified how he got instructed and worked his way through a difficult brief dealing with a sensitive case involving confidential documents and unpublished regulations. He took the court briefly through the documents received, drawn up and transmitted by him. He said the office of the IGI initially would not agree to legal representation being present with the accused during interviews but eventually agreed without wanting to allow them to make submissions. Eventually the processes stalled surrounding a suitable date for an interview and Mr Masetlha was criminally charged in this case.
In addressing the court on the merits of the case and the charge against Mr Masetlha, the state fiercely attacked the credibility of the accused and raised suspicions surrounding the creation of exhibit "H". To this we should ask as in the case of Bisset 1990 (1) SACR 292 (Z) where McNally JA found the following: "Memory plays strange tricks on us all, and anyone familiar with the Courts would have had many opportunities to note how it is possible for witnesses to be quite sure that something did not happen when it did or vice versa. How does one judge in such a case that the witness must have foreseen the possibility that his memory might be wrong".
The defence contended in its address on the merits that the accused was not guilty and did not prevent the IGI from access to information to his disposal. They further alleged that the accused could not be convicted on the sections of the law to which he has been charged.
In analysing the evidence the court considered witness statements individually and in comparison with another whilst having regard to the probabilities and the circumstances before coming to this decision. Regarding this process the revered and late Justice of Appeal, Marius Diemont stated in his book "Brushes with the Law"; Human & Rossouw, Cape Town, 1995 on page 92: "Judges do not have an easy job. They spend time doing what most people avoid doing - making decisions. This function they must carry out in public. They must give their reasons and they must do so expeditiously. The reasons which they give will be analysed and dissected by a team of lawyers looking for grounds of appeal. An army of academics, with too much time on their hands and too little knowledge of the world, will research the court ruling and prove beyond doubt that the judge is wrong. Their learning and the court's waywardness will be recorded at length in critical articles in the press and law journals."
This tradition has been celebrated in song which goes:
"In the cloister calm of Cambridge
I wrote books about the Law.
Criticising judicial colleagues
Making points they never saw.
In peaceful Cambridge College
Far removed from active Law
I dissected the Courts' decisions
I, of course, detect the flaw"
I am convinced that circumstances and systemic problems played a big role in driving the case up to this point. The accused alleged that there was a conspiracy to eject him from office. The IGI denied that he was involved in such and I could find no concrete evidence that such conspiracy existed. However, I can say that sheer incompetence by some, a lack of experience and professionalism by others contributed and could be blamed for this unfortunate ordeal. Perhaps limited training in Intelligence work and the proper administration thereof played a big role as well. This happened during peacetime. I shiver to think what could happen when there is a real threat against the country and its people as a whole and not just collegial bickering. It is my view that we owe it to the President of the country to be more supporting administratively, professionally and humanely during these times of transformation and the settling in of new leaders. The President cannot oversee and attend to everything on top of having to put out fires all over Africa and then be blamed for mishaps at home after being ill-advised at times.
The oversight legislation has now been tested. I indicated a flaw in it. The IGI and his staff had their first real taste of scrutinizing judicial processes. It is my contention that the IGI is a man of impeccable manners; a real gentleman that acted professionally. However, gentlemen also make mistakes. I think he realises after this experience that his task team should have created an environment in which Mr Masetlha should have been allowed to have his lawyers present during deliberations. The expertise which they could have brought to the investigative table might have nipped the problem in the bud right in the beginning. Obviously the submissions that they might have made would not have been binding on the IGI but could have shown direction.
Adv Govender was a fine witness who stood up well during fierce and penetrating cross-examination from all directions. Her knowledge of the law and her fast acting ability can only be an asset to an organisation in which she finds herself.
Mr Faizel also testified well. He was also subjected to the kind of cross-examination that few can stand up to. He deserves applause for his honesty. His evidence brought the first breakthrough in the adjudication of the case against Mr Masetlha. He stated, as I have alluded to when his evidence was summarised, that the task team satisfied themselves that accused's information to them could not have been correct.
Let us now argue the merits of this case. If Mr Masetlha believed that Mr Macozuma and the foreign operative knew one another because they greeted in a restaurant and the task team did not believe him because of the probability of his assertion it could have been reported so. The question is; can you hold someone criminally liable if you do not agree with his or her assumptions and more so, if he does not bring further proof, of which you are convinced, does not exist?
It was legally in the power of the IGI to summon Mr Masetlha to come and explain himself. That was duly done. The question is where to draw the line regarding legal representation. It is one of the principles which is strongly engraved in our Constitution and the rules of natural justice that any person should be entitled to legal representation if he faces an investigating team, a tribunal or court of law where he can incriminate himself and where he is subjected to the rules, regulations and/or legislation that governs him or that tribunal; especially as in this case where such person could be subjected to criminal charges in terms of that legislation.
It appears from the evidence of Mr Masetlha that he had a firm belief that he supplied the required information in the form of the Fairwood report. He further believed that there was a conspiracy to get rid of him. Whether his perception was absolutely correct or not is not of the greatest importance. If he had a reasonable and bona fide suspicion to that effect his concerns should be considered seriously and it may lead to giving him the benefit of the doubt and allow him legal representation. Mr Masetlha had such perception and even described the task team interview of 28 September 2005 as a kangaroo court. I do not fully share his view in this regard. It is perhaps putting it a little harsh.
Mr Masetlha testified bravely and was cross-examined extensively and ferociously regarding the veracity of the relevant parts of his evidence. During this period, whilst this case was heard, Mr Masetlha was also involved in other court battles that I came to know about through aversions here. Obviously he made many statements and probably had to answer many questions from lawyers, colleagues, friends and most likely family as well. It is understandable that he could not always confirm certain dates and information exactly the same as in previous statements. The prosecutor argued that he is an unreliable witness. It is understandable to question the anomalies regarding his report of 30 September 2005 and his version about not receiving the letter of 11 October 2005 from the IGI. Considering the supporting evidence, coming from state witnesses, and the probabilities in favour of Mr Masetlha he deserves the benefit of the doubt regarding these two documents which was crucial to the State's case.
It is probable that Mr Masetlha's letter and its attachments of 30 September 2005 went astray in the offices of the IGI because evidence exists that it was received by his staff. Regarding the IGI's letter of 11 October 2005 to Mr Masetlha it could also not be ruled out that it was indeed received by his personal assistant and were placed on his desk amongst other documents not to be seen by himself during a hectic time when he sensed that the long knives were out for him. It is for these and other reasons that in such instances, and before criminal charges are to be laid, personal service of documents is to be preferred. Having seen the accused testifying and resisting fierce cross-examination for many hours and having had the opportunity to judge Mr Masetlha as a person I doubt that he would have shied away from answering the letter of 11 October 2005.
Mr Masetlha further stated in his earlier submissions that he required his subordinates to answer to the questions of the IGI. It appears that his staff at NIA was very loyal to him and the probability could not be left out that they continued to send copies of his letter of 30 September 2005 upon requests coming to his office whilst had he had already left NIA. That may explain why four copies of the same document, exhibit "H", were sent to the IGI's office by NIA.
The state argued that the accused is arrogant, spiteful or upset because he was dismissed. Further, that he was an unreliable witness. The accused was required to present him and to supply information or intelligence. However certain circumstances and requirements made it almost impossible for him to appear before the IGI and defend himself without his lawyers present. It might also have been that Mr Masetlha acted in his own defence when he felt, like Mr Nelson Mandela said in his world-famous book: "A Long Walk to Freedom" when he wrote: "anyone who tries to take away my dignity will lose". It appears that Mr Masetlha is the kind of person who can stick his feet into the ground when he feels ill done to. Who else will send R2 million back to his employer?
I doubt if it is fair and just that the accused should be criminally responsible for the IGI not receiving the Fairwood report. The accused can also not be criminally blamed if the information, in the Fairwood report and other documents supplied by him, which he thought was sufficient, did not meet the requirements of the IGI. Furthermore, it appears that there was a breakdown in collegiality and communications in the higher echelons of the intelligence services due to the issue of legal representation. That, amongst others, got the process of consultation stuck and probably lead to the charge being formulated against the accused.
It is common cause that it is the duty of the state to prove the guilt of the accused person including mens rea. Mr Masetlha denied that he had criminal intent in his dealings with the IGI. If it could be proven by the state that Mr Masetlha had willfully and intentionally prevented the IGI from access to intelligence or information he would have been criminally liable. In this matter it appears that as a result of circumstances, system failures and personality clashes the task team of the IGI could not get the answers that the Minister of Intelligence was looking for. Mr Faizal probably pointed to the correct answer when he said that the task team had satisfied themselves that the information provided by Mr Masetlha regarding the reason for the Macozuma surveillance could not have been correct. This was crucial, why bother further?
With the evidence to its disposal the prosecution could not prove that Mr Masetlha had willfully and intentionally decided to break the law and prevented the IGI from having access to evidence, information or intelligence which they themselves felt did not really exist. It appears that it was Mr Masetlha's view that Mr Macozuma and the foreign agent knew one another and had met before based on a reported exchange of greetings in a restaurant. If Mr Masetlha had wrongfully believed that a mere greeting in a restaurant means that you know someone whilst it is actually not the case it could be seen as a professional mistake. I am of the view and convinced that it would be unjust and unreasonable to hold a mere mortal human being responsible for such a mistake, if it could be referred to as a mistake in Intelligence terms. Many persons may, on a professional basis, agree with Mr Masetlha. After all, he already lost his job. That is the President's prerogative to which he might have arrived on proper grounds. I am of the view and convinced that it would be unfair and unreasonable to subject such person to further penalty as prescribed by the Oversight Act.
Therefore, I am convinced after having regard to the facts in this matter and against the background of our legal principles as well as the Oversight Act, that Mr Billy Lesedi Masetlha should receive the benefit of the doubt that exists in this case and be acquitted.
I find him not guilty.
DZ van der Merwe
Add Magistrate
Pretoria
2007/11/28
Issued by: Government Communications (GCIS)
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