Alexio Papadopulo was thrust into the public sphere when News24 reported that key individuals in President Cyril Ramaphosa’s 2017 ANC leadership campaign team suspected him of being the source of the leaked emails that led to widespread scrutiny of the campaign’s funds — a charge he denies and says he has been cleared of.

Now amaBhungane has established that he is part of a cohort of security officials, mostly linked to former structures of uMkhonto we Sizwe (MK) in the Western Cape — at least some of whom appear to have done work for the SSA under former top spy Arthur Fraser or for Fraser’s private intelligence company, Resurgent Risk Managers.

The security officials appear to have been deployed as a group, first to the CR17 campaign and now to PRASA

Questions have also been raised about their relationship with PRASA board chair Leonard Ramatlakane and transport minister Fikile Mbalula.

One went so far as to invoke his association with Ramatlakane and Mbalula to colleagues who were sent to find him after absconding from work.

This raises the ultimate question as to whether the security team’s role is to protect PRASA — or to help capture it?

The mysterious Mr Papadopulo

Papadopulo, a former sales employee and later business partner at a Centurion electronic goods outlet, presents himself as a cyber security expert.

During the run-up to the ANC elective congress in December 2017 he was hired by the CR17 campaign’s head of security, Wally Rhoode, to secure the campaign’s communications.

Papadopulo set up and managed the campaign’s dedicated email server, “alexio.online”.

According to News24, after Ramaphosa became president Papadopulo worked for him for eight months before reportedly departing amid a “a series of confrontations” with Rhoode, who was by then a Major General and head of the presidential protection unit.

The report quoted claims that Papadopulo was “tight with Fraser” and suggested he was later suspected by key Ramaphosa operatives of being the source of leaks of emails from inside the CR17 campaign.

These leaks formed part of evidence delivered anonymously to Public Protector Busisiwe Mkhwebane and cited in her July 2019 report which found that Ramaphosa failed to declare benefits he received from donations to his multi-million-rand internal election campaign.

The Public Protector’s report was later set aside by the courts as irrational and without merit, but in the meantime the emails leaked to the media, with both News24 and the Independent group publishing stories exposing confidential CR17 donations and communications in early August 2019.

A source who was close to Papadopulo during the campaign said it was rumoured that he was “somehow connected to Fraser” and “untouchable due to this connection”.

Papadopulo claims he was cleared of involvement after an investigation into the leaks by the Hawks cybercrimes unit. He showed amaBhungane a message from a Hawks officer suggesting he had cooperated with the investigation and was not a suspect.

Papadopulo told amaBhungane, “Remember the point of the matter is that I don’t know Fraser. The only time I knew Fraser was when Fraser was also assisting in the campaign. So that’s all I know of Fraser, in terms of the rest, I have no clue of my ‘close relationship’.”

Fraser did not respond to questions from amaBhungane sent to him through a trusted intermediary.

A senior figure from the Ramaphosa administration, speaking anonymously, told amaBhungane they did not think Papadopulo was behind the CR17 leaks.

Rhoode

Papadopulo is not the only person to come under suspicion.

A highly placed intelligence source told amaBhungane that Rhoode previously received cash payments from the SSA or one of its covert structures.

This is understood to have included the time during which he was contracted to Ramaphosa’s ANC presidential campaign — a time when Jacob Zuma was president and Fraser was running the SSA. There is circumstantial evidence suggesting that he had money problems that might have given him reason to take covert cash from the SSA.

In 2019 City Press obtained an SSA letter revealing that Rhoode had been denied Top Secret security clearance due to evidence of “poor financial judgement” because he failed to pay tax to Sars and had defaulted on payments to ABSA and MTN.

Of further concern is that Rhoode brought into the CR17 campaign not only Papadopulo, but a group of associates and a security company with whom Rhoode had a chequered history.

Rhoda, who is still in charge of Ramaphosa’s protection, told us that “police media protocols” prevent him from responding to matters related to CR17.

He added: “I must say you raise intersecting issues and would like to respond but can’t.”

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The NPA and IPTS

The “intersecting issues” and their present-day relevance to PRASA are better understood against the backdrop of a questionable 2006 security tender awarded by the National Prosecuting Authority (NPA) to an unknown KwaZulu-Natal-based security company, Intense Protection and Tourist Services (IPTS)

IPTS was (and is still) owned by businessperson Muziwandile “Dalo” Nala.

In late 2011, the Hawks arrested five people in relation to suspected tender fraud involving the IPTS-NPA contract, including Rhoode, who was NPA head of security in 2006 before going on to run security operations for the 2010 FIFA World Cup.

The others arrested were Nala and three employees of the NPA: John Maree,

Terence Joubert, and Tebogo Sethabela. (Sethabela is now the director of supply chain at the NPA and has a long-pending lawsuit against his employer for wrongful arrest.)

Rhoode, Joubert, and Maree formed part of a group that led the NPA’s security structures at the time. The group included Trevor Fredericks, the NPA head of security for the Western and Northern Cape.

Fredericks left the NPA in 2007. In 2015 he was the regional manager for Fraser’s Resurgent Risk where he was tasked with managing a contract for PRASA in the Western Cape. As we shall see Fredericks would reappear in CR17 and later as head of security for PRASA.

Part of the Hawks investigation of the IPTS tender included a search and seizure operation targeting Joubert, who was based at the NPA in Durban.

As amaBhungane reported in 2012, controversial special prosecutor Lawrence Mrwebi, widely regarded as a key enabler of the ‘capture’ of the NPA under Zuma, was accused of trying, unsuccessfully, to halt the search.

In any event, the case went nowhere.

New investigating officers were appointed leading to delays and in May 2012 charges were provisionally withdrawn when the court refused to grant another postponement.

At the time the NPA told amaBhungane investigations remained on track and the case would be re-enrolled.

That didn’t happen. 

In 2014 charges against all accused were withdrawn after reconsideration by a senior commercial crime prosecutor, though notably this fact did not emerge publicly until 2019.

Rhoode & Co join CR17

It seems extraordinary that this history did not raise questions when Rhoode was brought on board the CR17 campaign.

Rhoode also brought in Fredericks and another ex-MK comrade, whose LinkedIn profile shows he too spent time working for Resurgent, the private intelligence company established by Fraser in 2010 during his stint outside the SSA.

Even more extraordinary was that CR17, presumably through Rhoode, contracted IPTS to provide security to the campaign. The leaked CR17 bank statements show IPTS was paid around R10-million between May 2017 and March 2018.

By then IPTS, its owner Nala and another of his companies, Semele Trading Enterprise, were already the subject of negative findings in investigations ordered by National Treasury in 2016, following a Public Protector’s report on PRASA.

That set of probes also flagged a 2015 PRASA contract awarded irregularly to Resurgent Risk under which some R53-million was paid out, and recommended that criminal action be taken against former PRASA officials.

Resurgent seemed both politically embedded and contentious: in May 2017 it launched a R20-million claim against the ANC for payment for “election support and strategic services” in the run up to the 2014 elections.

Yet none of this appeared to have caused even a ripple in the CR17 campaign at the time — and later on PRASA was similarly unmoved by this history.

From CR17 to PRASA

Papadopulo’s re-emergence at PRASA prompted amaBhungane to look closely at the organisation’s security team.

He was one of a group of nine individuals given fixed-term contracts in PRASA’s security department in June 2021.

The list included Fredericks, then newly-appointed as head of security.

Alongside Papadopulo and Fredericks were other new security appointees who had worked at CR17. Bank statements show that among the nine, at least three others were also previously part of the CR17 team, meaning at least five of the nine.

The appointments were highly unusual and PRASA’s majority union, the United National Transport Union (UNTU), demanded answers about the appointment process.

In an email from UNTU deputy secretary general Neels Haasbroek to the former head of human resources Thandeka Mabija and other PRASA officials, the union requested an urgent probe into the appointments over concerns about hiring processes being side-stepped.

The union wanted to know why internal members of the security division were overlooked for these high level positions.

Haasbroek added, “Trevor Fredericks is a friend of the Minister and it is not the first time that he is appointed as security head. He previously declined the offer.

“I request an urgent Forensic Audit regarding these appointments…”

The “minister” was Mbalula, appointed to the transport portfolio in 2019.

Team of ten

Plans for the recruitment of this allegedly hand-picked security team appear to have gone back as far as October 2020 when Ramatlakane, a veteran Western Cape politician, was appointed the new PRASA chair.

By then serious damage had been done to PRASA infrastructure during the Covid lockdown after it was left vulnerable when the agency cancelled all its irregular security contracts in 2019 without putting in place proper alternatives.

In response National Treasury had approved a budget shift of R900-million to take care of protecting PRASA assets in the short term — and the new security team seems to have been brought in to implement a grand new community driven security plan, to be led by MK veterans.

AmaBhungane was told that PRASA executives were introduced to Fredericks and Papadopulo in about mid-October 2020 as people being brought on board allegedly “on a request of shareholder”, meaning Mbalula.

In response to a request for comment, the minister’s spokesperson Lawrence Venkile told amaBhungane to direct questions about “the employment of persons and procurement matters” to PRASA.

See Mbalula’s full response here.

By November 2020, Fredericks was being touted for a position as operational security manager to assist PRASA to develop a security strategy.

By 15 December Ramatlakane, the new chair, was emailing a new security plan to acting chief executive Thandeka Mabija.

The plan reads, “Phase one is to establish the different modules of our security plan… A team has been identified with vast knowledge of security and rail infrastructure. The team comprises of ten trained and skilled people from all sorts of security backgrounds. This team will be deployed into our different modules in order to carry out the urgent work needed to fix PRASA security and look after its infrastructure.”

By that December Fredericks was already being included in emails (though it’s not clear in what capacity) and the new security plan was already slated to include the portentously named People’s Responsibility to Protect Project (PR2P).

By February 2021, the then head of security , General Tebogo Rakau, who had raised objections to the PR2P plan and questioned Fredericks role, had been fired.

By March Mbalula had announced the project officially, including promising that at least 80 MK veterans would be appointed as train corridor coordinators to oversee the thousands of paid community volunteers.

But, as amaBhungane reported, a month later recruitment for the project was put on hold as newly appointed chief executive officer Zolani Matthews pulled the brakes on its implementation.

By June 2021, though, nine of Ramatlakane’s ten security experts had been appointed.

What of the tenth?

The NPA’s Joubert again

Following Fredericks’ unexpected death in August 2021, Papadopulo assumed the role of acting head of security and, amaBhungane has established, began pushing the employment of Terence Joubert – though this never came to fruition.

PRASA said it was not aware of this.

Recall that Joubert was one of the accused in the case involving IPTS, which was withdrawn in 2014.

Meanwhile at the NPA, Joubert was facing a new round of disciplinary charges relating to a 2019 incident in which an envelope of R30,000 in cash was allegedly dropped in his car by a relative of Craig Ponnan, an accused in a tender fraud case involving former Durban mayor Zandile Gumede.

The NPA declined to prosecute criminally, but recently told amaBhungane that Joubert had been found guilty of gross dishonesty in a disciplinary hearing and was scheduled to be sanctioned.

Joubert told amaBhungane he had been set up and said he had not circulated his CV for a position at PRASA.

Papadopulo at PRASA

If Fredericks and Papadopulo gathered a familiar crew around them at PRASA, then to what purpose?

In terms of the security plan delivered by Ramatlakane, the core team of ten was clearly intended to lead the complete overhaul of PRASA’s broken security systems — at a cost of hundreds of millions of rands.

As early as February 2021, there was information circulating within PRASA that a private security company, the Red Ants, was being consulted about being onboarded as security providers, a senior PRASA source told amaBhungane.

That process was suddenly accelerated with the outbreak of unrest in KwaZulu Natal in July 2021.

This resulted in an emergency procurement process that by its nature bypasses the normal supply chain rules.

The emergency process was initiated two days after the unrest broke out (11 July) when PRASA allegedly received “intelligence and information” that its infrastructure would be under attack — according to a memo which sets out the rationale and the process that was followed.

One source told us that Mbalula first raised the issue about a planned attack on PRASA’s infrastructure and the then chief executive Matthews initiated the emergency procurement.

But, it was Fredericks and Papadopulo who sourced the service providers, almost overnight, for a R250-million contract.

The memo notes: “Due to the nature of the emergency PRASA corporate security needed deployments to initiate immediately and over a period of 12 hours to be at all stations. The two companies that responded and had the capabilities to deliver were IPTS and Red Ants Security.”

IPTS’s history with Fredericks & co is already well established.

AmaBhungane is not aware of any evidence of a similar prior relationship with the Red Ants, but we have previously pointed out that the company seems politically well-connected.

The Red Ants were contracted from 11 to 31 July for a staggering R241-million, covering Gauteng, KwaZulu-Natal, the Eastern Cape and the Western Cape.

IPTS were to be paid R7.6-million for services in KZN only.

Acting head

During this period Fredericks fell ill and Papadupolo took over as acting head of security, compiling and signing on16 August the addendum memo that included the costs for the riot intervention.

Matthews, the chief executive, in turn signed to approve the memo and addendum on 28 August and 9 September respectively – but by October 2021 the contracts had yet to be fully paid and the Red Ants issued a letter of demand to PRASA.

According to the letter, PRASA had promised to pay the full R241-million owed to the Red Ants, but they had only received under R10-million.

The Red Ants’ lawyer told the Sunday Times at the time, “Prasa confirmed that the job was done correctly. If there is presumption of something untoward that is incorrect.”

Amabhungane understands Papadupolo took a keen interest in the outstanding payments, so much so that it caused friction within the organisation.

Such was the concern with the delay in paying the invoices that insiders claim this played a role in the board’s decision in February this year to place the chief financial officer, Lesibana Fosu, on precautionary suspension, though PRASA said it was for other reasons.

Collision courses

Rumours of Fosu’s impending suspension first surfaced in November 2021 when the Sunday Times reported that after nine months at the helm, Matthews had been suspended by the board.

The paper suggested Fosu could be next in line as Mbalula and the board had received briefs that the CFO was hampering PRASA’s operations because she failed to pay invoices on time.

In the article Fosu is quoted as saying the finance department would not approve “suspect” invoices: “If that’s impeding PRASA operations, at least we can ensure that taxpayer money does not fund irregularities.”

Fosu would not comment when approached by amaBhungane, but according to insiders she raised questions in relation to the payment of the emergency security contracts.

Communication seen by amaBhungane confirms that Papadupolo pushed for the riot invoices to be paid, notwithstanding formal concerns raised about the emergency procurement process.

In November an eight-page internal audit report was addressed to Papadupolo.

The report said the process to appoint the two security companies was not “fair and transparent” because, for one, there were other private security providers who submitted quotations that were not considered.

The report did not go into who was responsible, nor did it address the cost of the contract and if PRASA received value for money.

Siyangena

In July 2021 both PRASA chair Ramatlakane and its Group Executive: Legal, Risk and Compliance sought legal advice in relation to a contract with Siyangena Technologies.

PRASA had awarded Siyangena Technologies a number of contracts related to the installation of a security access management system in 2011 and 2014 – with the total cost ballooning to over R4.5-billion.

The deal was awarded during the time of former PRASA chief executive Lucky Montana.

In late 2014 Popo Molefe took over PRASA’s board and started a major cleanup. Montana departed soon afterwards.

Molefe’s initiative included launching investigations into corruption and maladministration and taking two mega contracts to court to have them set aside: the Siyangena deal and the Swifambo contract (involving the infamous “too tall” locomotives).

The High Court set aside the Siyangena contracts in a damning 2020 judgment, finding that Montana and others deliberately bypassed internal controls.

The judgment also found Siyangena had provided backing for some of Montana’s property transactions, something Montana has always denied, including in his recent evidence at the Zondo Commission.

The court ordered that an independent engineer assess the value of the work actually done by Siyangena and that this be set off against payments already made by PRASA.

Siyangena appealed the high court ruling, but the appeal has not yet been heard.

Meanwhile, as the Sunday Times reported, Siyangena owner Mario Ferreira approached Ramatlakane about the possibility of reaching an out of court settlement.

Ramatlakane then sought legal advice about settlement discussions, including asking counsel, “Now that Montana appeared and provided an explanation of growing his property portfolio, will this not weaken us during the appeal?”

The opinion provided on 31 August 2021 by Advocate Kgomosoane Mathipa was unequivocal.

He told PRASA that Montana’s explanations at Zondo would “not weaken the case on appeal” and that PRASA could not, as a matter of law, agree to any settlement outside the terms set by the high court.

The only real basis for settlement would be for Siyangena to agree to withdraw the appeal and abide by the high court ruling.

The advocate wrote, “In my view, it is undesirable for PRASA to institute a self-review application, secure the judgment it wanted and then want to settle the matter… I wish to reiterate that there was a constitutional duty on PRASA, upon discovery of irregularities in its procurement process, to go to Court for self-review. It also has a duty to defend the judgment of the Court which has been granted in its favour.”

Without prejudice?

Notwithstanding this advice Ramatlakane wrote to Ferreira in September, noting PRASA was willing to meet on a without-prejudice basis “to understand your viewpoint and also what you will be putting on the table as proposal to resolve the litigation”.

The PRASA board mandated the CEO to implement this strategy and on 3 November 2021 Matthews and acting legal executive Thato Tsautse met Ferreira and his team.

PRASA has denied there was anything sinister about the meeting, arguing the legal opinion confirmed that it was permissible for the parties to seek a solution.

However, given the legal advice PRASA received, the apparent outcome is shocking.

An unsigned resolution seen by amaBhungane proposed that a joint team of PRASA and Siyangena should prepare a draft agreement that would be made an order of court, including that PRASA would pay an additional R2.6-billion “to close the last chapter”.

In addition, PRASA would approach the court to revisit the self-review that overturned the Siyangena contract  “as it was based on wrong principles”.

Matthews was to deliver a memo with recommendations for consideration by the PRASA PRASA board.

However Matthews’ services were terminated before he ever tabled any such memo and it is not clear what PRASA’s approach to the appeal is currently.

What is known is that PRASA has ditched Werksmans, the legal team that represented them to this point.[/sidebarContentStory]

Papadopulo told amaBhungane the only reason he felt “pressurised” to finalise the payments was because of Public Finance Management Act provisions, which stipulate that public entities should pay invoices within 30 days.

Oddly, on 21 February this year it was Papadopulo who communicated news of Fosu’s precautionary suspension in an email to PRASA’s senior management.

“Please make sure that the organisation recognise (sic) that Ms Fosu is suspended and people should not be (sic) copy Ms Fosu into any emails or communications from PRASA,”  Papadopulo said in the email sent out to management, including the acting chief executive David Mphelo.

He went on: “Please make sure… that these instructions are understood as I am currently investigating.”

Insiders questioned why the email had come from Papadopulo not the acting CEO and suggested it demonstrated Papadopulo’s influence.

By then Matthews was out of the picture, having been fired as CEO a few days after his suspension in November 2021.

He was axed for not declaring his dual South African-British citizenship, though this appeared a flimsy pretext for the Ramatlakane board to get rid of him just eight months into the job.

AmaBhungane has seen evidence that Matthews was being pressed to pay the emergency security contracts and to act against Fosu, which he appeared reluctant to do.

But in the background was also Matthews’ ambivalent role in another huge controversy, the Siyangena contract (see sidebar).

Matthews, who is undergoing an arbitration process with PRASA, refused to comment.

Nothing to see here 

So what is going on in PRASA’s security department?

It is worth noting that PRASA has long been a resource for feeding MK factions and parking spooks.

We should recall that in 2019 Daily Maverick revealed that former SSA deep-cover agent Mandisa Mokwena was quietly appointed as strategic adviser to PRASA interim chief executive Sibusiso Sithole in September 2018 – and even served as acting head of security until she was replaced by Rakau in May 2019.

So perhaps it is unsurprising that PRASA maintains there was nothing untoward about the appointments of Fredericks, Papadopulo and the others.

Ramatlakane told amaBhungane the team had “special” security skills and the process to appoint them was compliant with the company’s recruitment polices.

PRASA said that when head-hunting for “critical scarce skills” there was no need to advertise positions.

These individuals would provide the “intelligence-driven response” which PRASA said would “curb the vandalism of its valuable assets and other criminal activities which were found to be workings of a criminal syndicate”.

“You know that before the group came, there was absolutely no information provided [about] the stealing of the cable, this intelligence information was non-existent. That’s one of the skills that are found in the group and that’s what we need,” Ramatlakane told us.

By Ramatlakane’s account, Fredericks was the driving force behind amending PRASA’s security plan in 2020, which led to the appointment of the security team and the R200-million community patrol programme (PR2P).

Notably, this was long before Fredericks’ official appointment in mid-2021. So who paid him?

Ramatlakane told amaBhungane Fredericks initially refused an offered contract, but instead assisted PRASA with developing its security plan “free of charge”.

Asked if Fredericks’ involvement in redesigning the security plan while not formally employed, with little to no knowledge of the operating and security environment did not pose a major security risk, PRASA said that he worked with the previous head of security, Rakau, and “helped identify gaps and shortcoming in our systems”.

Ramatlakane explained that when the new board was appointed, the corporate security plan was in place but it was amended to include items such as the PR2P.

“Rakau could not write this strategy to incorporate what we wanted to be incorporated in corporate security plan,” he said, adding that the excuse Rakau provided was that “I have not done it before. So you can do it”.

The recording

But Rakau denies this.

He maintains Fredericks, far from working “free of charge”, was employed on a short-term contract in late 2020, which Rakau claims was at the insistence of then acting CEO Mabija.

Rakau told amaBhungane that he first got sight of the new security strategy in a meeting that took place on 16 December 2020 where these amendments were discussed.

In the meeting was board chair Ramatlakane, Mabija and someone Rakau had not expected: Fredericks.

The reason Fredericks’s presence was a surprise was because shortly after PRASA finalised his contract as an operations security manager, he disappeared.

Rakau said after Fredericks stopped reporting to work he wrote to the human resources department to have his salary frozen.

“HR’s response was that I should make means of trying to locate him. I sent people to his house and they found him but still he didn’t come to work,” said Rakau.

AmaBhungane is in possession of an audio recording of the PRASA delegation’s visit to Fredericks.

In the recording a contemptuous Fredericks confirms to the officials he has been ignoring Rakau’s phone calls.

“I am in contact with the board chair and the minister. I don’t have time for him now,” Fredericks is heard saying.

He tells the officials that he will inform Mbalula and Ramatlakane that Rakau sent people to look for him and will provide them with these individuals names.

The recording ends with Fredericks saying, “He is arrogant to send you, I know it’s got nothing to do with you, I was offered this post and I didn’t want it. That’s what happened.”

Neither PRASA nor Ramatlakane responded to questions about this incident.  Mbalula said he was not in a position to comment on “hearsay”. (See his full response [here])

In February 2021 Rakau was dismissed and, while this was overturned by the Labour Court, he chose to settle with PRASA and left in April.

In June, Fredericks was appointed as head of security but died shortly thereafter.

Papadopulo has been acting in the position since.

Accommodation?

The most interesting response to queries about the strange convergence of former CR17 security officials in PRASA came from someone in the Ramaphosa presidency, who agreed to speak to us only on background.

We had put it to him that the evidence we had gathered suggested that the SSA had multiple views into the CR17 campaign.

We had pointed out that during Fraser’s engagement with the Zondo Commission, he requested to be provided with “a copy of the file containing intelligence on His Excellency, President Cyril Matamela Ramaphosa, on his business and political activities as well as his associates”.

We noted it was therefore clear that the SSA did indeed spy on Ramaphosa and would have likely continued to do so during his election campaign.

We put it to him that it was surely a matter of concern that some of the most likely channels for this surveillance had previously embedded themselves at the NPA and latterly at PRASA.

While his responses to these issues were frustratingly oblique, what he appeared to think was that we were being fed “deep intelligence” in a bid to upset the delicate balance of forces and interests that keep the Ramaphosa presidency afloat.

That response suggests the burning question is whether that balance includes an accommodation with Arthur Fraser.

The post PRASA: the CR17 ‘spy’, the security cabal and the dodgy tenders appeared first on AmaBhungane Centre for Investigative Journalism.

• The spy agency’s director general confirms mass electronic interception has been halted following a Constitutional Court ruling that the practice was unlawful.
• A spokesperson for the agency ducks questions about how we got here and where we go now.
• We highlight how the original case shows the sense of entitlement the agency enjoyed under former boss Arthur Fraser.

The highest court had blasted Rica, the Act regulating the targeted surveillance of individuals, giving Parliament three years to fix it. This followed amaBhungane’s challenge to Rica’s constitutionality launched in 2017.

The judgement also effectively banned with immediate effect the unregulated practice of bulk surveillance – something the democratic state had been merrily pursuing since 1994.

On 18 February he wrote back, “I just checked the matter with the ADG [acting director general]. He confirmed that the bulk interception is not taking place. The SSA is abiding by the court ruling in this regard.”

While the assurance is welcome, the perfunctory response seems to betray the intelligence community’s ingrained resistance to accountability – something that has pitted acting DG Loyiso Jafta (who appears to want the agency to clean up its act) against his minister, Dlodlo, who attempted to interfere with his devastating evidence at the Zondo Commission.

We had put the point about accountability to Scott for comment.

We noted: “While the possible disruption to the state’s legitimate intelligence gathering capacity is regrettable, it was, with respect, entirely foreseeable that this outcome would eventuate – from the time amaBhungane first launched this application in 2017 – and, at the very latest, following the high court judgement in 2019.

“The fact that the government and the SSA have thus far taken no steps to regularise the situation, despite the passage of nearly five years since this matter first went to court, appears to us indicative of the poor analysis, lack of foresight and sense of impunity that appears to have gripped the SSA and its political principals during much of the intervening period. Please comment.”

We also asked what steps were being taken now to create a new legal framework and to mitigate the loss of legitimate intelligence gathering capacity in the interim.

No comment or answers were forthcoming.

Read: What is the South African case all about? A conversation with the journalist who made it happen

It is perhaps no coincidence that former SSA director general Arthur Fraser was the man who piloted the SSA’s misguidedly dismissive response to amaBhungane’s original high court application.

Jafta, in his Zondo evidence, portrayed Fraser as one of the architects of the SSA’s descent into impunity, illegal operations and political factionalism.

Fraser has denied this, but his 2017 affidavit in the amaBhungane matter was illuminating of his attitude to legal strictures.

It was heavy on ornate declarations of professional seriousness but light on the actual legal underpinnings of all the things Fraser contended were self-evidently permitted in the name of “security”.

He wrote: “I can assure this court that in discharging its functions, the allegiance of the Agency as an intelligence service is to the Constitution, and to the legislation that defines its objects, powers and functions.”

Turning to the key amaBhungane demand – ultimately granted by the Constitutional Court – that persons who had been surveilled must be notified retrospectively, Fraser argued: “Interception is necessitated by the demands of national security and it would defeat that very purpose if the subject of suspicion were notified of the intended interception… The right to privacy cannot be more important than providing security to citizens.”

It is surprising that Fraser was emboldened to put up this straw man: amaBhungane had never argued for prior notification – only for post-surveillance notification at a stage when disclosure would not defeat its purpose.

Of course the point we made was that this purpose had to be legitimate and necessary, not merely convenient. That clearly did not chime with Fraser’s perception of the broad licence the intelligence services demanded.

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Fraser’s affidavit noted, “It is also important to emphasise that the nature of intelligence gathering by the Agency is a process, not an event that starts and ends within a determinable time frame, or that necessarily produces fool-proof results that a target of interception has engaged in activities that threaten the security of the State, or that will lead to a conviction for an identifiable offence. Such certainty is simply not consistent with the nature of the business of the Agency, and for this reason, notifying a suspect of an interception direction would defeat the object of the exercise.”

In other words, if the SSA is interested in you, then that in itself provides justification for surveillance, provided a judge can be convinced to agree – and no accounting for that decision needs to take place after the fact.

The underlying logic that the SSA should be allowed to trawl after any suspicions it deemed fit was expressed even more starkly when it came to bulk surveillance.

In response to our point that no law empowered the state to conduct mass communication monitoring and collection, Fraser demurred.

He wrote, “The short answer to these charges is that the development of unconventional threats to peace and stability, technological advances and the pervasiveness of cybercrimes have compelled various jurisdictions to adopt modalities such as bulk surveillance in an effort to secure the well-being of their inhabitants. South Africa is no different, and as with other jurisdictions, has institutionalised oversight mechanisms that are intended to provide checks and balances to ensure that the intelligence services execute their mandate within constitutional bounds.”

He explained that since bulk surveillance was not directed at individuals, there was no need for its reach to be restricted or regulated outside of the internal norms of the SSA.

“In other words, the bulk surveillance operations are conducted in fulfilment of the counter intelligence mandate of the Agency, and its interception operations, though outwardly focussed, are located domestically. Its extraction capacity in respect of identified signals is guided by the Agency and by national intelligence priorities.”

His confirmation that the SSA indeed carried out bulk surveillance was useful to our case, perhaps unwittingly. It spoke to the confidence of then president Jacob Zuma’s top spy that the courts would exercise deference toward this secret sphere of the executive and the state.

The Constitutional Court has confirmed how wrong he was.

Read: Analysis: Inside amaBhungane’s landmark ruling on surveillance

Testimony at the Zondo Commission has confirmed how right we were to reject the SSA’s assurances of professionalism and good faith.

The pushback that Jafta endured, including from Fraser, has confirmed how much there is still to reveal. Watch this space.

• AmaBhungane and Sam Sole were the applicants in the matter against the minister of justice and correctional services, the minister of state security and others.

The post Analysis: SSA confirms suspension of ‘bulk surveillance’ following amaB Concourt victory appeared first on AmaBhungane Centre for Investigative Journalism.

It was a two-page court order, the details of which I’ll come to because it tells an important story about amaBhungane’s advocacy work.

AmaBhungane is known for its long-form investigations of money, politics, and abuse of power in South Africa. This dogged approach — taking weeks, months or even years to chase down a story — has resulted in major exposés and more than a few awards over the years.

In 2019, the group was part of a consortium of news organisations that received the Global Shining Light Award for the #GuptaLeaks investigation into the sprawling network of corruption surrounding South Africa’s former President.

But many people don’t realise that the organisation also hosts an advocacy programme, which adopts the same tenacious approach, to slowly push for reforms in policy and law to improve the climate for journalism itself.

Through its unique approach to advocacy, a staff member — part researcher, part policy wonk, part campaigner — works mostly on a parallel track to amaBhungane’s investigators, to secure the information rights that are the lifeblood of investigative journalism.

In South Africa, access to information and freedom of expression are mostly protected in law, but bureaucrats, politicians, and private firms often flout the rules all the same.

But over the years, amaBhugane’s programme has blossomed into an impressive portfolio of work, including submissions on legislative amendments (four last year), access to information requests (13 in 2019) and share-register inquiries (more than 40 last year), and strategic litigation on media-freedom issues (four active cases at the moment).

Access our advocacy work plus our legal documents via our Virtual library. 

It is also important to understand what the programme isn’t: amaBhungane does not do “advocacy journalism” or advocacy about its journalism. Many who read amaBhungane’s investigations of former president Jacob Zuma’s corruption organised protest marches calling for his resignation — but amaBhungane did not join them.

The slow road to transparency

Much of the work is as unglamorous as the animal for which amaBhungane is named — ibhungane — the dung beetle.

Like many of their global counterparts, amaBhungane’s journalists use freedom of information requests as part of their investigative toolkit. But in a climate where close to two-thirds of information requests are refused or simply ignored, many information requests drag on long after any story has been filed.

Someone needs to work the phones, to ensure recalcitrant officials eventually file a response, and should the response not be positive, someone needs to draft the appeal.

By having a designated advocacy coordinator who is not tied to conventional newsroom duties, amaBhungane is able to pursue information requests not only in service to a story, but in pursuit of the principle of transparency itself.

This brings me back to the court order that landed in my inbox in March. Since 2015, amaBhungane has been trying to get details about coal-mining rights nationally. It started with an information request, which was refused. AmaBhungane filed an administrative appeal, which succeeded, but the documents never arrived.

In 2017 a court ordered that amaBhungane should get the documents. Still they didn’t come. Finally, in late 2019, a judge ruled that the officials responsible were in contempt of court. At long last, in March, our lawyers got a copy of that contempt order, which directed those two officials to hand over the documents or pay R100 000 in fines. Personally.

The outbreak of Covid-19 may have bought those officials just a bit more time, and perhaps if those documents eventually arrive, they’ll never make it into a story. But the next journalist who calls up the mining department asking for information may find a much more thoughtful official on the other end of the phone. It took five years to happen, but like I said: long-form.

Policy fights big and small

Some of amaBhungane’s advocacy work is the stuff of major, history-making, precedent. Its current constitutional court challenge to South Africa’s surveillance law, for example, seeks to overturn years of abuse and secrecy in the state’s spying machinery, after the revelation that state spies had bugged the phone of Sam Sole, one of our managing partners .

If the organisation can uphold the landmark victory it won in the lower courts, it would result in major privacy reforms to protect investigative reporters and the public at large.

But most of amaBhungane’s advocacy work takes place out of sight and without fanfare — wonkish submissions to policy processes in Parliament, asking for a secrecy clause to be struck from an energy bill, say, or proposing better transparency provisions in party-funding regulation.

All this it has done without compromising its journalism. The advocacy work and the investigative work run parallel to each other, though there is not the hard “firewall” that one hears about at, say, the news and opinions operations at The New York Times. We talk and keep one another updated.

In the very early days of amaBhungane, the advocacy work was a part-time role; amaBhungane’s first advocacy coordinator split her time between advocacy and reporting. It was an unhappy arrangement, which worked to the detriment of both.

By having a dedicated advocacy coordinator, the organisation can ring-fence both the work (so that amaBhungane’s journalists do not have to involve themselves in lobbying and campaigning) and the workload (so that the journalists can get on with, well, journalism).

But the organisation and its journalists are especially sensitive to the risk of being seen as partisan, even more so after the emergence of coordinated disinformation and smear campaigns against amaBhungane and other media organisations that started in the lead-up to the #GuptaLeaks reports, and never really went away.

It’s ironic that amaBhungane with its declared advocacy programme could be seen as partisan and campaigning, when many of South Africa’s commercial newsrooms appear to have been drawn into messy factional wars that have led to an industry-wide ethics inquiry.

I’ve worked alongside amaBhungane’s advocacy programme for nearly a decade as an information-rights activist, and have seen the organisation prove its integrity over and over again.

If anything, my sense is that the organisation’s reluctance to be seen as “crusading” creates a silence about its advocacy work, in which Twitter trolls are more than happy to craft their own narratives.

Covid-19 clampdowns

The global crises sparked by Covid-19 suggest that advocacy for journalism is more important than ever. For starters, the pandemic has brought new obstacles to the flow of information.

For example, despite strong legal protections for the principle of open justice, the pandemic has led to serious transparency challenges in South Africa’s court systems. Access to court records had been unreliable even before Covid-19 restrictions, now they are even more so.

As court hearings have moved to video call platforms, Cherese Thakur, who succeeded me as amaBhungane’s advocacy coordinator, has been haunting the phones and inboxes of court officials to try get schedules of court hearings published online ahead of time as a basic condition of ensuring court processes remain open.

Out in the streets, in the chaotic weeks following South Africa’s “lockdown”, journalists documented appalling brutality by police and soldiers sent out to enforce it, and in several instances were harassed, stopped from filming, and even fired at with rubber bullets.

Don’t miss amaBhungane’s advocacy updates. Sign up to receive our free newsletter here.

But surely the greatest crisis for journalism in this moment is economic, and media advocacy to address the economic devastation being felt in newsrooms is urgently needed. Though many have risen to meet the reporting challenge of our time, many may not survive it.

Even before the pandemic, it already seemed unlikely that mainstream journalistic outlets would “innovate” their way out of the harsh financial climate without major regulatory interventions: to provide public grants to media organisations, give tax credits to companies that buy ads or levy taxes off the tech giants, or any manner of other policy response.

AmaBhungane’s advocacy work has yet to venture into this space although Sanef, the South African National Editors’ Forum, has initiated research into the policy questions in recent years. If there was ever a role for advocacy work in support of journalism, this is it.

Traditional investigative journalism has sought to keep advocacy out of the newsroom. But this is a time in which doing journalism is not enough to secure journalism’s future. Now more than ever, journalism needs to be able to fight for itself. And amaBhungane’s unique advocacy model allows the group to do just that.

*Murray Hunter is a media consultant and digital rights advocate, and was previously a coordinator of the Right2Know Campaign in South Africa, and author of a children’s book about digital surveillance. Hunter writes here for the amaBhungane Centre for Investigative Journalism, where he was acting advocacy coordinator in February and March 2020.

The post Comment: Should journalists do advocacy? appeared first on AmaBhungane Centre for Investigative Journalism.

It allegedly turned to the State Security Agency (SSA) for help; not to investigate those implicated in wrongdoing, but a journalist who was asking uncomfortable questions.

This detail emerged from a secretly-recorded meeting with George Seitisho, who at the time was Cogta’s acting deputy director general in charge of the CWP.

* Click on the evidence docket to access all the audio clips.

Seitisho called a group of government contractors, known as “implementing agents”, to a meeting in 2017.

Although he asked everyone present to remove the batteries from their cellphones to prevent anyone from “listening in”, a recording of the meeting survived thanks to a dictaphone accidentally left recording.

“Colleagues … what I find to be very uncomfortable [is] when I discuss issues with [implementing agents] – or they phone me or they send me e-mails and ask questions – and then we receive the same questions from amaBhungane,” Seitisho is heard saying.

Earlier in 2017, a journalist in amaBhungane’s fellowship programme had questioned Cogta about delays in awarding the CWP’s new three-year contracts. The questions were innocuous but apparently hit a nerve inside Cogta.

“[I]f it is to be found that some of you have colluded with journalists on what are contractual matters between us and yourselves … I think you are aware that government is going to take some dim view,” Seitisho warned.

“In fact, I needed to inform you that … we have had to submit those questions to the State Security Agency together with the e-mails that we got from some [implementing agents], because there is a relationship and a correlation to those e-mails and the questions that we get from the media,” he said, glossing over the obvious abuse of using the intelligence services to investigate contractors and journalists simply for raising questions.

He ended with another warning: “Don’t try and put pressure on us through the media, it’s not going to work. We just joined Donald Trump, it’s fake news.”

Cogta did not respond to written questions or repeated phonecalls.

This is not the first time the SSA has been tapped to investigate journalists.

In 2018, the chair of the National Lotteries Commission, Alfred Nevhutanda, said he had asked the SSA to investigate how information about Lotto beneficiaries got to journalists.

In response, the South African National Editors’ Forum issued a statement condemning Nevhutanda’s abuse of the state’s spying capabilities.

In 2015, Deputy President David Mabuza, then Mpumalanga premier, caused an outcry when he said at a press conference that the SSA provided him with briefings on journalists. The SSA confirmed briefing Mabuza.

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Last year, amaBhungane took several government departments to court to challenge provisions of the Regulation of Interception of Communication Act, which allows the state to spy on citizens’ phones and emails with little oversight.

The court agreed and declared parts of the Act unconstitutional.

The case now moves to the Constitutional Court on 25 February for a final decision.

See

Who’s eating the Community Work Programme? Explore the data

Who’s eating Cogta’s R13bn Community Works Programme?

The post Cogta “asked SSA” to investigate journalist appeared first on AmaBhungane Centre for Investigative Journalism.

A senior State Security Agency official has confirmed pivotal details of a whistleblower’s account over the conduct of public protector Busisiwe Mkhwebane during two investigations by her office, first reported by News24 and amaBhungane on Sunday.

James Ramabulana, a long serving senior State Security Agency (SSA) official, confirmed that he was present at both SSA meetings with Mkhwebane surrounding her so-called CIEX investigation into ABSA Bank and the South African Reserve Bank.

The whistleblower claimed in an affidavit that another SSA official, Maiendra “Mai” Moodley, had handed Mkhwebane a typed note containing the wording for a remedial action included in her final CIEX report – raising questions over the SSA’s involvement in a clandestine effort to shift the mandate and oversight of the central bank under the cloak of a public protector report.

Ramabulana in a written response to questions was mum on this aspect, although he was in the room when the note was handed over during the second meeting with Mkhwebane.

However, he supported other key elements of the whistleblower’s version including partial confirmation that Moodley was introduced as an “economist” – although his expertise is in information technology security.

Mystery meetings

Ramabulana is a long serving intelligence official. He is understood to have occupied positions within the domestic intelligence sphere for nearly two decades.

He said Mkhwebane had formally requested, in writing, a meeting with the state security minister and the director general, at the time David Mahlobo and Arthur Fraser.

“They [Mahlobo and Fraser] decided to go with me to the meeting because I was familiar with matters that were to form part of the discussions. The two of them had not dealt with the matters in question,” Ramabulana said.

The public protector’s CIEX report centred around a complaint by Paul Hofmann of Accountability Now, who asked in 2010 for an investigation into whether government had failed to act on a report by British investigations firm CIEX over the SARB’s apartheid era bailout of Bankorp, a bank that was later bought by ABSA.

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The agreement with CIEX had been signed by the former South African Secret Service boss Billy Masethla. It is understood that Masethla was interviewed by Mkhwebane’s predecessor, Thuli Madonsela, but the transcription and audio recording for that interview went missing, necessitating Mkhwebane’s team to seek a new response from the SSA.

In the final report, no mention is made of any written submission from the SSA, and neither is there a reference to any interview with SSA officials.

The whistleblower revealed that Mkhwebane instructed her senior investigator who was present at both meetings, Tebogo Kekana, not to record or take notes, which the whistleblower found “odd”.

The two meetings with the SSA only came to light during litigation over the report, when two handwritten and cryptic notes by the investigator, Kekana, were found in the records.

The whistleblower alleged that Mkhwebane instructed two successive teams of lawyers to withhold relevant documents from the courts.

The whistleblower disclosed an example, an email to Kekana from Mkhwebane stating that she had “asked SSA to provide input and economist”.

That email was omitted from the court record and has never been disclosed until now.

And Mkhwebane never disclosed, in years of litigation, who attended the meetings on behalf of the SSA, or what was discussed.

Now the whistleblower and Ramabulana have confirmed details of those meetings.

Technical support

During the meeting of 3 May 2017, Ramabulana told News24, Mkhwebane requested more information on CIEX, and further “used the opportunity to request technical support” from the SSA.

Ramabulana said he had earlier compiled an assessment on the CIEX contract with SASS, and was therefore well placed to assist the public protector.

“It was within the context of her request [for technical support] that a meeting of the 6 June 2017 took place. I indeed attended the meeting of 6 June 2017 as part of a follow-up to the earlier meeting. I was with Mr Moodley,” Ramabulana said.

“I cannot answer why I did not correct the PP when she introduced Mr Moodley as an economist as I expected him (Moodley) to do so.  In fact, I can’t even remember what she said. At the time, he was the adviser to the DG [Fraser] on technical matters and had for that matter worked in the economic sector before,” he continued.

Maiendra “Mai” Moodley, the SSA agent who allegedly handed Mkhwebane a typed note contained the revised mandate for the Reserve Bank.

“He had worked in the banking sector, the Reserve Bank to be specific. But that does not mean that on the day in question, he, in my presence, wrote the report. I understood his role as that providing the requested technical support (Case Management System).”

This appears to be a reference to the public protector’s efforts to launch an electronic case tracking system with the SSA’s help, but it is not clear why this would have been relevant to a meeting concerned with the CIEX report.

Almost as an afterthought, Ramabulana said it was, “anyhow the mandate and/or legislated role of the SSA to advise any government department, State Owned Enterprise and Public Institution, the PP included, on any matter pertaining to national security”.

He added: “It must be noted that national security encompasses/includes political, economic, social, environmental, scientific and technological issues. It must also be noted that the SSA can only advise and or recommend to its clients — decisions are the sole function of its client (national, provincial, local government departments and SOEs, including Public Institutions).”

Ramabulana said, according to his knowledge, the SSA never ran a project to nationalise the Reserve Bank.

Mkhwebane’s June 2017 report called for the Constitution to be amended to remove the SARB’s mandate to protect the value of the currency and instead set as its primary object “to promote balanced and sustainable economic growth in the Republic, while ensuring that the socio-economic well-being of the citizens are protected”.

This was the exact wording contained in the note allegedly handed over by Moodley.

Her report was billed by a senior SARB official as a “brazen attack” on the independence of the central bank, and received swift backlash and condemnation.

She was roundly criticised in successive court judgments that set aside the report, and ordered to pay some of the legal costs out of her own pocket over her lack of candour and transparency.

The Constitutional Court found she had acted “in bad faith and in a grossly unreasonable manner”.

SSA links

Mkhwebane worked for the SSA for three months before taking up the position of public protector in October 2016.

Her stint at the SSA, as an “analyst”, coincided with Parliament’s interview process to find a new public protector.

But her links to key intelligence figures goes back further.

News24 has established that Mkhwebane worked with Fraser at the department of home affairs in 2005.

Mkhwebane left her previous position at the office of the public protector in 2005 to become the director for refugee affairs, a senior post in the National Immigration Service of home affairs.

At the time Fraser was seconded from the then National Intelligence Agency to home affairs, and served as the deputy director general for the immigration service – a position that resulted in Mkhwebane, effectively, reporting to him.

Last month Fraser, who was removed as SSA boss and transferred to become national commissioner of prisons, declined to comment on his history and relationship with Mkhwebane, referring queries to home affairs and the SSA.

From 2010 to 2014 she served as counsellor for immigration and civic services at the South African embassy in the People’s Republic of China, though her ambassador at the time, Bheki Langa, denied that she ever worked for the SSA under diplomatic cover.

Another senior home affairs official denied any knowledge of Mkhwebane being linked to the SSA during her time in China when approached by News24 earlier this year.

Langa returned to South Africa in December 2014 and served as the head of the domestic branch of the SSA from August 2015 to March 2017.

When Mkhwebane was last month asked to clarify issues surrounding her and Fraser working together at home affairs, and whether the relationship continued, Mkhwebane said the issues raised about Fraser were the same as what was raised by the DA in a law suit.

Mkhwebane sued the DA after its MP Glynnis Breytenbach, who was one of the MP’s who interviewed potential public protector candidates, called her a spy.

She would not be drawn into responding however, saying the matter was before the courts and the burden of proof lay with the DA.

Mkhwebane stayed with home affairs until the end of May 2016, when she abruptly resigned and took up the position of analyst at the SSA. She started on June 1, 2016.

Fraser was appointed director general of the SSA in September 2016, just weeks after Mkhwebane’s nomination as public protector was confirmed.

Questions over her links to the SSA were raised during the nomination process in Parliament, but at the time were dismissed over a lack of evidence.

Within months of Mkhwebane taking office, the SSA was allowed unprecedented access to the office – working on internal systems which the office used to manage cases, as well as providing “training” to investigators.

The SSA chief financial officer was also seconded to the public protector’s office.

Mkhwebane told Parliament during her interview that taking up the position at the SSA was to defend the Constitution in a different manner.

CIEX was the first major investigation Mkhwebane was involved in during her tenure as public protector.

The post State Capture 2.0: SSA agent confirms key details of whistleblower’s Public Protector affidavit appeared first on AmaBhungane Centre for Investigative Journalism.

Public protector Busisiwe Mkhwebane’s controversial June 2017 order directing Parliament to amend the Constitution to change the mandate of the South African Reserve Bank was handed to her on a piece of paper by a State Security Agency official, an affidavit seen by News24 and amaBhungane states.

The wording of the SSA recommendation, which included exactly how the Constitution should be amended, found its way verbatim into Mkhwebane’s final report, dubbed the CIEX report. This raises new questions over her relationship with the spy agency.

It also raises questions over the conduct of senior SSA officials and their involvement in a clandestine scheme to nationalise the SARB under the cloak of a report by the public protector.

Mkhwebane’s report emerged at the height of the Zuma administration’s attempts to bring to heel institutions holding out against state capture, notably the national treasury and the SARB.

Her report was billed by a senior SARB official as a “brazen attack” on the independence of the central bank, and received swift backlash and condemnation.

She was roundly criticised in successive court judgments that set aside the report, and ordered to pay some of the legal costs out of her own pocket over her lack of candour and transparency.

The Constitutional Court found she had acted “in bad faith and in a grossly unreasonable manner”.

Now, a shock affidavit has revealed the true extent of Mkhwebane’s improper and apparently dishonest conduct – not only in the CIEX/SARB matter, but also in her investigation of the Gupta-linked Vrede dairy farm scandal (see Part 2).

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The Estina report too was set aside by the courts, where she was again criticised for a lack of honesty.

The affidavit was deposed to under the Protected Disclosures Act by a public protector staff member whose identity is known to News24 and amaBhungane.

The detailed allegations it sets out undercut Mkhwebane’s campaign to portray herself as the victim of a political plot. Instead, it details how she allegedly took steps to withhold evidence implicating herself from the courts.   

The whistleblower’s affidavit was sent National Assembly Speaker Thandi Modise, and to President Cyril Ramaphosa’s office on Friday.

Mkhwebane dismissed the whistleblower’s allegations as “baseless claims and ramblings of disgruntled current and former employees”.

Some of these employees, she said, were facing disciplinary action.

“The intention is clear: to influence the mooted parliamentary process to remove me from office. I will respond substantively in due course.”

Notes to a conspiracy

According to the whistleblower’s affidavit, the SSA instruction was handed to Mkhwebane and her senior investigator assigned to the CIEX complaint, Tebogo Kekana, at a meeting on June 6, 2017 by SSA official  Maiendra “Mai” Moodley – just weeks before the final report was released.

News24 and amaBhungane discovered Moodley’s typed note (right) earlier this year in papers the public protector’s office disclosed during the court review of her CIEX report, but it was not identified as an SSA document, so its significance was unclear until the whistleblower’s account emerged.  

Moodley was seconded to the SSA from the State Information Technology Agency under then SSA director general Arthur Fraser. The affidavit states that Mkhwebane introduced Moodley as an “economist”; however his expertise lies in computer systems.

The June 2017 meeting was the second Mkhwebane held with SSA officials about the CIEX report.

She met with then state security minister David Mahlobo, Fraser and a senior SSA agent named James Ramabulana on May 3, 2017. Ramabulana was also present at the June 6 meeting.

The whistleblower states that Mkhwebane, contrary to the public protector’s standard practice, instructed her lead investigator, Kekana, not to record or take notes during this meeting.

The whistleblower also alleges that Mkhwebane held a private discussion with Mahlobo prior to the official meeting, which was “odd”.

Mahlobo would not comment on the issues raised, while Fraser referred queries to the SSA, which confirmed it would provide comment but had not done so at the time of writing.

Moodley did not respond, while a query for Ramabulana, sent to the SSA, also went unanswered.

Perjury?

The Constitutional Court earlier this year upheld a personal costs order against Mkhwebane by the Gauteng High Court in Pretoria related to the SARB’s review of her CIEX report.  In its majority judgment, the apex court criticised Mkhwebane’s lack of honesty.

On Thursday, Mkhwebane described the personal costs order as a “low point” of her year during a press briefing, although she said she found solace in the minority judgment penned by Chief Justice Mogoeng Mogoeng, which ascribed her conduct to innocent errors.

At the heart of the court’s concerns was Mkhwebane’s failure to disclose meetings with the SSA and the presidency in her CIEX report – and the patchy disclosure and contradictory explanations she subsequently offered in court proceedings.

The differing versions Mkhwebane put forward during litigation resulted in the original CIEX complainant, Paul Hoffman, filing a charge of perjury against the public protector with the police.

The Organisation Undoing Tax Abuse also filed a second, more detailed charge.

News24 and AmaBhungane understand that Mkhwebane has been asked to provide a warning statement to the Directorate for Priority Crime Investigation, or the Hawks, relating to these complaints.

Now the whistleblower affidavit alleges that Mkhwebane deliberately withheld documents from court – providing evidence that will strengthen those charges and tend to confirm the Constitutional Court majority judgment that she was dishonest.

Succession of lawyers

When SARB took Mkhwebane’s CIEX report on judicial review, she was obliged by a court rule, known as Rule 53, to disclose every document and piece of evidence relied on during her investigation.

The Constitutional Court was scathing about her failure in this regard, noting: “The Public Protector is wrong when she claims that she ‘filed the entire record’.  She did not.

“She omitted pertinent documents from the record, some of which were only put up for the first time as annexes to her answering affidavit in the High Court, and others, which were disclosed for the first time in this Court.”

Now the whistleblower exposes some of the intrigue behind that failure.

The whistleblower alleges Mkhwebane was adamant that she did not wish to have everything included in the record – at least twice she instructed her investigator, Kekana, to withhold specific documents.

When Kekana relayed this message to the public protector’s then lawyers, they insisted all relevant documents had to be included and disclosed.

“Advocate Mkhwebane vehemently opposed this,” the whisteblower claims, noting that the first set of lawyers were thereafter replaced.

The whistleblower discloses an example, an email to Kekana from Mkhwebane stating that she had “asked SSA to provide input and economist”.

That email was omitted from the Rule 53 record and has never been disclosed until now. The whistleblower claims that Kekana also disclosed to Mkhwebane’s new counsel, Adv McCaps Motimele, the fact that aspects of the recommendations in the report were prepared for the public protector by the SSA itself and not by her.

Motimele, too, was eventually replaced as counsel on the matter.

When the matter was before court, a different advocate had to be hired at the last minute.

Reporting by Kyle Cowan, Sam Sole and Sarah Evans.

The post State Capture 2.0 Part 1: Spies instructed public protector on SARB report appeared first on AmaBhungane Centre for Investigative Journalism.

The State Security Agency (SSA), which currently has an acting head, will probably be overhauled with key positions becoming available.

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Last year the IGI, Setlhomamaru Dintwe, was embroiled in a legal standoff with then-SSA head Arthur Fraser, who revoked Dintwe’s security clearance – a move, Dintwe alleged, intended to scupper the IGI’s investigation of a parallel, potentially illegal intelligence structure set up under Fraser.

Following the intervention of President Cyril Ramaphosa, Fraser was shifted out and now Dintwe is intent on seeing through a broader plan – loosening the structural grip the SSA director general has over his office so as to strengthen his office’s oversight mechanisms.

“We will continue, if not increase, the height at which were are investigating in the new year,” Dintwe told amaBhungane in December.

“The tide has turned and continues to turn as far as the intelligence services are concerned…

“Nothing, absolutely nothing, is going to stop us from fulfilling our constitutional mandate. I’m very much optimistic at present… [under] the current administration.”

Dintwe was appointed as the head of South Africa’s intelligence watchdog in March 2017, about 13 months before Jacob Zuma stepped down and was replaced by Ramaphosa as head of state.

Dintwe said under Ramaphosa there was a clear intention to ensure employees of government institutions were doing the work they were mandated to.

The country’s intelligence services form a mostly invisible sieve meant to filter out any threats, including foreign infiltration, to safeguard the country.

However, South Africa’s intelligence community has, by all accounts, embroiled itself in factional battles, leaving the country vulnerable to external threats, as well as internal threats which have manifested in the form of state capture.

These problems are not limited to the SSA and IGI’s office: the police crime intelligence division, long marred by claims that it is a haven for rogue operatives, is also experiencing internal friction and upheaval.

Recently it emerged that Dintwe was drawn into the battle by the police watchdog, the Independent Police Investigative Directorate (IPID), to gain access to classified information being withheld by police top brass.

The information relates to an alleged plot by crime intelligence to divert funds to influence the outcome of the ANC’s elective conference in December 2017.

Commissioner of police Khehla Sitole had refused to disclose the relevant documents to IPID, saying they were classified.

Court papers lodged by IPID show Dintwe came down firmly in favour of disclosure, telling police minister Bheki Cele: “I am of the opinion that reclassification [or declassification] for the purposes of criminal Investigation and prosecution is an injunction to the divisional Commissioner and/or the National Commissioner.”

A number of current and former members of the intelligence community attribute the turbulence to mistrust between key figures, as well as political partiality, which they say has contributed to the “capturing” or abuse of state institutions and resources.

One source went so far as to claim that the country’s intelligence services were until recently totally centred around Zuma and his wants. Others put it less strongly but were in broad agreement.

They told amaBhungane that while Zuma stepping down as president eliminated the nucleus of the problem, the situation remains critical because high-powered officials who sided with Zuma remain in place and are tainted or still driven by past agendas.

Dintwe has also not been able to escape being viewed via the lens of political perception.

Some sources say that in powering ahead with an investigation into Fraser, Dintwe is seen as anti-Zuma and pro- DA, because it was the DA that lodged a complaint with Dintwe against Fraser, who in turn is widely viewed as having sided with Zuma.

Fraser himself said the investigation into him is the work of political parties intent on discrediting him and the country’s political leadership.

These views have caused deep fragmentation within intelligence and sources amaBhungane spoke to have described the situation as extremely worrying.

Some of them anticipate that those unhappy with recent action to improve checks and balances and who do not want certain investigations of the intelligence services to proceed, may try and trip up anyone they view as furthering these investigations.

This could be in the form of smear campaigns, trying to unearth private and confidential information to be used against individuals, or even violence, they say.

Dintwe declined to comment on specific investigations his office was busy with, but it is public knowledge it is pursuing a high-level probe into Fraser’s role in setting up a parallel network of intelligence operatives outside the SSA known as the Principal Agent Network (PAN).

The IGI is also probing the alleged surveillance of citizens on behalf of members of the Gupta family.

It is his investigation into Fraser which Dintwe believes led to Fraser resorting to alleged intimidation and unconstitutional tactics to try and derail his work, provoking two court actions that have provided extraordinary insight into the turmoil within the country’s intelligence services.

The cases remain unresolved and could result in further upheaval.

Fraser declined to comment on what transpired in the intelligence sector last year or on the state of the country’s intelligence services, telling amaBhungane his stance on what happened is already in the public domain and he is no longer in the intelligence environment.

Legal clash one – Dintwe versus Fraser over DA

In April 2018 Dintwe launched a two-part application in the high court in Pretoria against Fraser after the then SSA chief revoked his security clearance, effectively preventing Dintwe from doing his job.

The first part of the application was urgent and demanded that Dintwe’s security clearance be reinstated and that Fraser co-operate with the IGI’s investigation.

That investigation began in May 2017 when DA chief whip John Steenhuisen lodged a complaint with the IGI against Fraser regarding his involvement with PAN.

In a later press statement, Steenhuisen stated that in September 2017 the DA had also asked Dintwe “to urgently probe allegations of a covert unit operating within the SSA targeting Zuma’s political opponents and reporting directly to him and then-Minister of State Security, David Mahlobo.”

In his court application Dintwe revealed that Fraser viewed him as a threat to national security because he was in receipt of classified information about the SSA which had been unlawfully obtained by the DA.

However, Dintwe countered this by saying it was the nature of his job to deal with sensitive information and that Fraser was trying to prevent him from using information in the investigation against Fraser.

“I have been subjected to various forms of intimidation by [Fraser], with the clear aim of deterring me from investigating complaints against him,” Dintwe’s affidavit said.

“The effect is to sterilise me from performing my functions.”

He explained why the court application was pressing.

“The grounds for urgency have been precipitated by the Director-General’s threat to remove my current security detail who I have come to know and trust and to replace them with protectors who I can only imagine will serve the interests of the Director-General,” Dintwe said.

“The threatened action coupled with the dilapidated security measures at my residence and the anonymous threats I have received in my line of work serves to intimidate me in the prosecution of my constitutional mandate and presents a very real threat to my personal safety.”

Fraser opposed Dintwe’s urgent application, claiming that in November 2017, which was about six months after Steenhuisen initially lodged his complaint, Fraser received information that Dintwe had “personally and without authority disclosed classified information to representatives of political parties in Parliament.”

“In fact, it is the security of the state that faces real harm if its classified documents and information continue to be exposed to a person whose security clearance may be questionable,” Fraser argued.

He said the office of the IGI, had previously – before Dintwe’s appointment – investigated allegations relating to PAN and this probe had been concluded. Reports on its findings, dated December 2013 and April 2014, had long been finalised.

“In fact, it is my view that the purported investigation is malicious and at the whims of political parties aimed at discrediting me, the Agency and the current political leadership,” Fraser said.

He also denied he had threatened to remove Dintwe’s security detail.

Following Zuma’s ousting and the appointment of Dipuo Letsatsi-Duba as the new state security minister, the tide turned against Fraser.

The day before court proceedings relating to this urgent application were meant to proceed in April 2018, Letsatsi-Duba stepped in and restored Dintwe’s security clearance, which resulted in the urgent part of the application falling away.

Letsatsi-Dube’s intervention also prevented further claims and counterclaims between Dintwe and Fraser being made public via court proceedings.

Ramaphosa then removed Fraser as SSA director general and redeployed him as the national commissioner of correctional services.

Loyiso Jafta was placed in an acting capacity as SSA director general, but Fraser’s transfer led to more court action, this time instituted by the DA.

Legal clash two – DA versus Ramaphosa over Fraser

In May 2018, the DA launched a court application arguing that Ramaphosa’s decision to appoint Fraser as correctional services commissioner was inconsistent with the constitution and should be set aside.

James Selfe, chairperson of the DA’s federal executive and the shadow minister of correctional services, detailed why the party wanted Fraser out of the picture.

“There are, at the very least, prima facie indications of serious dishonesty concerning Mr Fraser, including allegations that he operated a secret and parallel intelligence service from his home whilst working at the Hawks (subsequently the State Security Agency), and utilized millions of rands of public funds for personal gain,” Selfe stated in his affidavit.

“The DA accordingly asks this Court to grant an order declaring that the President’s appointment of Mr Fraser… violated the President’s constitutional obligation to appoint a National Commissioner who is sufficiently conscientious, has enough credibility to do this important job effectively and is of good character,” he said.

But Ramaphosa, in a responding affidavit, argued that he had carefully considered Fraser’s repositioning.

His response also gave insight into the run up to, and aftermath of, Dintwe and Fraser’s legal battle.

Ramaphosa said that shortly after being elected president he reshuffled the Cabinet and appointed Letsatsi-Duba as state security minister.

At this point Fraser was still SSA director general having been appointed by Zuma in September 2016.

Ramaphosa said he, together with the new grouping of ministers, then decided to review all existing director general appointments.

Meanwhile, Letsatsi-Duba, in her new role, had consulted with several SSA members to understand challenges the agency was facing and on March 22, 2018, had reported to Ramaphosa that the agency was not functioning optimally.

Lestatsi-Duba therefore suggested a review panel be created to guide how to shape and improve intelligence services.

“The Minister did not regard the problems in the SSA as having been caused solely by Mr Fraser, but she was concerned that his strong personality might inhibit work by the review panel,” Ramaphosa’s affidavit said.

Letsatsi-Duba asked him to transfer Fraser from the SSA so that the proposed review panel’s work would not be hindered.

Ramaphosa agreed to transfer Fraser but was not sure where to place him and at that point did not feel it necessary to act immediately.

‘Constitutional crisis’

But on April 5, 2018, the situation heated up because Fraser decided to withdraw Dintwe’s security clearance.

Ramaphosa said Letsatsi-Duba advised him that Dintwe was investigating allegations against Fraser relating to PAN, which stemmed from years before Fraser was appointed SSA director general and which had already been investigated by former IGI, Faith Radebe.

“In my view, the withdrawal of the Inspector General’s security clearance and the dispute between the Inspector General and Mr Fraser had given rise to a constitutional crisis,” Ramaphosa said.

“Without his top-secret security clearance, the Inspector General could not perform his oversight functions in terms of the Constitution. He also could not complete his investigation into Mr Fraser…

”It was also apparent to me that the dispute between Mr Fraser and the Inspector General threatened the stability of two strategic organs of state in the security cluster.”

Ramaphosa instructed Letsatsi-Duba to speak to Fraser and Dintwe to iron out the matter, but before she could resolve it, Dintwe launched his urgent court application against Fraser.

But Ramaphosa, still hopeful to avoid full-blown court action, asked Letsatsi-Duba to again contact the two to try and smooth out the matter without them heading to court.

Neither Dintwe nor Fraser backed down though, with Fraser instead going ahead and filing a response to Dintwe’s affidavit, including in it that he withdrew Dintwe’s security clearance because he viewed Dintwe as a threat to national security.

In his affidavit Ramaphosa said he felt it was necessary to get to the bottom of the claims and counterclaims being made between Fraser and Dintwe.

He considered suspending Fraser, but found there was no basis for it at that point.

“There was no new allegation of wrongdoing against him,” Ramaphosa reasoned.

It was decided Fraser would be placed as head of correctional services, which at the stage was a vacant position, and Ramaphosa said based on facts available to him, he accepted Fraser was “fit and proper” for the role.

Ramaphosa said the only reason old allegations had resurfaced against Fraser was because these had been written about in Jacques Pauw’s book, The President’s Keepers.

“They did not become new allegations simply because they were contained in the book. The DA has produced no evidence of new allegations against Mr Fraser,” Ramaphosa argued.

Selfe told amaBhungane in mid-December that the DA was still taking legal advice on the way forward because the party still believed Fraser’s move was not in line with the constitution.

Review panel

Meanwhile, the presidency announced in June 2018 that Ramaphosa had appointed a 10-member review panel to look into “challenges” facing the SSA.

The review panel had been recommended by Letsatsi-Duba shortly after she took office and she referred to it during her May 2018 budget vote speech, giving insight into the panel’s mandate.

Letsatsi-Duba said corruption was the biggest threat to national security, adding that state security was not immune to this.

“We will have to confront these allegations of corruption and misconduct in the state security structures head-on and hold the guilty parties responsible to the letter of the law and take steps to recover monies not accounted for…

“Part of restoring the public’s confidence in the intelligence services will include deliberate acts of professionalising the service. In this regard, there could be no place for rogue elements within our intelligence services,” she said in her speech.

But manoeuvres to clean up intelligence have led to further ructions.

Last November the Sunday Times reported that Letsatsi-Duba had ordered the re-vetting of all intelligence officials, but the article said some SSA insiders believed this action was actually a culling exercise to get rid of those who were seen as loyal to Fraser and therefore Zuma.

In response, the presidency issued a statement which effectively served as a stern reprimand to members of the SSA.

“While the review process unfolds, political responsibility for the SSA remains with Minister of State Security Dipuo Letsatsi-Duba and management and staff at the Agency are expected to conduct themselves with the requisite responsibility, respect and integrity,” it said.

Ramaphosa’s spokesperson Khusela Diko told amaBhungane the review panel report was due to be presented to him at the end of February.

It is unlikely the report will be made public, but it is understood it may delve into inconsistencies in operations, for example the plundering of slush funds and members who recruited individuals for intelligence-gathering purposes, with these individuals never actually being expected to deliver.

If extreme discrepancies are picked up, it is understood that what the panel recommends will not only lead to disciplinary action, but possibly also criminal complaints.

Jane Duncan, a professor heading the University of Johannesburg’s journalism, film and television department and author of intelligence-focused books and articles, is among the 10 members of the panel.

She may not publicly comment on the panel, but she previously conveyed some of her views in a series of columns carried by the Daily Maverick.

In one of the columns, published in February 2018, she highlighted problems relating to the SSA.

“The SSA’s biggest intelligence failure by far has been its inability to provide strategic intelligence to predict and prevent state capture. That failure on its own is sufficient basis for Ramaphosa to shut the SSA down and start again with a new entity.

“The SSA’s performance on other counterintelligence functions, such as security screening and protection of intelligence and classified information, has also been compromised politically,” she wrote.

Intelligence overhaul needed

There have been further critiques of South Africa’s intelligence structures, with parliament’s oversight body, the Joint Standing Committee on Intelligence (JSCI), emerging from its Zuma-era shell to find its voice on the 10-year-old PAN scandal.

Its annual report, covering the year ending March 2018 and released just before Christmas, was suddenly able to proclaim: “The Principal Agent Network was a project used as an instrument to pilfer money from the Secret Account of State Security Agency for use by certain individuals who were recruited for PAN.

“The matter was not fully investigated by State Security Agency… The JSCI persuaded the President [Ramaphosa] therefore to reopen the matter for proper investigation and prosecution as the Committee is of the view that serious crime may have been committed by those responsible for PAN.”

So Fraser, even though he was transferred and has already been the partial focus of a previous investigation into PAN, may still find himself facing legal action over it.

The committee also came out against another Zuma ally, noting, “One of the issues the Committee dealt with during the period under review was the matter of Crime Intelligence Chief, Richard Mdluli. He has since been removed from of Crime Intelligence.”

The JSCI report also revealed a scathing formal assessment of the intelligence community by the IGI.

It noted that Dintwe’s assessment painted a picture of “compromised intelligence services and intelligence community matters related to corruption, unqualified people doing the job and questionable undercover fraud”.

Of particular concern is the JSCI report’s revelation that the culture of secrecy and unaccountability from the intelligence community extends to blocking oversight of its spending by the Auditor General.

It noted: “There has been a certain amount of friction between the Auditor General and Accounting Officers regarding the secret accounts…

“The Auditor General is insisting, correctly so, on traditional reasonable assurances that funds have been used correctly.”

In its report attached to the JSCI report, the auditor-general had found: “There is a lack of consequence management as the leadership is not always holding the staff accountable for poor quality of financial and performance reporting, which created the perception that [negative] audit findings are acceptable and tolerable.”

Aside from flagging matters relating to secret accounts, the JSCI said intelligence legislation posed a concern and its legislative sub-committee had relooked at the Intelligence Services Oversight Act and “identified so many loopholes within all the intelligence pieces of legislation”.

The JSCI had therefore asked that approval be given for “a State legal person” to assess legislation within intelligence services.

Overall, it wanted intelligence structures to be scrutinised and the SSA to be restructured.

“An overarching assessment needs to be done to cover the entire Intelligence Community,” the JSCI annual report recommended.

“Such an assessment, given that its main aim would be to produce a highly efficient and professional Intelligence Community and have to be accompanied by a review of the effectiveness and modernized tools of trade for the intelligence structures which would include the procurement of high technology instruments to deal with cybercrime.”

The JSCI had made a case to Ramaphosa for the restructuring of the SSA and its annual report said that in response to this, Ramaphosa said he was also of the view “that it was necessary to rebuild”.

Ramaphosa indicated the review panel would include suggestions on such a restructuring in its report.

‘Unresolved problems’

Dintwe told amaBhungane that the decision by Ramaphosa to set up the panel “indicates there could be some areas of discomfort” ahead for intelligence services.

Part of what needs to change, according to Dintwe, is the structural dependence of the IGI on the good will of the director general of the SSA, a weakness exposed by the standoff with Fraser.

While the first part of Dintwe’s court application against Fraser had not needed to proceed because his security clearance was reinstated and Fraser was removed as SSA head, the second part of his application remains open-ended and will be affected by what the review panel finds.

Dintwe described the application’s second part as dealing with “salient independence issues”.

“We are hoping that there will be a resolution to this particular matter.

“The reason that we are taking our time is because it’s our humble hope the panel of experts may make recommendations… Maybe our issues could be resolved without us going to court,” he said.

“Obviously, if one looks at the [second part of the court application], you will realise that the problems that confront the office still remain unresolved.”

The case showed that, aside from holding the IGI’s office to ransom by revoking Dintwe’s security clearance, Fraser was also in a position to starve the IGI’s office of resources.

Details about budget constraints faced by Dintwe’s office were detailed in his court papers and show that Fraser seemed to be in ultimate control of money being channelled to the IGI’s office.

In a letter to Fraser dated November 2017, Dintwe said that his office had 34 funded posts of which 8 were vacant.

Five of the 8 posts, including a receptionist, secretary and personal assistant, were viewed as critical and Dintwe wrote: “It would therefore be appreciated if the relevant funds could be released to fill the mentioned posts.”

Fraser had replied the next month that he could not yet do so because the SSA had adopted a strategic development plan which meant its structure could change and this first needed to happen before posts were analysed and filled.

The second and unresolved part of Dintwe’s court application therefore largely deals with the powers the SSA director general and minister have over Dintwe’s office and seeks to have legal provisions that limit his independence declared unconstitutional.

In the court application, Dintwe argued that, for his office to be independent, it needed independent financial and human resources.

“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,” Dintwe’s affidavit said.

He told amaBhungane he hoped the review panel’s recommendations would ultimately lead to the provision of this relief so he could drop the court action.

Letsatsi-Duba, based on her May 2018 budget vote speech, was of a similar view to Dintwe, saying his office needed more independence.

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“Together with the Joint Standing Committee on Intelligence, we must initiate a process that will yield greater independence of the Office of the IGI.

“We need to review the Intelligence Oversight Act and regulations to give effect to this,” she said.

The SSA itself has been less enthusiastic.

SSA spokesperson Lebohang Mafokosi told amaBhungane, “Kindly note that the matter of the independence of the Office of the IGI is currently before court and as such the DG cannot pronounce on it.

“On the fragmentation of the intelligence service and how the DG may address the issue, these are operational matters which the SSA cannot disclose to external parties.”

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