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In the eye of the storm: 17 years and three intelligenc...

South Africa

IGI INTERVIEWS

In the eye of the storm: 17 years and three intelligence inspectors-general later, advocate Jay Govender has seen it all

Advocate Jayashree Govender. (Photo: Bheki Radebe / African News Agency)

Interviews for a new Inspector-General of Intelligence (IGI) could not have come at a worse (or better) time after South Africa’s intelligence and law enforcement agencies were handed a shameful indictment by an expert presidential panel report into the July 2021 ‘failed insurrection’.

More than 350 dead and R50-billion wiped off the economy in one week could not go “unexamined”, and an expert panel, chaired by Professor Sandy Africa, was convened in August 2021 by President Cyril Ramaphosa to investigate the violence that had swept through KwaZulu-Natal and parts of Gauteng the previous month.

The violence and lawlessness, which came after the incarceration of former president Jacob Zuma, was “never before seen in our post-apartheid democracy”, said the panel. 

The report showed how intelligence services had failed, how there was little, if no communication, between various ministries and warned the governing ANC that factionalism within its ranks was an ongoing threat to national security. 

Someone who has had a ringside seat for 17 years at the Office of the Inspector-General of Intelligence (OIGI), a body with enormous powers of oversight over services that operate in “extreme” secrecy with minimal accountability, is advocate Jayashree Govender, current legal adviser to the Inspector-General (IG) and media spokesperson for the office.

Little wonder then that members of Parliament’s Joint Standing Committee on Intelligence (JSCI) conducting interviews for a new IG on Tuesday were keen to grill the advocate, the first candidate on a list of 10.

Govender worked at the IG’s office when Thabo Mbeki was still president and was there, in the thick of it all in 2014, when former IG Faith Radebe compiled the SA Revenue Service (SARS) “rogue unit” report, now discredited by the courts.

This was later weaponised and used to help hound ex-minister of finance Pravin Gordhan and other SARS executives out of the revenue service. It resurfaced in various forms and guises over several years.

EFF committee member Mbuyiseni Ndlozi in particular seemed to have picked up the spoor of the dead-as-Tutankhamun “rogue unit” report and took great pleasure quizzing Govender about her role in this and the legal advice she had offered Radebe at the time.

Govender joined the office back in 2005 when Zola Nkanjani was Inspector-General. 

She was there in 2006 when domestic spooks were caught spying on senior ANC members and other politicians. 

She was also there when the Matthews Commission report made recommendations to remedy and rein in intelligence services that had been in breach of the Constitution and legislation.

In 2o10, Zuma, as the newly elected leader of the ANC and president of South Africa, appointed Radebe as Inspector-General. 

On Tuesday, Govender told committee members that by 2008 the office had “gone some way towards implementing the 2006 and other 2008 recommendations”, including establishing the independent status of the office.

“It had been in the pipeline for years but it appears there was not a will for those recommendations to be implemented. With regard to its independent status, real progress was made in 2008, but with a change of leadership in 2009 [Zuma] the process was halted and went no further.”

The advocate said there was a need for greater autonomy and urgent legislative review of the functioning and resources of the Office of the IG.

In 2015, Radebe’s term of office came to an end and the position was left vacant for two years which is when — as evidence at the Commission of Inquiry into State Capture indicates — Zuma bent state resources to serve his private political interests.

Behind the scenes, Govender remained the IG’s legal adviser, although there was no IG in the hot seat during peak State Capture years.

For this reason, she argued on Tuesday, there was a need for a Deputy IG and that this had already been factored in by the General Laws Amendment Bill of 2016. 

This was the same legislation that governed conditions of service of the Public Protector. This was also a recommendation made by the High-Level Review Panel into the State Security Agency, she said.

Govender told the committee that based on her time working at the office, “I have a good idea of what works and what does not.”  

This may count very much in her favour, but it could also count against her, considering the continued abysmal state of affairs in the intelligence sector.

She said the Office of the IG was a creature of statute and that some functions could not be executed “because there are gaps in legislation”. She knows the mandate of the office inside out and has seen its weaknesses play out on the national stage.

The office could function more effectively, she added, if it strengthened and had closer relations with the JSCI, the Public Protector and the Auditor-General.

She said that a common theme in all documents pertaining to intelligence in SA since 1994 was that of “cohesion and coordination across services” and that “the right people get appointed”. This was also in the National Development Plan, she added.

The report of the expert panel, she said, had revealed the atomisation of law enforcement and intelligence agencies, something she would seek to correct.

Govender said she would propose, should she be appointed IG, that the office “support the Public Protector to deal with matters that are intelligence-related”. 

Govender certainly has the institutional memory and the stomach for an office that needs to supervise a nest of seething vipers. 

To amend legislation would take time, however, and “we should rather regulate and give a time frame for consultation between the office and the President and relevant minister”.

She said that in her experience, which is considerable, documents and reports had been classified “for the only intent of hiding criminality and malfeasance”.

The High-Level Review Panel had recommended in 2018 that issues of classification be dealt with, among other pressing matters, by an appointed task team. 

This was a recommendation, said Govender, adopted by Ramaphosa, but there had been a delay in implementation, she disclosed on Tuesday.

“A team was established to implement the recommendations but it was done away with for reasons I would rather not say in this interview.” 

Attempts to implement another task team had proved unsuccessful — “a clear non-compliance with that recommendation”.

“Why,” she asked the committee, were “people not being held accountable?”

The ANC’s Bheki Hadebe asked Govender what her role was in Radebe’s “investigation” into SARS, an entity over which she had no legal oversight in the first place. It was a question that was elaborated on later by the EFF’s Ndlozi.

“When it comes to the investigation, and I do not want to call it the ‘SARS Rogue Unit Report’, I do not know why anyone calls it that, the late IG Faith Radebe was tasked with that investigation in 2014,” she replied.

Govender added that as the investigation proceeded she had provided Radebe with “guidance”.

“There were instances when investigations were held outside. I was guided by the former IG and the findings and recommendations are based on her input,” Govender insisted.

She said this was not the first time she had been asked about her role in Radebe’s controversial investigation, which was later leaked by the EFF after it had been used as the basis for numerous complaints against Gordhan.

“It is unfortunate to the extent that I had the same role to play in this report as in every other investigation tasking that the office dealt with. There was never any criticism of any of the other investigations, apart from this matter.”

She said that the committee’s oversight role when it came to the Radebe report should also be examined.

“I was hoping to hear more about your role. What was your role in that investigation? Have you been implicated in any wrongdoing?” she challenged the committee.

Her role in “that investigation” had been as a member of a task team.

“I also had the added role to provide legal input when required to do so by the Inspector-General. That task team was chaired by the former IG.”

Radebe had the right to either accept or reject legal advice she may have offered, said Govender. Besides, she added, she had not been the only lawyer advising Radebe.

“We had counsel appointed for the IG in that matter, as well as the State Attorney,” she elucidated.

Ndlozi tried again later to rouse the “rogue unit” report.

“In your view, was that legal or illegal?” he pressed Govender.

“That report has been made public, it has been set aside. I cannot talk now about investigations and a finding that was set aside by the high court in 2020,” Govender shot back expertly.

Govender certainly has the institutional memory and the stomach for an office that needs to supervise a nest of seething vipers. 

Her interview on Tuesday highlighted just how much Radebe’s discredited and abused report hangs in the air, a reminder of the extreme damage that can be caused by intelligence services running riot.

The next candidate who will be interviewed is Dr Nyelisani Tshitereke. DM

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