Former spy boss Arthur Fraser attempts court challenge of Zondo report
Fraser filed a notice of motion on Wednesday in the Pretoria High Court asking to have sections where he is named, or alternatively the entire report, set aside and reviewed.
Former State Security Agency (SSA) boss Arthur Fraser is seeking to challenge sections of the final volume of the State Capture report which have implicated him in alleged serious malfeasance.
Fraser filed a notice of motion on Wednesday in the Pretoria High Court asking to have sections where he is named, or alternatively the entire report, set aside and reviewed. He charges that the commission was procedurally unfair.
In his founding affidavit, Fraser accused the commission of failing “to properly investigate allegations” and claimed that some of its findings were “based on inaccurate facts”.
He added that he had been advised the findings and recommendations were reviewable where they were in breach of the Constitution.
Both the commission chair, Chief Justice Raymond Zondo, as well as its evidence leader, advocate Paul Pretorius, had wanted to silence him, raged Fraser, and “could not afford to hear me as I would have exposed the real puppet masters behind the commission”.
Fraser said he had supported the establishment in 2018 of the commission of inquiry into State Capture by former president Jacob Zuma. This had been prompted by a report by former Public Protector Thuli Madonsela.
“I had always been concerned about the state of our country and events that would result in democratic reversals and a complete destruction of our country and its institutions,” Fraser claimed.
However, like the Seriti Report or Arms Procurement Commission, which have been discredited by the courts, the Zondo Commission of Inquiry had breached fundamental ethics and principles, reckoned Fraser.
Read more in Daily Maverick: “Attempt by judges Seriti and Musi to appeal scrapping of Arms Deal findings thrown out by high court – with costs”
Witnesses had been “lined up to present the same narrative of State Capture” and his alleged involvement in “looting” while he had been denied the opportunity to cross-examine them or introduce evidence which remains classified, said Fraser.
Read more in Daily Maverick: “Investigate Arthur Fraser, David Mahlobo and Thulani Dlomo – State Capture Commission”
About three weeks after Fraser lodged a complaint in June with the Rosebank SAPS about an alleged break-in, theft of foreign currency and cover-up at President Cyril Ramaphosa’s farm Phala Phala, Zondo handed over the final chapter dealing with Fraser and the SSA to Ramaphosa.
It was this lodging of a criminal complaint by Fraser that led this week to the dramatic vote in Parliament on the possible impeachment of the President which was defeated, with 214 MPs voting against and 148 for, with two abstentions.
The final volume of the report recommended the resumption of the investigation by the Directorate for Priority Crime Investigation (DPCI) into the Principle Agent Network (PAN) and its alleged abuse during Fraser’s term as director-general.
Zondo was quick to add that it might well turn out that those implicated, including Fraser, “get absolved, but the investigations should be allowed to take their normal course”.
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The commission found that a lack of accountability had been the hallmark of Fraser’s tenure and that he had been a “law unto himself”.
Other findings were that the weight of evidence of former state security minister David Mahlobo’s involvement in moving “huge” amounts of cash, some of it for Zuma, “is overwhelming” and that the outlay of cash was “fast and loose, as was the frequent blurring of lines between projects”.
“The Commission finds therefore that Mr Mahlobo did indeed involve himself in operational matters at the SSA, and further that large amounts of cash were delivered to him on several occasions.”
The State Capture report found a report that revealed possible criminal conduct by Fraser had been handed to the Directorate for Priority Crime Investigation, but the prosecution had been halted by the then minister of state security, Siyabonga Cwele, “apparently on the instructions of President Zuma”.
Despite the PAN investigation and the handing over of this to the Hawks, “little progress has been made and no charges have yet been brought against those implicated that the Commission is aware of,” said Zondo.
Bring me the facts
Fraser, in his motion of notice, said some section 3.3 notices alerting witnesses to implicatory evidence had been sent “after the fact”.
He said no facts were presented during evidence, “that I unlawfully centralised power during my term as Director General of the SSA or that I am responsible for the disappearance of public money from the SSA”.
There was, he said, “absolutely no factual foundation” to this allegation and also that the 2006 PAN programme had been unlawful. In fact, it was common knowledge that the original iteration of the PAN was indeed legal.
Fraser added that he had learnt through the media that ambassador Mzuvukile Maqetuka had testified and had implicated him. The commission investigators had sent section 3.3 notices to a number which belonged to his daughter-in-law which is why he did not receive these, claimed Fraser. He had also not been informed that Gibson Njenje and Moe Shaik had testified.
Declassify or else
Fraser has long called for various classified and Top Secret SSA documents to be declassified in order for him to cross-examine those who have situated him at the heart of Zuma’s network.
In fact, Zondo said that evidence to the commission suggested that the entire process may not have been necessary in the first place had the SSA detected, investigated and countered State Capture “as a threat to our constitutional order” when the “symptoms first appeared”.
Fraser, however, in his affidavit, has accused the commission of placing obstacles in his path to prevent him from appearing.
Though his former attorney, the late advocate Mike Kgoroeadira had requested the SSA, the Inepector-General of Intelligence and the director-general of the SSA to declassify and forward copies of documents, they had failed to do so.
Among those Fraser is seeking are documents related to at least 20 “projects” or “operations” typically code-named in spyspeak, including operations “Redemption”, “Survivor”, “Scope”, “Exploit”, “Anaconda” and “Maqedindaba” as well as projects “Roundabout”, “Yellow Bone”, “Peruku”, “Rockober”, “Firewood”, “Tringas” and “Flower”, “Nemo”, “Optimism” and “Veza”.
He said he had also requested: “A copy of the file containing intelligence on His Excellency President Matamela Cyril Ramaphosa containing his business, political and personal activities, and associates.”
None of this had been forthcoming.
Fraser and his legal team might well find themselves fighting this same battle in the criminal courts if and when the National Prosecuting Authority decides to charge Fraser, Mahlobo and others named in the final volume.
It is there that the evidence will finally be put before the court and tested.
If this be treason
Back in July 2020, advocate Muzi Sikhakhane, representing Fraser, requested “indemnity” for his client at the Zondo Commission. While Sikhakhane might have been aware that the Commission of Inquiry into State Capture was not empowered to grant anyone indemnity, this was sought, said the advocate, as Fraser would have to “break his oath” should he testify.
He would, warned Sikhakhane, be implicating former and sitting presidents as well as some members of the judiciary.
Fraser was the only witness implicated in State Capture who had been accused of treason, said his legal representative, but his only desire was to tell Zondo “about secrets of this state, about who exactly is subverting our state”.
Sikhakhane represented Fraser as well as former National Intelligence Agency director-general Manala Manzini at the Zondo Commission hearings on Monday, 20 July 2020.
In response, Zondo said: “Part of the problem with Mr Fraser is it seemed he didn’t want to comply with the processes of the commission; he could’ve applied to come to the commission and a decision would have been made.
“He says I didn’t want him to testify because he would disturb the narrative that I was following. If he’d applied and complied with the rules of the commission, the matter would come before me in an open hearing. He decided not to do that,” said Zondo.
The respondents in Fraser’s application to the Pretoria High Court are the Zondo Commission, Chief Justice Ramond Zondo, advocate Paul Pretorius, Terence Nombembe, Minister of Justice and Correctional Services Ronald Lamola and President Cyril Ramaphosa. They have 15 days to respond. DM