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STATE CAPTURE

Former spy boss Arthur Fraser attempts court challenge of Zondo report

Former spy boss Arthur Fraser attempts court challenge of Zondo report
Former State Security aagency head Arthur Fraser. (Photo: Gallo Images / Die Burger / Sarel van der Walt)

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

Slight rewind

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”.

Visit Daily Maverick’s home page for more news, analysis and investigations

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

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Comments - Please in order to comment.

  • Easy Does It says:

    Another waste of money time and a distraction from a “spy in a trap”. The short answer is he had every opportunity to go to the commission to raise his concerns but did not use the opportunity presented to everyone who had a problem. He tried using the route which would be rejected and succeeded for obvious reasons of not declassifying information. Fraser, they are coming to take you away ha ha.

  • Hermann Funk says:

    Fraser talking about principles and ethics is a joke.

  • Cunningham Ngcukana says:

    Others are attempting to review reports and others are reviewing them. What kind of journalism is that. It is either Arthur Fraser is reviewing the report or not.
    Tendecious reporting is very problematic because we must not be driven to particular narratives. We need to be informed of the basis of the challenge to the Commission and what was before the Commision so that we can be both informed and educated about the matter. Zondo like Ngcobo did s terling work but Fraser just like Ramaphosa has a right to a judicial review of the Commission with respect to findings against him. We must not be given an Animal Farm situation here. The commission made damning finding against him just like the Panel did on Ramaphosa. But we hope he will not do a Ramaphosa who filed a review to for political ends as Groenewald noted on Tuesday to possibly withdraw his review in future. We hope that Fraser will go the whole hog despite the Commission is functus officio and the only thing our
    erudite Chief Justice like Ngcobo can do is to file a notice to abide.

  • Roelf Pretorius says:

    I just think that steps need to be done to accelerate the speed with which all the actions against everyone charged are proceeding and the accused eventually land in court. Not only would it mean less time for them to think of more “Stalingrad” tactics, but it would also give more meaning to the word “justice”. Much of what Fraser is accused of took place more than a decade ago and it has been known for about 6 years. At this rate he will also only, if he is quilty, be sentenced when he is about 80 and then a lot of excuses will be thought out why he, like Zuma, must now not serve their sentence. It is time that our government decide if it wants to govern or only fool around, and for the departments of Justice, Police and Correctional Service to justify why they are there. As the slogan says: “Justice delayed is justice denied”.

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