It’s been more than two years since the Zondo Commission into State Capture heard evidence that bags of cash containing millions of rands were carried off by members of the State Security Agency (SSA). Some of that money, the commission heard, was delivered to former state security minister David Mahlobo, and possibly earmarked to buy favours from select judges in support of then president Jacob Zuma’s interests.

There was also evidence before the commission that SSA money was used to advance the interests of factions within the ANC, rather than for national security. Accountability for the use of these funds, the commission heard, was often reduced to a single line on a temporary advance form stating which project or operation the funds were used for, such as “Operation Commitment” or “Project Justice”.

While Chief Justice Raymond Zondo did not make findings in his final report on all of the specific incidents he heard, he did find that the capture of the SSA contributed toward the overall project of State Capture. In doing so, he also acknowledged the evidence from the Inspector-General of Intelligence (IGI) revealing that funds had been “looted” from the Secret Services Account by “officials”.

In addition, the Chief Justice found that such looting was allowed to continue because the Auditor-General of South Africa could not fully execute its duties. Ultimately, this enabled vast amounts of money to be siphoned through the Secret Services Account for corrupt purposes.

Join the Daily Maverick webinar on Thursday, 6 July 2023: Covert Funds and Public Money One Year After Zondo.

But abuse of the national intelligence service is not a new problem in South Africa. Neither is the abuse of taxpayer money allocated for those services. In its final report, the Truth and Reconciliation Commission (TRC) found that secret funding was used during the apartheid era “to promote a political climate that led directly and indirectly to gross human rights violations”. The TRC also raised concerns about the inadequate auditing and administration of secret services funding.

Two pieces of apartheid-era legislation – the Security Services Special Account Act 81 of 1969 and the Secret Services Act 56 of 1978 – created the Security Services Special Account and Secret Services Account, respectively, to fund SA’s intelligence services.

Together, these two pieces of legislation allowed the apartheid intelligence services to draw on these accounts in a manner that bypassed the oversight and controls that Parliament and the AG provided to other government departments. In short, the intelligence services could spend unknown quantities of taxpayer money on secret projects in pursuit of what the government of the day considered to be “national security” – with no fear of independent scrutiny. Often those projects involved gross human rights violations.

New role for intelligence community

After 1994, the 1997 White Paper on Intelligence recognised that the role of the intelligence community should change from safeguarding the interests of the state to promoting human security. This includes safeguarding the Constitution and the human rights that it enshrines, as well as the promotion of peace and prosperity both locally and internationally.

And yet, somehow, the Secret Services Accounts remained.

A warning on the dangers of these secret accounts was sounded long before State Capture. The Matthews Commission was established in 2006 by then intelligence minister Ronnie Kasrils. Its aim was to review the intelligence services in order to “strengthen mechanisms of control … to ensure full compliance and alignment with the Constitution…” Its final report concluded that both the 1969 and 1978 acts underpinning the secret accounts ought to be repealed, describing them as “anachronistic relics of the murky business of covert security funding in the apartheid era”.

Fast-forward to 2023, and these murky relics remain.

Worse still, the 1969 act was last amended in 2013 to allow the funds in the Security Services Special Account to be used for just about any function of the SSA. The account was now under the exclusive control of the director-general of the SSA and any unexpended balances in the account could be invested. In other words, rather than repeal the 1969 act, the 2013 amendment took a relic from apartheid and used it to enable the State Capture which followed.  

Insufficient oversight mechanisms

Even though oversight mechanisms do exist, they are clearly insufficient. For example, all departmental budgets are debated and approved by Parliament. The problem with this system is that Parliament is provided with insufficient information to be able to debate the SSA’s budget effectively. This was highlighted by the Matthews Commission in its final report: “To put the matter graphically: whereas the estimate of national expenditure for the Department of Correctional Services runs to 20 pages of figures and explanations, the budget vote for [security services] is limited to a single line.”

The parliamentary Joint Standing Committee on Intelligence provides some oversight in that it reviews SSA budgets and financial reports. However, as pointed out by the Matthews Commission, the documents themselves are confidential and are not presented to Parliament. Thus, stated the commission’s report, “…according to the National Treasury, the intelligence services are not directly accountable to Parliament for their budgets and spending”.

Clearly, this is an unacceptable situation. Security and intelligence services the world over are vulnerable to being misused by unscrupulous leaders under the guise of covert operations and secrecy in the name of “national security”. If South Africa wants to truly detach its intelligence services from both the apartheid and State Capture eras, it needs to recalibrate the mechanisms by which the SSA operates toward the values espoused in the 1997 White Paper on Intelligence.

In order to do so, both acts need to be repealed in their entirety, and the Secret Services Account and Security Services Special Account need to be abolished and replaced by funding mechanisms which are subject to as much oversight and scrutiny as possible. A balance needs to be struck between the secrecy requirements of intelligence operations and the transparency requirements of oversight; oversight must take place while still maintaining a necessary level of secrecy so that the intelligence services can do their work effectively and not become the personal spy service and piggy bank of those who control it. DM

Advocate Vicky Heideman (Rivonia Group of Advocates) was an evidence leader at the Zondo Commission into State Capture. She played a key part in drafting the legal team’s submissions to the Chief Justice in respect of the SSA evidence. 

This article was commissioned by Intelwatch, a non-profit organisation based in South Africa and dedicated to strengthening public oversight of state and private intelligence actors in Africa and around the world.