Former State Security Agency (SSA) chairperson Xolile Mashukuca has threatened to take legal action against the office of the Inspector-General of Intelligence (OIGI) over the report about President Cyril Ramaphosa’s alleged abuse of funds meant for crime intelligence.
It has been alleged that almost R20 million a month was taken from a secret crime intelligence fund to finance the undercover operations to trace the thieves and recover the money that was stolen at Ramaphosa’s Phala Phala farm in 2020.
Mashukuca, who is the complainant in the matter, told the OIGI to provide him a copy of the report or face legal action.
This was his third attempt to get access to the report in a letter sent on Monday.
Mashukuca, who launched the complaint in 2022, requested a copy of the report to find out which allegations had been substantiated and which had not, and what the reasons were.
However, Inspector-General of Intelligence (IGI) Imtiaz Fazel refused to provide a copy of the report, he was bound by the provisions of the Oversight Act, and all investigations conducted by the IGI that culminated into findings and recommendations were for oversight purposes only.
He added that the report had been submitted to Police Minister Bheki Cele in terms of Section 7(7)(f) of the Oversight Act as required, and any deviation from this provision would be contrary to the act.
However, in his letter this week, Mashukuca said he was not convinced by Fazel’s response. He said he had read section 7 (7)(f) of the Intelligence Oversight Act and there was nothing prohibiting the office from acceding to his request.
Mashukuca also said he consulted section 12 of the Promotion of Access to Information Act (PAIA) 2 of 2000 regarding exemptions and OIGI was not among those listed in the section.
“Section 32 (1, a) of the Constitution of the Republic of South Africa provides everyone the right of access to any information held by the state and this right may not be denied arbitrarily as is the case now. The OIGI has a duty in terms of section 19 of the PAIA to assist me to obtain the requested information,” he said.
He added: “It is trite that secrecy may not be used as a veil to hide abuses of law and any attempt to deny me the right of access to the investigation report is unlawful and does not withstand legal scrutiny. I do not wish to engage in a protracted legal battle with your office on a matter this simple and straightforward matter as that distracts me from the important duty of seeking accountability.”
Mashukuca added that it was also inconceivable that the report was submitted to Cele who was the subject of investigations. He said there was something not right about this decision and that needs examination.
“I implore your good self to reconsider your previous decision and provide a copy having declassified it in terms of applicable procedures. However, if your office does not accede to my request before Friday 17 May 2024, I’ll have no option but to seek judicial intervention,” he said.
OIGI spokesperson Jayeshree Govender confirmed that the office received the letter and has responded.
“The complainant was advised of the limitations placed on the disclosure of information accessed by the Inspector General of Intelligence from the Intelligence Services as provided for in section 7 (8) (b) of the Intelligence Services Oversight Act 40 of 1994. Further, clarity was provided to the complainant on the procedure to be followed in respect of access to information in terms of the Promotion of Access to Information Act 2 of 2000 and to whom such request must be directed,” she said.
However, in response to Mashukuca, Fazel insisted the report was forwarded to Cele in terms of section 7(7)(f) of the Intelligence Services Oversight Act 40 of 1994.
The office said Mashukuca was also advised that the disclosure of information accessed by IGI from any intelligence was subject to the provisions of section 7(8)(b) of the Oversight Act, which required consultation with Ramaphosa and the Minister concerned, Cele.
“In the light of the above and in compliance with sections 19 (2) read with 19 (4)(a) of PAIA, I recommend that you request from the Minister of Police, subject to section 18(1) of PAIA,” read the letter.
The theft of $580 000 (about R8.7 million at the time) from Phala Phala came to light when former spy boss Arthur Fraser laid a criminal complaint against Ramaphosa. Since then, Ramaphosa has been under pressure to come clean about the events at his farm.
In his complaint, Mashukuca wanted the IGI to investigate whether Ramaphosa abused his office and violated his oath of office and the Constitution when he instructed or asked the head of the police’s Presidential Protection Service, Major-General Wally Rhoode - or permitted the use of intelligence secret funds to finance unauthorised investigations and operations - about the theft at Phala Phala
Mashukuca also wanted to know whether Ramaphosa allowed such funds to be used in his name to pursue investigations of an unofficially reported robbery that took place at Phala Phala in February 2020.