A battle is brewing to reform South Africa's intelligence sector – a pivotal restructure is on the cards and the Inspector General of Intelligence (IGI) has vowed to proceed with sensitive investigations that may pinpoint high level abuses.
The State Security Agency (SSA), which currently has an acting head, will probably be overhauled with key positions becoming available.
Last year the IGI, Setlhomamaru Dintwe, was embroiled in a legal standoff with then-SSA head Arthur Fraser, who revoked Ditwe's security clearance – a move, Ditwe alleged, intended to scupper the IGI's investigation of a parallel, potentially illegal intelligence structure set up under Fraser.
Following the intervention of President Cyril Ramaphosa, Fraser was shifted out and now Dintwe is intent on seeing through a broader plan – loosening the structural grip the SSA director general has over his office so as to strengthen his office's oversight mechanisms.
"We will continue, if not increase, the height at which were are investigating in the new year," Dintwe told amaBhungane in December.
"The tide has turned and continues to turn as far as the intelligence services are concerned…
"Nothing, absolutely nothing, is going to stop us from fulfilling our constitutional mandate. I'm very much optimistic at present… [under] the current administration."
Dintwe was appointed as the head of South Africa's intelligence watchdog in March 2017, about 13 months before Jacob Zuma stepped down and was replaced by Ramaphosa as head of state.
Dintwe said under Ramaphosa there was a clear intention to ensure employees of government institutions were doing the work they were mandated to.
The country's intelligence services form a mostly invisible sieve meant to filter out any threats, including foreign infiltration, to safeguard the country.
However, South Africa's intelligence community has, by all accounts, embroiled itself in factional battles, leaving the country vulnerable to external threats, as well as internal threats which have manifested in the form of state capture.
These problems are not limited to the SSA and IGI's office: The police crime intelligence division, long marred by claims that it is a haven for rogue operatives, is also experiencing internal friction and upheaval.
Recently it emerged that Dintwe was drawn into the battle by the police watchdog, the Independent Police Investigative Directorate (IPID), to gain access to classified information being withheld by police top brass.
The information relates to an alleged plot by crime intelligence to divert funds to influence the outcome of the ANC's elective conference in December 2017.
Commissioner of police Khehla Sitole had refused to disclose the relevant documents to IPID, saying they were classified.
Court papers lodged by IPID show Dintwe came down firmly in favour of disclosure, telling police minister Bheki Cele: "I am of the opinion that reclassification [or declassification] for the purposes of criminal Investigation and prosecution is an injunction to the divisional Commissioner and/or the National Commissioner."
A number of current and former members of the intelligence community attribute the turbulence to mistrust between key figures, as well as political partiality, which they say has contributed to the "capturing" or abuse of state institutions and resources.
One source went so far as to claim that the country's intelligence services were until recently totally centred around Zuma and his wants. Others put it less strongly but were in broad agreement.
They told amaBhungane that while Zuma stepping down as president eliminated the nucleus of the problem, the situation remains critical because high-powered officials who sided with Zuma remain in place and are tainted or still driven by past agendas.
Dintwe has also not been able to escape being viewed via the lens of political perception.
Some sources say that in powering ahead with an investigation into Fraser, Dintwe is seen as anti-Zuma and pro-DA, because it was the DA that lodged a complaint with Dintwe against Fraser, who in turn is widely viewed as having sided with Zuma.
Fraser himself said the investigation into him is the work of political parties intent on discrediting him and the country's political leadership.
These views have caused deep fragmentation within intelligence and sources amaBhungane spoke to have described the situation as extremely worrying.
Some of them anticipate that those unhappy with recent action to improve checks and balances and who do not want certain investigations of the intelligence services to proceed, may try and trip up anyone they view as furthering these investigations.
This could be in the form of smear campaigns, trying to unearth private and confidential information to be used against individuals, or even violence, they say.
Dintwe declined to comment on specific investigations his office was busy with, but it is public knowledge it is pursuing a high-level probe into Fraser's role in setting up a parallel network of intelligence operatives outside the SSA known as the Principal Agent Network (PAN).
The IGI is also probing the alleged surveillance of citizens on behalf of members of the Gupta family.
It is his investigation into Fraser which Dintwe believes led to Fraser resorting to alleged intimidation and unconstitutional tactics to try and derail his work, provoking two court actions that have provided extraordinary insight into the turmoil within the country's intelligence services.
The cases remain unresolved and could result in further upheaval.
Fraser declined to comment on what transpired in the intelligence sector last year or on the state of the country's intelligence services, telling amaBhungane his stance on what happened is already in the public domain and he is no longer in the intelligence environment.
Legal clash one - Dintwe versus Fraser over DA
In April 2018 Dintwe launched a two-part application in the high court in Pretoria against Fraser after the then SSA chief revoked his security clearance, effectively preventing Dintwe from doing his job.
The first part of the application was urgent and demanded that Dintwe's security clearance be reinstated and that Fraser co-operate with the IGI's investigation.
That investigation began in May 2017 when DA chief whip John Steenhuisen lodged a complaint with the IGI against Fraser regarding his involvement with PAN.
In a later press statement, Steenhuisen stated that in September 2017 the DA had also asked Dintwe "to urgently probe allegations of a covert unit operating within the SSA targeting Zuma's political opponents and reporting directly to him and then-Minister of State Security, David Mahlobo".
In his court application Dintwe revealed that Fraser viewed him as a threat to national security because he was in receipt of classified information about the SSA which had been unlawfully obtained by the DA.
However, Dintwe countered this by saying it was the nature of his job to deal with sensitive information and that Fraser was trying to prevent him from using information in the investigation against Fraser.
"I have been subjected to various forms of intimidation by [Fraser], with the clear aim of deterring me from investigating complaints against him," Dintwe's affidavit said.
"The effect is to sterilise me from performing my functions."
He explained why the court application was pressing.
"The grounds for urgency have been precipitated by the Director-General's threat to remove my current security detail who I have come to know and trust and to replace them with protectors who I can only imagine will serve the interests of the Director-General," Dintwe said.
"The threatened action coupled with the dilapidated security measures at my residence and the anonymous threats I have received in my line of work serves to intimidate me in the prosecution of my constitutional mandate and presents a very real threat to my personal safety."
Fraser opposed Dintwe's urgent application, claiming that in November 2017, which was about six months after Steenhuisen initially lodged his complaint, Fraser received information that Dintwe had "personally and without authority disclosed classified information to representatives of political parties in Parliament".
"In fact, it is the security of the state that faces real harm if its classified documents and information continue to be exposed to a person whose security clearance may be questionable," Fraser argued.
He said the office of the IGI, had previously – before Dintwe's appointment – investigated allegations relating to PAN and this probe had been concluded. Reports on its findings, dated December 2013 and April 2014, had long been finalised.
"In fact, it is my view that the purported investigation is malicious and at the whims of political parties aimed at discrediting me, the Agency and the current political leadership," Fraser said.
He also denied he had threatened to remove Dintwe's security detail.
Following Zuma's ousting and the appointment of Dipuo Letsatsi-Duba as the new state security minister, the tide turned against Fraser.
The day before court proceedings relating to this urgent application were meant to proceed in April 2018, Letsatsi-Duba stepped in and restored Dintwe's security clearance, which resulted in the urgent part of the application falling away.
Letsatsi-Dube's intervention also prevented further claims and counterclaims between Dintwe and Fraser being made public via court proceedings.
Ramaphosa then removed Fraser as SSA director general and redeployed him as the national commissioner of correctional services.
Loyiso Jafta was placed in an acting capacity as SSA director general, but Fraser's transfer led to more court action, this time instituted by the DA.
Legal clash two – DA versus Ramaphosa over Fraser
In May 2018, the DA launched a court application arguing that Ramaphosa's decision to appoint Fraser as correctional services commissioner was inconsistent with the constitution and should be set aside.
James Selfe, chairperson of the DA's federal executive and the shadow minister of correctional services, detailed why the party wanted Fraser out of the picture.
"There are, at the very least, prima facie indications of serious dishonesty concerning Mr Fraser, including allegations that he operated a secret and parallel intelligence service from his home whilst working at the Hawks (subsequently the State Security Agency), and utilized millions of rands of public funds for personal gain," Selfe stated in his affidavit.
"The DA accordingly asks this Court to grant an order declaring that the President's appointment of Mr Fraser… violated the President's constitutional obligation to appoint a National Commissioner who is sufficiently conscientious, has enough credibility to do this important job effectively and is of good character," he said.
But Ramaphosa, in a responding affidavit, argued that he had carefully considered Fraser's repositioning.
His response also gave insight into the run up to, and aftermath of, Dintwe and Fraser's legal battle.
Ramaphosa said that shortly after being elected president he reshuffled the Cabinet and appointed Letsatsi-Duba as state security minister.
At this point Fraser was still SSA director general having been appointed by Zuma in September 2016.
Ramaphosa said he, together with the new grouping of ministers, then decided to review all existing director general appointments.
Meanwhile, Letsatsi-Duba, in her new role, had consulted with several SSA members to understand challenges the agency was facing and on March 22, 2018, had reported to Ramaphosa that the agency was not functioning optimally.
Lestatsi-Duba therefore suggested a review panel be created to guide how to shape and improve intelligence services.
"The Minister did not regard the problems in the SSA as having been caused solely by Mr Fraser, but she was concerned that his strong personality might inhibit work by the review panel," Ramaphosa's affidavit said.
Letsatsi-Duba asked him to transfer Fraser from the SSA so that the proposed review panel's work would not be hindered.
Ramaphosa agreed to transfer Fraser but was not sure where to place him and at that point did not feel it necessary to act immediately.
But on April 5, 2018, the situation heated up because Fraser decided to withdraw Dintwe's security clearance.
Ramaphosa said Letsatsi-Duba advised him that Dintwe was investigating allegations against Fraser relating to PAN, which stemmed from years before Fraser was appointed SSA director general and which had already been investigated by former IGI, Faith Radebe.
"In my view, the withdrawal of the Inspector General's security clearance and the dispute between the Inspector General and Mr Fraser had given rise to a constitutional crisis," Ramaphosa said.
"Without his top-secret security clearance, the Inspector General could not perform his oversight functions in terms of the Constitution. He also could not complete his investigation into Mr Fraser…
"It was also apparent to me that the dispute between Mr Fraser and the Inspector General threatened the stability of two strategic organs of state in the security cluster."
Ramaphosa instructed Letsatsi-Duba to speak to Fraser and Dintwe to iron out the matter, but before she could resolve it, Dintwe launched his urgent court application against Fraser.
But Ramaphosa, still hopeful to avoid full-blown court action, asked Letsatsi-Duba to again contact the two to try and smooth out the matter without them heading to court.
Neither Dintwe nor Fraser backed down though, with Fraser instead going ahead and filing a response to Dintwe's affidavit, including in it that he withdrew Dintwe's security clearance because he viewed Dintwe as a threat to national security.
In his affidavit Ramaphosa said he felt it was necessary to get to the bottom of the claims and counterclaims being made between Fraser and Dintwe.
He considered suspending Fraser, but found there was no basis for it at that point.
"There was no new allegation of wrongdoing against him," Ramaphosa reasoned.
It was decided Fraser would be placed as head of correctional services, which at the stage was a vacant position, and Ramaphosa said based on facts available to him, he accepted Fraser was "fit and proper" for the role.
Ramaphosa said the only reason old allegations had resurfaced against Fraser was because these had been written about in Jacques Pauw's book, The President's Keepers.
"They did not become new allegations simply because they were contained in the book. The DA has produced no evidence of new allegations against Mr Fraser," Ramaphosa argued.
Selfe told amaBhungane in mid-December that the DA was still taking legal advice on the way forward because the party still believed Fraser's move was not in line with the constitution.
Meanwhile, the presidency announced in June 2018 that Ramaphosa had appointed a 10-member review panel to look into "challenges" facing the SSA.
The review panel had been recommended by Letsatsi-Duba shortly after she took office and she referred to it during her May 2018 budget vote speech, giving insight into the panel's mandate.
Letsatsi-Duba said corruption was the biggest threat to national security, adding that state security was not immune to this.
"We will have to confront these allegations of corruption and misconduct in the state security structures head-on and hold the guilty parties responsible to the letter of the law and take steps to recover monies not accounted for…
"Part of restoring the public's confidence in the intelligence services will include deliberate acts of professionalising the service. In this regard, there could be no place for rogue elements within our intelligence services," she said in her speech.
But manoeuvres to clean up intelligence have led to further ructions.
Last November the Sunday Times reported that Letsatsi-Duba had ordered the re-vetting of all intelligence officials, but the article said some SSA insiders believed this action was actually a culling exercise to get rid of those who were seen as loyal to Fraser and therefore Zuma.
In response, the presidency issued a statement which effectively served as a stern reprimand to members of the SSA.
"While the review process unfolds, political responsibility for the SSA remains with Minister of State Security Dipuo Letsatsi-Duba and management and staff at the Agency are expected to conduct themselves with the requisite responsibility, respect and integrity," it said.
Ramaphosa's spokesperson Khusela Diko told amaBhungane the review panel report was due to be presented to him at the end of February.
It is unlikely the report will be made public, but it is understood it may delve into inconsistencies in operations, for example the plundering of slush funds and members who recruited individuals for intelligence-gathering purposes, with these individuals never actually being expected to deliver.
If extreme discrepancies are picked up, it is understood that what the panel recommends will not only lead to disciplinary action, but possibly also criminal complaints.
Jane Duncan, a professor heading the University of Johannesburg's journalism, film and television department and author of intelligence-focused books and articles, is among the 10 members of the panel.
She may not publicly comment on the panel, but she previously conveyed some of her views in a series of columns carried by the Daily Maverick.
In one of the columns, published in February 2018, she highlighted problems relating to the SSA.
"The SSA's biggest intelligence failure by far has been its inability to provide strategic intelligence to predict and prevent state capture. That failure on its own is sufficient basis for Ramaphosa to shut the SSA down and start again with a new entity.
"The SSA's performance on other counterintelligence functions, such as security screening and protection of intelligence and classified information, has also been compromised politically," she wrote.
Intelligence overhaul needed
There have been further critiques of South Africa's intelligence structures, with parliament's oversight body, the Joint Standing Committee on Intelligence (JSCI), emerging from its Zuma-era shell to find its voice on the 10-year-old PAN scandal.
Its annual report, covering the year ending March 2018 and released just before Christmas, was suddenly able to proclaim: "The Principal Agent Network was a project used as an instrument to pilfer money from the Secret Account of State Security Agency for use by certain individuals who were recruited for PAN.
"The matter was not fully investigated by State Security Agency… The JSCI persuaded the President [Ramaphosa] therefore to reopen the matter for proper investigation and prosecution as the Committee is of the view that serious crime may have been committed by those responsible for PAN."
So Fraser, even though he was transferred and has already been the partial focus of a previous investigation into PAN, may still find himself facing legal action over it.
The committee also came out against another Zuma ally, noting, "One of the issues the Committee dealt with during the period under review was the matter of Crime Intelligence Chief, Richard Mdluli. He has since been removed from of Crime Intelligence."
The JSCI report also revealed a scathing formal assessment of the intelligence community by the IGI.
It noted that Dintwe's assessment painted a picture of "compromised intelligence services and intelligence community matters related to corruption, unqualified people doing the job and questionable undercover fraud".
Of particular concern is the JSCI report's revelation that the culture of secrecy and unaccountability from the intelligence community extends to blocking oversight of its spending by the Auditor General.
It noted: "There has been a certain amount of friction between the Auditor General and Accounting Officers regarding the secret accounts…
"The Auditor General is insisting, correctly so, on traditional reasonable assurances that funds have been used correctly."
In its report attached to the JSCI report, the auditor-general had found: "There is a lack of consequence management as the leadership is not always holding the staff accountable for poor quality of financial and performance reporting, which created the perception that [negative] audit findings are acceptable and tolerable."
Aside from flagging matters relating to secret accounts, the JSCI said intelligence legislation posed a concern and its legislative sub-committee had relooked at the Intelligence Services Oversight Act and "identified so many loopholes within all the intelligence pieces of legislation".
The JSCI had therefore asked that approval be given for "a State legal person" to assess legislation within intelligence services.
Overall, it wanted intelligence structures to be scrutinised and the SSA to be restructured.
"An overarching assessment needs to be done to cover the entire Intelligence Community," the JSCI annual report recommended.
"Such an assessment, given that its main aim would be to produce a highly efficient and professional Intelligence Community and have to be accompanied by a review of the effectiveness and modernized tools of trade for the intelligence structures which would include the procurement of high technology instruments to deal with cybercrime."
The JSCI had made a case to Ramaphosa for the restructuring of the SSA and its annual report said that in response to this, Ramaphosa said he was also of the view "that it was necessary to rebuild".
Ramaphosa indicated the review panel would include suggestions on such a restructuring in its report.
Dintwe told amaBhungane that the decision by Ramaphosa to set up the panel "indicates there could be some areas of discomfort" ahead for intelligence services.
Part of what needs to change, according to Dintwe, is the structural dependence of the IGI on the good will of the director general of the SSA, a weakness exposed by the standoff with Fraser.
While the first part of Dintwe's court application against Fraser had not needed to proceed because his security clearance was reinstated and Fraser was removed as SSA head, the second part of his application remains open-ended and will be affected by what the review panel finds.
Dintwe described the application's second part as dealing with "salient independence issues".
"We are hoping that there will be a resolution to this particular matter.
"The reason that we are taking our time is because it's our humble hope the panel of experts may make recommendations… Maybe our issues could be resolved without us going to court," he said.
"Obviously, if one looks at the [second part of the court application], you will realise that the problems that confront the office still remain unresolved."
The case showed that, aside from holding the IGI's office to ransom by revoking Dintwe's security clearance, Fraser was also in a position to starve the IGI's office of resources.
Details about budget constraints faced by Dintwe's office were detailed in his court papers and show that Fraser seemed to be in ultimate control of money being channelled to the IGI’s office.
In a letter to Fraser dated November 2017, Dintwe said that his office had 34 funded posts of which 8 were vacant.
Five of the 8 posts, including a receptionist, secretary and personal assistant, were viewed as critical and Dintwe wrote: "It would therefore be appreciated if the relevant funds could be released to fill the mentioned posts."
Fraser had replied the next month that he could not yet do so because the SSA had adopted a strategic development plan which meant its structure could change and this first needed to happen before posts were analysed and filled.
The second and unresolved part of Dintwe's court application therefore largely deals with the powers the SSA director general and minister have over Dintwe's office and seeks to have legal provisions that limit his independence declared unconstitutional.
In the court application, Dintwe argued that, for his office to be independent, it needed independent financial and human resources.
"The Director General of the SSA clearly cannot be the person authorised to release the funds necessary for an effective oversight mechanism over him and his agency," Dintwe's affidavit said.
He told amaBhungane he hoped the review panel's recommendations would ultimately lead to the provision of this relief so he could drop the court action.
Letsatsi-Duba, based on her May 2018 budget vote speech, was of a similar view to Dintwe, saying his office needed more independence.
"Together with the Joint Standing Committee on Intelligence, we must initiate a process that will yield greater independence of the Office of the IGI.
"We need to review the Intelligence Oversight Act and regulations to give effect to this," she said.
The SSA itself has been less enthusiastic.
SSA spokesperson Lebohang Mafokosi told amaBhungane, "Kindly note that the matter of the independence of the Office of the IGI is currently before court and as such the DG cannot pronounce on it.
"On the fragmentation of the intelligence service and how the DG may address the issue, these are operational matters which the SSA cannot disclose to external parties."
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