Alice in Wonderland spy agency case potentially a game changer

Intelligence watchdog to press on with court bid to ensure probe into claims against top spy goes ahead

Just days before the High Court in Pretoria was to hear a landmark legal dispute between SA’s most powerful spy and the head of the watchdog body meant to hold him accountable, President Cyril Ramaphosa removed State Security Agency director-general Arthur Fraser from his position.

Fraser’s efforts to revoke the inspector-general of intelligence’s security clearance, which he needs to be able to investigate Fraser himself, had verged on farce. However, for all the Alice in Wonderland aspects to this unprecedented battle between the previously untouchable State Security Agency head and intelligence inspectorgeneral Setlhomamaru Dintwe, it remains a potentially game-changing case.

Lawyers for Dintwe are determined that the issues raised by him, specifically his office’s ability to provide real and consequential oversight of SA’s spies, be decided by a court of law. They have told Business Day that they will go to court on Thursday to ensure that Dintwe’s security clearance is reinstated, so that he can continue with his investigation into Fraser and his role in the Principal Agent Network.

Dintwe is pursuing further legal action to ensure the independence of his office, in a case that closely resembles Independent Police Investigative Directorate head Robert McBride’s successful legal campaign to ensure that the police watchdog body could not be subjected to undue political interference.

The importance of Dintwe’s case cannot be overemphasised. For years, the operations, spending and projects of SA’s state spies have remained largely unknown and uninterrogated.

Operating under an unquestioned and unaccountable veil of secrecy, the country’s intelligence authorities have seemingly been able to spend huge amounts of money on highly questionable projects. Not even the auditorgeneral was able to properly examine possible wasteful, irregular or potentially criminal State Security Agency spending.

And, while the office of the inspector-general of intelligence has reportedly produced damning reports on the agency’s Principal Agent Network project — and Fraser’s role in its alleged fraudulent and wasteful spending of taxpayers’ money — no action has seemingly been taken in relation to these findings.

In an affidavit filed at the High Court in Pretoria on Monday, Dintwe has acknowledged that the office he joined was “already a beleaguered institution at the time that I took the helm with outstanding complaints that still need to be finalised .... The State Security Agency provides unsatisfactory responses to information requested by the office of the inspector-general of intelligence.” He later said Fraser appeared to regard him as an “employee” of the agency rather than the head of an independent oversight body.

Fraser has claimed that he was not formally notified that Dintwe was probing serious and potentially criminal allegations against him, linked to his role in the Principal Agent Network project, and was therefore “unaware” of the probe.

He told the court that he revoked Dintwe’s “top secret” clearance because he regarded him as a potential threat to national security and not because he was the target of Dintwe’s probe. He said he had “evidence” justifying his claims that the office of the inspector-general of intelligence was handing over classified information to political parties but he could only show this to a judge behind closed doors.

Dintwe has denied handing over classified documents. And, when you read his version of events the true motives behind Fraser’s actions become searingly obvious. Dintwe has produced evidence that Fraser was “acutely aware” that complaints had been levelled against him — months before the release of Jacques Pauw’s book The President’s Keepers.

That book alleged that Fraser had set up a network of agents, including his own relatives, that could have wasted up to R1bn of taxpayers’ money. Pauw also suggested Fraser could be guilty of treason for setting up a home computer server into which top-secret reports were fed.

Fraser has denied “any suggestion that I acted unlawfully or issued tenders to my family”, and accused Dintwe of trying to “reinvestigate” allegations that were already probed by his predecessor four years ago. It was the lack of executive response to those reports that appeared to have motivated the complaint that Dintwe is currently trying to investigate.

Months before Pauw’s book was published, the DA’s John Steenhuisen approached the inspectorgeneral of intelligence’s office with a serious complaint about Fraser, who had been appointed director-general of the State Security Agency by then state security minister David Mahlobo the previous year. Fraser appears to believe that Steenhuisen had been given some level of access to two previous reports on the Principal Agent Network project, which were released in 2013 and 2014. It is worth mentioning that these documents had been reported on as early as 2014 — two years before Dintwe was appointed.

The State Security Agency’s own investigations had also reportedly found that Fraser was one of 15 people against whom “there is sufficient proof to institute criminal investigations”.

In court documents, while acknowledging these previous investigations Dintwe makes it clear that there is still a basis to investigate the Principal Agent Network debacle and the executive’s failure to do anything about it. He states that “nothing precludes any member of the public from lodging a complaint regarding the Principal Agent Network programme, allegations of fraud against the director-general or any person, including allegations of the fact that no action was taken by executive authorities to bring those implicated to book”.

He also rubbishes Fraser’s argument that his investigation is part of a politically motivated campaign to discredit him, the State Security Agency and the current government. It was clear, he said, that Fraser was abusing his power to prevent him from doing his job.

“On what I know, there is at least a prima facie case for Mr Fraser to answer. If, by his conduct, he is preventing the ventilation of that case through a statutorily created body, it is of extreme importance for a court to step in…. My ability to fulfil my mandate and ensure a functional and independent (office of the inspector-general of intelligence) and to investigate and report on complaints (most notably against Mr Fraser himself) has been prohibited based on an unlawful decision taken by a director-general in an untenably conflicted position.”

In papers filed before the court, Dintwe has claimed that Fraser failed to co-operate with other investigations, too, and refused to provide information in response to complaints against the State Security Agency. These complaints included questions about the alleged presence of intelligence operatives at party political gatherings.

While Fraser’s removal from his position may have heralded some form of executive intervention in this ugly saga, it does not address the crucial question of why the administration of former president Jacob Zuma did nothing in response to evidence of looting at the agency.

Dintwe needs his security clearance back to have a chance at getting those answers. He also needs legally entrenched protection to ensure that his office — once a barking dog that got ignored by everyone who could hear it — gets some teeth.