Johannesburg - Former State Security Agency (SSA) chief Arthur Fraser says the real reason the state capture commission of inquiry declined to hear his testimony is that Chief Justice Raymond Zondo and evidence leader advocate Paul Pistorius were afraid that he would expose “the real puppet masters” pulling the strings behind their backs.
While the commission called several witnesses who implicated him in serious crimes, Fraser said in his court application to review and set aside the findings, “the commission used every available excuse or justification to deny me the opportunity to appear before it; either to answer the allegations made against me or to present my own evidence before it”.
Fraser filed the review application on Wednesday before the high court in Pretoria. In it, he cited 14 reasons why the commission’s report on the affairs of the SSA should be “thrown into the dustbin”. The grounds for review are listed under three headings: procedural unfairness; relevant considerations ignored, bias or suspected bias; and unlawfulness and irrationality.
“The commission finds that during my term there was lack of accountability and that I was a law unto myself. It also found that my vetting was unprocedural. As I will demonstrate herein below, all the findings against me are incorrect," he said.
“Apart from the fact that I was never afforded the opportunity to be heard, the commission failed to properly investigate the facts, notwithstanding the commission’s extraordinarily wide powers to do so. Instead, it accepted as true all the allegations made against me and presents such as truth in its report.
“I will submit that the commission failed to diligently do its job and as a result, its report is littered with common errors, all of which could have been avoided had I been called to answer just like other persons were called. I am advised that this failure was at best an egregious abdication of responsibility,” said Fraser.
He said: “The relief I seek is premised on the fact that the commission's findings relating to me are based on untested information and/or testimonies of individuals whose testimonies were not tested,” adding that “the commission’s report in respect of findings against me is riddled with patent factual errors and contradictions”.
Fraser said after learning through the media of the allegations made against him at the commission, around July 2020, he started to prepare his evidence before the commission, “with the expectation and knowledge that I would be required to avail myself to answer those allegations against me, present my version and assist the commission with information that would clarify some of the evidence”.
His evidence, he said, was in respect of the 2006 National Intelligence Agency Principal Agent Network Programme and other allegations levelled against him.
“It did not occur to me that the chief justice, after his persisted pleas for directors-general to come before the commission, would place so many obstacles to prevent me from appearing before the commission.”
In August 2020 he addressed a letter to the SSA, the minister of State Security, the inspector-general of Intelligence and the director-general, requesting the declassification of certain documents that he would need to assist the commission. Two more letters of request followed dated May7 and June 3, 2021 respectively.
Fraser said the failure and/or refusal to provide him with the documents that he requested had nothing to do with their sensitivity or classification. He said Justice Zondo was “inconsistent and less than truthful in his explanation as to why I was not afforded an opportunity to make representations to the commission in respect of serious allegations against me”.
“In fact, calling me to assist the commission could not depend on whether my statement was signed. I was an implicated person and the commission could have called me as it did with former president [Jacob] Zuma and others. I invite the chairperson, on oath, to contradict my submission in this regard,” he said.
Fraser added that he had met the commission’s investigators about the Bosasa matters and “it is, therefore, inconceivable that I would refuse to meet them in respect of the SSA matters,” and continues: “It is clear that the commission and/or the chairperson did everything to prevent me from appearing before the commission. It is a matter of public record that I pleaded with the commission to allow me to present my version”.
“It is therefore regrettable that the commission has released a report that is inaccurate and I regard it as a dereliction of duty on the part of the commission and the chairperson. This failure to afford me an opportunity to be heard is a breach of procedural fairness. On this point alone, which is a common cause, the relief I seek should be granted” he said.
He said: “Even without the documents I wanted declassified, the commission had the powers to call me to testify or answer to the allegations levelled against me. It has done so in respect of other implicated persons. The commission was very deliberate in not affording me the opportunity to be heard. This much is clear and constitutes procedural unfairness.”
Fraser said Justice Zondo gave varying reasons why the commission failed and/or refused to call him to testify. However, the commission proceeded to make adverse findings against him.
“I am advised that it is obligatory for the commission in its quest for truth to ensure that it does not ignore evidence that is available and/or easily discernible and could assist in the establishment of the truth it was set up to find. Its failure to do so in itself constitutes a reviewable ground.”
He said “concealing of the true facts, or failure to investigate properly and take into account relevant facts that were available, the chairperson and the commission violated the very purpose of the commission”.
Accordingly, Justice Zondo subverted the purpose of the commission, Fraser said.
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