Inspector General of Intelligence must present findings of report to Parliament

The Democratic Alliance (DA) believes that the Inspector General of Intelligence must immediately present to Parliament the findings of his investigation into how certain tape recorded conversations of former DSO boss Leonard McCarthy and former National Director of Public Prosecutions Bulelani Ngcuka were obtained by Jacob Zuma's lawyer Michael Hulley.

We note that Mr. Ngcakani, the current Inspector General, has made some of the findings of this investigation available in the press this morning (see report). It is essential that this information is presented in an open forum in Parliament, where it can be assessed and where appropriate questions can be asked.

One would presume that the investigation has made the distinction between two separate matters: the first of these pertains to whether the state intelligence agency responsible for making the tapes in the first place did so legally; the second concerns the transfer of the tapes from the state to a private citizen, Mr. Hulley.

On the first count, according to an interview with Mr. Ngcakani in this morning's Cape Times, the investigation has found that, in fact, two separate state agencies were tapping Mr. McCarthy's phone, but that in both cases the agency concerned was operating "lawfully in terms of the judicial direction".

This presumably means that the investigation has found that the party applying for an interception direction in terms of section 16 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (‘the Act') has received approval by a designated judge. We of course await official confirmation of this - together with the evidence to support it.

However, what Mr. Ngcakani has not yet stated, and what really lies at the heart of the concerns that we have raised over Mr. Hulley's possession of these tapes, is the second matter pertaining to the transfer of these tapes from the state to a private individual.

Section 42 of the Act makes it expressly clear that the disclosure of intercepted communication by an official to any other person or state authority can only occur within a specified framework of circumstances. In terms of the Act, it may be possible for such information to be passed on to, for instance, the NPA, however it seems highly unlikely that its transfer to Mr. Hulley, a private citizen, could fall within terms of the legislation.

In these circumstances, we believe that the Office of the Inspector General of Intelligence ought to look at instituting criminal proceedings in terms of section 51 of the Act.

We also believe that the Inspector General must immediately furnish the committee with this report, must brief the committee on this matter, and make public his findings and recommendations.

If Mr. Hulley obtained the tape illegally, then this is evidence of the fact that the state security services were used as a political battering-ram for the Zuma faction of the ANC, and that would be unacceptable, and ought to warrant further criminal proceedings where laws were broken.

Statement issued by Ian Davidson, MP, Democratic Alliance chief whip, November 9 2009

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