George Fivaz's Eskom 'dirty' dossier gets clean bill of health in expert legal opinion

1 Jun 2023

On 26 April, author and journalist Jacques Pauw published a series of articles in News24 that dismissed private intelligence reports on the Eskom crime cartels as ‘outlandish conspiracy theories’. On 1 June, a practising advocate, former police superintendent and author of key textbooks for the SA Police Service (SAPS) released a legal opinion that concluded the opposite. So, what will the security cluster do about it now?

“In light of the above, it is concluded that the intelligence reports compiled by GFFR [George Fivaz Forensic & Risk] constitute a critical first step and forceful springboard from which investigations into the undoubted criminalities at Eskom can and should be launched.”

With this sentence, the final paragraph of an expert legal opinion drawn up by Advocate Cerita Joubert, the controversy that almost resulted in the closure of George Fivaz Forensic & Risk was arguably put to bed.

Joubert, a former police officer with numerous commendations who was promoted to the rank of superintendent in 1997, was chosen by Fivaz for obvious reasons — not least of which was her election to the position of vice-president of the National Forum of Advocates in 2010.

Perhaps more significant, though, was the fact that Joubert had lectured and published extensively on the methodologies of police work, having acted as the editor and main author on all five editions of a core South African Police Service training manual, Applied Law for Police Officials.

In this context, given that her latest police textbook was published in 2023, Joubert’s assessment of the “value” of the intelligence reports was always going to count as authoritative.

What Daily Maverick did not anticipate, however, was the tone of urgency in her conclusions.

“The prevalence of organised crime and corruption at Eskom [is] confirmed in the majority of the reports compiled by GFFR as well as in countless other investigative reports relating to Eskom from other private sources, notably investigative journalists,” she stated.

“Since these crimes pose immense challenges to any investigation, the creation of multidisciplinary investigative task and project teams, which include private intelligence entities, may greatly assist in order to ensure successful prosecution.”

As Daily Maverick had been aware since early May, Fivaz had approached Joubert after the publication by News24 of a series of “exposés” under the all-caps title “ESKOM DIRTY DOSSIER”. Written by author and journalist Jacques Pauw, these articles — according to Fivaz himself — had inflicted fatal damage on the private intelligence-gathering operation, forcing the operatives to retreat from their positions or face the very real prospect of assassination.

On the front lines was Tony Oosthuizen, a former agent of the apartheid state who had crossed over into the intelligence services of President Nelson Mandela before leaving for the private sector. By focusing on Oosthuizen’s past, as Fivaz told Daily Maverick, Pauw had “conveniently ignored” the fact that he was “just one of six handlers” that GFFR had contracted to run the operation.

‘Their lives are at risk’

“These six handlers, Tony included, were running a total of more than 40 agents in the field,” Fivaz repeated — a detail that Daily Maverick had long known first-hand, given that we had been working on the Eskom intelligence files since December 2022.

“The irony is that the vast majority of these agents, I’d say around 70%, were non-white. Now all of their lives are at risk.”

Pauw’s contention in the first of his articles, published under the headline “Revealed: Apartheid spook behind De Ruyter’s R50m off-the-books Project Ostrich”, was in direct opposition not only to what Daily Maverick understood but also to what Joubert would conclude.

Referring to former Eskom CEO André de Ruyter, and thereby implicating him by association in allegations of racism, Pauw opened with the following:

“News24 can reveal the so-called Eskom ‘intelligence’ files or reports made famous by De Ruyter in a tell-all interview in February were concocted by Tony Oosthuizen, a key member of an apartheid-era secret Military Intelligence unit, and are effectively worthless.”

Published on 26 April, the same morning that De Ruyter was due to appear before the parliamentary Standing Committee on Public Accounts (Scopa), both Pauw and News24 editor Adriaan Basson drew only a smattering of criticism in the Afrikaans press for the timing of their “exposé”.

Intelligence-led policing

Alluding perhaps to the fact that Pauw had somewhat walked back on his initial rubbishing of GFFR’s reports, in an article published on 15 May that recast the contents of the files as “information” if not quite “intelligence,” Joubert included the second category as well.

Quoting from the Criminal Intelligence Manual for Analysts published by the United Nations Office on Drugs and Crime (UNODC), she wrote:

“Information is quite simply raw data of any type, whilst in contrast intelligence is data which has been worked on, given added value or significance.”

By Joubert’s expert assessment, the 348 “agent information reports” that had been solicited from sources inside Eskom’s power stations were in the first category, while the 12 “monthly analysis reports” were firmly in the second.

Also, in an effort to place GFFR’s work within the context of actual policing as opposed to single-source journalism, Joubert cited the “Intelligence-Led Policing” model, or ILP.

“The ILP was first adopted throughout the United Kingdom (UK) in the early 2000s,” she noted, “and has since become the preferred model of policing in many countries, including the United States of America, Canada, Australia and New Zealand. Since the ILP is built around pro-active risk assessment and risk management, it has been proposed as a possible solution to combating corruption in South Africa.”

The subtle dig at the failure of South Africa’s security cluster to gather its own intelligence on the criminal cartels that had been sabotaging Eskom throughout 2022, as confirmed in the Scopa hearings of 9 May, was plainly apparent in these words.

But further down in her assessment, after acknowledging that the ILP model had lately begun to “gain traction” in South Africa — specifically, with its inclusion in the Strategic Plan of the South African Police Service 2020 to 2025 — Joubert was less than subtle.

“The mandate given to GFFR and their execution thereof fully corresponds with this latest trend in policing,” she noted. “Moreover, it also accords with the strategic thinking of the SAPS and should therefore be embraced by the police, especially in light of the widely published failures of their own crime intelligence capacity that was cruelly exposed by the July 2021 riots.”

Two big questions

The remaining questions for ordinary South Africans, then, had suddenly become twofold. First, would the security cluster act on the extensive list of names and companies cited in the GFFR reports? Second, what about the two Cabinet members?

As for the first question, a possible answer was provided by Fivaz, in a media release sent out on 1 June to coincide with the publication of Joubert’s legal opinion.

“A Presidential Proclamation has already tasked the SIU [Special Investigating Unit] with looking into corruption at Eskom,” he stated, “and GFFR has therefore already provided the SIU with electronic copies of all our reports and will also make a copy of the legal opinion available to them.

“In addition, GFFR will offer the SIU access to our database that contains comprehensive information and link analysis. The SIU expressed its gratitude for our willingness to cooperate and to share the crime intelligence we have gathered with them.

“We are also in the process of providing the SAPS with another copy of all relevant reports as well as a copy of the legal opinion, which will hopefully hasten criminal case development.”

As for the second question, the answer was perhaps more problematic.

On 20 May, this writer published an analysis piece that referred to News24’s naming of the Cabinet members, pointing out that the media organisation had skirted the legal issues by dismissing the GFFR intelligence as “a speckle of truth adorned by outlandish conspiracy theories, concocted intelligence and unsubstantiated allegations”.

Read more: Eskom Intelligence Files

What we didn’t state, however, was that on the night of 27 February, the same day that our initial report on the intelligence files was published, President Cyril Ramaphosa had called an emergency Cabinet meeting to discuss the revelations of Eskom cartels and ANC kingpins.

It was also difficult to overlook the fact that while Ramaphosa’s national security adviser, Sydney Mufamadi, had declined to name the names in his own appearance before Scopa on 26 May 2023, he did “dangle the carrot” of more information in a closed-door session.

To Daily Maverick at least, it was looking increasingly likely that the leadership of the ANC had something very pungent to hide. DM

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South Africa

‘Their lives are at risk’

Intelligence-led policing

Two big questions