Ngcobo in the hot seat

President Jacob Zuma wants former Chief Justice Sandile Ngcobo to head the commission of inquiry into the controversial multibillion-rand arms deal.

The Sunday Times has learnt that Justice Ngcobo was approached on Wednesday to head the commission.

The Hawks, who recently announced the re-opening of their investigation into the deal, also await the commission's terms of reference before deciding how to proceed with their probe.

This would be to avoid duplication and to enable them to decide what areas to focus on.

This was confirmed by Hawks spokesman McIntosh Polela. The announcement of Justice Ngcobo's appointment, as well as the terms of reference, is expected to be made this week, when Zuma returns from the UN General Assembly.

Justice Ngcobo is a respected jurist who retired last month, days before his Constitutional Court colleagues found that his re-appointment for another term by Zuma to be invalid. He served for two years as chief justice.

Zuma's announcement that he would appoint a commission to probe the arms deal took many of his ANC colleagues by surprise this week, some being unsure of his motives.

In his opening address to the ANC national executive committee meeting on Friday, Zuma briefed members about his decision, but failed to give details of the commission's terms of reference and composition.

However, there is apprehension in the ruling party about the implications of the decision, given that some party leaders are implicated in having benefited from bribes or "commissions" from successful bidders in the R70-billion deal.

An NEC member told the Sunday Times that while there were suspicions about Zuma's intentions, he believed the president's hand had been forced by the pending Constitutional Court case brought by arms-deal campaigner Terry Crawford-Browne.

Crawford-Browne wants the court to force Zuma to institute an independent commission of inquiry. The case had been set down for November 17.

"My view is that the decision was about pre-empting the Constitutional Court ... it's not about 2012. If there is anything sinister, then it would be coincidental ... not what everybody is suspecting, because this thing affects a lot of people," he said.

It seems the party is adopting a wait-and-see attitude.

"We are waiting to see the terms of reference ... it's a high-risk decision and it can be disastrous. But the terms of reference will indicate what to expect," said the NEC member, who did not want to be named, as he is not "the party's spokesman".

However, he was critical of the fact that Zuma had not waited for the NEC meeting before announcing the commission.

The NEC is the ruling party's highest decision-making body between national conferences.

"If the NEC had been told on time, it would have had an opportunity to express its views. The same thing happened when it came to [South Africa's vote in the UN Security Council about] Libya. Charges against Julius [Malema] were also announced on the day of the NEC (meeting). That was an affront to the NEC. Serious issues are just announced without the NEC knowing," said the NEC member.

Another NEC member expressed similar views, adding that it would be pointless for the NEC to discuss the arms deal when the decision had already been taken.

"By the time the NEC [sat], this thing was announced. Whatever views we have are not of any value ... you are not going to have any impact on that decision," said the NEC member.

Now arms-deal campaigners and opposition parties are putting pressure on Zuma to appoint a full independent judicial commission of inquiry which will have powers to subpoena witnesses.

Zuma's spokesman, Mac Maharaj, would not be drawn into commenting on Ngcobo.

He said: "It would be pure speculation from my side ... I wouldn't be talking about that until the president has made up his mind. Certainly the president is looking at it as a matter of days ... with urgency."

Zuma's decision comes after Swedish arms manufacturer Saab revealed that its former partner, BAE Systems, had paid R24-million in "commissions" to businessman Fana Hlongwane through a company called Sanip Pty Ltd. Hlongwane was an adviser to late minister of defence Joe Modise.

Saab and BAE were partners in supplying Gripen jet fighters to South Africa.

Another unrelated allegation was that Chippy Shaik, head of SA National Defence Force procurement at the time of the arms deal, had solicited and received a R21-million bribe from a German company which won contracts in the deal.

Chippy is a brother of Zuma's former financial adviser, Schabir Shaik, who spent time in jail after being convicted of corruption and bribery related to R1.2-million in payments to Zuma when the latter was deputy president of the country.

Zuma escaped prosecution on a technicality when then acting national director of public prosecutions (NDPP) Mokotedi Mpshe dropped the charges following revelations of interference in the case by former Scorpions boss Leonard McCarthy and former NDPP Bulelani Ngcuka.

In dismissing the NPA's case against Zuma in the High Court in Pietermaritzburg, Judge Chris Nicholson noted Zuma's repeated warning that he would reveal damning information about his other comrades if he were to be prosecuted.

"The court can hardly be unaware of the other dark mutterings emanating from [Zuma] that if he goes down, others will follow him," said the judge.

"Like a blinded Samson, he threatens to make sure the temple collapses with him. The impression created is that the applicant has knowledge he will disclose if he is faced with conviction and sentence."