Top spy comes in from the cold - R6m later

A top spy was paid more than R6-million to stay at home for five years while the State Security Agency mulled possible disciplinary action against him.

The agency ignored internal legal advice that Prince Makhwathana, a former manager of the Covert Support Unit, had no case to answer and that any charges would constitute abuse of disciplinary processes.

It defied a court order that Makhwathana be reinstated, but conceded that it was in contravention of the law by having failed to institute disciplinary proceedings within the prescribed 18 months.

Makhwathana was suspended in July 2010 for alleged misconduct, without being provided with a charge sheet.

Papers he filed with the High Court in Pretoria detail how several attempts to get clarity on his alleged misconduct and for a formal charge sheet to be presented were unsuccessful.

Makhwathana approached the courts in September 2013 after having written to agency director-general Sonto Kudjoe a month earlier demanding that he be allowed to return to work.

"It has now been two full years and nine months since I was placed on suspension. In that time I have not been informed of the reasons ... By any stretch, this is a travesty of justice. I now demand that you terminate my suspension immediately," said Makhwathana in the letter, which Kudjoe apparently ignored.

He was eventually charged in January last year with more than 100 violations, including alleged illegal bugging and the promotion of several agency employees to salary levels that he was not authorised to approve.

In its responding papers the SSA attributed the delay in its investigation and disciplinary proceedings to the death of Nelson Mandela, preparations for the Africa Cup of Nations in 2014 and the Christmas holidays.

However, letters to Kudjoe by the agency's legal services manager, Mike Kgoroeadira, which are included in the court documents, indicate that he believed Makhwathana had no case to answer.

"The writer [Kgoroeadira] believes that he [Kgoroeadira] is being set up by members of labour relations because they previously indicated that prosecuting Mr Makhwathana would be an abuse of the disciplinary process.

"They drafted the charge sheet to comply with the order of the high court with a belief ... that Mr Makhwathana will not be willing to return to the agency," said Kgoroeadira.

He also raised concerns over the lack of witnesses to support any charges.

"I was advised that ... there were no prospects for a successful prosecution of Mr Makhwathana, rendering his prosecution malicious ...

"Should you proceed with this matter, I request on ethical and professional grounds that I be excused from the duties of a procurator," said Kgoroeadira.

SSA spokesman Brian Dube said this week that the agency could not comment.

"We don't discuss personnel matters in the media as they involve operational details," he said.

The agency later sent a letter to the Sunday Times threatening an interdict if it revealed the identities of SSA members.

Makhwathana was reinstated earlier this year after Minister of State Security David Mahlobo intervened and lifted his suspension.

All charges against Makhwathana were dropped.

He refused to comment on the matter, referring all questions to his lawyer, Amos Vilakazi.

Vilakazi said his client had been forced to go to court because of the abuse of state power against him.

"The manner in which the agency handled this matter makes one wonder if they even know what the truth looks or sounds like," Vilakazi said.

"I pity the employees of that organisation.

"They are exposed to unmitigated abuse behind the veil of secrecy that attends the work of their employer."

The state was ordered to pay Makhwathana's legal costs of more than R200,000.

jikat@sundaytimes.co.za