Barely five months into the job, State Security Minister Ayanda Dlodlo is accused of abusing her powers by instructing the country's domestic spy boss to unlawfully intercept telephone calls without the authority of a judge.

News24 can reveal that Dlodlo allegedly instructed advocate Sam Muofhe, the newly appointed head of the State Security Agency (SSA)'s domestic branch, to monitor the communication of a man in early September, without an order from a judge. News24 understands that the man was alleged to be linked to the xenophobic violence that caused havoc in Gauteng in early September.

In terms of South African law, it is illegal to intercept someone's communications without the authority of a judge.

Muofhe allegedly refused to carry out Dlodlo's unlawful order and told her it was against the law to do so.

In response to questions from News24, Muofhe directed queries to Dlodlo's spokesperson, Mava Scott.

'Security breach'

In response to detailed questions about this and other alleged attempts to increase Dlodlo's executive authority over the SSA, Dlodlo, via Scott, did not deny the allegation.

Instead, Scott said News24's questions indicated that there had been a "security breach" and that News24 should not have "top secret information in your possession".

Scott said News24's questions "relate to sensitive operational matters" which cannot be discussed publicly and that Dlodlo would formally ask the SSA and the Inspector General of Intelligence to "investigate the apparent security breach".

"We are also greatly concerned about a possible security breach in this regard, since the top secret information in your possession should not have been disclosed to an unauthorised party," Scott said.

Dlodlo served in former president Jacob Zuma's Cabinet, first as Minister of Home Affairs and then communications, and was Zuma's parliamentary councillor when he became president in 2009.

In February 2019, President Cyril Ramaphosa appointed her Minister of Public Service and Administration and moved her to the state security portfolio after the May elections.

Ramaphosa appointed Muofhe in August, with the task of turning around the corruption-plagued institution.

Before that, he served as chief governance officer for the Special Investigating Unit (SIU) and after that as adviser to Dlodlo's predecessor, Dipuo Letsatsi-Duba.

The SSA will cease to exist next year and will revert to its old format of two separate spy agencies - one for domestic intelligence and one for foreign intelligence. Muofhe heads up the domestic branch.

Sidelining mangers

News24 has reliably learnt that there is a growing feeling in the SSA that Dlodlo wants to be in charge of operations and that she is sidelining Muofhe and other senior SSA managers.

At a three-day workshop in September, hosted by Dlodlo and her special adviser Thabo Mokwena for senior SSA members, the minister allegedly berated them for not doing their jobs and for calling her a "gambler".

News24 understands that Dlodlo and Muofhe have butted heads about the appointment of acting heads in the SSA, to the point where numerous positions were vacant for two to three days last week after these acting appointments lapsed on September 30.

"For two to three days last week the agency wasn't functioning," said an inside source, who had claimed it was only after Muofhe's intervention that the acting heads were restored to their positions.

Dlodlo's alleged instruction for unlawful interception to Muofhe took place at the same time the Gauteng High Court in Johannesburg issued a landmark ruling, declaring certain sections of the law that allows the state to intercept communications unlawful.

This followed an application by investigative journalism organisation amaBhungane, challenging sections of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA).

The ruling came after the interception of amaBhungane managing partner Sam Sole's phone when he was reporting on the corruption charges faced by Zuma in 2008.

Sole argued that although the RICA was supposed to empower the state to protect citizens from national security threats, it was being abused.

Judge Roland Sutherland declared several provisions of the Act unlawful, including one which meant that subjects of interception were never informed that they had been bugged.

Review panel

Parliament has two years in which to fix the Act but in the meantime, anyone who has been intercepted must be informed of this within 90 days of the judge granting the interception order.

A High-Level Review Panel tasked with investigating alleged breaches of the law by the SSA found earlier this year that the mechanisms in place allowing for interceptions needed to be reviewed.

"There is a need to review the legislative and other controls and mechanisms for the authorisation of intrusive methods of collection beyond communications interception, raids and searches, based on an international benchmarking with consideration for South African conditions and history," the panel said in its report.

Scott said a formal complaint about News24's query would be submitted to the "relevant structures of the agency (SSA) and the Inspector General of Intelligence to investigate the apparent security breach".

This would be done in terms of the apartheid-era Protection of Information Act of 1982. The Act was supposed to be replaced by the Protection of State Information Bill, which was passed by Parliament in 2013. But Zuma sent the Bill back to Parliament over concerns about its constitutionality, and the process appears to have gone nowhere since.

Deputy State Security Minister Zizi Kodwa said in his budget speech earlier this year that the SSA wanted the Bill to be reconsidered or sent to the Constitutional Court for an opinion on its lawfulness.

But until then, the Act remains the law. It is an apartheid remnant that is widely recognised as being draconian and probably unconstitutional. The Act threatens lengthy jail terms and heavy fines over the disclosure of classified information, in broad terms.

Scott said Dlodlo "is engaged in a process of stabilising the agency in line with the recommendations of the High-Level Review Panel Report".

"Any decision or process she undertakes is in furtherance of national security," he said.