Makwakwa and Others v Minister of State Security (1316/2022) [2024] ZASCA 41 (5 April 2024)

Makwakwa and Others v Minister of State Security (1316/2022) [2024] ZASCA 41 (5 April 2024)

The Supreme Court of Appeal found that the Minister failed to observe the duty of utmost good faith in the ex parte proceedings by not making the intelligence report available to the court and by misrepresenting its classification and contents. The court identified a misrepresentation regarding the classification ('Top Secret' instead of 'Secret') and five material misstatements about the nature and implications of the report. The High Court erred by treating the classification as decisive and failing to scrutinise the report's contents, despite having access to it. The information in the report was already in the public domain and did not implicate national security. The Minister did not...

Citation
[2024] ZASCA 41
Parties
Appellant: Thabo Makwakwa; Appellant: Independent Media (Pty) Ltd; Appellant: Independent Online SA (Pty) Ltd; Respondent: Minister of State Security
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
5 April 2024
Case Number
1316/2022
Procedural Posture
Civil Appeal / Appeal From Confirmation of Interim Interdict
Outcome
Appeal upheld; interim interdict discharged.
Judges
Makgoka, Weiner, Goosen, Chetty, Masipa
Legal Topics
Ex Parte Applications, Good Faith, Interim Interdict, National Security, Open Justice
Civil Procedure Constitutional Law Ex Parte Applications Good Faith Interim Interdict National Security Open Justice

Case Brief

Summary, issues, holding and outcome

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Parties

Thabo Makwakwa

Appellant

Independent Media (Pty) Ltd

Appellant

Independent Online SA (Pty) Ltd

Appellant

Minister of State Security

Respondent

Procedural Posture

Civil Appeal / Appeal From Confirmation of Interim Interdict

Legal Issues

  1. 1 Did the Minister observe the duty of utmost good faith in the ex parte proceedings?
  2. 2 Was the classification of the intelligence report decisive in preventing its publication?
  3. 3 Did the contents of the report implicate national security to justify the interdict?

Ratio Decidendi

The Supreme Court of Appeal found that the Minister failed to observe the duty of utmost good faith in the ex parte proceedings by not making the intelligence report available to the court and by misrepresenting its classification and contents. The court identified a misrepresentation regarding the classification ('Top Secret' instead of 'Secret') and five material misstatements about the nature and implications of the report. The High Court erred by treating the classification as decisive and failing to scrutinise the report's contents, despite having access to it. The information in the report was already in the public domain and did not implicate national security. The Minister did not...

Court Disposition

Appeal upheld; interim interdict discharged.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the High Court is set aside and replaced with: 'The interim interdict granted by this Court on 22 December 2021 is discharged with costs.'