Minister of State Security v Public Protector and Others (48521/19) [2020] ZAGPPHC 591 (29 October 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 48521/19

In the matter between:

MINISTER OF STATE SECURITY

Applicant

and

PUBLIC PROTECTOR

1st Respondent

BUSISIWE MKHWEBANE

2nd Respondent

THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA

3rd Respondent

THE SPEAKER OF THE NATIONAL ASSEMBLY

4th Respondent

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

5th Respondent

THE NATIONAL COMMISSIONER OF POLICE

6th Respondent

VISVANATHAN PILLAY

7th Respondent

GEORGE NGAKANE VIRGIL MAGASHULA

8th Respondent

PRAVIN JAMNADAS GORDHAN

9th Respondent

ECONOMIC FREEDOM FIGHTERS

10th Respondent

JUDGMENT

MNGQIBISA-THUSI J

Introduction

[1] This is an interlocutory application in which the applicant, the Minister of State Security (“the Minister”), seeks the following relief:

1.1 an interdict against the release publication and/or public access of the Report by the Inspector General of Intelligence dated 31 October 2014 titled “Report of an Investigation into media allegations against the Special Operations Unit and/or other branches of the State Security Agency” (“the I-G’s report”).

1.2 an order striking out of any reference to the I-G’s Report in paragraph 37 of the founding affidavit of the tenth respondent, the Economic Freedom Fighters (“the EFF”), marked “JMS2” in the main review application.

1.3 an order that the EFF be ordered to pay the costs of this application.

[2] The first respondent, the Public Protector, the second respondent, Ms Busisiwe Mkhwebane (“Ms Mkhwebane”), and the EFF is opposing the application. Further, the EFF has filed a counter application in terms of which it seeks an order declaring that:

2.1 the I-G’s report may be publicly disclosed;

2.2 the EFF is entitled to be in possession of the I-G’s Report; and

2.3 section 4 of the Protection of Information Act[1] read with the definition of “security matter” in s1 of that Act is unconstitutionally vague and overbroad and therefore

invalid.

[3] The applicant is the political head of the Department of State Security that has overall responsibility for the civilian intelligence service. Ms Mkhwebane is cited in her official capacity as the Public Protector. Hereinafter reference to the ‘Public Protector’ will be used as a composite reference the first and second respondents.

[4] The seventh respondent, Mr Visvanathan Pillay (“Mr Pillay”) and the ninth respondent, Mr Pravin Jamnadas Gordhan (“Mr Gordhan”), have filed papers in support of the relief sought by the Minister and oppose the EFF’s counter- application.

[5] On 10 July 2019 Mr Gordhan issued an application for the review and setting aside of the Public Protector’s Report titled “Report on an Investigation into Allegations of Violations of the Executive Ethics Code by Mr Pravin Gordhan, MP as well as allegations of maladministration, corruption and improper conduct by the South African Revenue Services” (“the main

application”). In her report, the Public Protector based her findings, amongst others, on the I- G’s report.

[6] In part A of the main application, Mr Gordhan sought on an urgent basis, an interdict suspending the enforcement of the recommended remedial action pending the finalisation of Part B (the review application).

[7] On 15 July 2019, the EFF sought and was granted leave to intervene as a respondent in the main application in order to oppose the relief sought by Mr Gordhan in Part A of the main application. In paragraph 37 of its founding affidavit (deposed to by Mr Julius Sello Malema, the president of the EFF) in the application to intervene (which also served as its answering affidavit to Part A of the main application) reference is made to the I-G’s Report, attached thereto as annexure “JMS2”.

[8] Although the Minister is cited as a respondent in the main application, she filed a notice to abide by the court’s decision. At the hearing of Part A of the main application, the Minister informed the court of her intention to bring the current interlocutory application in which an order preventing the public dissemination of the I-G’s Report would be sought. By agreement between the Minister and the EFF, the court made a ruling that in its argument, the EFF would not make reference to the I-G’s Report

pending the determination of its status.

[9] On 29 July 2019, the relief sought by Mr Gordhan in Part A was granted, which order has since been confirmed by the Constitutional Court save on the issue of costs in the EFF’s application for leave to appeal to that court[2].

Factual background

[10] In 2014 the then Minister of State Security, Mr Mahlobo, commissioned the Inspector-General of Intelligence (“the I-G”), Advocate Faith Radebe, to investigate and report on allegations made in the media that some members of the Special Operations Unit (“SOU”) within the State Security Agency (“SSA”) were allegedly involved in unlawful activities. In August 2014 the I-G handed her Report titled “Report of an Investigation into the media allegations against the Special Operations Unit and/or other branches of the State Security Agency” (“the I-G’s report”) to the Minister for safekeeping. The Minister classified the I-G’s Report as ‘secret’ in accordance with the national information security policy known as the Minimum Information Security Standards[3] (“MISS”). In the I-G’s Report, the I-G made a finding that there was no evidence that members of the SSA were

involved in any unlawful activities. Further, even though the I-G conceded that she had no jurisdiction over the South African Revenue Service (“SARS”), she, however, deals extensively with the activities an alleged illegally established and operated intelligence unit within SARS (“the SARS Unit”), pointing the finger at, amongst other, Mr Gordhan and Mr Pillay. At the time the SARS unit was allegedly established and operating, Mr Gordhan was the Commissioner for South African Revenue Services (“SARS”), and Mr Pillay was a senior executive within SARS.

[11] It is to be noted that, even though the I-G’s Report is a classified document, it was leaked to certain media, amongst others

was Noseweek and the Daily Maverick, who reported on it. Further, the I-G’s Report forms part of the court record in an earlier case which served before the Equality Court between Mr Gordhan and Mr Julius Malema.

[12] In February 2019 the EFF’s Deputy President, Mr Floyd Shivambu, laid a complaint with the Public Protector to investigate the alleged unlawful existence and operation of an intelligence unit within SARS. Before releasing the Report on her investigation of Mr Shivambu’s complaint, in February 2019 the Public Protector requested the Minister to furnish her with a declassified copy of the I- G’s Report. In turn, the Minister asked the Public Protector to provide her with the I-G’s Report in her possession, pending the undertaking of a process to declassify the I-G’s Report, which would be given to her in due course.

[13] Without returning the I-G’s Report allegedly in her possession and on 5 July 2019, the Public Protector released the impugned report. In her report, the Public Protector concluded that an intelligence unit was unlawfully established and operated within SARS during the period when Mr Gordhan was Commissioner. Further, the Public Protector imposed certain remedial action on, amongst others, the State President, the Minister, the I-G and the National Prosecuting Authority.

[14] On 19 July 2019, the EFF made a request (as envisaged under the Promotion of Access to Justice Act[4]) to the Minister to be furnished with a declassified copy of the I-G’s Report.

Issues to be determined

[15] The issues to be determined in the two applications are the following:

15.1 whether the applicant is entitled to an order interdicting the further publication of the I-G’s Report and that reference to the I-G’s Report in the EFF’s founding affidavit should be struck out;

15.2 whether s 4 of the Protection of Information Act read with the definition of ‘security matter’ in s 1 of this Act should be declared constitutionally invalid; and

15.3 whether the EFF is lawfully in possession of the I-G’s Report.

[16] I wish to point out that these proceedings do not purport to deal with the veracity or validity of the contents of the I-G’s

Report.

[17] In her application, the Minister seeks to prevent the further public dissemination of the I-G’s Report mainly on the ground

of national security. In paragraph 9 of her founding affidavit, the Minister avers that:

17.1 “The Report exposes the identities of agents, operatives and sources of the SSA and endangers their lives, compromises their safety and undermines the role of the SSA in gathering intelligence directed at enhancing national security;

17.2 These agents are posted abroad, and their identities by the nature of their operations must be kept secret. The consequences of this exposure are that these agents cannot be deployed in future operations on behalf of the SSA;

17.3 The exposure of the identities of the agents and operatives of the SSA also exposes the identities of family members and other agents that they work with;

17.4 The exposure of the agents and operatives of the SSA posted abroad further compromises the agent networks as established by them;

17.5 The preparations for the posting of SSA members involves extensive training and at huge costs to the SSA;

17.6 The Report outlines methods used by the SSA in intelligence gathering and therefore exposes and impairs its intelligence-gathering capabilities and its functioning. This also prejudices the SSA and the foreign intelligence services it liaises with thus rendering us ineffective and untrustworthy;

17.7 The Report also exposes intelligence that was gathered in the course of intelligence operations;

17.8 This ultimately impairs or threatens the ability of the government to discharge its duties in terms of the Constitution and other relevant legislative provisions; and

17.9 The public disclosure of classified information in the Report would violate the rights of persons associated with the SSA, potentially disrupting the SSA’s operation and impairing its intelligence-gathering methods and threatening its operational co-operation with domestic institution particularly those mentioned in the Report”.

[18] On behalf of the Minister the following submissions were made. In light of her constitutional obligation and duty to protect and maintain the security of the country and its citizens, and the fact that the Minister is the lawful custodian of the I-G’s Report, its public dissemination has to be done lawfully. It was submitted that the Minister’s main concern about the publication of the I-G’s Report was that it would expose the names and identities of the SSA’s agents mentioned therein, sources and methods used by the intelligence service to the detriment of the safety and security of the agents and their families. It was further argued on behalf of the Minister that the EFF could not rely on the fact that the I-G’s Report was already in the public domain as they had decided to attach it to its founding papers in the intervention application a few days before requesting, in terms of PAIA, a declassified report and without waiting for the prescribed days to lapse. It is the Minister’s contention that the fact of the document being already in public, does not remove the document’s classification. Counsel submitted that the EFF could not leak a classified document in contravention of s 4(1) of the Protection of Information Act and want to justify its unauthorised public dissemination on the basis of public interest. In this regard the court was referred to the international authority in Canada (Attorney General) v O’Neill[5] where the court held that:

“Just because a secret document already is in the public domain does not justify its further disclosure by order of this court”.

[19] It was further contended on behalf of the Minister that inasmuch as the Minister recognised the investigative powers of the Public Protector and her right to access any document; and the Minister’s obligation to provide the necessary support, the Public Protector does not have the right to disclose the names and identities of secret agents as it is expected of her to act within the parameters of the law. However, it is the Minister’s contention that the Public Protector’s possession of the I-G’s

Report was obtained unlawfully and that such conduct should not be countenanced. It was further argued on behalf of the Minister that it could never be in the public interest to reveal the identities of the agents, particularly as that information was received unlawfully.

[20] In support of the Minister’s application, it was submitted on behalf of Mr Pillay that the EFF had resorted to self-help and its conduct should not be approved as the EFF would benefit from its unlawful conduct.

[21] On behalf of Mr Gordhan, his counsel submitted that the character of the information contained in the I-G’s Report was confidential and that the EFF’s conduct was an abuse of intelligence resources for nothing other than for factional political purposes. It was further submitted on behalf of Mr Pillay and Mr Gordhan that even if the I-G’s Report is already in the public domain, the court should take cognisance of the circumstances under which it became public, particularly as both the Public Protector and

the EFF have failed to disclose how they came to have possession of the report.

[22] One of the arguments raised by the EFF and the Public Protector is that a previous decision of the Equality Court dismissing Mr Gordhan’s application to strike out the I-G’s Report, which was attached to the answering affidavit in those proceedings, was binding and should be followed.

[23] I interpose to indicate that during 2019 the Equality Court[6] (“the Equality Court matter”) dismissed Mr Gordhan’s interlocutory application to strike out, amongst others, the I-G’s Report which was attached to the answering affidavit in an application by Mr Gordhan based on s 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act[7]. The grounds on which the Equality Court dismissed Mr Gordhan’s application was that the document was already in the public domain as it was previously the subject of media reports and that it was irrelevant to the issue at hand.

[24] On behalf of Mr Pillay and Mr Gordhan, it was submitted that the Equality Court matter was distinguishable and the decision of that court did not set a precedent, firstly, because the issue raised in that court for the striking-out of the I-G’s report was

different from the issue in the current application which is based on national security. Secondly, that the Minister did not participate in the Equality Court proceedings and her views, in spite of the fact that her affidavit in the current application was attached to Mr Gordhan’s affidavit, were not canvassed. And, thirdly, that the decision to dismiss the application to strike out was that the I-G’s report was not relevant to those proceedings.

[25] The Public Protector and the EFF are opposing the granting of the relief sought by the Minister mainly on the ground that the relief sought was futile since the I-G’s report is already in the public domain as it formed part of the court record in the Equality Court and has been reported on in the media. Further, in its answering affidavit, the EFF has mentioned the names of the intelligence operatives, claiming that these were operatives not of the SSA but of SARS’s unlawful intelligence unit.

[26] The Public Protector also opposes the granting of the relief sought by the Minister on the following grounds. Firstly that such relief would in effect prevent the release, publication and/or public access to her report contrary, to the provisions of the Public Protector Act[8]. Secondly, that since rule 53 of the Uniform Rules obliges her to file the record of the documents relied upon in her report, the interdict would prevent her from complying with the provisions of the said rule. It was argued on behalf of the Public Protector that if the relief sought is granted, she would be hamstrung in defending the findings she made in her report. It was further argued on behalf of the Public Protector that had the Minister provided her with a declassified copy of the I-G’s report as undertaken, the Public Protector would not have used the classified copy of the report.

[27] The Public Protector has, however, conceded that the disclosure of the identities of the SSA’s agents mentioned in the I-G’s report would undermine national security. Further, although in her answering affidavit the Public Protector was, in view of the security risk posed by the disclosure of the identities of intelligent operatives, amenable to a redacted version of the I-G’s

report, in submissions by counsel it appeared that the Public Protector was now insisting on the disclosure of the classified I-G’s

report, arguing that a redacted version would not present a complete picture of what the Public Protector relied on in reaching her findings.

[28] It is common cause that the Public Protector has now been furnished with a declassified redacted version of the I-G’s Report.

[29] Relying on the concept of ‘open justice’ as set out by the Constitutional Court in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re Masetlha v President of the Republic of South Africa[9], counsel for the EFF submitted that a restriction on the publication of an unedited version of the I-G’s Report would amount to a violation of the right of access to information as envisaged in of s 32[10] of the Constitution as encapsulated by the provisions of the PAIA and the right of the public to access court documents.

[30] In Independent Newspapers (above), the Constitutional Court stated the following with regard to the principle of ‘open justice’:

“[39] The bedrock of the disclosure claim of Independent Newspapers is that the media and the public have a constitutional right of access to court proceedings. There exists a cluster or, if you will, umbrella of related constitutional rights which include, in particular, freedom of expression and the right to a public trial, and which may be termed the right to open justice. The constitutional imperative of dispensing justice in the open is captured in several provisions of the Bill of Rights. First, section 16(1)(a) and (b)[11] provides in relevant part that everyone has the right to freedom of expression, which includes freedom of the press and other media as well as the freedom to receive and impart information or ideas. Section 34[12] does not only protect the right of access to courts but also commands that courts deliberate in a public hearing. This guarantee of openness in judicial proceedings is again found in section 35(3)(c)[13] which entitles every accused person to a public trial before an ordinary court.

[40] This systemic requirement of openness in our society flows from the very founding values of our Constitution, which enjoin our society to establish a democratic government under the sway of constitutional supremacy and the rule of law in order, amongst other things, to ensure transparency, accountability and responsiveness in the way courts and all organs of state function”.[14]

[31] Counsel for the EFF further submitted that the onus was on the Minister to justify her powers to restrict access to the document in the interests of national security as in the EFF’s view, the I-G’s Report does not relate to national security but to SARS, and that the Minister should identify the source of her powers. It was further submitted that the MISS had no binding effect on private citizens. Furthermore that it was in the public interest to publish the I-G’s Report as it exposed malfeasance on the part of public servants.

[32] Counsel for the EFF further submitted that since Mr Gordhan had attached the Minister’s affidavit filed in support of the relief sought in the Equality Court matter, in dismissing Mr Gordhan’s application to strike out the I-G’s Report, the

Equality Court had taken into account the contents of the Minister’s affidavit and such decision was binding on this court.

[33] The regulatory framework in terms of the government’s authority to classify documents is set out by the Constitutional Court in the Independent Newspapers matter (supra) in the following terms:

“[49] … The authority of the Cabinet to make and implement national policy derives from the Constitution.[15] The Constitution imposes upon the government the duties, amongst others, to preserve the peace and secure the well-being of the people of the Republic;[16] to maintain national security;[17] to defend and protect the Republic;[18] to establish and maintain intelligence services;[19] and to prevent, combat and investigate crime.[20] Effect is given to these constitutional obligations through legislation, the establishment of institutions as permitted by law

and by the exercise of executive authority vested in the President and the Cabinet. The Minister draws attention to the national

information security policy, known as Minimum Information Security Standards (MISS), which was adopted by the Cabinet on 4 December

1998.[21] It applies to all departments of state that handle classified information in the national interest. It provides for measures to

protect classified information and empowers the Minister to protect information by classifying it as “restricted” or

“confidential” or “secret” or “top secret”.[22] In addition, national legislation and regulations prohibit the disclosure of certain classified information.[23]

[34] It cannot, therefore, be disputed that the Constitution has vested the Minister with the powers to classify documents under her custody either as ‘confidential’, ‘secret’ or ‘top secret’.

[35] However, as alluded to in the Independent Newspapers matter (above), in terms of their inherent powers[24], courts have the jurisdiction to determine whether or not such classified documents should be made accessible to the public. In this regard the Constitutional Court held that:

“[52] In my view, the mere fact that documents in a court record carry a classification does not oust the jurisdiction of a court to decide whether they should be protected from disclosure to the media and public. We were not referred to, and I could not find, any legislative provision on the classification and protection of information on grounds of national security or any other authority which purports to oust the jurisdiction of a court over any document which forms part of a court record. As I have said above, different considerations may well apply where the request to disclose classified intelligence documents occurs in any context other than where the documents have been placed before court by a party to the proceedings and thus forms part of the court record. In that event, a court will always have the power to regulate the proceedings before it because it is clothed by s 173 of the Constitution with inherent power to regulate its own process, taking into account what is in the interests of justice”.

[36] The Constitutional Court went further and stated that:

“[54] I agree with the submission made by Independent Newspapers that ordinarily, the starting point is that court proceedings and so too court records must be open to the public. Mere classification of a document within court records as ‘confidential’ or ‘secret’ or even ‘top secret’ under the operative intelligence legislation or the mere ipse dixit of the Minister concerned does not place such documents beyond the reach of the courts. Once the documents are placed before court, they are susceptible to its scrutiny and direction as to whether the public should be granted or denied access”.

[37] In light of the conflicting interests involved, as set out in the Independent Newspapers matter above, it is required to balance

the interest of the operatives against their identities being publicly disclosed and the need of the Minister to safeguard the

operatives’ safety and identity in the interests of the country’s security on the one hand, and the entrenched right of access to information held by a public body as envisaged in s 32 of the Constitution read with s 9 of PAIA. In this regard the court in Independent Newspapers matter (above) held that:

“[55] It follows that where a government official objects to the disclosure of a part of the record before a court on grounds of national security, the court is properly seized with the matter and is obliged to consider all relevant circumstances and to decide whether it is in the interests of justice for the documents to be kept secret and away from any other parties, the media or the public. This forms part of a court’s inherent power to regulate its own process that flows from s 173 of the Constitution. In my view, a court in that position should give due weight both to the right to open justice and to the obligation of the State to pursue national security within the context of all relevant factors. As in the present matter, it would not be concerned with a statue or other law of general application as the basis for restricting the disclosure of the material. In deciding whether documents ought to be disclosed or not, a court will have regard to all germane factors which include the nature of the proceedings, the extent and character of the material sought to be kept confidential; the connection of the information to national security; the grounds advanced for claiming disclosure or for refusing it; whether the information is already in the public domain and if so, in what circumstances it reached the public domain; for how long and to what extent it has been in the public domain; and, finally, the impact of the disclosure or non-disclosure on the ultimate fairness of the proceedings before a court. These factors are neither comprehensive nor dispositive of the inquiry.”

[38] The main reason for the Minister seeking the non-disclosure of the I-G’s Report is that there is a need to protect the names

and identities of intelligence operatives mentioned in the Report, sources and the methods used by the intelligence services in pursuing their mandate. On a perusal of the I-G’s report, the names and identities of the SSA operatives and sources and the methods used are referred to. It cannot be disputed that the disclosure of the names and identities of the country’s intelligence operatives would not be in the interest of national security. As correctly pointed out by counsel for the Minister, the disclosure of the identities of the intelligence operatives not only endangers their lives and those of their families, it also undermines the role of the intelligence-gathering capability of the SSA in gathering intelligence both at home and internationally and would threaten networks they have established.

[39] The Public Protector has conceded that the disclosure of intelligence operatives would be prejudicial to the country’s national security. The EFF has not, however, advanced any cogent reasons why the names and identities of the SSA operatives should be disclosed to the public. The intelligence operatives whose disclosure the Minister seeks to restrict, were not, as incorrectly submitted by

counsel for the EFF, employees of SARS nor were they in any way linked in the I-G’s report with the activities of the alleged

unlawful SARS intelligence unit.

[40] Since it is accepted that court records should be accessible to the public in pursuance of our constitutional imperative of ‘accountability, responsiveness and openness’, the disclosure of intelligence operatives and the risk of the danger they will be exposed to, trumps the public interest to information.

[41] The Public Protector and the EFF’s argument that the information is already in the public domain, and therefore, any prejudice has already occurred has no merit. In the Independent Newspaper matter, the court held that:

“[72] Whether or not a document classified “confidential” has been disclosed to some degree in the public domain is a relevant but not decisive factor in determining whether the document deserves continued protection. This is so because a leaked confidential document does not lose its classification. If it were so, people might be encouraged to reap the benefit of their own misconduct by leaking classified or protected documents and thereby rendering the documents beyond the protection they may deserve. However, the fact that the contents of the document have been referred to in public is not alone sufficient reason to order that the entire document should be accessible to the public”.

[42] The fact that the I-G’s report is in the public domain does not result in it losing its classification. Until the report is declassified, its unauthorised possession is unlawful in terms of s 4 of the Protection of Information Act and s 26 of the Intelligence Services Act. The Public Protector and the EFF cannot, therefore rely on the ground that the I-G’s report is in the public domain since their unauthorised possession of the classified report is a continuing offence[25]. As alluded to by the Constitutional Court in the Independent Newspapers matter, the fact that a classified document is in the

public domain is not decisive. The Public Protector and the EFF cannot seek to rely on their unlawful conduct. The fact that the

I-G’s report forms part of a court record and that Mr Van Loggerenberg has disclosed some of the identities of the SSA operatives does not justify putting the safety and lives of the intelligence operatives and their families in danger.

[43] Although the Minister’s initial stance was to seek the restriction of the whole of the I-G’s report, it appears that

she has abandoned her objection and conceded that a redacted version of the I-G’s report could be disclosed to the public. The Minister has provided the Public Protector with a declassified redacted copy of the I-G’ Report.

[44] On a perusal of the declassified report and comparing it to the I-G’s report, it is apparent that the redaction undertaken

by the Minister is in line with her objective to protect the disclosure of the intelligence operatives, sources and intelligence

methods mentioned in the I-G’s report in that save the mentioning of one or two members and/or sources of the SSA whose connection to the SSA has not been disclosed. The substance of the contents of the I-G’s report has been left intact.

[45] The right of the Public Protector to defend the findings made in her report and her obligation to file the documents relied upon to reach her conclusions as she argued cannot override the needs of national security. In any event, the declassified redacted version of the I-G’ report would not put the Public Protector at a disadvantage in defence of her findings, and the legitimacy of the review proceedings would not be undermined if the I-G’s report is not used. Further, the public will have the opportunity to access its contents and if necessary debate it.

[46] Having considered the evidence before me and submissions made by counsel, and recognising the right of the public to information, I am of the view that the disclosure of the classified I-G’s report would be to the prejudice of the national security interest of the country if the identities of the intelligence operatives, the sources of the SSA and their methods are disclosed. I am satisfied

that a restriction of the publication of the I-G’s report does not disproportionately impinge on the public’s interest in accessing the contents of the report. The substance of the contents of the declassified redacted report has not been compromised.

[47] The right of access to information like all other rights in Chapter 2 of the Constitution are not absolute. S 36 of the Constitution provides for the limitation of such rights by a law of general application that is 'reasonable and justifiable in an open and democratic society based on dignity, freedom, and equality'. The Minister has not sought a total black-out of the contents of the I-G’s report. She has released a declassified and redacted version of the report for public disclosure. By declassifying and redacting the I-G’s report the Minister has taken the least restrictive manner of violating the public’s access to the report. Taking into account the government’s obligation to protect the identities of its intelligence operatives, intelligence sources and its intelligence

methods, I am of the view that restriction sought to be placed on the publication of the I-G’s report is reasonable and justifiable

in an open and democratic society based on’ dignity, freedom and equality. I am satisfied that it is in the interest of justice

that the relief sought by the Minister should be granted.

[48] I am not convinced that the decision of the Equality Court to dismiss Mr Gordhan’s application to strike out reference to the

I-G’s report sets a precedent and that it should be followed. The issues serving before that court were different from the issues before this court, and the Minister’s views on the application were not canvassed. The mere fact that the Minister’s affidavit was attached to Mr Gordhan’s papers does not translate into the Minister to being part of those proceedings. Further, the court dismissed the application as it was irrelevant to the issues at hand.

[49] For the reasons given above, I am also satisfied that the publication of the classified I-G’s report without the authority of the Director-General of Intelligence was unlawful and that the relief fought by the EFF in prayer 2 of its counter-application ought to be dismissed.

[50] In its counter application the EFF is seeking an order declaring s 4 of the Protection of Information Act read with the definition in the Act of ‘security matter’[26] unconstitutional for being vague and overbroad.

[51] S 4 of the Protection of Information Act reads as follows:

“(1) Any person who has in his possession or under his control or at his disposal-

(a) Any secret official code; password; or

(b) Any document, model, article or information-

(i) Which he knows or reasonably should know is kept, used, made or obtained in a prohibited place or relates to a prohibited place,

anything in a prohibited place, armaments, the defence of the Republic, a military matter, a security matter or the prevention or combating of terrorism;

(ii) Which has been made, obtained or received in contravention of this Act;

(iii) Which has been entrusted in confidence to him or by any person holding office under the Government;

(iv) Which he has obtained or to which he has had access by virtue of his position as a person who holds or has held office under the

Government, or as a person who holds or has held a contract made on behalf of the Government, or a contract the performance of which takes place entirely or partly in a prohibited place, or as a person who is or has been employed under a person who holds or has held such office or contract, and the secrecy of which document, model, article or information he knows or reasonably should know to be required by the security or the other interests of the Republic; or

(v) of which he obtained possession in any manner and which document, model, article or information he knows or reasonably should know has been obtained by any other person in any of the ways referred to in paragraph (iii) or (iv) and the unauthorised disclosure of such document, model, article or information by such other person he knows or reasonably should know will be an offence under this Act,

and who-

(aa) discloses such code, password, document, model, article or information to any person to whom he is authorised to disclose it or to whom it may lawfully be disclosed or to whom, in the interests of the Republic, it is his duty to disclose it;

(bb) publishes or uses such code, password, document, model, article or information in any manner or for any purpose which is prejudicial to the security or interests of the Republic;

(cc) retains such code, password, document, model, article or information when he has no right to retain it or when it is contrary to his duty to retain it, or neglects or fails to comply with any directions issued by lawful authority with regard to the return or disposal thereof; or

(dd) neglects or fails to take proper care of such code, password, document, model, article or information, or so to conduct himself as not to endanger the safety thereof,

shall be guilty of an offence and liable on conviction to a fine not exceeding R10 000 or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment, or, if it is proved that the publication or disclosure of such secret code, password, document, model, article or information took place for the purpose of its being disclosed to a foreign State or to a hostile organisation, to the penalty prescribed in section 2.

(2) Any person who receives any secret official code, password, document, model, article or information, knowing or having reasonable grounds to believe, at the time when he receives it, that such code, password, document, model, article or information is being disclosed to him in contravention of the provisions of this Act, shall, unless he proves that the disclosure thereof to him was against his wish, be guilty of an offence and liable on conviction to a fine not exceeding R10 000 or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment”.

[52] In its counter application the EFF is seeking an order declaring s 4 of the Protection of Information Act as unconstitutional on the basis that it is vague and over broad as it unjustifiably infringes on the right encapsulated ins 32 of the Constitution. Counsel for the EFF submitted that s 4 read with the definition of ‘security matter’ is overbroad and unconstitutional to the extent in that it fails to include a safe harbour for disclosures made in good faith and in the public interest. Further, counsel submitted that the Constitution requires where an Act’s constitutionality is challenged, there is a need to look at the historical context of that Act. Furthermore, counsel submitted that because the Promotion of Information Act was broadly worded, it allowed abuses by the apartheid regime for secrecy. Counsel further submitted that the Minister has not justified, in terms of s 36 of the Constitution, the infringement of rights encompassed by the concept of open justice.

[53] The purpose of the Protection of Information Act is:

“To provide for the protection from disclosure of certain information; to provide for matters connected therewith”.

[54] In Natal Joint Municipal Pension Fund v Endumeni Municipality[27] at para 18, stated that:

“[18] …Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statue or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than the one they in fact made. The inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.’

[55] Taking into account the purpose of the Protection of Information Act and the Minister’s reasons for seeking the restriction of the I-G’s report, for reasons I have given above for the relief sought by the Minister to be granted, taking into account the context of the enactment of the Act, I am of the view that s 4 of the Protection of Information Act is not vague and overbroad. The section clearly provides for a prohibition for the public disclosure of a security matter as defined, save with the authority of the government officer vested with the power to give such authority.

Costs

[56] In the event of the prayers sought being granted, the Minister seeks a cost order against the EFF. Although this matter dealt with

some constitutional issues and a cost order would usually not be made under such circumstances, I am of the view that the conduct of the EFF in attaching the I-G’s report before its declassification cannot be countenanced. I am therefore satisfied that a cost order against the EFF is appropriate under the circumstances.

[57] In the result the following orders are made:

1. That an interdict against the release publication and/or public access of the Report by the Inspector General of Intelligence dated 31 October 2014 titled “Report of an Investigation into media allegations against the Special Operations Unit and/or other branches of the State Security Agency” (“the I-G’s report”) is granted.

2. That any reference to the I-G’s Report in paragraph 37 of the founding affidavit of the tenth respondent, the Economic Freedom Fighters (“the EFF”), marked “JMS2” in the main review application is struck out.

3. That the EFF is ordered to pay the costs of this application.

4. That the EFF’s counter application is dismissed.

5. That no order as to costs is made with regard to the EFF’s counter application.

_____________________

NP MNGQIBISA-THUSI

Judge of the High Court

Date of hearing: 06 November 2019

Date of judgement: 29 October 2020

Appearances

For applicant and third to sixth respondents: Adv K Moroka SC assisted by Adv M Seti-Baza (instructed by the State Attorney)

For first and second respondents: Adv T Masuku SC assisted by Adv B Matlhape (instructed by Seanego Attorneys Inc.)

For seventh respondent: Adv R Hutton SC (instructed by Werksmans Attorneys)

For ninth respondent: Adv M Le Roux (instructed by Malatji & Kanyane Inc.)

For tenth respondent: Adv T Ngcukaitobi and Adv J Mitchell (instructed by Ian Levitt Attorneys)

[1] Act 4 of 1982.

[2] Economic Freedom Fighters v Gordhan and Others; Public Protector and Another v Gordhan and Others (CCT 232/19; CCT 233/19) [2020] ZACC 10; 2020 (8) BCLR 916 (CC) (29 May 2020).

[3] MISS was adopted by the Cabinet on 4 December 1996. In terms of s 85(2) of the Constitution the executive is vested with the power to develop and implement national policy. In MISS ‘classified information’ is defined as “sensitive information which in the national interest is held by, is produced in, or is under the control of the State and which must by reasons of its sensitive nature, be exempted from disclosure and must enjoy protection against compromise”.

[4] Act 2 of 2002.

[5] 2004 CanLII 41197 (ON SC).

[6] In Gordhan v Malema and Another 2020 (1) SA 587 (GJ).

[7] Act 4 of 2000.

[8] Act 23 of 1994.

[9] 2008 (5) SA 31 (CC).

[10] Section 32(1)(a) and (b) of the Constitution provide that everyone has the right of access to any information held by the State as well as by any other person that is required for the exercise or protection of any right.

[11] Section 16(1)(a) and (b) provides: “Everyone has the right to freedom of expression, which includes— (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas”.

[11] Section 16(1)(a) and (b) provides: “Everyone has the right to freedom of expression, which includes—

(a) freedom of the press and other media; (b) freedom to receive or impart information or ideas”.

[12] Section 34 reads: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”

[13] Section 35(3)(c) reads: “Every accused person has a right to a fair trial, which includes the right- (c) to a public trial before an ordinary court”.

[14] See section 1(d) of the Constitution which provides that the founding values of our Constitution include: “Universal adult

suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”

[15] Section 85(2)(b) which reads: “The President exercises the executive authority, together with the other members of the Cabinet, by— (b) developing and implementing national policy”.

[16] Section 41(1)(a) and (b) provides: “All spheres of government and all organs of state within each sphere must— (a) preserve the peace, national unity and the indivisibility of the Republic; (b) secure the well-being of the people of the Republic”.

[17] Section 44(2)(a) reads as follows: “Parliament may intervene, by passing legislation in accordance with section 76(1), with regard to a matter falling within a functional area listed in Schedule 5, when it is necessary— (a) to maintain national security”. Section 146(2)(c)(i) reads: “National legislation that applies uniformly with regard to the country as a whole prevails over provincial legislation if any of the following conditions is met: (c) The national legislation is necessary for: (i) the maintenance of national security”. And section 198 reads: “The following principles govern national security in the Republic: (a) National security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life. (b) The resolve to live in peace and harmony precludes any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in terms of the Constitution or national legislation. (c) National security must be pursued in compliance with the law, including international law. (d) National security is subject to the authority of Parliament and the national executive.”

[17] Section 44(2)(a) reads as follows: “Parliament may intervene, by passing legislation in accordance with section 76(1), with regard to a matter falling within a functional area listed in Schedule 5, when it is necessary— (a) to maintain national security”.

Section 146(2)(c)(i) reads: “National legislation that applies uniformly with regard to the country as a whole prevails over provincial legislation if any of the following conditions is met: (c) The national legislation is necessary for: (i) the maintenance of national security”.

And section 198 reads: “The following principles govern national security in the Republic: (a) National security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life. (b) The resolve to live in peace and harmony precludes any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in terms of the Constitution or national legislation.

(c) National security must be pursued in compliance with the law, including international law. (d) National security is subject to the authority of Parliament and the national executive.”

[18] Section 200(2) states: “The primary object of the defence force is to defend and protect the Republic, its territorial

integrity and its people in accordance with the Constitution and the principles of international law regulating the use of force.”

[19] Section 209(1) provides: “Any intelligence service, other than any intelligence division of the defence force or police service, may be established only by the President, as head of the national executive, and only in terms of national legislation.”

[20] Section 205(3) states: “The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.”

[21] MISS can be accessed by visiting http://www.kzneducation.gov.za/policies/MISS96.pdf, accessed on 20 May 2008.

[22] This classification is provided for in Chapter 2 of MISS.

[23] See in this regard: section 4 of the Protection of Information Act 84 of 1982, which prohibits the disclosure of protected documents or information in relation to, amongst other things, security matters; sections 26(1)(a)(iii), (f)(i) and (g) of the Intelligence Services Act, which makes it an offence for any person, members or former members of any intelligence service to disclose classified

information without permission of the relevant government official; and regulation E of Part II of Chapter 1 of the Public Service

Regulations, 2001 GN R1 GG 21951, 5 January 2001, which prohibits an employee from releasing official information to the public without the necessary authority.

[24] Section 173 of the Constitution provides that: “The Constitutional Court, the Supreme Court of Appeal and the High Court

of South Africa each has the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice”.

[25] In the Canadian authority (Canada (Attorney General v O’Neill) relied on by the Minister, the court at para [59] – [60] stated that just because secret information is already in the public domain does not justify its further dissemination as it retains its classification.

[26] ‘Security matter’ includes any matter which is dealt with by- (a) the Agency as defined in section 1 of the Intelligence

Services Act, 2002(Act 65 of 2002); or (b) the office as defined in section 1 of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002 (Act 70 of 2002), or which relates to the functions of the Agency or the Office or to the relationship existing between any person and Agency or the Office”. ‘Agency’ is defined in s 1 of the Intelligence Services Act as the State Security Agency.

[27] 2012 (4) SA 593 (SCA).