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[2021] ZAGPPHC 457
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Economic Freedom Fighters v Ramaphosa and Others (36809/2020) [2021] ZAGPPHC 457 (20 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISON, PRETORIA
CASE
NO.: 36809/2020
In
the matter between:
ECONOMIC
FREEDOM FIGHTERS
Applicant
and
MATAMELA
CYRIL RAMAPHOSA
First Respondent
THE
SPEAKER OF THE NATIONAL ASSEMBLY
Second
Respondent
THE
PUBLIC PROTECTOR
Third Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Fourth Respondent
THE
NATIONAL POLICE COMMISSIONER
Fifth Respondent
FINANCIAL
INTELLIGENCE CENTRE
Sixth Respondent
AMABHUNGANE
CENTRE FOR INVESTIGATIVE
JOURNALISM
NPC
Seventh Respondent
INFORMATIVE
REGULATOR OF SOUTH AFRICA
Eighth Respondent
BEJANI
CHAUKE
Ninth Respondent
JAMES
THOKOANA MOTLATSI
Tenth Respondent
DONNE
LEIGH NICOL
Eleventh Respondent
RAYMOND
SIFISO NDLOVU DABENGWA
Twelfth Respondent
CRISPIAN
GARTH OLVER
Thirteenth Respondent
TRUSTEES
FOR THE TlME BEING OF THE
RIA
TENDA TRUST
Fourteenth Respondent
JUDGEMENT
SARDIWALLA
J:
Introduction
[1]
This is an application brought by the applicant against the
respondents seeking an order to uplift the directive
made by Deputy
Judge President Ledwaba J made on 15 August 2019 in the review
application under case number 55578/2019.
Background
to the Application:
[2]
The documents which the applicant seeks to have unsealed
comprises of the of the sixth respondents'
FIC report which was filed
by the third respondent, in the matter brought by the first
respondent to review and set aside the third
respondent's report
No.37 of 2019/20 dated 19 July 2020, which has already been decided
by this Court. There is a pending application
for leave to appeal
before the constitutional court.
[3]
The matter was opposed by the first and
sixth respondents. The seventh and eighth respondents abide by the
Courts decision,
[4]
There was an application to intervene in
terms Rule 12 of the Uniform Rules of Court.
The
application was granted and the applicants in that intervening matter
were joined as the ninth to fourteenth respondents in
this
application.
The
application
[5]
The application is premised on the
following basis: -
1.
The EFF seeks to vindicate it's right
under section 19 (I) of the Constitution as applied in the My Vote
Counts 2 case and access
the FIC report;
2.
The application is brought in the public
the interest, presumably to vindicate the general public's right
under section 19 (1) the
Constitution;
3.
The President "accepted that he,
and his ANC presidency candidature could not be separated from the
Republic, and therefore
" the CR17 Campaign private funding
could not be divorced from the Republic";
4.
"The secrecy of the CR17 campaign
private funding also fosters fertile ground for the capture of the
president thus compromising
his ability to independently fulfil his
constitutional obligations";
5.
"Clandestine and secret funding,
direct or not, of public office bearers limits the applicants and
other political parties'
ability to hold such office bearers to
account should such funding be made on a quid pro quo basis";
6.
That the principles by the
constitutional court in My Vote Counts, the FTC record should be made
public because '' transparency
in the area of private funding of
political parties' area and independent candidates helps in the
detection and that helps in the
detection or discouragement of
improper influence and the fight against corruption" .
7.
The sealed information is undoubtedly in
the public interest and should accordingly be made available;
8.
The applicant is entitled to access the
FIC report in line with the Political Party Funding Act 8 of2018;
9.
Section 182(5) of the Constitution
requires the Public Protector's report to be made public; and
10.
The sealed information ha') already been
leaked and ·'no order could put the confidentiality back in
the bottle".
Applicant's
Argument
[6]
ft attacks the respondents' claim of
confidentiality of the CR17 donors on the guarantees given by the
CR17 Campaign in that it
claims the disclosure is of public
importance. It claims that if the JSC deliberations which affect the
public is not kept secret
the same rule of thumb should apply to the
first respondent who assumes the highest office in the land. It also
submitted that
the first respondent is responsible for the Political
Funding Act, 8 of 2018 which aims at curbing corruption by making
political
parties accountable on their private donations. It stated
that politicians do not hold power for themselves but rather for and
on behalf of the collective interests of the public. They re-iterate
that this is not a generalised fishing expedition into the
first
respondent' s campaign finances but is based on the premise that the
public Protectors report is in general practice disclosed
to the
public and therefore the Public Protector's report is open to the
public by default. It claims that documents of the Court
record
should only be sealed in Iimited circumstances and the fact that the
report involves the first respondent as a sitting president
and his
political party cannot be deemed an exceptional circumstance.
[7]
It also claims that the CR17 Campaign
funds were used to pay two members of the applicant and is therefore
indicative that the sealed
information of the conduct of the
respondents could potentially compromise the democracy. It maintained
its rights in terms of
section 19( 1) as individuals in that the
applicant' s members are also citizens. It referred to the My Vote
Counts NPC v Minister
of Justice and Correctional Services and
Another by Mogoeng CJ which highlighted th&t access to
information helps voters and
contestants to speak out against and
expose corrupt political practices as well as to interrogate the
existence of such threats.
It further claims that the right to
privacy is not absolute and is limited in matters of public interest
and placed the burden
on the respondents to explain how their rights
will be violated if the documents are disclosed. It submitted that
the Political
Party Funding Act was signed into law in 2018 and
therefore should not only apply to parties but to the individuals
within the
political parties.
First
Respondent's Argument
[8]
The first respondent' s submitted that
the CR17 Campaign had ceased to exist after the election of the ANC
national executive committee
at the ANC's 54th National Congress in
December 2017 and thereafter it was the ANC and not the CR17 Campaign
that campaigned for
the national and provincial government elections
held on 8 May 2018. Therefore, it was the National Assembly
that elected
him to serve as the President of the Republic
which led to his ascension and not the CRI 7 Campaign. He
further stated
that his election to appear before the ANC' s
integrity committee was an internal private
political matter
and does not concern the applicant nor is a
concession to the merits of the applicant ' s claim. That the
applicant is distorting
that the first respondent can be held
accountable for CR17 Campaign funds deliberately to conflate him with
the CRI 7 Campaign
as well as the ANC with the State. He pointed out
that the third respondent did not challenge the Court's Court ruling
that "the
findings of the Public Protector on the disclosure
issue are unsustainable. Rational findings must be premised on proper
factual
and legal foundation. That foundation was lacking in this
case. The Public Protector' s conclusion that the President breached
the Executive Code by failing to disclose donations to the CR17
Campaign was irrational and unlawful and falls to be set aside",
in her leave to appeal to the Constitutional Court. Therefore, there
was no basis for the applicant' s claim before this Court.
He
aligned himself with the averments made by the ninth to
fourteenth respondent's intervention application."
Sixth
Respondent's Argument
[9]
The sixth respondent' s submission is
that the applicant has no right to access the sealed information.
That the 40 and 41 of Financial
Intelligence Centre Act permits
access to information by certain person under certain circumstances
and therefore the applicant
does not fall within the category of
persons or circumstances identified by the legislature in the Act. It
submitted that the FIC
is the owner of the record and asserted
confidentiality in respect of same. It stated that although the
record was already placed
before the Court that it accepted that any
part determined by the Court to be relevant would have to be included
as part of the
public record, if not relevant then it asserted
confidentiality over the record. The Court found that the records was
irrelevant
and the sixth respondent's confidentiality was not
disturbed.
Ninth
to Fourteenth Respondent's Argument
[10]
They submitted that the conflation of
the first respondent and the CR17 Campaign is incorrect in that
whilst it suggests that it
is one in the same, it is only seeking the
information to the CR17 Campaign and not the first respondent.
Further that the first
respondent was but one candidate of the CRI7
Campaign and not his personal Campaign. The CRJ 7 Campaign was
established to bring
together like minded individuals to support the
renewal of the ANC with broader political objectives of unity and
restoration of
the ANC values and did not focus only on promoting an
individual's candidacy. It also averred that the first respondent was
not
involved in the administration, co-ordination and communications.
In fact, it was agreed that the first respondent would not be
directly involved in the solicitation of donations and it was general
practice that such details were not shared with him. The
applicant's
argument that it was inevitable that once the first respondent became
the ANC president that he would become the President
of South Africa
and therefore elevated the private activities of the CR17 Campaign to
"state affairs" is unfounded in
that the case must be
determined on the facts as they were at the time and not as they
unfolded. There were no guarantees that
the first respondent would be
elected as the presidential candidate or that he
would
accede to President of the Republic
of South Africa.
[11]
In response to the section 19(1) of the
Constitution claim by the applicant it stated that the right was
aimed at natural persons
who may form such parties but did not extend
to the party itself and therefore their rights are not affected. The
relationship
between a party and its members in terms of judicial
precedent is one of contract and any activities undertaken by its
members
fall within parameters of the private domain and do not
constitute state affairs. Further that the respondents have a right
in
terms of section 14 of the Constitution to have their information
protected and whilst this right is not absolute the applicant
it
should have brought a claim in terms of PAJA if it required access to
information from a private body. It also submitted that
the
applicant's reliance on the My Vote Counts 2 principles were
misguided in that the Constitutional Court's judgment is based
on the
right to vote in elections for public election in terms of section 19
as it specifically relates to legislative bodies and
not internal
party elections which are private bodies. It asserts that
the public interest argument is again conflated
is a conflation of
the CR17 Campaign and the President and there is no basis for private
intra-political party funding to be disclosed
and if there were it
would apply to all parties and not in relation to elevation of public
office. It summarily dismisses the applicant's
claim that the
information has already been disclosed and avers that even if that
were the case further violation of the right
to privacy cannot be
sustained. Lastly that none of the cases on which the applicant
relies suggest that once there is no effective
remedy that the
unlawful act becomes unlawful. Therefore, those in unlawful
possession of the information can still face criminal
consequences if
released. Last, the applicant is required to make out its case and
not shift the burden on the respondent's to
disprove its claim.
Law
and Analysis
[12]
The issue raised in this application is
not new. Whether the public in vindicating its right to make
political decisions should
be allowed access to information to
political parties private Campaign donations, and if so, the extent
that this may infringe
upon confidentiality and privacy rights.
Section 19 of the Constitution is headed "Political Rights"
provides that:
"(1) Every
citizen is free to make political choices, which includes the right
-
(a)
to. form a political party;
(b)
to participate in the activities
of, or recruit members for, a political party; and
(c)
to campaign for a political party
or cause.
(2)
Every citizen has the right to
free, fair and regular elections for any legislative body established
in terms of the Constitution.
(3)
Every adult citizen has the right
-
(a)
to vote in elections for any
legislative body established in terms of the Constitution, and to do
so in secret,· and
(b)
to stand for public office and,
if elected, to hold office.
"
[13]
The
applicant submitted that the right to make political choices is
affected by access to information and in this particular case
the
sealing of the FIC Record. On the aspect of access to information
Ngcobo CJ, on behalf of a unanimous Court, in M & G Media
Ltd
[1]
:
"
In a democratic society such as our own, the effective exercise of
the right to vote also depends on the right of access
to information.
For without access to information, the ability of citizens to make
responsible political decisions and participate
meaningfully in
public life is undermined.
"
[14]
Section 19(1) of the Constitution
envisages that every citizen is "free to make political choices"
. This includes forming
a political party, participating in a
political party's activities, and campaigning for a political party
or cause. It also includes,
of course, the freedom to choose one's
leaders. But that choice, like all others, is valuable only if one
knows what one is choosing.
It loses its value if it is based on
insufficient information or misinformation. This the Constitution
recognises this by insisting
that government is not only democratic
but openly accessible. However, from the reading of this section it
is clear that right
which vests in the individual is that it may
either join or form political parties. Therefore, I am of the view
that the individual
members of the applicant possess this right and
not the applicant itself. That being said the applicant has in any
event failed
to adequately state on the papers how its right under
this section has been affected, if at all. It is that the clear right
to
make political decisions is about knowing parties and its leaders
and how they will contribute to our constitutional democracy and
the
attainment of our constitutional goals. However, does this include
knowing the private sources of rival political parties'
funding?
[15]
It
is common practice that all political parties receive money from
public and private sources . The law deals differently with
the two
types. At the time of this application there was no legislation which
enabled a party to have such rights requiring systematic
and
proactive disclosure of private funding of political parties.
Consequently , political parties were under no express legal
obligation to disclose the sources of their private funding, at
elections or other times. The applicant seeks a change to that
having
relied on the Political Funding Act No. 8 of2018 and the dicta from
the My Vote Counts NPC V Minister of Justice and Correctional
Services and Another
[2]
. Notably
significant is that the Act on which the applicant relies was not in
effect at the time of this application and therefore
has no bearing
on the merits of this matter. Of more significance is that the
Constitutional court judgment was in relation to
the rights of voters
being able to make an informed decision and did not entail the right
to contest the elections. Which in a
manner of speaking is what the
applicant in this case is attempting to do. A further point which was
argued by the respondents
which in my view is correct is that Ledwaba
DJP in his directive encouraged any party that wished to challenge
his directive to
do so and the applicant did not make such an
application. The applicant fails to appreciate that once the record
was sealed it
no longer formed part of the Court record and therefore
its argument that it is unable to have brought its application in
terms
of PAIA must be rejected.
[16]
I endorse the principle of open justice and appreciate its
overwhelming importance in ensuring that justice is transparent
and
that it promotes the accountability of courts and the administration
of justice. Open justice contributes towards the retention
of public
confidence in the Judiciary and it lies at the heart of the
oft-quoted principle ' 'that justice should both be done
and
manifestly seen to be done".
[3]
[17]
The Supreme Court of Appeal notes the importance of the media's
"vital watchdog role in respect of the court process".
[4]
The Supreme Court of Appeal has recently held:
''it
is thus important to emphasise that giving effect to the principle of
open justice and its underlying aims now means more than
merely
keeping the courtroom doors open. It means that court proceedings
must where possible be meaningfully accessible to any
member of the
public who wishes to be timeously and accurately apprised of such
proceedings.
"
[5]
[18]
However this application differs in that it is not brought by the
media or the general public but by the applicant who avers
that it is
acting not only as individual citizens but on behalf of the greater
public. Therefore, there is an interrelated aspect
of this principle
that requires further interrogation, the distinction between what is
in the public interest and what is merely
interesting to the public.
There is indeed a difference between the two; the former is attached
to a legitimate and genuine interest,
one founded on fact and one
that contributes towards the public's constitutional right to be
informed. However, this Court is mindful
that public interest can
still be served and protected without revealing the names and
identities of participants. Media Monitoring
Africa's submissions in
the High Court on this aspect are most useful:
"In
reporting on children, what is necessary to consider is both the
public interest and in the best interests of the child.
In this
regard it is helpful to distinguish between the public interest and
what is of interest to the public. Merely because the
public might be
curious to know the child's identity does not make it appropriate for
the media to satisfy this curiosity. Even
in cases where the story is
in the public interest, like the Eugene Terreblanche murder trial,
reporting must still be sensitive
to the interests of the child. The
story may be in the public interest, but it does not follow
disclosing that the identity of
the child involved is in the public
interest."
[6]
[19]
A restriction placed on public access to proceedings is only
permissible as an exceptional occurrence and that the party
seeking to restrict the court record bears a true onus of
demonstrating that the restriction is justifiable. The logical
consequence of this stance is that all court records may not be
restricted except in exceptional circumstances, by a court order
after a formal application, on notice to interested parties and after
a hearing in an open court. [n other words, I accept that
the default
position is one of openness. The difficulty arises in defining the
circumstances in which that default position does
not apply.
[20]
The cluster of rights that enjoins open justice derives from the Bill
of Rights and that important as these rights are individually
and
collectively, like all entrenched rights, they are not absolute .
[7]
They may be limited by a law of general application provided the
limitation is reasonable and justifiable. It is not uncommon that
legislation and the common law in this country, and elsewhere in open
and democratic societies, limit open court hearings when
fair trial
rights or dignity or rights of a child or rights of other vulnerable
groups are implicated.
[8]
Another
encroachment on these rights may occur in a manner the Court pointed
out in
SABC
v NDPP.
[9]
The right of the media or public to attend, receive and impart
workings of a courtroom may be attenuated by a court where it
exercises
its inherent power to regulate its own process under
section 173 of the Constitution.
[10]
If in so doing " it impinges upon rights entrenched in chapter 2
of the Constitution, it must ensure that the extent of the
impairment
of rights is proportional to the purpose the court seeks to
achieve."
[11]
It may be
added that the right to an open court hearing and the right to report
on it does not automatically mean that court proceedings
must
necessarily be open in all circumstances. There may be instances
where the interests of justice in a court hearing dictate
that oral
evidence of a minor or of certain classes of rape survivors or
confidential material related to police crime investigation
methods
or to national security be heard in camera.
[12]
In each case, the court will have to weigh the competing rights or
interests carefully with the view to ensuring that the limitation
it
places on open justice is properly tailored and proportionate to the
end it seeks to attain. In the end, the contours of our
constitutional rights are shaped by the justifiable limitation that
the context presents and the law permits.
[21]
Lastly, it was argued that by the applicant that the party that
seeking to restrict open justice must bear the onus. It is
so that a
party that contends for a restriction of a right protected in the
Bill of Rights or the Constitution must place before
the court
material which justifies the limitation sought. This does not,
however, mean that that party carries an evidentiary burden
or an
onus in the strict sense of the word.
[13]
At the end of the day, a court is obliged to have regard to all
factual matter and factors before it in order to decide whether
the
limitation on the right to open courtrooms passes constitutional
muster.
Statutory
Protection of information obtained from FIC
[22]
What remains is to evaluate is the confidentiality claim. Section 40
and 41 of the Financial
Intelligence Act 38 of 2001 is an important
starting point, and provides that: -
"
40. Access to information held by Centre
(1)
Subject to this section, the
Centre must make information reported to it, or obtained by it under
this Part and information generated
by its analysis of information so
reported or obtained, available to-
(a)
an investigating authority in the
Republic;
(aA)
the National Prosecuting Authority;
(aB)
the Independent Police Investigative Directorate,· (aC) an
intelligence service,·
(aD)
the Intelligence Division of the National Defence Force,· (aE)
a Special Investigating Unit,·
(aF)
an investigative division in an organ of state; (aG) the Public
Protector,· or
(aH)
the South African Revenue Service;
(b)
an entity outside the Republic
performing similar functions to those of the Centre, or an
investigating authority outside the Republic;
(c)
...
(d)
a supervisory body,·
(e)
a person who is entitled to
receive such information in terms of an order of a court; or
(f)
a person who is entitled to
receive such information in terms of other national legislation. (1A)
Information contemplated in subsection
(1) may only be made available
to an entity referred to in subsection (l)(a), (aA), (aB), (aC),
(aD), (aE), (aF), (aG) or (aH)-
(a)
at the initiative of the Centre
or at the request of an authorised officer of the entity; and
(b)
if the Centre reasonably believes
such information is required to investigate suspected unlawful
activily.
(1
B) Information contemplated in subsection (1) may only be made
available to an entity or authority referred to in subsection
(l
)(b)-
(a)
at the initiative of the Centre
or at the request of the entity or authority; and
(b)
if the Centre reasonably believes
such information is relevant to the identification of the proceeds of
unlawful aclivities or the
combating of money laundering or financing
of terrorist and related activities or similar offences in the
country in which the
entity or authorily is establi she d.
(IC)
lr!formation contemplaled in subsection(/) may only be made available
to a supervisory body referred to in subsection (l )(d)-
(a)
at the initiative of the Centre
or at the request of the superviso,y body; and
(b)
[f the Centre reasonably believes
such information is relevant to the exercise by the supervisory body
of its powers or performance
by it of its functions under any law.
(2)
A request for information
contemplated in subsection (IA) or (JC) must be in writing and must
specify the required information and
the purpose for which the
information is required.
(3)
The Director may, as a condition
to the provision of any information contemplated in subsection (]),
make Jhe reasonable procedural
arrangements and impose the reasonable
safeguards regarding the .furnishing qf such infol'mation that the
Director considers
appropriate
to maintain the confidentiality of that information before the
information is provided.
(4)
Information contemplated in
subsection (I) may only be provided to an entity or authority
referred to in subsection (J)(b) pursuant
to a written agreement
between the Centre and the entity or the authority which is
responsible for the entity or authority, regulating
the exchange of
information between the Centre and the entity or authority.
(5)
An agreement referred to in
subsection (4) does not-
(a)
take effect until it has been
approved in writing by the Minister;
(b)
permit the Centre to provide any
category of if/formation to the entity or authority in respect of
which the agreement is concluded
which the entity or authority is not
permitted to provide to the Centre.
(6)
A person who obtains information
from the Centre may use that information only
(a)
within the scope of that person's
powers and duties ; and
(b)
in the case of a request
contemplated in subsection (2), for the purpose specified in that
request.
(7)
The Centre may make available any
information obtained by it during an inspection to an organ of state,
a supervisory body, other
regulatory authority, self -regulating
association or organisation which the Centre reasonably believes is
affected by or has an
interest in that information.
(8)
The Centre must make information
it holds available to the appropriate National Intelligence
Structure, as defined in section I
of the National Strategic
Intelligence Act, 1994 (Act 39 of 1994), if it reasonably believes
that the information relates to any
potential threat or threat to the
national security, as defined in section 1 of that Act.
(9)
The Centre may, at the initiative
of the Centre or on written request, disclose information it holds,
other than information contemplated
in subsections (! ) , (7) and
(8), to an accountable institution or class of accountable
institutions or any other person unless
the Centre reasonably
believes that the disclosure may-
(a)
inhibit the achievement of the
Centre's objectives or the performance of its functions, or the
achievement of the objectives or
the performance of the functions of
another organ of state; or
(b)
prejudice the rights of any
person.
41.
Protection of confidential information
No
person may disclose confidential information held by or obtained from
the Centre except-
(a)
within the scope of that person's
powers and duties in terms of any legislation,·
(b)
for the purpose of carrying out
the provisions of this Act;
(c)
with the permission of the
Centre;
(d)
for the purpose of Legal
proceedings, including any proceedings before a judge in chambers,·
or
(e)
in terms of an order of court.
"
[23]
It
will
be recalled that the applicant contended that the starting point in
resolving its disclosure claim is the right to open justice.
The sixth respondent approached the matter from the opposite end.
They asserted confidentiality in terms of the above sections
that
protect sensitive information as a control measure except in certain
limited exceptions to the rule. It argued that although
it is
mandated to provide reports to certain legislated institutions either
at the instance of the FIC or at request off such legislative
office,
that section 41 prevents that institution from disclosing that
information and regulates the circumstances within which
disclosure
is permitted. Further that the Act regulates the misuse in section 60
which makes such conduct an offence. ln essence
the applicant is not
a legislative institution entitled to the information.
[24]
The argument goes on that the third
respondent made a request in terms of section 40(2) of the Act as she
was entitled to do as
a legislated office and received information in
terms of section 40 (1) (aG) of the Act. The report was then made
available to
the third respondent with a cover letter from the
Director of FIC exercising her powers in terms of section 40 (3) of
the Act imposing
further conditions on the disclosure of the
information being reasonable safeguards which the Director considered
appropriate to
maintain the confidentiality of that information. The
third respondent then ignored the safeguards imposed and filed the
report
as part of the record in the Rule 53. Even once the third
respondent received the report it was duty bound to conduct its own
investigations.
Therefore, the claim by the applicant that in terms
of section 18 2 (5) that all reports of the third respondent must be
made public
does not apply to the present matter as it was not
relevant to her findings and must be rejected. Of significance also
is that
the review court found that the FIC record was irrelevant to
the proceedings and was inadmissible as evidence as such the FIC's
confidentiality remained undisturbed.
[25]
In my view, the sixth respondent has
correctly referred to legislative provisions on the classification
and protection of its information.
Ultimately there are different
considerations that may very well apply where the request to disclose
classified intelligence documents
occurs in any context other than
where the documents have been placed before a court by a party to the
proceedings and thus form
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 section 173 of the Constitution with an
inherent power to regulate its own process, taking into account what
is in the
interests of justice. It seems such process was followed by
the Court when the record was disputed which led to the Ledwaba DJP
directing the sealing of the record. Most importantly the applicant
in the present matter does in in any of its papers before this
Court
dispute the confidentiality assertions by the sixth respondent.
[26]
I am unable to identify any right on
behalf of the applicant or the interests of justice that warrant the
disclosure. In any event,
it is evident from the press clippings
placed before me that the information which the sixth respondent
seeks to protect is not
within the public domain and media discourse
and is therefore still worthy of the confidentiality protection. I do
think that there
is a valid basis for further restriction of the
protected FIC report. I can find no compelling reasons why the
material should
be disclosed to the public at large. The applicant
has not advanced any public or private good that will be served by
public disclosure
as against the personal danger in which parties of
the CRI 7 Campaign concerned and their activities will be placed.
[27]
I
accordingly
make the following order:
1.
The application by the applicant to have
the directive by Ledwaba DJP in the review application under case
number 55578/2019 made
on 15 August 2019 to seal the FIC record,
uplifted, is dismissed.
2.
Applicant to pay the costs.
SARDIWALLA
J
JUDGE
OF THE HIGH COURT
Date
of Hearing:
Date
of Judgement:
Appearances:
For
the Applicant: Ishmael A. M Semenya SC
Kameel
Premhid
MFesane
M. Ka-Siboto
Instructed
by: Ian Levitt Attorneys
For
the First, Ninth to
Fourteenth
respondents: W. Tengrove SC
T.
Ngcukaitobi SC
Ndumiso
Luthuli
Instructed
by: Harris Nupen Molebatsi
Inc.
For
the Sixth Respondent: L.J Morrison SC
G.
Ngcangisa
Instructed
by: Cliffe Dekker Hofmeyer Inc
[1]
President of the Republic of South Africa and Others v M & G
Media Ltd
[2011] ZACC 32
;
2012 (2) SA 50
(CC);
2012 (2) BCLR 181
(CC)
(M
&
G Media Ltd) at para 10.
[2]
2018 (5) 380 (CC)
[3]
R v Sussex Justices, Ex parte McCarthy [1923) All ER 233 (KB) at 234
[4]
Van Breda v Media 24 Limited; National Director of Public
Prosecutions v Media 24 Limited [2017) ZASCA 97;
2017 (2) SACR 491
(SCA) at para 47.
[5]
Id at para 46
[6]
See Financial Mail (Pty) Ltd v SAGE Holdings Ltd
[1993] ZASCA 3
;
1993 (2) SA 451
(A) at 464A-C; National Media Limited v Bogoshi
[1998] ZASCA 94
;
1998 4 SA 1196
(SCA) at 1212J; and Heroldt v Willis
2013 (2) SA 530
(GSJ) at para 27. While these cases relate to
defamation, they highlight the important distinction between what is
in the public
interest to make known and what is of interest to the
public.
[7]
See
South
African National Defence Union v Minister of Defence and Another
[1999]
ZACC 7
;
1999 (6) BCLR 615
(CC);
1999 (4) SA 469
(CC) at paras 7-8,
which deals with freedom of expression, in which O'Regan J held that
"freedom of expression lies at the
heart of a democracy ...
[and] is one of a 'web of mutually supporting rights' in the
Constitution."
O'Regan
J held at para 9 that while the provisions in question did in fact
infringe on the rights of members of the National Defence
Force to
freedom of expression, the question which had to be answered was
whether the provisions were justifiable limitations
of the right, as
contemplated by section 36 of the Constitution.
In
S v Mamabolo (E TV, Business Day and the Freedom of Expression
Institute Intervening)
(2001] ZACC 17
[2001] ZACC 17
; ;
2001 (5) BCLR 449
(CC);
2001 (3) SA 409
(CC) at paras 40-1 it was held that our
Constitution, unlike the American one, does not rank freedom of
expression above all
other rights, or declaim it as an unqualified
right.
Similarly,
this Court held in
Laugh It Off Promotions CC v SAB International
(Finance) BV tla
SABMARK
International (Freedom of Expression Institute as
Amicus Curiae)
(2005] ZACC 7
[2005] ZACC 7
; ;
2005 (8) BCLR 743
(CC);
2006 (1) SA 144
(CC) at para
47 that "the right to free expression in our Constitution is
neither paramount over other guaranteed rights
nor limitless."
In
NM and Others v Smith and Others (Freedom of Expression Institute
as
Amicus Curiae) (2007] ZACC 6
[2007] ZACC 6
; ;
2007 (7) BCLR 751
(CC);
2007
(5) SA 250
(CC) at para 66 this Court recognised that-
"[i]t
cannot be gainsaid that freedom of expression lies at the heart of
democracy. This Court has recognised in other cases
that freedom of
expression is one of a ' web of mutually supporting rights' ."
It
was held further at para 94 that:
"This
Court and the Supreme Court of Appeal have held that the media , as
a consequence of their power, bear a particular
constitutional
responsibility to ensure that the vital right of freedom of
expression is not used in a manner that improperly
infringes on
other constitutional rights." (Footnotes omitted.)
The
Cape High Court also held in
Director of Public Prosecutions (WC)
v Midi Television (Pty) Ltd tla
E
TV
2006 (6) BCLR 751
(C);
2006 (3) SA 92
(C) at para 33 that-
"[f]reedom
of expression however , does not enjoy superior status in our law
... and needs to be construed in the context
of the values of human
dignity, freedom and equality enshrined in our Constitution".
[8]
" If it appears to any court that it would, in any criminal
proceedings pending before that court, be in the interests of
the
security of the State or of good order or of public moral s or of
the administration of justice that such proceedings be
held behind
closed doors, it may direct that the public or any class thereof
shall not be present at such proceedings or any
part thereof."
Similarly,
section 5(2)
of the
Magistrates' Courts Act 32 of 1944
states that:
"The
court may in any case, in the interests of good order or public
morals , direct that a civil trial shall be held with
closed doors,
or that (with such exceptions as the court may direct) minors or the
public generally shall not be permitted to
be present thereat."
In
terms of
section 56
of the
Children's Act 38 of 2005
, proceedings of
a children's court are closed and may be attended only by certain
persons specifically mentioned in the section.
[9]
Above n 11.
[10]
Section 173
states:
"The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their
own process, and to
develop the common law, taking into account the interests of
justice."
[11]
See the majority judgment in
SABC
v NDPP
above
n 11 at para 42.
[12]
Id at para 51.
[13]
For a similar approach in relation to the nature of the onus in a
proportionality evaluation compare
Moise
v Greater Germiston Transitional Local Council: Minister of Justice
and Constitutional Development Intervening (Women's
Legal Centre as
Amicus
Curiae)
[2001] ZACC 21
;
2001 (8) BCLR 765
(CC);
2001 (4) SA 491
(CC)
where this Court was asked to confirm an order of invalidity made by
the High Court of section 2(1)(a) of the Limitation
of Legal
Proceedings (Provincial and Local Authorities) Act 94 of 1970,
on the ground that the section infringed a litigant's
section 34
constitutional right of access to courts. Somyalo AJ stated at para
18 that-
"[i]t
is by now settled law what a limitation exercise under
section 36 of the Constitution requires. In
National
Coalition/or Gay and lesbian Equality and Another v Minister of
Justice and Others
1998 (12) BCLR 1517
(CC) ;
1999 (1) SA 6
(CC)
at paras [33]-[35] the nature, purpose and process of the exercise
were explained thus:
'[33]
Although s 36( I ) of the 1996 Constitution differs in various
respects from s 33 of the interim Constitution its
application still
involves a process, described in S
v Makwanyane and Another
[1995] ZACC 3
;
1995
(6) BCLR 665
(CC); 199
5
(3)
S A 391
(CC) as the ". . . weighing up of competing values, and
ultimately an assessment based on proportionality ... which calls
for the balancing of different interests" ."'