Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as Amicus Curiae) In re: Masetlha v President of the Republic of South Africa and Another (Independent (CCT38/07) [2008] ZACC 6; 2008 (5) SA 31 (CC); 2008 (8) BCLR 771 (CC) (22 May 2008)

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[2008] ZACC 6
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Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as Amicus Curiae) In re: Masetlha v President of the Republic of South Africa and Another (Independent (CCT38/07) [2008] ZACC 6; 2008 (5) SA 31 (CC); 2008 (8) BCLR 771 (CC) (22 May 2008)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 38/07
[2008] ZACC 6
INDEPENDENT NEWSPAPERS (PTY) LTD                                                    Â

 Applicant
versus
MINISTER FOR INTELLIGENCE SERVICES                                        Â
        Respondent
and
FREEDOM OF EXPRESSION INSTITUTE                                                Â
Amicus Curiae
In re:
BILLY LESEDI MASETLHA                                                                     Â
          Â
Applicant
versus
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA                                                                                   Â
First
Respondent
MANALA ELIAS MANZINI                                                       Â
        Â
Second Respondent
Heard on         :           22 November
2007
Decided on     :           22 May 2008
JUDGMENT
MOSENEKE DCJ:
Introduction
[1]
In a claim premised on the right to open
justice, a newspaper group, Independent Newspapers (Pty) Ltd (Independent
Newspapers),
seeks an order to compel public disclosure of discrete portions of
a record of proceedings in this Court.  The state, represented
by the Minister
of Intelligence (the Minister), objects to the disclosure sought on grounds of
national security.
[2]
The record of which disclosure is sought relates
to the case of
Masetlha v President of the Republic of South Africa
[1]
(the underlying matter), which
was heard and has since been decided by this Court.
[2]
  A brief account of the
circumstances in the
Masetlha
case may be helpful.  Until his suspension
and ultimate dismissal by the President in 2006, Mr Masetlha was the head and Director-General

of the National Intelligence Agency (the NIA).  The NIA was established in
terms of section 209(1) of the Constitution read together
with the provisions
of the
Intelligence Services Act 65 of 2002
and the Intelligence Services
Oversight Act 40 of 1994.  Mr Masetlha brought two applications before the
Pretoria High Court (the
High Court).  In the first application he impugned his
suspension as irregular and unlawful and in the later application he sought
to
review and set aside the decision of the President to terminate his
appointment.  The suspension application and the termination
application were
consolidated and heard together by Du Plessis J during November 2006.  Both
applications were dismissed.
[3]
In the suspension application, Mr Masetlha filed
two sworn statements.  The one he styled an “open court founding affidavit”
and
the other carried the heading “in camera founding affidavit”.  In the in camera
affidavit, Mr Masetlha explained that
he delivered two affidavits because “in
this in camera affidavit there are many matters which I cannot disclose for
fear [that]
national security will be compromised.”  The contents of the in camera
affidavit differed markedly from that of the open court
affidavit.  The former described
certain activities of the NIA and had attached several annexures some of which
displayed on their
face the state security classification “secret” or
“confidential”.
[4]
In turn, the Minister delivered a single
affidavit in the suspension application in answer to both the open court and in
camera
affidavits of Mr Masetlha.  Although his answer was not in an in camera
affidavit, in it he confirmed that “the nature of the
subject matter in these
proceedings does not permit full disclosure which if done would undermine
national security beyond the
relevance of these proceedings.”  Even so, neither
Mr Masetlha nor the Minister moved the High Court for an order restricting

disclosure of any part of the record.  Consequently, the High Court held its
hearing in an open court and made no order proscribing
public access to the
record.
[5]
It will be recalled that the High Court
dismissed Mr Masetlha’s claim for reinstatement to his post.  As a sequel, he
approached
this Court for leave to appeal the unfavourable decision and to that
end, he filed the record of proceedings that served before
the High Court.
[6]
The application for leave to appeal was set down
for hearing on 10 May 2007.  Of its own motion and a few days before the
hearing,
this Court directed that the underlying record be removed from the
Court website.
[3]
Â
The Registrar was directed not to make the hard copy of the record available to
the public, pending further direction by this
Court.  This Court issued that
direction because certain documents in the underlying record were marked “in camera”
or “confidential”
or “secret” and related to the activities of the NIA.  The
direction was informal and mero motu, in the sense that it was not
made at the
request of or after hearing any of the parties concerned.  Since all the
parties to the case had full access to the
underlying record, this Court
considered the sealing of the record as an interim precaution which would be
reviewed after inviting
submissions by the parties at the hearing of 10 May
2007.
[7]
However, before the hearing, a journalist
working for Independent Newspapers could not gain access to the record on this Court’s

website and was denied a hard copy by the Registrar’s office.  A day before the
hearing, Independent Newspapers delivered an
urgent application for an order to
join the proceedings as first intervening party in the underlying matter and to
gain access
to written argument of the parties and other unspecified documents
in the record.  On the day of the hearing, Independent Newspapers
appeared and
moved for the order sought.  The President and the Minister did not oppose the
disclosure of the record save in relation
to documents they wanted to specify
in an objection notice.  Having heard Independent Newspapers and all other parties,
this Court
ruled that the entire record be made available from noon on 14 May
2007 and that any party who wished to object to the disclosure
of any part of
the record must, in writing, identify the document to which the objection
related and the grounds for the objection
not later than noon on 11 May 2007.  The
balance of the disclosure application by Independent Newspapers was postponed sine
die
subject to further directions of this Court, if necessary.
[8]
The Minister entered the fray as second
intervening party by filing an objection to the release of two specified documents
(the
restricted materials) to the public.  The first document was the whole of
the in camera affidavit by Mr Masetlha including annexures
and the second
consisted of the whole of the report compiled by the Inspector-General of
Intelligence (the IGI Report) on the legality
of a certain surveillance
operation conducted by NIA agents.
[4]
Â
The second document was an annexure to the in camera affidavit. The objection
was mounted on various grounds of national security.Â
In light of the
objection, this Court ordered on 14 May 2007 that the record be made available
to the public, but that the restricted
materials be kept from public exposure
until a decision on the validity of the objection had been made.  On the same
day, this
Court issued directions to regulate the further exchange of
affidavits in order to ripen the application for hearing.
[9]
However, on 16 May 2007 and prior to the hearing
of the application, Independent Newspapers directed a written request to the
Registrar
and later to the Minister to let it have copies of the restricted
documents for the limited purpose of preparing its case on whether
the
restricted materials should continue to be withheld from the public.  The
request was accompanied by an assurance that access
to the documents would be
limited to its counsel, attorneys and senior editors.  The Minister declined
the request stating that
it raised questions of constitutional significance and
that he preferred a court to determine whether the restricted information

should be disclosed to the legal team of Independent Newspapers and its editors
before any court decision on the main application.
[10]
Following the further directions of 22 May 2007,
Independent Newspapers brought an interlocutory application for an order to
gain
access to the restricted documents pending the adjudication of the main
claim of disclosure.  It claimed that it needed an early
and conditional
disclosure of the restricted materials in order that it might prepare its case
to assert its right to open justice.Â
The Minister filed an opposing affidavit,
as second intervening party, in which he resisted the granting of the order on several

grounds of national security.
[11]
What is significant is that in the opposing
affidavit, the Minister abandoned his earlier objection to the disclosure of
the whole
of the in camera affidavit and confined his objection to specified
paragraphs of that affidavit and to specified annexures to it.Â
He persisted
with his opposition to the release of the IGI Report.  I deal with the details
of the restricted materials later
in this judgment.  Let it suffice to record
that, after the exchange of depositions by the intervening parties, only certain
paragraphs
of the in camera affidavit and parts or all of four of its annexures
remained restricted and in contention.
[12]
The interlocutory application was heard on 22
August 2007 and, by majority decision, this Court dismissed the application and
undertook
to furnish reasons later.
[5]
Â
I do so later in this judgment.
[13]
Shortly after dismissing the interlocutory
application, this Court directed that the main application of Independent
Newspapers
which was postponed sine die
on 10 May 2007 be set down for
hearing on 22 November 2007.  At that hearing the parties to the underlying
matter chose not to
participate.  Only the two intervening parties appeared and
presented argument.  That was hardly surprising because the litigants
in the
underlying matter had full access to the disputed record, their proceedings
were held in open court in the High Court and
in this Court and, at any rate,
by then a final judgment had been delivered.
[14]
I must add that the Freedom of Expression
Institute (FXI) was admitted as amicus curiae.  FXI is a not-for-profit,
non-governmental
organisation which has as its principal objects the promotion
of freedom of expression in South Africa and the opposing of censorship.Â
It
submitted helpful and comprehensive written argument in order to assist this Court
in addressing the question of the procedural
approach to be adopted when
documents which form part of court records are sought to be withheld from the
public.
Issues
[15]
There are one core and five collateral issues.  The
core issue is whether the restricted documents should be disclosed to the
public
by order of this Court.  The collateral issues are: (a) should the
application for leave to intervene be granted? (b) does the
right to open
justice entitle Independent Newspapers to access to the restricted materials in
the court record? (c) does the Minister’s
objection premised on national
security constitute adequate justification? (d) what is the proper approach to
harmonising these
competing constitutional claims? and (e) is it desirable to
set guidelines on a procedure to be adopted when a court record is sought
to be
withheld from the public?  It will be convenient first to consider the
application for leave to intervene, and then to furnish
brief reasons for the
order dismissing the interlocutory application.
Application for leave to intervene
[16]
This matter came before us by way of an urgent
application for intervention in the underlying matter.  As indicated above, the
parties in the underlying matter did not resist the intervention.  Neither
Independent Newspapers nor the Minister made submissions
on why they were
entitled to be admitted as intervening parties.  Even in oral argument, they
appeared to assume without more
that they were entitled to be joined as parties
to the underlying matter.
[17]
Intervention of parties in proceedings is
regulated by Rule 8(1) of the Rules of this Court.  It provides:
“Any person entitled to join as a party or
liable to be joined as a party in the proceedings may, on notice to all
parties, at
any stage of the proceedings apply for leave to intervene as a
party.”
As is plain, the Rule does not
prescribe the criteria that entitle a person to join or be liable to be joined
as a party.  Under
Rule 12 of the Uniform Rules of Court,
[6]
it is well-settled that when a
court is called upon to exercise its discretion on whether to grant leave to
intervene, the primary
consideration is whether the applicant for intervention
has a direct and substantial interest in the subject matter of the litigation.Â

Chaskalson P resorted to the same joinder standard in the decision of this
Court in
Minister of Public Works and Others v Kyalami Ridge Environmental
Association
and Another (Mukhwevho Intervening)
.
[7]
  In that case, the government
applied directly to this Court for leave to appeal an order made by the High
Court setting aside
the decision of the government to establish a transit camp
for flood victims.  Mr Mukhwevho, one of the flood victims, in turn
applied to
this Court for leave to intervene in the application and argued that he too had
a direct and substantial interest in
the outcome of the application.  Chaskalson
P admitted Mr Mukhwevho as a party to the underlying dispute because he had a
direct
and substantial interest in the outcome of the proceedings as it would
affect his right of access to housing and temporary accommodation
in the
transit camp.
[8]
[18]
In
Gory v Kolver NO and Others (Starke and
Others Intervening)
[9]
this Court held that in a case involving the validity of a statute an
application to intervene would succeed only if the applicant
had a direct and
substantial interest in the subject matter of the litigation, which in that
case was the validity or otherwise
of the statute and if, in addition, it was
in the interests of justice for the application to be granted.
[10]
  On that occasion we explained
that, whilst a direct and substantial interest is a necessary condition for
intervention as a party,
it is not always sufficient ground for granting leave
to intervene.  The ultimate test is whether, in a particular case, it is
in the
interests of justice to join or be joined as a party to pending litigation.
[19]
In the present matter the applicant who applied
for intervention does not have a direct and substantial interest in the subject
matter of the underlying litigation.  As I said earlier, in that litigation a
final judgment has already been delivered and Independent
Newspapers did not
claim to have an interest in the final outcome of that case.  Its real and
substantial interest rests elsewhere.Â
It is to gain access to a relatively
small but restricted part of the underlying record for public dissemination on
the ground
of the right to open justice.  Strictly speaking, this claim it
could assert without intervening in the underlying matter.  It
could have
brought a self-standing application before the High Court or in an appropriate
case, an application for direct access
before this Court for the same relief it
now seeks, if the Minister had refused its request to lift the veil of secrecy
over the
classified or restricted materials.  A ready example is the matter of
South
African Broadcasting Corporation Ltd v National Director of Public Prosecutions
and Others
(
SABC v NDPP
),
[11]
in which the public broadcaster did not seek to intervene in the underlying
appeal, but rather applied for permission to be present
at, and to broadcast
live, the proceedings before the Supreme Court of Appeal.  It follows from what
I have said that the application
for intervention cannot succeed.  That,
however, is not the end of the matter.
[20]
When it is in the interests of justice, this
Court may permit a party to bring an application directly to it.
[12]
 For the reasons that follow,
I am convinced that it is in the interests of justice to dispose of this
application as one of direct
access.  Independent Newspapers and the Minister
have acted under the mistaken belief that they were entitled to intervene.Â
Even so, both want the dispute between them decided to finality by us.  Both
raise important constitutional questions which in
all probability would have
eventually ended up in this Court.  Also, much proverbial water has run under
the bridge.  The intervening
parties have spent much effort and money to place
the issues before this Court in no less than three oral hearings and in certain

instances they were spurred on by directions of this Court.  In any event, this
Court is already seized with the record of proceedings
in issue.  Whilst it
would have been preferable to have the benefit of a judgment of another court,
sending the parties to another
forum at this hour may well work an injustice.  Another
important consideration is that none of the parties is opposed to us
adjudicating
the matter and I cannot detect any prejudice or unfairness against
any of the parties concerned if we were to do so.  In my judgement,
dictates of
justice urge us on the path of finality.  I will accordingly dispose of this
matter as an application for direct access.
Reasons for refusing the
interlocutory application
[21]
On 14 May 2007, this Court ordered that the
entire record be made available to the public provided that within a stipulated
time
any party may object to the disclosure of any part of the record.  The
Minister objected to the disclosure of the restricted materials
principally on
the ground that their exposure would threaten national security.  In an
interlocutory application before the validity
of the objection had been
determined, Independent Newspapers moved for an order that the restricted
documents must be released
to its attorneys, counsel and senior editors subject
to conditions that would protect the confidentiality of the documents.  It

contended that without access to the documents it would be hindered in the
preparation of its legal case concerning the legitimacy
of the Minister’s
objection to the disclosure..  It said it could not assert its constitutional
right to open justice without
sight of the target.
[22]
The enquiry whether Independent Newspapers
should be afforded access to the contested materials in a court record in order
to decide
whether to impugn their confidential status raised novel questions.  Independent
Newspapers did not challenge the authority of
the Minister to classify or
protect the documents as confidential for purposes of national security.  It did
not attack the manner
in which the authority was exercised.  Its claim was
singularly premised on the right to gain access to and publish legal
proceedings
inclusive of the record before this Court.
[23]
At a general level, the right of access to
information is entrenched, in the first instance, by the Constitution itself.Â
Section
32 of the Constitution confers on everyone the right of access to any
information held by the state or by another person that is
required for the
exercise or the protection of any rights.
[13]
Â
That right of access to information is given effect to and regulated through legislation
in the form of the Promotion of Access
to Information Act (PAIA).  However, its
provisions do not apply to a record relating to judicial functions of a court
or of its
judicial officers.
[14]
Â
It is clear that at the very least section 32 of the Constitution creates,
subject to certain procedural conditions, a right
of discovery of information
held by the state or another person.  There has been considerable judicial
debate on whether that
right co-exists with or supersedes the right a litigant
has to access information under the discovery procedures regulated by various

rules of courts.
[15]
Â
Happily, I need not confront that prickly problem because Independent
Newspapers expressly disavowed any reliance on the right
of access to
information under section 32 of the Constitution or PAIA.
[24]
The constitutional guarantee on which the
applicant chose to peg its claim was the right to open judicial deliberations.Â
To it,
the applicant tagged the right of a claimant to be afforded a reasonable
opportunity to present its case.  The kernel of this complaint
was that unless it
gained access to the restricted documents it would be severely handicapped in
the pursuit of its cause.
[25]
Ordinarily courts would look favourably on a
claim of a litigant to gain access to documents or other information reasonably
required
to assert or protect a threatened right or to advance a cause of
action.  This is so because courts take seriously the valid interest
of a
litigant to be placed in a position to present its case fully during the course
of litigation.  Whilst weighing meticulously
where the interests of justice
lie, courts strive to afford a party a reasonable opportunity to achieve its
purpose in advancing
its case.  After all, an adequate opportunity to prepare
and present one’s case is a time-honoured part of a litigating party’s
right to
a fair trial.
[26]
In the context of civil litigation the right of
access to information which is under the control of another litigating party is
regulated by discovery procedures applicable in various courts.
[16]
  For instance, Rule 29 of the Rules
of this Court specifically incorporates Rule 35(13)
[17]
of the Uniform Rules for
purposes of discovery, inspection and production of documents in application
proceedings in this Court.Â
It has long been recognised that adequate but
equitable discovery procedures form an indispensable and integral part of a
fair
civil trial.
[27]
Even before the advent of the Constitution, courts
often, and correctly in my view, recognised that when there is a claim of
confidentiality
over information that is sought to be discovered or disclosed
other considerations of fairness arise.  These are well recognised
by Schutz AJ
in
Crown Cork & Seal Co Inc and Another v Rheem South Africa (Pty) Ltd
and Others
(
Crown Cork
):
[18]
“[A conflict arises] between the need to
protect a man’s property from misuse by others, in this case the property being
confidential
information, and the need to ensure that a litigant is entitled to
present his case without unfair halters.  And, although the
approach of a Court
will ordinarily be that there is a full right of inspection and copying,
I
am of the view that our Courts have a discretion to impose appropriate limits
when satisfied that there is a real danger that
if this is not done an unlawful
appropriation of property will be made possible merely because there is
litigation in progress
and because the litigants are entitled to see documents
to which they would not otherwise have lawful access.  But it is to be
stressed
that care must be taken not to place undue or unnecessary limits on a litigant’s
right to a fair trial, of which the
discovery procedures often form an
important part.”
[19]
[28]
Independent Newspapers placed much reliance on
this passage in urging us to give it access to the confidential documents for
purposes
of preparing its case.  However, without detracting from the value of
his reasoning, it is important to recognise that in that
case Schutz AJ was
concerned with measures to facilitate fairness and to avoid abuse of the
discovery procedures within a civil
suit connected to unlawful competition.  We
must keep in mind that the claim of Independent Newspapers is novel because it does

not rely on any of the rights to discovery of documents or other information
under the control of a party to litigation.  It relies
on the right to know or
receive what is contained in a sealed part of a court record in order to decide
whether to impugn its alleged
confidential status.  In effect, as non-parties
to the underlying matter, the order it sought was to vindicate the right to
know
and to let the public know and nothing more.
[29]
At this interlocutory stage of the proceedings,
the interim relief sought by Independent Newspapers posed several difficulties
which
in my view were insurmountable.  The first was that Independent
Newspapers did not attack as constitutionally invalid the legislative
authority
of the Minister to classify or protect from disclosure the confidential
material in issue.  Nor did it contend that
the Minister had abused his
authority in classifying the material as confidential.  Also, it did not accuse
him of some impropriety
or ulterior motive in the way he went about claiming
confidentiality over the materials in the record.  The relief it sought went
no
further than that it wanted to have sight of the documents concerned in order to
prepare its case.  In my judgement, at the
interlocutory phase and in the
context of documents protected on a claim that their disclosure may breach
national security, a
party demanding disclosure in order to prepare its case
must, at the very least, say what its case is.  The party must display
more
than inquisitiveness or a desire to embark upon a fishing expedition.  It must
point to a lack or abuse of authority or other
unlawfulness or impropriety on
the part of the official who asserts confidentiality over the sealed documents
or other information.
[30]
Second, the release of the restricted materials
at the interlocutory stage would have created the untenable rule that when a
member
of the public questions the confidentiality of information kept by the
state, she or he would in effect gain the right to receive
the information in
order to decide whether to prepare a court challenge.  If that were to be so,
the very purpose of classifying
and protecting information for purposes of
national security would be rendered nugatory, even were no challenge to be made
to the
authority to classify and withhold the documents or its exercise.
[31]
Third, whilst it may be so that Independent
Newspapers did not have access to the restricted materials at the interlocutory
stage,
the Minister filed an opposing affidavit in which he lifted his objection
to the disclosure of several documents but retained his
opposition in relation
to certain of the material.
[20]
Â
In regard to each of the items of restricted materials, the Minister gave a
brief description of its contents, set out the legislative
authority for his
conduct and furnished reasons why it was appropriate to protect the item of
restricted materials from public
exposure.  Added to this, the entire record of
proceedings, save for the restricted materials, was at the disposal of
Independent
Newspapers.  In my view, at the interlocutory phase of the
proceedings, the deposition of the Minister, read with the rest of the
record,
contained detailed grounds and material to enable Independent Newspapers to
decide whether or not to pose a challenge to
the confidentiality claim the
Minister makes.  I was unpersuaded that it could not adequately prepare its
case.
[32]
I do not mean to lay down an inflexible rule.Â
There will be instances where a party will point to what appears to be a lack
of
authority or to an improper exercise of authority or to some other
unjustifiable conduct on the part of a public official claiming
confidentiality
of information.  In that event, it may well be in the interests of justice to
permit the party concerned and her
or his legal representatives, subject to
appropriate conditions, to gain access to the sealed part of the record or
information
for purposes of posing an informed challenge to the confidentiality
claim of the public official concerned.  At the very least,
the claimant will
have to demonstrate that it cannot adequately prepare its case without the
early disclosure of the protected
materials.  As I have found, the present is
not such a case.
[33]
Fourth, there was much to be said for the
Minister’s contention that an early release of the restricted materials, ahead
of the
main hearing, would dissipate its confidentiality.  In other words, the
disclosure would anticipate and render moot the pending
court decision at the
likely expense of public interest to keep properly classified documents
confidential.  My clear view is
that where there is a court dispute over the
disclosure of information or documents which are claimed to be classified on
grounds
of national security, a right to preview the confidential material
ahead of the resolution of the dispute might frustrate the confidentiality

claim and render moot the very decision on the dispute.  The order of
disclosure would in effect anticipate the outcome of the
dispute and at the
same time dissipate the claim for confidentiality.
[34]
Another considerable obstacle in the path of
Independent Newspapers was that it was not party to the underlying case.  It did
not
have a direct and substantial interest or an identity of interest with any
of the litigating parties.  It wanted to vindicate a
right which none of the
parties in the underlying case had asserted.  After all, the parties in the
underlying proceedings enjoyed
unlimited access to the full record inclusive of
the in camera affidavit.  All proceedings were held in open court and the
public
and the media, including Independent Newspapers, were allowed to attend
sessions in this Court, the High Court and the Hatfield
Magistrate’s Court.
[21]
  The unrestricted record before
us shows that the media attended the proceedings and reported extensively on
them barring perhaps
certain parts of the in camera affidavit and in particular
its annexures which include the IGI Report.
[35]
Independent Newspapers sought to persuade us that,
whilst it was not a party to the underlying proceedings, it is a party to the

proceedings on whether the restricted materials should form part of the public
record in accordance with the requirements of open
justice.  That is true.  It is
a party to the dispute over access to the restricted materials.  In its next
step it argued,
with reference to pre-constitutional cases
[22]
and foreign cases
[23]
which were said to be
analogous authority, that a party who requires relief from a court must be
placed in a position to address
submissions regarding its interest to that
court.
[36]
Again, as may be gathered from my earlier
remarks, that is a proposition I support.  However I was not convinced that the
applicant
could not formulate its case without full sight of the classified
documents.  It had a detailed deposition of the Minister on the
grounds for
withholding each of the remaining items.  It was open to it to impugn these
grounds.  A further consideration was
that the contested documents constituted
a mere three percent or 24 pages of an appeal record running to 708 pages.Â
From this
it may be fairly inferred that the applicant had a vast context
within which to formulate its constitutional disquiet.  I might
add that the
restricted pages were before all members of this Court and have been assessed
in the light of the submissions of the
parties and the balance we must find between
these competing constitutional claims.
[24]
[37]
Another hurdle confronting Independent
Newspapers was that the pre-constitutional authorities and foreign cases it
referred us to
were distinguishable from the facts of the present matter and
are accordingly of limited value.  First, the authorities deal with
direct
litigants whereas Independent Newspapers may well be described as a litigant “once
removed”.  Moreover, the authorities
relied upon by and large deal with
commercial or property interests and not with matters pertaining to state
security or national
interest.  Further, Independent Newspapers was not in
jeopardy of criminal prosecution or required to confront a civil suit.Â
It wanted
to secure the restricted materials, not for the purpose of ensuring that a fair
trial took place, but rather, and understandably
so, that it might report to
its customers, the readers of its newspapers, on the contents of the restricted
documents.
[25]
[38]
It is for these reasons that the interlocutory
application to gain interim access to the restricted documents was dismissed.  At

that time, this Court reserved the question of costs – a matter to which I
return towards the end of this judgment.
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)
[26]
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 freedom to
receive and impart information or ideas.  Section 34
[27]
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)
[28]
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 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.
[29]
[41]
From the right to open justice flows the media’s
right to gain access to, observe and report on, the administration of justice

and the right to have access to papers and written arguments which are an integral
part of court proceedings subject to such limitations
as may be warranted on a
case-by-case basis in order to ensure a fair trial.  This proposition was
affirmed by this Court in
SABC v NDPP
,
[30]
where Langa CJ stated the following:
“
Open justice is
observed in the ordinary course in that the public are able to attend all
hearings.  The press are also entitled
to be there, and are able to report as extensively
as they wish and they do so.  Courts should in principle welcome public
exposure
of their work in the courtroom, subject of course to their obligation
to ensure that proceedings are fair.  The foundational constitutional
values of
accountability, responsiveness and openness apply to the functioning of the
judiciary as much as to other branches of
government.  These values underpin
both the right to a fair trial and the right to a public hearing (ie the
principle of open
courtrooms).  The public is entitled to know exactly how the
judiciary works and to be reassured that it always functions within
the terms
of the law and according to time-honoured standards of independence, integrity,
impartiality and fairness.”
[31]
[42]
More recently in
Shinga v The State
,
[32]
Yacoob J explained the
constitutional interest in open court rooms in the following terms:
“Seeing justice done in court enhances
public confidence in the criminal-justice process and assists victims, the
accused and
the broader community to accept the legitimacy of that process.  Open
courtrooms foster judicial excellence, thus rendering courts
accountable and
legitimate.  Were criminal appeals to be dealt with behind closed doors, faith
in the criminal justice system
may be lost.  No democratic society can risk
losing that faith.  It is for this reason that the principle of open justice is
an important principle in a democracy.”
[33]
There is much to be said for the
contention of Independent Newspapers and the amicus that open justice is a
crucial factor in any
consideration of a request to limit public disclosure of
a court record.  That is particularly so when one deals with an appeal
record the
disclosure of which to the public was not restricted by an order of the court
from which the appeal emanates.
[43]
I am, however, unable to agree with the submission
that 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.Â
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.  In other words, I accept that the default position is one of openness.  My
difficulty arises in defining the circumstances
in which that default position
does not apply.  As will become apparent later, I cannot accept the argument
that the default position
may only be disturbed in exceptional circumstances.
[44]
The ‘exceptional circumstances’ standard
advanced is inconsistent with the design of our Constitution and the
jurisprudence
of this Court on several counts.  The better approach, I think,
is to recognise that 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.
[34]
  They may be limited by a law
of general application provided the limitation is reasonable and justifiable.Â
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.
[35]
[45]
Another encroachment on these rights may occur
in a manner this Court pointed out in
SABC v NDPP.
[36]
  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.
[37]
Â
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.”
[38]
  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.
[39]
Â
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.
[46]
Lastly, it was argued that a party that seeks to
restrict open justice must bear an onus.  It is so that a party that contends
for a restriction of a right protected in the Bill of Rights 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.
[40]
Â
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.  I revert to this matter below
when I deal with the
proper approach to evaluating the competing constitutional
claims premised on open justice, on the one hand, and on national security,
on
the other.
[41]
[47]
What remains is to evaluate, in the light of the
proper approach I advance below, the confidentiality claims premised on
national
security in relation to each document’s disclosure which is demanded
by Independent Newspapers.
The proper
approach
[48]
It will be recalled that Independent Newspapers
contended that the starting point in resolving its disclosure claim is the right

to open justice.  The Minister approached the matter from the opposite end.  He
first put up the constitutional and statutory
power of the executive to
classify and protect sensitive information for reasons of national security.  He
argued that, once a
document is properly classified under the operative
legislation, courts have no discretion to rule on whether the document may be

disclosed to the public.  The argument goes that the power is constitutionally
derived and is regulated by legislation and national
policy, the constitutional
validity of which Independent Newspapers does not impugn.
[49]
I describe briefly the regulatory framework
which governs the protection and classification of sensitive information.  The
authority
of the Cabinet to make and implement national policy derives from the
Constitution.
[42]
Â
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;
[43]
to maintain national security;
[44]
to defend and protect the
Republic;
[45]
to establish and maintain intelligence services;
[46]
and to prevent, combat and
investigate crime.
[47]
Â
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.
[48]
Â
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”.
[49]
 In addition national
legislation and regulations prohibit the disclosure of certain classified
information.
[50]
[50]
In a second layer of argument, the Minister says
that no valid criticism has been levelled at the manner in which the restricted

materials have been classified or protected as confidential.  There is no
suggestion that in classifying the documents he acted
beyond his powers or
improperly in any sense.  In relying on the separation of powers, the Minister
argues that his power derives
from section 85(2)(b) of the Constitution,
[51]
which permits the executive to
formulate national policy.  Judicial authority over executive power, derived
from section 172(1)
of the Constitution,
[52]
is to be exercised only by declaring invalid any law or conduct inconsistent
with the Constitution.  On this argument, judicial
review is the only mechanism
through which courts check executive power.  However, courts may not arrogate
to themselves the power
to subvert a legitimate intelligence classification by
making an order which grants the public access to protected materials.Â
If a
court were to do so, the argument goes, it would be undoing classification
without hearing argument on why the classification
was wrong.  In short, courts
cannot order the disclosure of classified documents without setting aside the
classification of those
documents.  For this reason alone, the Minister
contends that this Court has no power to make the order sought and thus the
application
must fail.
[51]
This contention of the Minister has no merit.Â
For one thing, it mischaracterises the issues we are called upon to decide.Â
The
issue before us is not whether this Court should undo the security
classification of documents sought from the Minister by the media
or the
public.  If that were so, different considerations may very well apply.  The
issue before us is whether an appellate court
record, under the authority and
direction of this Court, should be made available to the media and the public.Â
The restricted
portions of the record were placed before this Court by the
parties themselves and none of the parties before the courts below sought
an
order to hold as classified any part of the record.  So the narrow question we
are called upon to decide is whether the belated
claim of the Minister that
certain parts of the record should be kept classified has any merit.
[52]
In the alternative, the Minister submits that,
should this Court take the view that it has the power to decide whether to
release
classified documents which form part of the record to the media and the
public, it should give due and proper weight to the classified
status of the
documents sought to be released and the concomitant obligation of government to
maintain national security.
[53]
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 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.
[53]
[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.  A mere classification of a document within
a court record 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 a court, they are susceptible
to its scrutiny
and direction as to whether the public should be granted or denied access.
[55]
It follows that where a government official objects
to 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 section 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 statute
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 materials 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 enquiry.
[56]
However, in the final analysis, a court should
be alive to the fact that it is confronted by competing constitutional claims.Â
The one claim is for open justice and the other relates to the government’s
obligation to pursue national security.  Because
the contested documents form
part of the court record, a court is obliged, in its own right, to examine the
documents concerned
in order to ensure that it impairs as little as possible
the other constitutional interests at stake whilst striking a harmonious

balance between the two or more competing claims.
Is it desirable
to set procedure to be adopted when a court record is sought to be withheld?
[57]
As I have intimated earlier, FXI sought to
persuade us with reference to Canadian
[54]
and United States’
[55]
jurisprudence to catalogue a procedural approach to be adopted when documents that
form part of a record of proceedings are to
be withheld from the public.  Like
Independent Newspapers, FXI articulates the importance of the right of the
public to receive
information and ideas and the role which the media plays in
being the conduit through which the public receives information.  The
mainstay
of their submission is to urge upon us a procedural approach which has the
following features: (a) not compromising the
legitimacy of the judicial
proceedings, which is reflected in their adversarial nature; (b) facilitating
the public’s interest
in opposing an order to restrict access; (c) requiring
that any order granted which restricts access should state the conclusions

reached and be accompanied by specific findings and reasons for rejecting less
drastic measures; (d) providing the prerequisites
for meaningful appellate
review; and (e) informing the public of an order granted which restricts access
to court records.
[58]
I have little difficulty with the broad
principles advanced by FXI.  I am however most reluctant to seek to impose a
fixed and
prior set of principles which are to apply in every case in which
disclosure of a court record is an issue.  Even the most cursory
observation of
the way our trial courts or courts of first instance operate, will reveal that
the contexts within which they are
called upon to decide whether to conduct any
part of the proceedings to the exclusion of the public, differ widely.  FXI
made
us understand that the proposed principles are flexible and need not apply
in every case.  If that is so, I cannot understand the
need for certain
principles in the course of a judgment, already so lengthy, when they are not
intended to be binding.  I am quite
confident that judicial officers of our
land, on whom the discretion rests, will determine where the interests of
justice lie from
case to case consistently with our evolving, context-sensitive
jurisprudence that is driven by justice rather than rules.
The restricted materials
[56]
[59]
Independent Newspapers contends that the restricted
documents should be released as they are or in a redacted form for three
principal
reasons.  The first is that the Minister has furnished inconsistent
and contradictory grounds objecting to their release.  Second,
the contents of
the restricted materials are already in the public domain.  Third, the claim
for confidentiality over the entire
document is too broad and not sufficiently
tailored.  Keeping in mind these reasons for claiming disclosure put up by
Independent
Newspapers and the grounds of objection advanced by the Minister, I
examine whether each of the documents should be protected from
disclosure.
[60]
The in camera affidavit was deposed to by Mr
Masetlha, the applicant in the underlying proceedings.  As head of the NIA, he
took
the view that the matters in the affidavit were of a confidential nature
and should appear not in his regular founding affidavit
but in an in camera
affidavit.  It is so that the court below never made an order that the
affidavit may not be disclosed to the
public.  Also, the affidavit is not a
document classified under intelligence legislation or MISS.  However, certain
annexures
to the affidavit and in particular annexures IC 1, IC(iii) and IC 17
are boldly marked “secret”, “confidential” and “top
secret” respectively.  An additional
factor is that the record shows that the
Mail & Guardian
, a weekly
newspaper, has widely published quotations of several parts of the in camera
affidavit.  The record shows that the Minister
has called upon the
Mail &
Guardian
to desist from publishing classified documents forming part
of the in camera affidavit and the newspaper has furnished certain undertakings

in this regard.  It is also true that Independent Newspapers has been furnished
with the entire in camera affidavit except for
the redacted paragraphs and
certain annexures in respect of which it now claims disclosure.
Paragraphs 18 to 18.6 of the in camera
affidavit
[61]
The Minister explains that these paragraphs contain
specific protected details of Operation Avani and details from a counter-intelligence

report which is in turn classified and protected from unauthorised disclosure.Â
The reasons advanced by the Minister are unconvincing.Â
First, the counter-intelligence
report and the details of Operation Avani are not attached to the in camera
affidavit and their
details are not revealed in paragraphs 18.1 to 18.6 of the
affidavit.  What is contained in these paragraphs is a brief description
of six
key conclusions of the counter-intelligence report.  In a nutshell, the
conclusions are that (a) there was a need for the
President to intervene; (b)
the issue of the succession to the President was complicating issues; (c) some
groupings that were
instigating unrest have been identified; (d) a unit within
the Scorpions was an instrument of a group instigating unrest; (e) the
group
wanted to retain the Scorpions in its original form; and (f) the Minister has
associated himself with the group.
[62]
In my judgement, the conclusions are innocuous
or, at best for the Minister, neutral in relation to national security.  I am
unable
to identify the threat the disclosure of the conclusions would pose to
our collective safety and security.  In any event, it is
evident from the
voluminous press clippings placed before us that the issue covered by the conclusions
are all well within the
public domain and media discourse and are not worthy of
any confidentiality protection.
Paragraphs 3.2 and 4.11 to 4.13 of
the in camera affidavit
[63]
The Minister says that these contain allegations
in respect of Cabinet proceedings and that information from Cabinet proceedings

is protected from disclosure under section 12 of PAIA, which states that the
Act does not apply to Cabinet records.
[57]
Â
It is so that, under PAIA, Cabinet records are exempted from disclosure under
the provisions of that Act.  The present claim
for disclosure is not made under
PAIA.  But even if the claim for access fell within the purview of PAIA,
paragraph 3.2 and paragraphs
4.11 to 4.13 do not contain a record of Cabinet
meetings.  In these paragraphs, Mr Masetlha alleges that the Minister
inaccurately
accused him, in his absence, before two Cabinet meetings, and in
that way gained the support of the Cabinet to condemn his actions
publicly,
through a Cabinet spokesperson.  The accusation the Minister allegedly made is
that Mr Masetlha made submissions to
the Khampepe Commission in conflict with
the Minister’s instructions.
[64]
I have just described the contents of the relevant
paragraphs.  They contain no more than Mr Masetlha’s disquiet as to how, in
his
view, he was treated unfairly by the Minister.  I have carefully weighed the
national security objection raised against the
disclosure claims.  I am
satisfied that the disclosure of the remaining paragraphs (that is, paragraph
3.2 and paragraphs 4.11
to 4.13 of the in camera affidavit), which have never
been classified as confidential and which are now in the public domain to
a
very great extent, will not imperil national security.  I conclude that these
paragraphs may be disclosed to the public despite
the Minister’s objection.
Paragraph 3 of
annexure IC(i)
[65]
This is a letter dated 19 June 2005 from the
Minister to Mr Masetlha.  It was never classified as confidential until after
the
commencement of these proceedings.  The Minister has agreed to release it
to Independent Newspapers in a redacted form by excising
only paragraph 3 of
the letter.  Therefore, Independent Newspapers has been furnished with the
contents of the entire letter,
but for paragraph 3.
[66]
The Minister asserts that paragraph 3 makes
reference to the relationship enjoyed by the South African Secret Service with
foreign
intelligence agencies.  Independent Newspapers now insists that
paragraph 3 should be redacted and released to them.  I cannot
support this
claim because, in my view, it is not possible to redact the paragraph without
frustrating the confidentiality that
the Minister wants to preserve.  The
paragraph does indeed discuss the relationship enjoyed by the South African
Secret Service,
our external intelligence agency, with other foreign
intelligence agencies.  Moreover, the confidentiality claim is tailored to
a
single paragraph and thus its invasiveness has been sharply curtailed.  I
conclude that the objection that the Minister raises
is valid and must be
upheld.
Annexure
IC(iii)
[67]
This document is an annexure to the in camera
affidavit.  It is a report prepared for the head of the NIA by the Deputy Director-General

of the NIA, Mr Njenje, regarding the abortive surveillance of a businessman, Mr
Sakumzi Macozoma.  The Minister objects to the
disclosure of this annexure on
the grounds that it exposes the name of an NIA operative, a chain of command within
the NIA and
information which could be used to identify the operative in
question and to endanger her or him.  In my view, the objection of
the Minister
is accurate and well taken.  During oral argument, Independent Newspapers was
hard pressed to advance a cogent reason
why it would be in the public interest
for the media to report on and for the public to know about the identity of
secret agents
and operatives of the NIA.  It properly conceded that a
disclosure of that kind could endanger the life of the operative concerned
and
also undermine the role of the NIA in gathering intelligence directed at
enhancing national security.  I conclude that the
annexure concerned must not
be released to the public.
Annexure IC 1
[68]
This document is an annexure to the in camera
affidavit and is dated 29 September 2005.  It is a three-page report drawn by
Mr
Masetlha for the Minister.  The document carries the classification
“secret”.  It concerns the Macozoma surveillance.  Its
contents are littered
with actual names of NIA operatives and makes reference to operating methods
and a chain of command.  The
Minister says that the document has been
classified “secret” in order to prevent hostile elements from using its
contents.Â
He says they may disrupt operational planning and co-operation
between institutions and may harm individuals employed by the NIA.Â
He also adds
that the contents may be used to damage diplomatic relations between certain
states.
[69]
During oral argument, Independent Newspapers
assured us that it does not demand the release of names of NIA operatives.  It
understood
well that the disclosure of the names would carry significant risk
to the agents inasmuch as the exposure of operating methods would
undermine the
future activity of the NIA.  I understood Independent Newspapers to concede
that the Minister’s claim of non-disclosure
in relation to this document is justified.Â
Be that as it may, I have no hesitation in upholding the Minister’s objection.Â

I conclude that the document must remain protected.
Annexure IC 17
[70]
This too is annexed to the in camera affidavit.Â
It is a 12 page report prepared by the IGI and is dated 17 October 2005.  The

report carries the title
Summary of the Findings and Recommendations of the
Investigation into the Legality of the Surveillance Operations carried out by

the NIA on Mr S Macozoma
(IGI report)
[58]
.Â
The report carries a “secret” classification.  It is common cause that at a
media briefing on 23 March 2006, the Inspector-General
released to the public a
version of the IGI report which does not contain all the material which the
Minister now wants to protect
from public access.
[59]
  However, the public version
contains many of the details in the original report without disclosing the
names of the operatives
and sources.  The Minister argues that the protected
IGI report contains names of NIA operatives, names of sources of intelligence,
the
name of a foreign person who is a target of an intelligence operation and certain
intelligence methods.
[71]
Independent Newspapers demands the release of
the balance of the report albeit in a redacted form.  It points out that there
was
frequent reference made to the IGI report in the criminal trial of Mr
Masetlha in the Magistrate’s Court and in the civil proceedings
in the High
Court.  On the other hand, the Minister points out that although reference was
made to the IGI report in these proceedings,
the actual classified document has
never been released publicly.
[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 may 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 has been referred
to in public is not alone sufficient reason to order that the entire
document
should be accessible to the public.
[73]
I do think that there is a valid basis for
further restriction of the protected IGI report.  It does indeed contain the
material
the Minister has alluded to and I can find no compelling reasons why
the material should be disclosed to the public at large.Â
This is particularly
so because a sanitised version of the IGI report is accessible to the public.Â
The Minister’s objection
is slenderly tailored to conceal only the
particularised and sensitive material.  Independent Newspapers has not advanced
any
public or private good that will be served by public disclosure as against
the personal danger in which the NIA operatives concerned
and their activities will
be placed.
Outcome
[74]
It follows from what I have said that I would
(a) grant the order sought by Independent Newspapers only in relation to
paragraphs
18 to 18.6, 3.2 and 4.11 to 4.13 of the in camera affidavit of Mr
Masetlha in the underlying proceedings; and (b) dismiss Independent
Newspapers’
claim for the disclosure of paragraph 3 of annexure IC(i), annexure IC(iii), annexure
IC 1 and annexure IC 17 to
the in camera affidavit.
Costs
[75]
Each of the parties has urged us to grant costs
against the other in the event of its substantial success.  Additionally, Independent

Newspapers advanced the contention that even if it fails on the main
application it should be awarded the costs of the first two
applications – being
the urgent application of 10 May 2007 and the interlocutory application of 22
August 2007 – for the reason
that, but for its intervention, the record would
have remained undisclosed.
[76]
The issues raised in this case are of
considerable constitutional importance.  However, I am not inclined to grant
costs to any
of the parties on the main application.  Each party has gained
substantial success to some degree.  A just order would be to direct
that each party
pay its own costs on the main application which was heard on 22 November 2007.
[77]
Turning to the urgent application heard on 10
May 2007 and the subsequent interlocutory application heard on 22 August 2007,
I think
that Independent Newspapers overstates the role it played in having the
record made available to the public.  The mero motu non-disclosure
direction of
this Court was no more than a holding position until the date of hearing on 10
May 2007.  A simple letter of enquiry
to the Registrar of this Court on 9 May
2007, rather than an urgent application, would have elicited a response that at
the hearing
of 10 May 2007, this Court would, on its own motion, invite parties
to make submissions on whether the record should be kept confidential.Â
So, the
application by Independent Newspapers on the first day of the hearing was not
the only reason that the record was made
available to the public.  I also keep
in mind that the Minister readily conceded to the entire record being disclosed
except for
the documents specified in the notice of objection.  The fact that
the Minister later narrowed down his objection from 12 documents
to five items,
should not on its own attract an adverse order of costs.  If anything, the
Minister’s willingness to abandon
his objection to the disclosure of certain
documents is indicative of the attitude that he may keep away from the public
only such
information as is necessary to achieve specified national security
objectives.  I would order no costs in relation to the urgent
application.
[78]
Lastly, Independent Newspapers’ interlocutory
application has failed.  We must now determine the costs of the application.  The

application was merely interim and must be disposed of as part of the main
application.  Another relevant consideration is that
the arguments which were
advanced in relation to the interlocutory application were in great part
repeated in relation to the main
application.  I would follow the course I have
taken in relation to the main application and that is to make no order as to
costs
in the interlocutory application as well.
Order
[79]
In the event the following order is made:
(a)
Direct access is granted.
(b)
Paragraphs 18 to 18.6, 3.2 and 4.11 to 4.13 of the in camera affidavit
of Mr Masetlha in the underlying proceedings shall be made
available to the
public.
(c)
Annexures IC(iii), IC
1, IC 17
and paragraph 3 of IC(i) to the in
camera affidavit may not be disclosed to members of the public.
(d)
The Registrar is instructed to act in accordance with paras (b) and
(c) of this order.
(e)
No order as to costs is made.
(f)
No costs order is made in respect of the interlocutory application
dismissed by this Court on 29 August 2007.
Madala J, Mpati AJ, Ngcobo J, Nkabinde
J and Skweyiya J concur in the judgment of Moseneke DCJ.
YACOOB J:
[80]
I have had the benefit of reading the judgment
of my colleague Moseneke DCJ (the main judgment).  I agree with the approach
taken
by Sachs J.  The main judgment is strikingly clear, decidedly forceful
and engaging in its flow.  However, after careful and anxious
consideration, I
find it quite impossible to agree with its reasoning and conclusion in several
aspects of substance.  It is therefore
now regrettably necessary for me to
write this judgment.
[81]
I delineate first those areas of the main
judgment that I must traverse.  There are three.  One is concerned with whether
an order
should have been granted in favour of Independent Newspapers in the
interlocutory application.
[1]
Â
In my view the application for access to the disputed material should have been
granted so as to enable Independent Newspapers
to investigate issues and argue
the matter properly before us.  The second aspect is the test to be ultimately
employed in determining
whether documents that constitute evidence before a
court should be kept secret.
[2]
Â
I may have preferred the test to have been more akin to that required by the
limitations analysis commanded by our Constitution.
[3]
  Nevertheless, it makes no
difference in this case whether the test propounded in the main judgment is
adopted and I apply it
subject to qualifications that I mention.  However the
issue of the appropriate test should, I think, remain open to be decided
on
another day.  Finally, while I agree with the main judgment that the veil over
the remaining portions of Mr Masetlha’s in
camera affidavit
[4]
should be lifted, I cannot
consent to the continued secrecy of any of the other disputed material which
are the annexures to the
in camera affidavit of Mr Masetlha.
[5]
[82]
I have set out the issues to be considered in
the order in which they are investigated in the main judgment.  However, it is
convenient
to discuss them here in a different order.  This judgment will
concern itself firstly, with the appropriate test to decide if material
used as
evidence in a court should be secreted.  I then apply the test and conclude
that the documents in this case must, in the
interests of justice, be made
public.  It is only after this conclusion that I lastly consider whether the
material should have
been made available to Independent Newspapers consequent upon
their interlocutory application.
The test
[83]
In determining whether to keep the material
secret, we exercise a discretion in terms of section 173 of the Constitution.
[6]
  It is arguable that it will
be in the interests of justice for a court to limit a right conferred by the
Constitution only if
it has been shown that the limitation is reasonable and
justifiable in an open and democratic society based on dignity, equality
and
freedom.
[7]
Â
In other words, courts should not limit rights unless the limitations test in
the Constitution is met.  The main judgment concludes
that the appropriate test
must simply be whether disclosure or secrecy of the material is in the
interests of justice.  The other
side of the coin is that Parliament can limit
a right only if the limitation satisfies the requirements of the limitations analysis.Â
What is more, there is a burden on the lawmaker to justify the limitation.
[8]
  It is difficult to justify a
regime in which a court can limit rights more easily than a legislature can.Â
We must acknowledge
some difference between two situations.
[84]
The one is where the court needs to balance
competing individual rights against each other.
[9]
  Because there is no hierarchy
of rights, the appropriate test when one is concerned with balancing rights
must be the interests
of justice test.  A section 36 analysis may not be
entirely inappropriate.  This is because courts would be in the impossible

position of determining the right to which section 36 were to apply.  In the
context of the
SABC
case
[10]
it is apparent that if the fair trial right could be compromised only to the
extent allowed by section 36, the right to freedom
of expression would be
unduly trammelled.  If, on the other hand, the freedom of speech right could be
limited only to the extent
that a limitations analysis would allow, the fair
trial right would undoubtedly suffer.
[85]
The other situation is that we are faced with in
this case.  There is a right on the one side and a state interest aimed at the

benefit of the people on the other.  The interests of justice test might not
adequately protect a fundamental right in relation
to a state interest.  Indeed
the whole of section 36 is concerned with legislation in the interests of the
state and the general
citizenry as well as the circumstances in which that
legislation can limit the right.  I say no more about this issue because,
as
indicated earlier, the question can and should be left open.  This is because
even on the test postulated in the main judgment,
all the material must be
released.  Otherwise, as I show later, justice would become a laughing stock.
[86]
There are nonetheless two important
qualifications that I wish to make in relation to the approach elaborated in
the main judgment.
[11]
Â
I take issue with the statement in the main judgment that the aim of the
exercise is to strike an “harmonious balance between
the two or more competing
claims.”  My understanding of the balancing exercise is different.  It is
impossible to achieve an
harmonious balance between two competing claims in the
constitutional context.  The balancing exercise as I understand it places

different considerations into different parts of what may be called the
balancing instrument and strives to arrive at a conclusion
as to where the
balance lies.  If the balance tilts in favour of the state, in all the
circumstances, the state must win.  If,
on the other hand, the balance swings
the other way, the other party must succeed.  Balancing is the process or
exercise by which
the result is reached.  The result, though a consequence of
the balancing exercise, is not necessarily an even balance.  Moreover,
harmony
has nothing to do with it in my view.  The one side or the other side will
succeed depending on what the balancing of
interests yields in the interests of
justice analysis.
[87]
The second qualification is perhaps a matter of
detail and emphasis.  It is apparent that the right to freedom of expression is

not that of the media alone.  In reality the press performs an important
service to our democracy because it ensures that the
people’s right to know is
satisfied.  As was said in
SABC
:
“This Court has also highlighted the
particular role in the protection of freedom of expression in our society that
the print
and electronic media play.  Thus everyone has the right to freedom of
expression and the media and the right to receive information
and ideas.  The
media are key agents in ensuring that these aspects of the right to freedom of
information are respected.  The
ability of each citizen to be a responsible and
effective member of our society depends upon the manner in which the media
carry
out their constitutional mandate.  The media thus rely on freedom of
expression and must foster it.  In this sense they are both
bearers of rights
and bearers of constitutional obligations in relation to freedom of
expression.”
[12]
Â
(Footnote omitted.)
[88]
But added to the considerations mentioned in the
preceding paragraph is the important area of public interest.  There is a
greater
public interest in knowing certain things than in knowing others.  I do
not refer merely to the curiosity of the public.  The
public might be very
curious about some domestic discord between a Cabinet Minister and her spouse.Â
Disclosure of detail in this
regard can hardly be said to be in the public
interest.  On the other hand, the circumstances in which an intelligence agency
came to improperly and unlawfully infringe upon the privacy of an innocent
citizen are not merely matters of public curiosity.Â
They would be issues of
immense public interest.  The degree of public interest is an important factor
to be put into the balance
and would, in my view, not be of insignificant
weight if the interest is one that must be fulfilled.
[89]
Before I consider the disputed material I must
agree completely with the main judgment that—
“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.”
[13]
In other words the classification
of the material can never be decisive.  It may or may not carry some weight
depending on the
reason for its classification.  I return to this later.
The disputed material
[90]
It is now time to examine the disputed material
and its contents.  A number of people feature in the material and the related
publicity
and it is necessary to identify them and to say that their names have
already received considerable publicity.
(a)
The Minister for Intelligence, Mr Ronnie Kasrils (the Minister);
(b)
the erstwhile Director-General for Intelligence, Mr Billy Masetlha
(Mr Masetlha);
(c)
a former Deputy Director-General for Intelligence, Mr Gibson Njenje
(Mr Njenje); and
(d)
a Counter-Intelligence Manager who then held office Mr Bob Mhlanga
(Mr Mhlanga).
IC(i): Paragraph 3 – The
Minister’s letter
[91]
IC(i) is a letter from the Minister to Mr
Masetlha (the Minister’s letter).  The Minister says that the disputed
paragraph 3
refers to the relationship between the South African Secret Service
and foreign intelligence agencies.  It should not be disclosed
on that account.Â
It is necessary to see whether the paragraph does in fact refer to this
relationship.  If it does, we must
ask whether the relationship referred to in
the paragraph is already in the public domain.  If the information is already
lawfully
in the public domain there can, in my view, be no reason for its
non-disclosure.  It will be convenient to determine the information
in relation
to this paragraph before returning to the document itself.  Suffice it to say,
at this stage, that the paragraph has
nothing whatever to do with the Macozoma
affair
[14]
but a different one concerned with the relationships enjoyed by the Directorate
of Special Operations (DSO) referred to in common
parlance as the Scorpions.Â
It is common knowledge that the government appointed the Khampepe Commission
[15]
to determine the future of the
DSO and in particular whether the DSO should continue to exist within the
National Prosecuting Authority
and separately from the police.
[92]
Two articles in the
City Press
focused on
this debate as it emerged in those parts of the proceedings of that Commission
that were open to the public.  The first
of these,
[16]
made certain allegations in a
report relying on “confidential correspondence” submitted to the Khampepe
Commission before the
public hearing into whether the DSO “should remain in the
NPA or be incorporated into the South African Police Service”.
[17]
  The article says, relying on
papers before the Commission, that the National Intelligence Agency (the NIA)
had accused some members
of the DSO of spying on foreign governments.  It goes
on—
“[the NIA] claims that the elite
investigative body is breaking the law by running its own intelligence unit.
The NIA is unhappy about the Scorpions’
alleged working relationship with US-owned Kroll, a risk-management company
with perceived
strong ties to former Central Intelligence Agency (CIA)
operatives.”
The article goes on to say that
other NIA claims against the DSO and the National Prosecuting Authority are—
(a)
The DSO has formal relations with intelligence structures.
(b)
Certain members of the National Prosecuting Authority have
undeclared links with foreign intelligence services.
(c)
Foreign intelligence services have infiltrated the DSO.
[93]
The next article in the
City Press
appeared a week later.
[18]
Â
It reported—
“President Thabo Mbeki is said to have been
so infuriated by the NIA’s claim that the Scorpions were ‘threatening national

security’ by working closely with foreign intelligence agencies that he stopped
short of giving Masetlha his marching orders
this week.”
It was also reported that the
Cabinet had distanced itself from the NIA’s stance.
[94]
These two articles demonstrated a strong
difference of opinion between the government on the one hand and the NIA on the
other in
relation to the Scorpions and their relationship with foreign
intelligence agencies.
[95]
About two years later this debate was once again
brought into the spotlight in a different context by the
City Press
.
[19]
  According to the article a—
“report commissioned by the government
claims that renegade intelligence operatives are colluding with people
disgruntled with
ANC rule to plant divisive documents meant to sow confusion
and weaken the ANC and thus the state.”
This was revealed at a press
conference at which senior government officials were present.  It was also
reported that the intelligence
and security director–general had said in a
statement “[o]ther affected departments shall cease to use external security
services
or individuals without the prescribed vetting requirement.”  The
article then reminds the reader that the DSO was criticised
before the Khampepe
Commission for using external security services before vetting them.  Frank
Chikane, the Presidency Director-General,
is alleged to have said “[t]here are
also indications that there is an interface with foreign intelligence services
in a manner
that could threaten the security of the State.”  The newspaper
article then revisits the allegations made at the Khampepe Commission
about the
relationship between the DSO and Kroll described above.
[20]
[96]
The issues before the Khampepe Commission were
of immense public importance and reporting as much of them as possible would
have
been in the public interest.  The debate between the NIA and the
government about the propriety or otherwise of the DSO liaising
with foreign
intelligence agencies was well within the public domain.
[97]
The Minister’s letter contains comments on the
draft that had been prepared for the Khampepe Commission.  Much of paragraph 3

of the document has nothing whatever to do with the South African Secret
Service.  The Minister says in this paragraph that his
“most serious concerns”
(arising out of the draft report prepared by Mr Masetlha for submission to the
Khampepe Commission)
related to the counter-intelligence issue.  The Minister
then goes on to suggest that “operational intelligence” such as the
naming of
individuals whom the NIA might suspect as being foreign intelligence agents
should “certainly” be omitted.  There
can be nothing objectionable about these
two sentences from a national security point of view.
[98]
The Minister then asks Mr Masetlha to bear in
mind that the DSO’s relationship with foreign embassies and services such as
the
FBI and Scotland Yard has come about through government directives for
training and assistance.  This also relates to the British
SIS and to Kroll.Â
The Minister says that the DSO can hardly be blamed in these circumstances.Â
The only sentence about the South
African Secret Service is one in which Mr
Masetlha is asked to “bear in mind that SASS” (presumably the South African
Secret
Service) has a relationship with Kroll.
[99]
The existence of Kroll is well known.  So is the
complaint about the relationship of the DSO with Kroll.  The objection of the

NIA is that the DSO should not be having these relationships.  The implication
is that the intelligence sector should be enjoying
these relationships.  The
website of the South African Secret Service makes it plain that it gathers
intelligence and fosters
relationships in the foreign intelligence sphere
subject to ministerial approval.
[21]
Â
Nothing is said in paragraph 3 about the nature of the relationships.  The fact
of the existence of a relationship cannot in
itself endanger any
intelligence-gathering or information.  I would, bearing in mind the nature of
the information, the context
in which it appears, the lack of any potential to
damage national security and the public interest, conclude that it is in the
interests of justice that this paragraph be released as a whole.
The Macozoma surveillance
[100]
The other three documents concern the Macozoma surveillance which,
as everyone knows, was botched.  The first is a “statement”
made by Mr Njenje
in relation to the incident (the Njenje statement).
[22]
  The second is a letter
written by Mr Masetlha pursuant to an “investigation into the legality of
surveillance activities carried
out by the NIA on Mr Sakumzi Macozoma” (the
Masetlha letter).
[23]
Â
The third is a report by the Inspector-General on the legality and propriety of
the whole affair (the IGI report).
[24]
Â
It is necessary to set out that information in this debacle already in the
public domain before considering whether the disputed
material should be kept
secret.
[101]
I might start by setting out a government statement communicating
the result of the investigation in question and certain limited
information
about it as they emerge from the IGI report (the IGI public version):
“1.1.     Receipt of a complaint
On Monday the 5
th
of September 2005, the
Minister, who was abroad at the time, received a telephonic complaint from Mr S
Macozoma.  Mr Macozoma
informed the Minister that he had been harassed by the
NIA from Monday the 29
th
to Wednesday the 31
st
of August
2005 and that he and his family had been subjected to surveillance over that
period.  At that stage, it is understood
that the Director-General of the NIA,
Mr B Masetlha had not informed the Minister that Mr Macozoma was under
surveillance by the
NIA or that the surveillance operation had been
compromised.
On Wednesday the 7
th
of September 2005, the
Minister received correspondence from private attorneys informing him they had
been instructed by Mr Macozoma
to interdict the NIA from harassing their client
and any member of his family.  As a result the Minister instructed the
Director-General
of the NIA to formally report on the alleged surveillance
operation conducted on Mr Macozoma.  This report was forwarded to the
Minister
on Friday the 16
th
of September 2005.
1.2.       Request
for an investigation in terms of the Intelligence Services Oversight Act
On the 20
th
of September 2005 the Minister
formally requested the Inspector-General to investigate the allegations made by
Mr Macozoma.  The
request was formally directed in terms of the provisions of
section 7(7)(c) of the Intelligence Services Oversight Act, 1994 (Act
40 of
1994) which obliges the Inspector-General to perform all functions designated
to him by a Minister of the designated Intelligence
Services, of which the
Minister for Intelligence Services is one.
1.3.       Nature of surveillance operations and misleading
of the Inspector-General
In a Phase One report addressed to the Minister on the 14
th
of October 2005 the Investigation Team reported that the NIA had in fact
carried out a surveillance operation directed at Mr Macozoma
between the 29
th
and the 31
st
of August 2005.  This operation was not
authorised
in terms of existing NIA operational policy and
was therefore un-procedural.
The reasons advanced by the Director-General, Mr B Masetlha
and members of the senior management of the NIA as to why Mr Macozoma
was
placed under surveillance at all had been found by the Investigation Team to be
without substance and merit.  The Investigation
Team noted with concern
attempts to conceal the fact that Mr Macozoma was specifically targeted for
surveillance by the NIA and
to mislead the Minister and the Investigation Team
as to the true nature of events surrounding this particular operation.  The

Investigation Team as a result concluded that the surveillance operation was
both un-procedural and – as an intrusive measure
had been deployed without proper
justification – lacked legitimacy and based on the facts before us, was
therefore unlawful.
1.4.       Recommendations of the Inspector-General
Based on our findings, the Investigation Team recommended
that the Minister consider taking disciplinary steps against the management

team of the NIA and that the NIA continue with an internal investigation into
the circumstances which resulted in the surveillance
operation against Mr
Macozoma being compromised.  The Investigation Team also identified the need
for a policy review in specified
areas of concern that included operational
policy on the authorisation of surveillance targets, in particular the
identification
of and
authorisation
required for
secondary targets identified during the course of a surveillance operation and
a policy framework in support of target
identification for Counter-Intelligence
Investigations.
Although the purpose of the first phase of the investigation
had been to determine the circumstances and facts that led to Mr Sakumzi

Macozoma being placed under surveillance by the NIA, during the course of the
investigation the need was identified for a further
investigation into the
possible link between the surveillance of Mr Macozoma and the so-called Project
Avani – which the NIA
had carried out at about that time.”
[102]
Material aspects of the statement released by government are:
(a)
The Minister, while overseas, received a telephonic complaint from
Mr Macozoma that he had been harassed by the NIA from Monday 29
to Wednesday 31
August 2005.
(b)
Mr Masetlha had not informed the Minister of the surveillance or
that the operation had been compromised.
(c)
Mr Macozoma’s attorney had threatened an interdict.
(d)
The IGI had concluded that—
i)
the NIA had in fact carried out a surveillance
operation directed at Mr Macozoma on the above dates;
ii)
the operation had not been authorised and was unprocedural;
iii)
the reasons advanced for the surveillance were without merit;
iv)
there had been attempts to conceal the fact that Mr Macozoma was
specifically targeted;
v)
there had also been attempts to mislead the
Minister and the investigating team as to the true nature of the events
surrounding
this particular operation; and
vi)
the operation was both unprocedural and, as an intrusive measure had
been employed without proper justification, lacked legitimacy
and was therefore
unlawful.
[103]
The public importance of and interest in these events can neither be
gainsaid nor over-emphasised.  A member of the public was unlawfully
and
improperly harassed and he and his family suffered an egregious and inexcusable
invasion of privacy.  All this consequent
upon secret government action.  The
public is entitled to know all except that which cannot be revealed on account
of important
national security considerations.  I would put the strong public
interest to know as well as the extent to which the material is
already in the
public domain on the one side of the scale and the appropriate weight to be
attached to the government objection
on the other side of the scale in order to
determine where the balance falls in the interests of justice enquiry.  Of
course,
all the other factors mentioned in the main judgment must also be
considered.
[104]
I now investigate the further extent to which the matter came to be
in the public domain and matters other than those in the government
communiqué
that were subjected to public exposure.  Two major items of publicity in
relation to these events occurred almost
a year apart from each other.  The
first was a
Sunday Times
article
[25]
that appeared some five months after the botched surveillance and about three
months after the report by the Inspector-General
on the surveillance.  It is
based on documents before the High Court in relation to Mr Masetlha’s
dismissal.  The publication
cannot be said to have been unlawful because there
was no court order prohibiting publication of material before the court.  The

second was in the
Mail & Guardian
.
[26]
Â
This was around the time when the application for leave to appeal had served
before this Court and a decision to grant leave
to appeal had been taken.  No
order existed preventing publication of this article either.
[105]
I set out the salient revelations about the IGI report contained in
the first of the two articles mentioned in the previous paragraph
[27]
that were not in the
government release:
[28]
(a)
The NIA justified its decision to spy on Mr Macozoma saying he had
links with a foreign intelligence agent.
(b)
That agent was code named Mr F.
(c)
Messrs Masetlha, Njenje and Mhlanga had told the investigating team
that they had monitored Mr Macozoma because they had confirmed
that a meeting
between the businessman and a foreign agent was to take place on 28 August, a
day before the surveillance began
and that Mr Masetlha had claimed that he had
information that the foreign agent and Mr Macozoma “knew each other and had met”.
(d)
The IGI report criticises the NIA for bungling the surveillance of
Mr Macozoma and again reproduces a sentence from it—
“[t]he surveillance team did not discover
that they themselves were being monitored by a private security company and the
SAPS,
who were alerted to the presence of strangers in the area”.
(e)
The spies also used their personal vehicles rather than untraceable
NIA vehicles.
(f)
The intelligence on which Messrs Masetlha, Njenje and Mhlanga had
relied for their decision to focus on Mr Macozoma did not correspond
with the
intelligence report received from the investigating team.
(g)
Mr Masetlha and his two deputies had attempted to “conceal the true
nature of the surveillance operation” against Mr Macozoma.
[106]
As I have already said, the second article appeared early in 2007,
about a year after the first.  It is headed rather sensationally:
“Saki, the
spooks and the French”.  It reveals information about all three documents.  I
now set it out.
[107]
The article says of the Njenje statement:
“Njenje states that he was called by an
acquaintance on August 31, who said that Macozoma wanted confirmation that
people watching
his home were from the NIA, as this was what they had claimed
when confronted by police.
Betraying that he knew of the operation,
Njenje states that he then phoned the NIA’s surveillance coordinator ‘and
enquired
from him if it was true that the team has already deployed around
Saki's residence.  He answered affirmatively whereupon I instructed
him to
immediately withdraw them.’
Njenje then briefed Masetlha on ‘the
flop’.  Masetlha ‘advised that I phone Macozoma and indicate to him the
intention of
our operation’.
Njenje spoke to Macozoma the next day.  ‘I
told him . . . indications were that we had a counter espionage operation on
the roll.Â
I mentioned that there was a French intelligence officer who was
attempting to make contact with influential South Africans for
the purposes of
winning them over, [and] that Saki's name was among those the French
intelligence officer was interested in: therefore
the aim of the NIA operation
was to positively identify the French intelligence officer.’”
[108]
The article reveals and comments on the Masetlha letter in the
following terms:
“Masetlha himself repeated the ‘French
intelligence’ explanation to Kasrils three weeks later in a report also
contained in
the court file.
Masetlha’s report states that on August 24
the NIA’s then general manager for counter-intelligence, Lloyd Mhlanga, was
briefed
by one of his managers about ‘the envisaged activity by the French
intelligence service (DGSE) that had as an intention efforts
meant to make
contact with South African business officials associated to the African
National Congress’.
Njenje subsequently authorised surveillance
of Olivier Fichot, the first secretary at the French embassy in Pretoria.  A diplomatic
source confirmed this week that Fichot is an ‘official
representative’ of the DGSE, meaning the South African authorities were

informed of his function.
Masetlha’s report continues: ‘On . . .
August 27, a surveillance operation commenced on Fichot’s residence number 205 Melk
Street Nieuw Muckleneuk . . .’.  This is not Fichot’s residence.  The French
embassy, however, is at 250 Melk Street.  It
appears that either Masetlha got
his facts badly wrong or the bungling NIA had put surveillance on the French
embassy itself.
Masetlha’s report says that no movement was
seen at Fichot’s ‘residence’ on August 27 and 28 and that as a result, Mhlanga

asked the surveillance coordinator to ‘cover’ Macozoma’s home too.
The operation was compromised on its second
day.  ‘The surveillance team encountered problems with members of the South
African
Police Service accompanied by members of a private security company . .
. Macozoma later drove out of the residence and the surveillance
team lost
him.’”
[109]
It is as well to note at this stage that the French agency
concerned, the DGSE, as well as the name of the agent, Mr Fichot, are
now put
into the public domain.  Secondly more possible bungling is exposed.  If the
newspaper is correct, the NIA went to the
wrong house.
[110]
The
Mail & Guardian
makes additional disclosures on the
IGI report:
(a)
It was expected that Mr Macozoma would be approached by the French
foreign intelligence service, the DGSE.
(b)
The official NIA operation that included the surveillance of Mr
Fichot was called Operation Fairwood.
(c)
There was no link between the surveillance of Mr Fichot and the
surveillance of Mr Macozoma.  The implication is that Messrs Masetlha,
Njenje
and Mhlanga lied when they said that the surveillance on Mr Macozoma was the
result of the fact that the team had lost Mr
Fichot.  Indeed it appeared from
the documents that the Macozoma surveillance had been ordered one day before
the surveillance
of Mr Fichot had started.
[111]
In addition the
Mail & Guardian
repeats some of the
material contained in the 2006
Sunday Times
article referred to earlier:
(a)
The report criticises the amateurish handling of the operation in
that amongst other things the operatives concerned used their own
rather than
NIA cars which could not be traced.
(b)
The report also points out that the NIA surveillance team failed to
notice that they were being watched by private security guards
and policemen.Â
They remained in place even after their cover had been blown!
[112]
Operation Fairwood was subsequently
[29]
referred to in two newspaper articles about Mr Masetlha’s criminal trial.
[30]
  The first is that published
by SAPA
[31]
during the course of the trial while the second appeared in the
Mail &
Guardian
of the same date.
[32]
Â
In addition a further article published in the
Mail & Guardian
in
the context of the trial of Mr Masetlha
[33]
repeated information already in the public domain.  The article said that it
was on record that Mr Macozoma and Mr Fichot, a French
intelligence operative,
knew each other and had met as Mr Masetlha had said during an interview.
The last three documents
considered
[113]
It is in this context that the Minister’s objections to the
remaining three documents must be evaluated to see whether the balance
falls in
favour of their release to the public and against their being kept secret.  I
repeat that the boundaries of the investigation
are concerned with the public
interest in the information together with the extent to which the information
is in the public domain,
on the one hand, and the Minister’s reasons concerning
the nature of the security interest on the other.
IC(iii): Mr Njenje’s report
[114]
This is the document produced by Mr Njenje talking about the
information he had received from someone enquiring about the surveillance
on
behalf of Mr Macozoma.  As correctly reported in the newspaper publicity
concerning this document,
[34]
the report says that Mr Njenje received a telephone call enquiring about
whether the surveillance on Mr Macozoma was NIA-inspired
because that is what
the operatives concerned had said to the police.  It also says that Mr Njenje
telephoned the NIA surveillance
co-ordinator and asked him if it was true that
the surveillance had already been deployed around Mr Macozoma’s residence.  The

co-ordinator said it was, whereupon Mr Njenje instructed him immediately to
withdraw the team.  Mr Masetlha was then advised and
there was finally a
communication with Mr Macozoma on the issue.
[115]
The Minister wants this Court to keep the Njenje report secret
because, so he says, the document reveals the name of an operative
and, what is
more, contains information that might disclose the identity of the operative
and place his life in danger.  The Minister
also objects to the disclosure of
this document on the ground that it discloses a chain of command.
[116]
The only person identified in the Njenje report is the surveillance
co-ordinator referred to in the article.  He was simply asked
whether the
surveillance had already commenced and he replied in the affirmative.  The only
other reference to this co-ordinator
in the report is that he was asked to
obtain statements from those involved.  There is no other information in the
Njenje report
about him except that the report names him.  I find it impossible
to understand how his life would be in danger if his name were
to be released
in view of his limited role.  I cannot see why the document should not be
disclosed on that ground.
[117]
The objection concerning the chain of command must be dealt with
next.  The Njenje report deals broadly with the following areas—
(a)
the fact of the receipt of the complaint;
(b)
that certain information was sent through to Mr Njenje by the person
who had received the complaint;
(c)
that the surveillance co-ordinator was asked to stop the
surveillance after he had confirmed that it had already begun;
(d)
a conversation between Mr Njenje and the person who had originally
telephoned in which Mr Njenje thanked him for the information;
(e)
the fact that Mr Masetlha was later briefed; and
(f)
a phone call by Mr Njenje to Mr Macozoma providing some explanation
for the fiasco.
[118]
Only three NIA employees are mentioned in the report: the
surveillance co-ordinator who said that the surveillance had begun and
who was
asked to stop the surveillance and to obtain statements from those involved,
the Deputy Director-General and the Director-General.Â
To my mind, no chain of
command is revealed.  In the light of the contents of the document it is
difficult to see any reason for
its non-disclosure other than to limit the
embarrassment of the NIA.  This is not an appropriate basis.
[119]
Although the Minister did not take the point, I have noticed that
the Njenje report contains the information that Mr Njenje had said
in a
telephone call to Mr Macozoma that a French intelligence officer was interested
in him.  If the Minister had objected on
this basis, I would have dismissed
it.  This is because it is already in the public domain that Mr Fichot, an
intelligence agent
for the French agency, the DGSE, was interested in Mr
Macozoma.
[120]
I have already said that the public interest in the matter is
enormous.  The Minister’s reasons examined in the light of the document
as a
whole are nothing short of fanciful.  The Njenje report must therefore, in my
view, be released.
IC 1: The Masetlha letter
[121]
After the Minister received a complaint from Mr Macozoma about the
surveillance and after Mr Macozoma had threatened an interdict,
the Minister
asked the Director-General to account for what had occurred.  Mr Masetlha
investigated this undoubtedly intrusive
surveillance and reported to the
Minister.  The document, the possible secrecy of which we are now considering,
is that report.Â
The starting point of the enquiry into whether the document
should be released is that it was of great public importance and justified

considerable public interest.  The report was concerned with and provided
particulars of unlawful action taken by the NIA that
had the impact of
infringing upon the privacy of Mr Macozoma and his family.  Unless there was
good reason for concealment, the
public as a whole had the right to know what
Mr Masetlha said to the Minister about this unjustifiable action.  The
objections
of the Minister must be evaluated in this context.
[122]
The Minister objects on the basis that release of the information
would allow “hostile elements” to use its contents.  These
elements might, the
Minister says, disrupt operational planning and harm the operatives concerned.Â
The Minister was also concerned
that the information might be used to damage
diplomatic relations between certain states.  More specifically, the Minister
objects
to the disclosure of the names of operatives and the activities in South Africa of a foreign intelligence service.
[123]
It is the disclosure of the foreign intelligence service and the
name of the operative that could, as far as the Minister is concerned,
have
implications for co-operation between institutions and diplomatic relations.Â
The only foreign agency mentioned in the letter
is the French DGSE.  The only
foreign agent mentioned is Mr Fichot of the French DGSE.  These matters are
already very much in
the public domain and this objection by the Minister holds
nothing.  If regard is had to the extent to which the report is already
in the
public domain,
[35]
the Minister’s case is weakened.  As pointed out earlier, it is already known
that the Masetlha letter said that the then NIA
Manager for
Counter-Intelligence, Mr Lloyd Mhlanga, was briefed by his managers on the
intention of the French DGSE to make contact
with prominent South African
business people.  It was also reported that the Masetlha letter is to the
effect that Mr Njenje authorised
the operation against Mr Fichot.  The article,
if correct, seeks to show that the NIA surveillance team had the wrong address
and went to the wrong house.  I do not see how, once all this is known, foreign
relations could at all be endangered.
[124]
The objection cannot be upheld even where it concerns the disclosure
of names of operatives.  It may be said at first blush that
the Masetlha letter
is replete with the names of operatives.  On closer examination however the
following appears.  There are
nine NIA names in the document.  Three of these
names, Mr Masetlha, Mr Njenje and Mr Lloyd Mhlanga are already in the public
domain.Â
This leaves six names:
(a)
One is that of the Manager Counter Intelligence Investigations whose
name is mentioned twice.
(b)
The second is the Coordinator Surveillance whose name appears ten
times.
(c)
The person who was the leader of the surveillance team appears five
times.
(d)
The name of a person whose designation might reveal too much is
mentioned twice.
(e)
An operative in charge of the operation whose name is mentioned
once.
(f)
Lastly, the name of the operative who watched Mr Fichot’s house is
mentioned three times.
[125]
In the light of the nature of public interest involved I see no
reason why the security interest could not be more than adequately
protected by
making 23 deletions that concern six names and that would involve deletion of a
little more than 40 words.
[36]
Â
This to ensure that the public could know and evaluate the account given by Mr
Masetlha to the Minister on a matter of public
importance.
[126]
Annexure IC 1, the Masetlha letter must therefore be released.
IC 17: The IGI report
[127]
I have already set out the relevant parts of the redacted and
amended version of the IGI report that the Minister released for public

consumption.
[37]
Â
Part of the argument by the Minister is that this limited release of
information to the public somehow excuses the Minister from
telling the public
more.  The document that was released to the public must be compared with the
IGI report as a pre-cursor to
an evaluation of the Minister’s objection.
[128]
The public version is no more than a recapitulation of the summary
of the relevant portion of the report redacted, changed and expanded
in certain
respects.  It is important to point out these differences to start with:
(a)
The name of Mr Macozoma’s attorney who had threatened the interdict
on his behalf was removed from the summary of the report and
replaced with the
phrase “private attorneys”.
(b)
The document says that the Minister “tasked” the Inspector-General
to investigate the allegations made by Mr Macozoma.  The
word “tasked”
contained in the IGI report summary is replaced by the word “requested”.
(c)
The IGI summary says that the relevant legislation “allows” the IGI
to investigate.  The IGI public version changes the word
“allows” to “obliges”.
(d)
The IGI report makes it quite clear that the relevant legislation
allows the investigation of complaints by members of the public
as well as by
governmental agencies.  In the public version the words “investigate complaints
from members of the public”
are deleted.
(e)
The IGI summary expressly states that “the operation was not
authorised in terms of existing NIA operational policy and was therefore

unlawful”.  The public version is amended and it is said to the public that the
report found the operation to be merely “un-procedural”.
(f)
The public version consistently holds back the names of the two
Deputy Director-General of Intelligence and the General Manager of
Counter
Intelligence, Messrs Njenje and Bob Mhlanga, wherever they appear, and replaces
them with the words “and members of the
senior management of NIA”.  I have
already shown these names are very much in the public domain.
(g)
The IGI summary makes it clear and the
Sunday Times
has
published
[38]
that Messrs Masetlha, Njenje and Bob Mhlanga tried to “conceal the true nature
of the surveillance operation against Mr Macozoma”.Â
This is excluded from the
IGI public version altogether.  The public version says that these senior
officials tried to conceal
“the fact that Mr Macozoma was specifically targeted
for surveillance by the NIA”.
(h)
Finally I must point to an interesting sleight of hand.  I have
already said that the conclusion that the operation was unlawful
was changed in
the public version and reflected as being unprocedural.  In addition the public
version has in it a sentence which
I do not find in the IGI report at all.  The
sentence reads:
“The Investigation
Team as a result concluded that the surveillance operation was both
un-procedural and – as an intrusive measure
had been employed without proper
justification – lacked legitimacy and based on the facts before us, was
therefore unlawful.”
          Â
The IGI
report never said that the operation was unprocedural, nor did it qualify the
unlawfulness finding in the way conveyed by
the public version.
[129]
It is this publicly released document upon which the Minister
relies.  Regardless of what the motives may have been for all the
changes it is
clear to me that the public was deceived at least by some of them.  The public
deceit has, to an extent, been cured
by what has been said in the preceding
paragraph.  The conduct of the agency in producing the public version is as an
exercise
of public power inconsistent with the values mandated by our
Constitution and is therefore, at the very least, regrettable.  The
public
version is the summary of the IGI report amended in material respects.  It
would have been different however, if the public
version of the report did in
fact contain the detail of the original report without disclosing the names and
sources.  As I have
pointed out earlier this is a far cry from what the public
version in fact does.
[130]
It is against this background that it is necessary to consider
whether it is in the interests of justice to keep the IGI report secret.Â
The
Minister urges secrecy on the basis that the document contains the name of a
foreign target of an intelligence operation, sources
of intelligence as well as
the names of NIA operatives.  This contention must be examined against the
documents.
[131]
The only foreign agent who was the target of surveillance mentioned
in the IGI report is Mr Fichot of the French DGSE.  This information
is quite
public.  The only source of intelligence referred to is the file concerning the
Fairwood Operation.  This is also public
knowledge as I have already pointed
out.  The argument concerning the disclosure of NIA operatives must now be
dealt with.
[132]
One more operative is mentioned in the IGI report compared to the
names that have been mentioned in the Masetlha letter.
[39]
  As I show immediately, it is
in the public interest to release the entire report – so much so that the
deletion of all the
names of NIA operatives is fully justified.
[133]
The public version of the report communicates that there was a
surveillance operation against Mr Macozoma, that it was not authorised
and that
it was unlawful.  Far from providing details of the IGI report and findings the
only material aspects that are set out
in the public version are—
(a)
particulars as to the circumstances that led to the investigation;
(b)
that the surveillance was carried out;
(c)
that it was unprocedural and in some limited way unlawful;
(d)
that the reasons given by the NIA for the surveillance were without
merit; and
(e)
that there was an attempt to conceal and mislead.
[134]
There is no detail at all about any of the following—
(a)
the circumstances in which the surveillance took place;
(b)
the basis on which it was found that the surveillance was
unauthorised and unlawful;
(c)
the reasons that were advanced by the NIA for venturing upon the
unlawful surveillance of a private citizen;
(d)
why these reasons were unacceptable; and
(e)
on what basis the NIA concluded that the true nature of the
surveillance of Mr Macozoma had been concealed by the NIA senior management.
[135]
Above all the summary says not a word about all the bungling by NIA
operatives which received publication before and after the release
of the
public version.
[40]
[136]
Those who bungled and those who perpetrated a deceit upon the
Inspector-General were all civil servants paid by the taxpayer.  Those
who deceived
the Inspector-General were indeed very senior members of the NIA receiving high
salaries.  A court should not be
used as an instrument to conceal bungling and
deceit under the guise of protecting the names of operatives and other details
that
are already in the public domain.  To suggest that this course is in the
interests of justice is, to my mind, to define the concept
of justice in a
manner inconsistent with the understanding of the notion throughout the world
and, perhaps more importantly, in
a manner utterly inconsistent with our
Constitution.
The interlocutory application
[137]
The interlocutory application was dismissed by a majority.  I
concluded that it should have been granted.  It is now necessary
to provide the
reasons for the conclusion that I had reached.  The only material in dispute at
the time the interlocutory application
was heard was the material that has been
considered in the main judgment and in this judgment.  In summary, it consisted
of two
portions of an affidavit that had been filed by Mr Masetlha in the High
Court proceedings, a single paragraph of one annexure to
it and the whole of
three other annexures.  The material was therefore limited.  It will be
recalled that Independent Newspapers
asked for the documents to be given to
them so that they would be able to advance argument in favour of the release of
the documents.Â
They contended that they would otherwise have been hamstrung in
arguing their case.  They agreed that the material should be made
available
only to some of their legal representatives as well as to two senior editors.Â
They were prepared to undertake not to
publish the information pending the
final determination of their interlocutory application.
[138]
In my view the test to be employed in regard to whether or not the
documents should have been released to the legal representatives
and editors
for a limited purpose upon the stated condition would be the same as that
employed in determining whether the documents
ought to have been released to
the public.  In other words, we would need to decide whether the limited
disclosure contended for
in the interlocutory application would have been in
the interests of justice.  The interests of justice would need to be determined

by a court looking at the document concerned and applying the test set out in
the main judgment.
[41]
[139]
The fundamental problem with the reasons for not making this
material available for the limited purpose contended for in the interlocutory

application is that the judgment has no regard to the content of the documents
concerned.  On the other hand it does quite properly
have regard to the
contents of the document concerned in applying the interests of justice test in
this application.  This underlines
the wholly different and to some extent
contradictory approach in the main judgment in the reasons for the dismissal of
the interlocutory
application on the one hand
[42]
and the way in which the main
application is determined on the other.
[43]
Â
The concept of the interests of justice is merely mentioned in the reasons for
the dismissal of the interlocutory application
but no test of any kind is
applied in relation to those reasons.  In fact, the reasons for the refusal of
the interlocutory application
put together an array of sometimes unrelated
factors in coming to the conclusion.
[140]
Five matters must be canvassed before I explore the interests of
justice in keeping each document secret even from the legal representatives
and
senior editors.  The first is a matter of approach.  One must be careful in
this analysis not to provide the reasons, in
hindsight as it were, for the
limited release of the material.  This is because more argument has been heard
since the interlocutory
application and the material concerned has by now been
subjected to in-depth analysis.  I must try to ensure that the reasoning
and
the analysis which compel me to release the disputed material to the public
now, do not creep into the reasons which impelled
me to authorise the limited
release consequent upon the interlocutory application.  Nor, on the other hand,
is it appropriate
to argue that the fact that the main judgment releases some
material now means that that material ought to have been released before.Â
The
interlocutory application must be determined on its own merits.
[141]
The second is that it would in principle be more difficult to
justify, in the interests of justice, a refusal to permit a limited
conditional
disclosure of material sought to be secreted than to justify a refusal to
disclose the material to the whole public.Â
Secrecy is in a sense a matter of
degree.  Nothing is ever completely secret.  Information is always known to
somebody.  Information
impinging on national security is no exception.Â
Conditional limited disclosure of classified information for official purposes

is well known.  The decision to be made in the interlocutory application is
whether there ought to have been limited conditional
disclosure for the purpose
of legal proceedings.
[142]
Thirdly, it must be understood that Independent Newspapers brought
this case in the fulfilment of its constitutional obligation to
inform the
people of this country.  I can do no better than to repeat what was said in the
SABC
case:
“The media thus rely on freedom of
expression and must foster it.  In this sense they are both bearers of rights and
bearers
of constitutional obligations in relation to freedom of expression.”
[44]
Independent Newspapers is not a
busybody attempting to interfere in a case which does not concern it.Â
Accordingly the fact that
the parties to what was referred to in the main
judgment as the underlying case had all the information is irrelevant to
whether
Independent Newspapers should have it on a limited and conditional
basis.  The underlying case is different from the case of Independent

Newspapers.  Independent Newspapers must be assisted in the performance of its
constitutional mandate unless it is not in the
interests of justice to do so.
[143]
Fourthly, I must point out that there had been considerable access
to the material for professional purposes already.  Free access
to the material
would have been given to the Minister’s attorneys and counsel, Mr Masetlha’s
attorneys and counsel in the High
Court, the prosecuting team in the Hatfield
Community Court, Mr Masetlha’s legal team in the criminal proceedings before
the
Hatfield Community Court, certain staff members in the Magistrate’s Court,
certain staff members in the High Court, as well as
24 South African clerks and
four foreign clerks employed in this Court at the time the matter was heard.
[144]
Lastly, it is vital that parties to legal proceedings are able to
argue their case effectively and properly.  The more so if the
party seeking
the material does so in the valiant effort to comply with a constitutional
obligation.  It was my view that it would
be unduly difficult for parties to
argue the matter without referring to the documents.  The main judgment shows
this.  It would
have been quite impossible to write the judgment without
referring to the documents concerned.  I fear that the argument presented
to us
has not been as useful as it would have been if the documents had been
released.
[145]
I now provide reasons in respect of the specific material in issue
in the interlocutory application.
The material in Mr Masetlha’s in
camera affidavit
[146]
I read the disputed material in Mr Masetlha’s affidavit
[45]
and, at the time, could see
no risk or potential harm to national security in releasing it.  At that stage,
I would already have
been inclined to release it to the general public.  The
material has now been released and I set it out in this judgment to show
that
there could have been no reason to prevent its conditional limited release for
the purpose of conducting legal proceedings
effectively.
[147]
I set out the disputed material in justification of my position:
“3.2      [T]he Minister inaccurately accused me before Cabinet of
taking a public position on the issue in conflict with
the Minister’s
instructions to me, succeeded in my absence in obtaining the support of the
Cabinet in condemning my actions and
then made such condemnation public, through
the Cabinet’s spokesperson.
. . . .
4.11      At the very next Cabinet meeting, the Minister reported to
Cabinet, inaccurately, that NIA’s confidential submission
to the Khampepe
Commission (in the form of the revised draft) had been submitted to the Khampepe
Commission in conflict with an
instruction given to me by the Minister.
4.12      On the strength of the Minster’s inaccurate accusation, my
alleged conduct in making a submission to the Khampepe
Commission in conflict
with the Minister’s instruction was disapproved by the Cabinet.  The Cabinet
however decided that the
matter should remain confidential.
4.13      The Cabinet spokesman however included in his public
statement of the deliberations of Cabinet, at the Minister’s
insistence, a
reference to Cabinet’s disapproval of my alleged conduct.
. . . .
18         . . . The conclusions in the counter-intelligence report
included the following in no special order:
18.1      There was a need for the
President to intervene;
18.2      The struggle for position around the issue of the
succession to the President was complicating the issue;
18.3      The groupings instigating the unrest (which included the
group) were identified;
18.4      A unit within the Scorpions was
an instrument of the group;
18.5      The group wanted to retain the Scorpions in its original
form, ie located without any additional accountability;
18.6      The Minster had associated
himself with the group.”
All the other material
[148]
I had read the other disputed material and had subjected it to mild
scrutiny.  I had not analysed it closely in relation to the
context or in
relation to the other publicity.  In the light of four of the five
considerations mentioned earlier,
[46]
I came to the conclusion that there were no interests of justice considerations
which ought to have precluded the release of the
material concerned.  My view
was that the material was embarrassing to the government.
[149]
I was convinced that the responsible legal representatives and
senior newspaper editors would handle the matter with sensitivity
and care.  I
was also persuaded that all were bona fide and would comply with their
undertaking not to publish the material.Â
I accordingly concluded that the
material should be made available to them.  The NIA and the government would
have been embarrassed
by the information.  I saw no possibility that the
newspapers would have revealed the bungling, the identity of Mr Fichot, the

foreign French intelligence service known as the DGSE, the names of the junior
operatives or any information which might endanger
them.  The legal
representatives and the newspaper editors are responsible citizens as much
interested in the security of the
South African state as anyone else might be,
including the NIA, the Minister’s attorneys and counsel, Mr Masetlha’s
attorneys
and counsel in the High Court, the prosecuting team in the Hatfield
Community Court, Mr Masetlha’s legal team in the criminal
proceedings before
the Hatfield Community Court, certain staff members in the Magistrate’s Court,
certain staff members in the
High Court, as well as 24 South African clerks and
four foreign clerks employed in this Court at the time.
Costs
[150]
I would have ordered the Minister to pay the costs of Independent
Newspapers, both of the interlocutory application and this application.Â
It is
pointless to elaborate on this in a minority judgment.
Sachs J concurs in the judgment of
Yacoob J.
SACHS J:
[151]
The concept of open justice is not self-contained.  It is an
integral part of living in the open and democratic society that lies
at the
heart of our constitutional order.
[1]
Â
It is also conditioned by the fact that the Constitution envisages a new kind
of intelligence service, one that functions at
all times within the letter and
spirit of the Constitution and subject to civilian oversight.
[2]
  This is the context in which
I believe the balancing in the present matter between the principles of open
justice, on the one
hand, and protecting important state interests in
preserving secrecy, on the other, has to be conducted.
[152]
With these considerations in mind I find myself in agreement with
the broad sweep of Moseneke DCJ’s judgment.  In my view, he
has outlined the
legal issues and the principles that govern them in an elegant and persuasive
manner.  Furthermore, in relation
both to the interlocutory application to
enable the legal representatives of the newspapers to view the embargoed
material, and
to the final determination of what should remain secret, he has
set out the competing factors in a most helpful and comprehensive
manner.Â
These are borderline cases.  Acting with due regard to the need to be open
where possible, the Minister agreed to the
disclosure of the great bulk of the
material initially withdrawn from the public record, and offered
carefully-reasoned justifications
for keeping the rest out of the public
domain.  Yet, and not without hesitation, I have come to the conclusion that,
at the end
of the day, after all the competing interests have been carefully
placed in the scales, the analysis by the Deputy Chief Justice
fails to give
enough weight to the impact that the non-disclosure of even relatively small
parts of the record would have on the
principle of openness.  I accordingly
align myself with the outcome proposed in the minority judgment of Yacoob J.
[153]
To my mind, this case requires special attention to be paid to the
importance of openness, a theme that until now has not been given
much
attention in our jurisprudence.  The principle of openness is an integral part
of the constitutional vision of an open and
democratic society.  Section 1 of
the Constitution declares that the democratic government of South Africa is founded on the principles
of accountability, responsiveness and openness.
[3]
  The theme of openness is
underlined right through the Constitution: in the Preamble,
[4]
the limitation clause in the
Bill of Rights,
[5]
in the provision dealing with the interpretation of the Bill of Rights,
[6]
and in sections regarding the
manner in which Parliament and other legislative bodies should function.
[7]
[154]
Indeed, the most notable feature of these provisions is the
inseparability of the concepts of democracy and openness.  The rationale
for
constitutionalising this symbiosis can be found in our history.  By its nature,
minority rule was not only racist; it was
hegemonic and autocratic.  The
security police received greater and greater powers, and ended up virtually a
law unto themselves.Â
In the paranoid world-view of those in authority who
spoke of a total onslaught on South Africa, everyone was a potential enemy,
and
secrecy became the order of the day.  The impact on the lives of the majority
of citizens was devastating.  Although security
policy was advanced as being in
the ‘national interest’, its primary goal was to safeguard the racially
exclusive state and
the privileged status of the white community.  Security
strategy was formulated by a select group of cabinet ministers and security

officials, excluding parliament and the public from effective participation.Â
The consequences have been summed up in the following
terms—
“the death of thousands of people; the
impoverishment of millions of lives; massive economic waste and damage; a
regional arms
race; and a greater resolve by the liberation movements and
international community to end apartheid.  In short, the outcome was
perpetual
insecurity for the states and inhabitants of South and Southern Africa.”
[8]
And in the striking words of Mahomed
DP: “Secrecy and authoritarianism have concealed the truth in little crevices
of obscurity
in our history.”
[9]
[155]
An open and democratic society does not view its citizens as
enemies.  Nor does it see its basic security as being derived from
the power of
the state to repress those it regards as opponents.  Its fundamental philosophy
is quite opposed to the authoritarianism
of the past.  Its starting-point is
not repression, but the promotion of positive elements of social stability,
such as food security
and job security.  Above all, the society is bound
together not by ties of arrogance combined with fear, but by a shared sense
of
security that comes to all citizens from the feeling that their dignity is
respected and that each and every one of them has
the same basic rights under
the Constitution.
[156]
One of these basic rights gives a special and rare texture to our
Constitution.  It is the right in section 32 of everyone to have
access to
information.  The Promotion of Access to Information Act (PAIA),
[10]
adopted on 3 February 2000,
gives effect to this right, and although the applicants cannot rely on the
provisions of PAIA to found
their claim,
[11]
it remains highly relevant because of the illumination it throws on the totally
changed character of our society envisaged by the
Constitution.  This rupture
with the past was emphasised by the Deputy Minister for Justice and
Constitutional Development, Cheryl
Gillwald, in the following terms:
“Considering our not so distant past, one
would understand the lack of complete faith in the self-regulating
accountability of
the state.  The Act therefore constitutes a clean break with
practices of the successive apartheid governments that were so often

secretive.  In most cases this secrecy had a profound impact on the lives of
the majority of citizens in this country.  As the
new government we had no
choice therefore but to ensure that we create conditions that would allow
citizens full and democratic
participation in the governance process.  We have
an obligation to make rights enshrined in the Constitution real!”
[12]
The sea-change in
philosophy and practice is highlighted in PAIA’s Preamble, which recognises:
“[T]he system of government in South Africa
before 27 April 1994, amongst others, resulted in a secretive and unresponsive
culture
in public and private bodies which often led to an abuse of power and
human rights violations”.
[13]
[157]
And consistent with this new approach, the point of departure for
the statute is that people have a general right of access to information

possessed by the state, coupled with a more limited right of access to
information in private hands.  Exemptions, including those
set out in favour of
national security, are presented as exceptions, and not as the norm.  Thus the
relevant provision dealing
with national security does not provide a blanket
ban on disclosure of such information, but rather furnishes carefully
delineated
and objectively reviewable grounds for non-disclosure.
[14]
[158]
Finally, in keeping with the transformed outlook, the intelligence
services are given a distinct place in the Constitution.  They
share with all
the other security services the duty to act, to teach and to require their
members to act in accordance with the
Constitution and the law, including
customary law and international agreements binding the Republic.
[15]
  The Constitution
specifically places any intelligence service established by the President in
terms of national legislation under
the civilian oversight of an inspector, who
is appointed to monitor its work by a resolution supported by two thirds of the
members
of the National Assembly.
[16]
Â
In general terms, the objects, powers and functions of intelligence services
must be regulated by an Act of Parliament.
[17]
Â
These constitutional provisions both safeguard the specific status of the
intelligence services in the government hierarchy and
ensure that they function
within the parameters of an open and a democratic society.
[159]
All these various constitutional provisions need to be viewed in
conjunction.  No longer is it possible to view the intelligence
services as
shadowy and all-powerful supports for a beleaguered society.  Their function is
to keep government well-informed,
so that it can confidently fulfil its
responsibilities towards ensuring a better life for all in a country undergoing
major transformation.Â
While many of the processes of information-gathering
might remain confidential, and sensitive information gathered might be for

restricted eyes only, their work is not essentially of the cloak-and-dagger
kind popularised in Cold War fiction, with operatives
putting their lives at
risk with every venture they undertake.  There will, of course, be
intelligence-gathering activities of
a highly sensitive nature involving
matters such as serious cross-border crime, money-laundering, and international
terrorist actions,
where secrecy will be of the essence.  But in my view, there
is nothing that suggests that the work of the intelligence services
should
automatically be regarded as secret.  Everything will depend on the specific
context.
[160]
In the present matter the context consists of a dubious and botched
surveillance project which gave rise to tensions inside the intelligence

community, ultimately leading to litigation that came to this Court.  It
includes reference to the proceedings and representations
of the Khampepe
Commission which was also of great public interest.  In these circumstances I
believe that the constitutional
provisions to which I have referred, taken
together, place a rather robust thumb on the scales in favour of disclosure of
all court
documents.
[161]
I agree with the Deputy Chief Justice that acceptance of this point
of departure does not mean that technical concepts such as onus
of proof should
be allowed to loom large in the balancing enquiry.  On the contrary, in
fact-specific matters such as these, undue
technicism, whether on questions of
procedure or evidence, would be more likely to distort the achievement of
constitutional justice
than to enhance it.  Similarly, it seems clear that,
whereas in most cases involving proportionality, the courts will act as an

outside eye in assessing the constitutionality of the way in which power has
been exercised, in cases such as the present the courts
have to do the
balancing themselves.
[18]
Â
Check-lists will not be helpful.  As in all proportionality exercises, the
factual matrix will be all-important, and the court
concerned will itself have
to make an order based on its enquiry into the specific way in which
constitutionally-protected interests
interact with each other, and particularly
with the intensity of their engagement.
[162]
This would appear to be one of those areas where judicial experience
and common sense could be of special importance.  Thus, this
Court accepted in
Shabalala
that the names of informers in criminal matters should not be revealed at any
stage, even if such non-disclosure were to some extent
to limit the capacity of
the accused to make his or her defence.
[19]
Â
The rationale for this common law rule was not only to protect the individual
source from reprisals – the whole system of passing
on information to the
police would be jeopardised if informants feared their identity would be
revealed.
[20]
[163]
The equivalent in the present matter would be redaction, to which
neither party has objected in principle.  The question is whether
something
more than appropriate redaction is required.  In answering this question, it is
important not to deal with hypothetical
damage that could be caused to national
security if certain types of information were to be revealed, but rather to
verify whether
on the facts a real risk exists that non-trivial harm couldÂ
result.  More particularly, it has to be asked whether more harm
could well
result from disclosure than from non-disclosure.
[164]
There are two idiosyncratic features that give this case a surreal
character.  The first is that the initiative to suppress access
to certain
internal intelligence documents came from the Court itself and not from the
intelligence agency.  The belated response
from the Ministry does not smack of
any real perceived need to protect hot state secrets from the public eye.Â
Rather, it suggests
that the Ministry wishes to make points of principle for
the future.  The second is that all the documentation had already been
placed
on the Court website, so that any interested party, whether friendly or
unfriendly or just curious, could quite lawfully
have downloaded and printed it
out.
[165]
I would add that a perusal of the actual contents of the documents
supports the notion that their disclosure risks causing embarrassment
rather
than harm.  In these circumstances, I feel that walls of national security
would hardly have come tumbling down if the
legal advisers had had access to
the full record before deciding whether to encourage or discourage litigation.Â
Far from being
incandescent, the material was so banal, and so much of it had
already been placed in the public domain, that their advice could
well have
been to desist from litigation because at best there was nothing to gain but
dross.
[166]
And, as a matter of principle, it would be unfortunate if officers
of the court were to be regarded presumptively, or possibly, as
dangerous
enemies of the state, or even as irrepressible gossips who do not know how to
keep a secret.  Hopefully the day will
never arrive where in cases involving
extremely serious security matters some sort of vetting of legal advisers could
be required
as the price for making highly sensitive material available to the
defence.  Yet if such an eventuality could even be hypothetically
contemplated,
not in the most notional of senses could the present matter be considered as
potentially coming anywhere near that
category.
[167]
Similar considerations apply to the final determination of whether
anything more than appropriate redaction is required.  I agree
with Yacoob J
that more damage would be done to the national interest in general, and to the
vitality of the intelligence service
in particular, by withholding stale and
routine information about the workings of the agency, than by allowing the
normal rules
governing public access to all court documents to apply.  In my
view, subject only to appropriate redaction, we should restore
all the
embargoed material to the website and give proper respect to the principle of
open justice in an open society.
VAN DER WESTHUIZEN J:
[168]
I have read the judgments of my colleagues Moseneke DCJ, Sachs J and
Yacoob J.  I agree with Moseneke DCJ that the interlocutory
application should
have been dismissed and thus with this Court’s order of 29 August 2007, for the
reasons given by the Deputy
Chief Justice.
[169]
As to the main application, I agree with much in the judgment of
Moseneke DCJ.  However, I am respectfully unable to support the
conclusion.  I
agree largely with the conclusion in Yacoob J’s dissenting judgment.  In this
judgment, I provide a few brief
reasons and also indicate where I am not
entirely in agreement with Yacoob J.
[170]
In my view, the test put forward in the majority judgment lacks specificity
and provides insufficient guidance to courts on how to
balance the competing
interests of open justice and national security.  I would have preferred a
different test, on which I briefly
express some thoughts below.  However, I am
of the view that disclosure of much of the disputed material is warranted, even
applying
the test put forth in the majority judgment.  Therefore, I agree with
Yacoob J that full disclosure of the material is required,
subject to the qualification
mentioned below.  I associate myself with some of the views expressed in the
judgment of Sachs J
on the importance of openness.
[171]
It might be that the exact formulation of an appropriate test could
be left for another day, as the judgment of Yacoob J does.Â
That being said, it
may be useful to suggest the type of analysis that I would hold to be
appropriate, although the discussion
below is not intended to be comprehensive
or definitive.
[172]
In my view, the factors set out in section 36 of the Constitution
could be of considerable use in the weighing of the interests that
are at stake
here.
[1]
Â
Of course section 36 deals with the limitation of rights in the Bill of Rights
in terms of law of general application.  Here
we are not dealing with a
limitation imposed on a right by legislation or the common law, but with the
weighing of competing interests
by a court.  Therefore, section 36 is not
directly applicable.  However, the balancing of competing interests that has to
be
done is not unrelated to a consideration of the reasonableness and
justifiability of the limitation of a right, as required by section
36.
[173]
In the weighing and balancing process required in this case we have,
on the one side of the scale, the constitutionally recognised
need for open
justice.  The judgments of Moseneke DCJ and Yacoob J – in my respectful view –
correctly characterise it as
a constitutional right, derived from a cluster of
related rights, including the rights to freedom of expression
[2]
and to a public trial.
[3]
[174]
On the other side is national security, which the government is
constitutionally obliged to protect.  This constitutional obligation
is
recognised by Moseneke DCJ.  This obligation is characterised in the judgment
by Yacoob J as “a state interest aimed at the
benefit of the people”.  I do not
disagree.  However, in my view the obligation to safeguard national security is
related to
the rights protected in the Bill of Rights and the values embodied
in the Constitution.  The right to freedom and security of the
person,
protected in section 12,
[4]
comes to mind.  Threats to national security may furthermore endanger several
other rights in the Bill of Rights, from the rights
to human dignity
[5]
and life,
[6]
and the right not to be
subjected to slavery, servitude, or forced labour,
[7]
to political rights
[8]
and property rights.
[9]
  Of course, freedom of
expression itself might be threatened if national security is compromised.Â
National security is essential
for the preservation of the sovereignty and the
democratic nature of the state, so prominently recognised in section 1 of the
Constitution.
[10]
[175]
It is arguable that almost every limitation of a right by law of
general application would somehow be based on the state’s obligation
to protect
one or more other rights directly or indirectly; an important purpose of the
state is after all to protect the rights
of the people.  Obvious examples
include the law of defamation, which limits free expression in order to protect
dignity and anti-pornography
legislation which may limit free expression in the
interests of dignity, gender equality and the rights of children.  Free
movement
is limited by the legal regulation of traffic for the sake of safety
and the right to property is limited in the interests of the
environment or
other rights in the Bill of Rights.  Even when the limitation of a right by the
legislature is considered by a
court, in terms of section 36, the balancing of
competing rights may well be at the heart of the exercise, although the inquiry

would of course focus directly on the words of a statute.
[176]
The question in this matter is whether and to what extent the
limitation of the right to open justice in the interest of national
security,
as the Minister contends, can be justified.  In the terminology of section 36,
the question would be whether it is reasonable
and justifiable in an open and
democratic society based on human dignity, equality, and freedom.  It appears
logically sound to
me that factors such as the nature of the right that is
limited, the importance of the purpose of the limitation, the nature and
extent
of the limitation, the relation between the limitation and its purpose and
especially the question whether the purpose could
be achieved by less
restrictive means, should play a significant role.
[177]
We
have to determine the importance of the purpose of the limitation of the right
to open justice.  The executive, through the
Minimum Information Security
Standards (MISS), created a convenient tool for analysing the necessity for
secrecy in a particular
document to national security.  Courts should presume that
documents classified according to the MISS indicate the document’s
importance
to national security, unless the person seeking disclosure can demonstrate why
the MISS classification is improper.Â
However, the classification of a document
following the MISS guidelines cannot be the end of the inquiry, as the Deputy
Chief Justice
holds in his judgment.
[178]
The nature and
extent of the limitation are highly relevant.  The inquiry into the nature of
the limitation includes an analysis
of the type of proceedings in which
disclosure is sought.  When the government is a party to litigation, the
adversarial nature
of the proceedings creates the potential that the government
will be tempted to restrict disclosure to avoid liability or embarrassment.Â
Naturally,
the government has the right to object to any potentially harmful disclosures,
but it must show that the limitation
it seeks is reasonable and justifiable.
[179]
The inquiry into
the extent of the limitation requires an examination of the degree of necessity
to the individual of obtaining
or disclosing the documents.  Upon a prima facie
demonstration that the failure to disclose would implicate the right to a fair

trial or any other right in the Bill of Rights, the government has to show that
those individual rights are not implicated, or
only minimally interfered with,
or that non-disclosure is necessary for the preservation of national security.Â
The number of
documents withheld, the type of information withheld (such as
individual names, locations of military installations, etc), and the
percentage
of the document withheld have to be evaluated.
[180]
A relationship
between the limitation and its purpose must be demonstrated.  This includes
whether the means being used – non-disclosure
– is a rational way to accomplish
the protection of national security.  A court should take into account the
availability of
the information in the public domain, how the documents came to
be in the public domain (illegal public disclosure will probably
not bind the
government in later litigation), and whether further disclosure would increase
the risks to national security.  This
is a fitness test, one that should be
very fact-specific and would require a discretion to be exercised by the court.
[181]
Even if it is
shown that national security requires non-disclosure, it must be shown that the
non-disclosure that is specifically
being sought is the least restrictive
method to achieve the purpose.  A court will look favourably upon alternatives
to full disclosure,
or absolute non-disclosure, for example redaction of highly
sensitive materials, or summaries of documents that allow the public
to
understand the substance if not the specifics of the material.
[182]
Redaction is an especially attractive option when the material
sought to be withheld relates to individual names.  Yacoob J may
underestimate
the dangers potentially faced by operatives in the field when he finds it
impossible to understand how a surveillance
coordinator’s life would be in
danger if his name were to be released in view of his limited role.  Surveillance
coordinators
are privy to highly sensitive information like names, faces and
other methods of identification of undercover agents, knowledge
of tactics of
surveillance by the government, and knowledge of particular undercover or
surveillance operations.  This information
could be useful to those seeking to
threaten national security.  Disclosing the identity of a person with access to
that information
and
identifying him or her as someone who on at least
one occasion had access to information may place them at risk.  For this
reason,
I am of the view that redaction of the operative’s name in question
would have been an appropriate means of achieving the government’s
need to
protect its operatives.
However, I agree with the judgment of
Yacoob J that, in the circumstances of this case, disclosure of the disputed
material was
required in all instances, save that I would permit the redaction
of the names of any operatives not already identified in the media.
Counsel for the Applicant                Advocate
G Marcus SC, Advocate A Stein,
                                                            Advocate
M
Le Roux instructed by Webber
                                                            Wentzel
Bowens
Attorneys.
Counsel for the
Respondent Advocate DN Unterhalter SC, Advocate H Varney,
                                                            Advocate
L
Sisilana instructed by Bowman
                                                            Gilfillan
Attorneys.
Counsel for the Amicus
Curiae       Advocate K Hofmeyr instructed by Freedom of
                                                            Expression

Institute.
[1]
The case is now reported as
Masetlha v President of the Republic of South Africa and Another
[2007] ZACC 20; 2008 (1) BCLR 1 (CC); 2008 (1)
SA 566 (CC).
[2]
The matter was heard on 10 May 2007 and judgment was handed down on
3 October 2007.
[3]
Rule 20(2)(h) of the Rules of this Court requires parties to file
the record of proceedings by delivering hard copies as well as
an electronic
version of the record.  The ordinary practice of this Court at that time was
for the Registrar to place the electronic
record on the website for easy access
by members of the public.  However, since that time this Court has introduced
the practice
of making the record available only after judgment has been handed
down in the matter.  The practice is not an inflexible one.Â
Sometimes it is
not feasible to follow the practice because of the size of the record or the
memory capacity available or some
other operational reason.  In addition, the
Registrar may decide not to publish documents on the website at all in
circumstances
where it is considered inappropriate to do so.
[4]
The office of the Inspector-General of Intelligence (IGI) is
established by section 7 of the Intelligence Services Oversight Act.Â
The
primary duties and powers of the IGI are to monitor the activities of the NIA
and to ensure that its operatives and agents
act in a manner consistent with
the law.
[5]
The order issued on 29 August 2007, reads as follows:
“1.     The interlocutory application of the first intervening party
heard on 22 August 2007 is, by majority decision, dismissed.Â
Reasons for the
decision will be furnished together with the reasons for judgment in the main
application.
2.
The costs of the interlocutory application shall
be costs in the main application.
3.
The main application of the first intervening
party, which was postponed sine die on 10 May 2007, is set down for hearing on
Thursday
22 November 2007 at 10am.
4.
The first intervening party may supplement its
papers by filing an affidavit not later than 18 September 2007 and the second
intervening
party may file an affidavit in reply not later than 2 October 2007.
5.
The record shall consist of all papers filed in
the interlocutory and main applications, duly indexed and paginated as required
by the Rules of this Court.
6.
Written argument shall be lodged—
a.
on behalf of the first intervening party, on or
before 9 October 2007;
b.
on behalf of the second intervening party, on or
before 23 October 2007.”
[6]
Rule 12 provides:
“Any
person entitled to join as a plaintiff or liable to be joined as a defendant in
any action may, on notice to all parties,
at any stage of the proceedings apply
for leave to intervene as a plaintiff or defendant.  The court may upon such
application
make such order, including any order as to costs, and give such
directions as to further procedure in the action as to it may seem
meet.”
[7]
[2001] ZACC 19; 2001 (7) BCLR 652 (CC); 2001 (3) SA 1151 (CC).
[8]
Id
at para 30.
[9]
[2006] ZACC 20; 2007 (3) BCLR 249 (CC); 2007 (4) SA 97 (CC).
[10]
Id
at paras 12-3.
[11]
[2006] ZACC 15; 2007 (2) BCLR 167 (CC); 2007 (1) SA 523 (CC).
[12]
See section 167(6) of the Constitution, 1996 which provides that:
“National legislation or the rules of
the Constitutional Court must allow a person, when it is in the interests of
justice and
with leave of the Constitutional Court—
(a)           to
bring a matter directly to the Constitutional Court; or
(b)           to
appeal directly to the Constitutional Court from any other court.”
[13]
For a discussion on the interaction between the discovery of
documents within the context of litigation and pre-action discovery
under
section 32(1) of the Constitution, see
Ingledew v The Financial Services
Board and Others
(
Ingledew
)
[2003] ZACC 8
;
2003 (8) BCLR 825
(CC);
2003 (4) SA 584
(CC) at para 15.  Although
Ingledew
was decided
before the commencement of the Promotion of Access to Information Act 2 of 2000
(PAIA), Rule 35(14) of the Uniform Rules,
which was under consideration in
Ingledew,
substantially reflects what is required under section 50 of PAIA.  In that
case the complex relationship between pre-action discovery
under section 32(1)
of the Constitution and discovery during litigation was canvassed but not
decided
.
[14]
See subsections 12(b)(i) and (iii) that provide that the provisions
of PAIA do not apply to a record relating to the judicial functions
of—
“(i)          a court referred to in
section 166 of the Constitution;
                .
. . .
(iii)          a
judicial officer of such court or Special Tribunal.”
[15]
Rule 35 of the Uniform Rules of Court; Magistrates’ Courts Rule 23;
and Labour Court Rule 9.
[16]
Id.
[17]
Rules 35(1) and 35(13) of the Uniform Rules of the High Court state
that:
“(1)         Any party to any action may require any other party
thereto, by notice in writing, to make discovery on oath
within twenty days of
all documents and tape recordings relating to any matter in question in such
action (whether such matter
is one arising between the party requiring
discovery and the party required to make discovery or not) which are or have at
any
time been in the possession or control of such other party.  Such notice
shall not, save with the leave of a judge, be given before
the close of
pleadings.
. . . .
(13)         The
provisions of this rule relating to discovery shall mutatis mutandis apply, in
so far as the court may
direct, to applications.”
[18]
1980 (3) SA 1093 (W).
[19]
Id at 1100A-C.
[20]
It might be useful here to describe the five items to which the
Minister persists with his objection. They are (a) paragraphs 3.2,
4.11-4.13
and 18-18.6 of the in camera affidavit; (b) para 3 of annexure IC(i) to that
affidavit; (c) annexure IC(iii) to that
affidavit; (d) annexure IC 1 to that
affidavit; and (e) annexure IC 17 to that affidavit.  I shall refer to all
these items generally
as “the restricted materials”.
[21]
Aside from the hearings in the High Court and in this Court, Mr
Masetlha was charged criminally for contravening certain provisions
under
security legislation.  In that trial, reference was made to the in camera
affidavit and to the IGI Report.
[22]
In the South African context reliance is placed on several cases.Â
In
Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis
and Another
(
Moulded Components
)
1979 (2) SA 457
(W) at 466D-F, the
court had to contemplate the scope and effect of Rule 35(12) of the Uniform
Rules, and held that—
“the
concern for protecting the respondents and their interests is a very valid
consideration, it is something that must be weighed
up against the interests of
the applicant to be placed in a position to present its case fully in the
Court.”
Botha J further determined that—
“the
Court should endeavour to impose suitable conditions relative to the inspection
of documents . . . in the possession of the
respondents, so as to protect the
respondents as far as may be practicable, whilst at the same time affording the
applicant a reasonable
opportunity of achieving its purpose.”
Friedman J (dissenting) held in the
case of
Omar and Others v Minister of Law and Order and Others
(
Omar
)
1986 (3) SA 306
(C) at 329I-J that the reasons for an individual’s continued
detention, and other relevant information, must be provided to the
detainee.Â
He stated that “it is implicit in the
audi alteram partem
rule that in
order to enable a person to make representations, he must be informed of the
case against him”.
Finally, in
Kadalie v Hemsworth NO
1928 TPD 495
at 506 it was put by the court that:
“A man
cannot meet charges of which he has no knowledge; a man who has to give
evidence that he is of a respectable and deserving
character is merely beating
the air if the tribunal before which he goes declines to give any indication of
the points against
him which have to be met.”
[23]
In regard to comparative foreign jurisprudence, numerous cases were
cited.  For example, in
Tinnelly & Sons Ltd & Others and McElduff
& Others v United Kingdom
(1999) 27 EHRR 249
, the European Court of
Human Rights found that the refusal of access to relevant documents in respect
of which confidentiality
was claimed on the basis of national security amounted
to a denial of the right of access to courts in terms of Article 6(1) of
the
European Convention on Human Rights.
The United States Supreme Court in
New
York Times Co v United States
[1971] USSC 145
;
403 US 713
(1971) at 719 noted that:
“The word
‘security’ is a broad, vague generality whose contours should not be invoked to
abrogate the fundamental law embodied
in the First Amendment.  The guarding of
military and diplomatic secrets at the expense of informed representative
government
provides no real security for our Republic.”
[24]
See in this regard below paras [59]-[73] wherein the balancing
exercise between the competing constitutional claims is carried out.
[25]
The
applicant places much reliance on
Moulded Components
, above n 22 above.Â
That, however, is a case in which the applicant and the respondent were direct
parties to the matter and the
issue was whether customer lists between
competitors should be discovered through the procedure provided by Rule 35(12)
of the
Uniform Rules.  Similarly, in
Crown Cork
, above n 18, the court
was concerned with placing limitations on the litigant’s ordinary right of
inspection and copying of documents
discovered by the opposing party, where the
party claimed that the documents contained trade secrets of which advantage may
be
taken.  I also could not find support in the minority judgment in
Omar
,
above n 22, as argued for by Independent Newspapers.
[26]
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”.
[27]
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.”
[28]
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”.
[29]
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.”
[30]
Above n 11.
[31]
Id at paras 31-2.
[32]
Shinga v The State and Another (Society of Advocates,
Pietermaritzburg Bar as
Amicus Curiae
); O’Connell and Others v The State
[2007] ZACC 3; 2007 (5) BCLR 474 (CC); 2007 (4) SA 611 (CC).
[33]
Id at para 26.
[34]
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
(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 t/a SABMARK International
(Freedom of Expression Institute as
Amicus Curiae)
[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 (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.Â
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 t/a 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”.
[35]
Section 153(1)
of the
Criminal Procedure Act 51 of 1977
provides
that:
“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 morals 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.             Â
[36]
Above n 11.
[37]
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.”
[38]
See the majority judgment in
SABC v NDPP
above
n 11
at para 42.
[39]
Id at para 51.
[40]
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 for 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(1) 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);
1995 (3) SA 391
(CC) as the “. . . weighing
up of competing values, and ultimately an assessment based on proportionality .
. . which calls for
the balancing of different interests”.’”
[41]
See in this regard below paras [48]-[56] in which the proper
approach is advanced.
[42]
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”.
[43]
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”.
[44]
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.”
[45]
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.”
[46]
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.”
[47]
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.”
[48]
MISS can be accessed by visiting
http://www.kzneducation.gov.za/policies/MISS96.pdf
,
accessed on 20 May 2008.
[49]
This classification is provided for in Chapter 2 of MISS.
[50]
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.
[51]
Above n 42.
[52]
Section 172(1) of the Constitution provides:
“When deciding a constitutional matter within its
power, a court—
        (a)           must
declare that any law or conduct that is inconsistent with the
Constitution
is invalid to the extent of its inconsistency; and
                (b)           may make any order that
is just and equitable, including—
(i)            an
order limiting the retrospective effect of the declaration of
 invalidity;
and
                                (ii)           an
order suspending the declaration of invalidity
for any period and
on any
conditions, to allow the competent authority to correct the
defect.”
[53]
Above n 37.
[54]
In relation to the Canadian cases the amicus refers us to:
Named
Person v Vancouver Sun
2007 SCC 43
; 285 DLR (4
th
) 193 (SCC);
Vancouver
Sun (Re)
2004 SCC 43
;
[2004] 2 SCR 332
;
Canadian Broadcasting Corp v New Brunswick (Attorney General)
[1996] 3 SCR 480
; and
Edmonton
Journal v Alberta (Attorney General)
[1989] 2 SCR 1326.
[55]
In relation to the United States’ approach we are referred to:
Stone
v University of Maryland Medical System Corporation
[1988] USCA4 1440
;
855 F 2d 178
, 180 (4
th
Cir 1988);
In re Washington Post Co
.
[1987] USCA4 241
;
807 F 2d 383
, 390 (4
th
Cir 1986);
Press-Enterprise Co. v Superior Court
[1984] USSC 17
;
464 US 501
, 510 (1984);
In re The Knoxville News-Sentinel Co. Inc
723 F 2d 473
, 474 (6
th
Cir 1983);
Globe Newspaper Co. v Superior Court
457 US 596
, 606-7
(1982);
Nixon v Warner Communications Inc.
[1978] USSC 59
;
435 US 589
, 598-9 (1978); and
Ex Parte Drawbaugh
2 App DC 404
(DC Cir 1894)
.
[56]
Above n 20.
[57]
Section 12 of PAIA provides:
“This Act
does not apply to a record—
                (a)           of the
Cabinet and its committees;
                (b)           relating
to
the judicial functions of—
                                (i)            a
court referred to in section 166 of the
Constitution;
                                (ii)           a
Special Tribunal established in terms of
section 2 of the Special
Investigating Units and Special Tribunals Act,
1996 (Act No. 74 of
1996); or
                                (iii)          a
judicial officer of such court or Special
Tribunal”.
[58]
Above para 8.
[59]
The public version of the report carried the title
Executive
Summary of the Final Report on the Findings of an Investigation into the
Legality of the Surveillance Operations carried
out by the NIA on Mr S Macozoma
.
[1]
Above [21] – [38].
[2]
Above [55] – [57].
[3]
Section 36.
[4]
Paragraphs 18.1 to 18.6 and paragraphs 3.2 and 4.11 to 4.13.
[5]
Paragraph 3 of IC(i), and the whole of IC(iii), IC 1 and IC
17.
[6]
S
ection 173 provides: “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.”
[7]
Section 36.
[8]
This is clearly not an ordinary onus.
[9]
See
South African Broadcasting Corp Ltd v National Director of
Public Prosecutions and Others
[2006] ZACC 15
;
2007 (1) SA 523
(CC);
2007
(2) BCLR 167
(CC);
2007 (1) SACR 408
(CC) at para 10.
[10]
Id at para 37.
[11]
Above [55] – [57].
[12]
Above n 9 at para 24.
[13]
Above
[53].
[14]
The botched surveillance of a businessman Mr Sakumzi
Macozoma discussed below [100] onwards.
[15]
Presided over by Judge Sisi Khampepe who is currently a
judge of the Labour Appeal Court.
[16]
CIA runs Scorpions
(
8 October 2005),
http://www.news24.com/City_Press/0,,186-187_1813726,00.html
,
accessed on 13 May 2008.
[17]
The newspaper article alleges that attempts to hold certain
parts of the hearing in camera were rejected by Judge Khampepe.
[18]
Msomi,
NIA boss in firing line
(1
5 October 2005),
http://www.news24.com/City_Press/News/0,,186-187_1817704,00.html
,
accessed on 13 May 2008.
[19]
Sefara,
Spies bent on chaos
(
28 July 2007),
http://www.news24.com/City_Press/News/0,,186-187_2155203,00.html
,
accessed on 13 May 2008.
[20]
A
bove [92].
[21]
http://www.sass.gov.za
,
accessed on 13 May 2008.  An interested reader must follow the following links
to obtain the information relied on: “Systems”
and “National and International
Co-operation”.
[22]
IC(iii).
[23]
IC 1.
[24]
IC 17.
[25]
Wa ka Ngobeni et al,
Secret report exposes spy bungle
(
15
January 2006).
[26]
Brümmer and Sole,
Saki, the spooks and the French
(
16 February
2007),
http://www.mg.co.za/articlePage.aspx?articleid=299160&area=/insight/insight__national/
,
accessed on 13 May 2008.  The Court papers wrongly allege that the publication
took place on 22 February 2007 but nothing turns
on this.
[27]
Above n 25.
[28]
Above [101].
[29]
After this application was made but before it was argued.
[30]
Mr Masetlha was charged for not conveying full information
to the Inspector-General of Intelligence (the IGI).
[31]
Ex
spy-chief quizzed on report
(
31 October 2007),
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=84006&s
,
accessed on 14 May 2008.
[32]
Masetlha
accused of being inconsistent in testifying
(31 October 2007),
http://www.mg.co.za/articlePage.aspx?articleid=323649&area=/breaking_news/breaking_news__national/
,
accessed on 14 May 2008.
[33]
Masetlha
‘had no political ambitions’
(
10 November 2007),
http://www.mg.co.za/articlePage.aspx?articleid=324540&area=/breaking_news/breaking_news__national/
,
accessed on 14 May 2008.
[34]
Set out in [107] above.
[35]
Above [108].
[36]
After all, the document has 873 words.
[37]
It has been called the IGI public version and is set out in
full above [101].
[38]
Above [105(g)].
[39]
See above [124].
[40]
23 March 2006.
[41]
Above
[54] – [56].
[42]
Above
[21] – [38].
[43]
Above
[48] – [74].
[44]
A
bove n 9 at para 24.
[45]
Above n 4.
[46]
Above
[141] – [144].
[1]
The Preamble states (in part):
“We
therefore, through our freely elected representatives, adopt this Constitution
as the supreme law of the Republic so as to—
. . . .
Lay the
foundations for a democratic and open society in which government is based on
the will of the people and every citizen is
equally protected by law”.
[2]
Section 199(5) stipulates that:
“The
security services must act, and must teach and require their members to act, in
accordance with the Constitution and the
law, including customary international
law and international agreements binding on the Republic.”
Section 199(8) requires that:
“To give
effect to the principles of transparency and accountability, multi-party
parliamentary committees must have oversight
of all security services in a
manner determined by national legislation or the rules and orders of
Parliament.”
[3]
Section 1 states:
“The Republic of South Africa is one, sovereign, democratic state founded on the following
values:
. . . .
(d)           Universal
adult suffrage, a national common voters roll, regular elections and a
multi-party system of democratic
government, to ensure accountability,
responsiveness and openness.”
[4]
Above n 1.
[5]
Section 36(1) requires that:
“The
rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation
is reasonable and justifiable in
an open and democratic society based on human dignity, equality and freedom”.
[6]
Section 39(1) states that:
“When
interpreting the Bill of Rights, a court, tribunal or forum—
(a)           must
promote the values that underlie an open and democratic society based on human dignity,
equality and
freedom”.
[7]
Section 59, outlining the functions of the National Assembly,
requires that:
“(1)         The
National Assembly must—
                .
. . .
(b)           conduct its business in an open manner”.
and that
“(2)         The
National Assembly may not exclude the public, including the media, from a
sitting of a committee unless
it is reasonable and justifiable to do so in an
open and democratic society.”
Similar provisions apply to the
National Council of Provinces and the provincial legislatures.  See sections
72(1)(b) and (2) and
118(1)(b) and (2).
[8]
Nathan
The Changing of the Guard: Armed Forces and Defence
Policy in a Democratic South Africa
(Human Science Research Council,
Pretoria 1994) 11.
[9]
Azanian Peoples Organisation (AZAPO)
and Others
v President
of the Republic of South Africa and Others
[1996] ZACC 16
;
1996 (4) SA 671
(CC);
1996 (8) BCLR 1015
(CC) at para
17.
[10]
Act 2 of 2000.
[11]
This is due to the limitation of the application of PAIA in section
12, which states:
“
This Act
does not apply to a record of—
(a)           the
Cabinet and its committees;
(b)         Â
the judicial functions of—
(i)            a court referred to in section 166 of the
Constitution;
(ii)           a Special Tribunal established in terms of section 2
of the Special Investigating Units and Special Tribunals
Act, 1996 (Act No. 74
of 1996); or
(iii)          a judicial officer of such court or Special Tribunal;
or
(c)           an
individual member of Parliament or of a provincial legislature in that
capacity.”
[12]
Delivered at a seminar on the
Promotion of Access to Information
Act, Cape
Town, 3 May 2002.  The full text is to be found at
http://www.info.gov.za/speeches/2002/02051409461001.htm
,
accessed 13 March 2008.
[13]
Above n 10.
[14]
Section 41(1)
of PAIA reads:
“The
information officer of a public body may refuse a request for access to a
record of the body if its disclosure—
              Â
(a)           could reasonably be expected to cause prejudice to—
                                (i)            the
defence of the Republic;
                                (ii)           the
security of the Republic; or
(iii)          subject to subsection (3), the international
relations of the Republic; or
                (b)           would
reveal information—
(i)            supplied in confidence by or on behalf of another
state or an international organisation;
(ii)           supplied by or on behalf of the Republic to another
state or an international organisation in terms of an
arrangement or
international agreement, contemplated in section 231 of the Constitution, with
that state or organisation which
requires the information to be held in
confidence; or
(iii)          required to be held in confidence by an international
agreement or customary international law contemplated
in section 231 or 232,
respectively, of the Constitution.”
It is unfortunate in the present
matter that, since the provisions of PAIA are not applicable to cases involving
judicial records
(see above n 11), there is no clear guidance governing the
principles to be applied.  To overcome such problems, the outdated Protection
of
Information Act 84 of 1982 needs to be replaced by a statute that takes account
of present day constitutional and social realities.
[15]
Above n 2.
[16]
Section 210 states:
“National
legislation must regulate the objects, powers and functions of the intelligence
services, including any intelligence
division of the defence force or police
service, and must provide for—
(a)           the
co-ordination of all intelligence services; and
(b)           civilian
monitoring of the activities of those services by an inspector appointed by the
President, as head
of the national executive, and approved by a resolution
adopted by the National Assembly with a supporting vote of at least two
thirds
of its members.”
[17]
Section 199(4) states:
“The
security services must be structured and regulated by national legislation.”
[18]
For similar examples of circumstances where judicial officers
themselves have to exercise an on-the-spot judicial discretion, see
S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7) BCLR 771
(CC);
1999 (2) SACR 51
(CC) (the right to
bail)
at
para 50;
Sanderson v Attorney-General,
Eastern Cape
[1997] ZACC 18
;
1998 (2) SA
38
(CC);
1997 (12) BCLR 1675
(CC);
1998 (1) SACR 227
(CC) (the right to a
speedy trial) at para 30;
Shabalala and Others v Attorney-General of
the Transvaal and Another
[1995] ZACC 12
;
1996 (1) SA 725
(CC);
1995 (12)
BCLR 1593
(CC);
1995 (2) SACR 761
(CC), (
Shabalala)
(access to
prosecution dockets) at para 55.
[19]
Shabalala,
id at para 172.
[20]
Id at para 56.
[1]
Section 36 of the Constitution states:
“(1)         The
rights in the Bill of Rights may be limited only in terms of law of general
application to the extent
that the limitation is reasonable and justifiable in
an open and democratic society based on human dignity, equality and freedom,

taking into account all relevant factors, including—
(a)           the
nature of the right;
(b)           the
importance of the purpose of the limitation;
(c)           the
nature and extent of the limitation;
(d)           the
relation between the limitation and its purpose; and
(e)           less
restrictive means to achieve the purpose.
(2)         Except as provided in
subsection (1) or in any other provision of the Constitution, no law may limit
any right
entrenched in the Bill of Rights.”
[2]
Section 16 of the Constitution protects freedom of
expression.
[3]
The right to a fair public hearing is protected in section
34 of the Constitution.
[4]
Section 12(1) provides for the protection of “the right to
freedom and security of the person.”
[5]
Section 10 states: “Everyone has inherent dignity and the
right to have their dignity respected and protected.”
[6]
Section 11 provides that “[e]veryone has the right to life.”
[7]
Section 13 of the Constitution.
[8]
Section 19 protects political rights.
[9]
Section 25 protects property rights.
[10]
Section 1 of the Constitution states:
“The Republic of South Africa is one, sovereign, democratic state founded on the following values:
(a)           Human
dignity, the achievement of equality and the advancement of human
rights
and freedoms.
                (b)           Non-racialism and
non-sexism.
(c)           Supremacy of
the constitution and the rule of law.
(d)           Universal
adult suffrage, a national common voters roll, regular elections and a
multi-party system of democratic
government, to ensure accountability,
responsiveness and openness.”