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A court has prohibited the publication of a report.
- The Gauteng High Court in Pretoria has determined that the unauthorized possession of a 2014 intelligence report by the EFF and the Public Protector is a continuing crime.
- The court prohibited the publication of the classified intelligence report, but the ruling is academic, as the report was already annulled by agreement earlier this year.
- the cutHe agreed that the fact that the report made its way into the public domain did not declassify it.
A court has determined that both the EFF and the unauthorized possession of a 2014 intelligence report by the Public Protector is an ongoing crime and they cannot rely on the fact that the classified document is in the public domain.
“Until the report is declassified, its unauthorized possession is illegal in terms of section 4 of the Information Protection Act and section 26 of the Intelligence Services Act,” said the North Gauteng Superior Court judge. , Nomonde Mngqibisa-Thusi, in his ruling.
Any release of the revised and annulled report now would amount to contempt of court.
The court ruling was handed down on Thursday, nearly a year after the court heard the matter in November 2019.
In the meantime, the report, on media allegations that some members of the Special Operations Unit within the State Security Agency (SSA) were allegedly involved in illegal activities, was reviewed and shelved by agreement earlier this year.
This, after former SARS executive Johann van Loggerenberg submitted a request for the report to be shelved in December last year.
Therefore, the judgment of the Pretoria High Court, which prohibited further disclosure of the report without authorization, was purely academic.
The Minister of State Security, Ayanda Dlodlo, the plaintiff, had applied to the court for a cost order against the EFF.
Mngqibisa-Thusi agreed.
Questions
“Although this matter dealt with some constitutional issues and a cost order would generally not be issued in such circumstances, I am of the opinion that the EFF’s conduct in attaching the IG report prior to its declassification cannot be tolerated. “
In the ruling, the court agreed that the fact that the report went into the public domain did not declassify it.
The court agreed that the fact that the report is in the public domain could pose a danger to the officers, their families and the operation of the intelligence gathering.
The ruling also rejected the EFF’s argument that publishing the report was in the public interest.
Furthermore, Mngqibisa-Thusi dismissed a counter-request from the EFF for an order, considering that the Information Protection Law was unconstitutional on the grounds that it is vague and too broad, as it violates constitutional rights.
Dlodlo had requested the interdiction against the publication of the report of the Inspector General of Intelligence dated October 31, 2014 entitled “Report of an investigation into complaints by the media against the Special Operations Unit and / or other branches of the Intelligence Agency. State Security “.
According to the ruling, the then Minister of State Security, David Mahlobo, had commissioned the Intelligence Inspector General (IG) Faith Radebe to investigate and report on the allegations made in the media that some members of the Operations Unit Specials within the SSA were allegedly involved in illegal activities.
The report of the former and late Radebe had long been used by detractors of Gordhan and SARS as proof that the unit was truly “dishonest”, and was the first in a series of reports that yielded similar results.
Retired
Many of these have since been withdrawn, most notably a R23 million report from the auditing firm KPMG. The Sunday Times, which published dozens of articles over two years labeling the High Risk Investigations Unit as “dishonest,” withdrew the articles and apologized to Van Loggerenberg and other SARS officials.
In August 2014, Radebe gave his report to Mahlobo for safekeeping. Mahlobo classified it as a secret in terms of a security policy known as Minimum Information Security Standards.
In its November 2019 request, Dlodlo wanted to prevent further public release of the report, primarily for national security reasons, for the safety of officers and their families, and to keep the way they work secret.
Mngqibisa-Thusi noted that at the time the so-called SARS unit was allegedly established and operational, Pravin Gordhan was the commissioner for SARS and Ivan Pillay was a senior executive within SARS.
The alleged report was leaked to the media even though it was classified as secret and was attached to an affidavit in an Equality Court case brought by Gordhan against EFF leader Julius Malema after Malema make certain comments about Gordhan.
In this regard, the Equality Court indicated that there was no reason to remove the embargo, but it was not relevant to the matter of the Equality Court.
However, in the course of a complaint filed by EFF Deputy Leader Floyd Shivambu about alleged intelligence gathering activities in SARS, the Public Protector requested the Minister of State Security for a declassified copy of the IG report.
In turn, the Minister asked the Public Protector to hand over the IG report she had.
Mngqibisa-Thusi noted that a redacted version was eventually given to Mkhwebane.
