Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re Masetlha v President of the Republic of South Africa and Another

• Jurisdiction: South Africa
• Judge: Moseneke DCJ, Madala J, Ngcobo J, Nkabinde J, Sachs J, Skweyiya J, Van Der Westhuizen J, Yacoob J and Mpati AJ
• Judgment Date: 22 May 2008
• Citation: 2008 (5) SA 31 (CC)
• Docket Number: CCT 38/07
• Hearing Date: 22 November 2007
• Counsel: G Marcus SC (with A Stein and M le Roux) for the applicant. DN Unterhalter SC (with H Varney and L Sisilana) for the respondent. K Hofmeyr for the amicus curiae.
• Court: Constitutional Court

Moseneke DCJ:

Introduction D

[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 E 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 F 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 s 209(1) of the Constitution read together with the provisions of the Intelligence G 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 H 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 I affidavit, Mr Masetlha explained that he delivered two affidavits because

Moseneke DCJ

'in this in camera affidavit there are many matters which I cannot A 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 B 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, C 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 D 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 E 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] 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' F 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 G 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 H

Moseneke DCJ

A 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 B 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 C 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 D 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] The second document was an E annexure to the in camera affidavit. The objection was mounted on various grounds of national security. 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 F 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 G 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 H 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 I Newspapers brought an interlocutory application for an order to gain access to the restricted documents pending the adjudication of the main

Moseneke DCJ

claim of disclosure. It claimed that it needed an early and conditional A disclosure of the restricted materials in order that it might prepare its case to assert its right to open justice. 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 B 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. 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, C 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 D furnish reasons later. [5] 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 E 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. F

[14] I must add that the Freedom of Expression Institute (FXI) was admitted as amicus curiae. FXI is a not-for-profit, non-governmental

Moseneke DCJ

A organisation which has as its principal objects the promotion of freedom of expression in South Africa and the opposing of censorship. 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 B 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...