Illustrative image | Sources: Media reporters broadcasting an event. (Photo: iStock) | Thulani Dlomo. (Photo: ambtdlomo.com)The media and the public have secured a significant victory in the fight for access to the R12-million criminal trial of former State Security Agency (SSA) officials Thulani “Silence” Dlomo and Patrick Mshothola, after the Gauteng Division of the High Court in Pretoria varied an order that had kept proceedings behind closed doors.
In an order issued on Thursday, 22 October, Judge Mashudu Munzhelele ruled that the trial must be conducted in open court, allowing members of the public and accredited media to attend proceedings, subject to restrictions intended to protect intelligence sources, operational methods and other sensitive information.
The ruling followed a failure by the parties to reach an agreement on access to disputed documents on Wednesday. Munzhelele had urged them to continue engaging, indicating that the court would have to determine the issue if they could not reach an agreement.
The court also ordered the SSA to immediately hand over four exhibits. The media applicants have reserved their right to pursue access to the remaining documents through further litigation.
The development follows an urgent legal challenge by Media24, Daily Maverick, the amaBhungane Centre for Investigative Journalism and the Campaign for Free Expression (CFE) against restrictions imposed on public access to the trial. Mail & Guardian Media also joined the proceedings as the fifth applicant.
The dispute centred on the implementation of an order granted on 14 October, which the media organisations argued had resulted in the blanket exclusion of journalists and the public from proceedings.
The SSA, meanwhile, argued that unrestricted access could expose intelligence sources, methods, operations and cooperation arrangements with foreign intelligence services, potentially compromising national security.
The R12m Project Mayibuye case
Dlomo and Mshothola face allegations relating to the misappropriation of R12-million in SSA funds in 2015 under a covert operation known as Project Mayibuye, which was allegedly weaponised to neutralise political opposition to former president Jacob Zuma.
The allegations include fraud, forgery and theft. The prosecution’s case concerns three temporary cash advances linked to a purported contract with Kimberley-based Korolo Investment Holdings.
According to allegations set out in the case papers, the contract and related invoices were fraudulent. The company’s director reportedly told investigators that he had not signed the agreement or met Dlomo, and that the company had not received payment.
These allegations have yet to be tested in court. Both accused are presumed innocent.
Open court, with restrictions
The varied order expressly states that “the trial shall be conducted in open court as contemplated in section 152 of the Act”.
It further provides that “members of the public and accredited media may remain in the public gallery, subject to the restrictions contained in this order”.
The ruling does not remove all restrictions on access or publication. Under the order, the State, either of the accused, or the SSA may ask the court to withhold evidence, a document, part of a document or part of a transcript from the public and media on the grounds that it contains secret information. The presiding judge will determine the procedure for considering such requests.
The media applicants are entitled to legal representation during the proceedings and to make representations in response to any request, giving them an opportunity to challenge proposed restrictions.
The order also makes clear that the use or admission of classified documents during the trial does not automatically declassify them or authorise their publication. Whether such material may form part of the publicly accessible court record remains subject to the court’s direction.
/file/dailymaverick/wp-content/uploads/DLomo.jpg "Former special ops boss Thulani “Silence” Dlomo. (Photo: www.min-on.org)")
The court directed the SSA to “immediately provide Exhibits G, H, I and J to the applicants to allow the trial to proceed”.
The exhibits comprise a contract between the SSA and a company called Korolo Investments, applications for temporary advances and invoices linked to the case.
The applicants have reserved their right to seek access to the remaining documents through further litigation, leaving open the possibility of another legal challenge over material that has not yet been disclosed.
Protecting intelligence sources
The order also retains strict protections for certain current or former SSA members whose identities the court has directed may not be published.
Such witnesses must testify anonymously. Neither their real names nor any pseudonyms used by or associated with them may be stated in open court or included in the publicly accessible record.
Instead, the court will assign each witness a neutral alphanumeric designation that does not reveal their identity or service details.
The order prohibits the publication, broadcast or dissemination of information that could identify protected witnesses, including their images, voices, rank, posting, unit or functions.
It also bars the publication of information that the court has ruled is classified and whose disclosure would pose a material risk to national security, an identifiable person, an intelligence source, a current intelligence-collection method or an ongoing operation.
Further restrictions apply to information relating to South African or foreign intelligence and security services, including their members, sources, methods, techniques, operations, operational infrastructure and cooperation or information-sharing arrangements, unless the court directs otherwise.
Photography, filming and audio or video recording of witnesses or proceedings by anyone other than a person authorised to produce the official court record are prohibited. The order also bars live broadcasts or transmissions of the proceedings through television, radio, livestreams, social media or other means.
Despite these restrictions, the order expressly states that “the media may report on the proceedings”, subject to its provisions and any further directions made by the court.
Open justice and public trust
The Campaign for Free Expression (CFE) welcomed the ruling, describing it as a victory for open justice and the media organisations that challenged the restrictions.
CFE executive director Nicole Fritz said the ruling helped restore a principle essential to the legitimacy of the criminal justice system, particularly at a time when South Africa’s law enforcement agencies and security services faced credible allegations of criminal infiltration and what she described as “general rot”, as well as scrutiny through several prominent high-level inquiries.
“The ability of the public to observe their processes, how they arrive at their decisions, the justifications thereof, is critical to their being able to restore and enjoy public trust,” Fritz said.
She cautioned, however, that the SSA’s initial attempt to exclude the public and media entirely from the proceedings remained concerning.
“It seems to me improper that the SSA would even have asked for an order that our highest court has long indicated will not be countenanced: a blanket exclusion of the public and media from court proceedings,” she said.
Fritz said the fact that the application had not succeeded was consistent with the precepts of the Constitution and demonstrated the importance of media vigilance and persistence.
The fight for access
The media organisations launched their urgent application after the 14 October order led to journalists being excluded from the trial.
They argued that the implementation of the order had gone further than necessary to protect sensitive information and that targeted measures, including redactions and restrictions on individual pieces of evidence, could safeguard national security without closing the proceedings entirely.
In their replying affidavit, the applicants argued that the SSA had not sufficiently demonstrated the specific harm that would result from public disclosure. They contended that the law required the court to consider less restrictive measures capable of protecting legitimate national security interests while preserving open justice.
The applicants relied on previous judgments addressing the relationship between national security, classified information and the public’s right to access court proceedings.
One was the Constitutional Court’s decision in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services, known as Masetlha. The case addressed the handling of sensitive documents in court and the judiciary’s authority to decide whether classified material should be protected from public disclosure.
The applicants also pointed out that aspects of Project Mayibuye and the allegations against the former intelligence officials had already been discussed in public forums, including the State Capture Commission and the High-Level Review Panel on the SSA.
However, the agency maintained that disclosure could have consequences beyond the immediate trial, arguing that information which appeared innocuous in isolation could reveal sensitive sources, methods or operations when considered alongside other information.
The new order provides a framework for those competing interests to be considered on a case-by-case basis, rather than through the blanket exclusion of the media and public. DM
Comments
Scroll down to load comments...