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 (22 May 2008)

Case CCT 38/07

[2008] ZACC 6

INDEPENDENT NEWSPAPERS (PTY) LTD Applicant

versus

MINISTER FOR INTELLIGENCE SERVICES Respondent

and

FREEDOM OF EXPRESSION INSTITUTE Amicus Curiae

In re:

BILLY LESEDI MASETLHA Applicant

versus

PRESIDENT OF THE REPUBLIC

OF SOUTH AFRICA First Respondent

MANALA ELIAS MANZINI 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] 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] The second document was an 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 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. 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. 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] 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. 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. 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. 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. 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. 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] 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] 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] 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. 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. 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] 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. 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. 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. 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. 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. 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] 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] 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] 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] 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] 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] 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. 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. For one thing, it mischaracterises the issues we are called upon to decide. 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. 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. 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. The reasons advanced by the Minister are unconvincing. 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] 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. He says they may disrupt operational planning and co-operation between institutions and may harm individuals employed by the NIA. 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. Be that as it may, I have no hesitation in upholding the Minister’s objection. I conclude that the document must remain protected.

Annexure IC 17

[70] This too is annexed to the in camera affidavit. 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]. 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. This is particularly so because a sanitised version of the IGI report is accessible to the public. 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. 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.

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South Africa: Constitutional Court

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 (22 May 2008)