- The Gauteng High Court in Pretoria has found that both the EFF and the Public Protector's unauthorised possession of a 2014 intelligence report is a continuing offence.
- The court interdicted the release of the classified intelligence report but the ruling is academic as the report was already set aside by agreement earlier this year.
- The court agreed that just because the report made its way into the public domain, it did not make it declassified.
A court has found that both the EFF and the Public Protector's unauthorised possession of a 2014 intelligence report is a continuing offence and they cannot rely on the fact that the classified document is in the public domain.
"Until the report is declassified, its unauthorised possession is unlawful in terms of s 4 of the Protection of Information Act and s 26 of the Intelligence Services Act," North Gauteng High Court Judge Nomonde Mngqibisa-Thusi said in her ruling.
Any publication of the reviewed and set aside report would now amount to contempt of court.
The court ruling was handed down on Thursday, almost a year after the court heard the matter in November 2019.
In the interim, the report - into media allegations that some members of the Special Operations Unit within the State Security Agency (SSA) were allegedly involved in unlawful activities - was reviewed and set aside by agreement earlier this year.
The judgment in the High Court in Pretoria, which interdicted the further dissemination of the report without authorisation, was thus purely academic.
State Security Minister Ayanda Dlodlo, the applicant, had asked the court for a cost order against the EFF.
"Although this matter dealt with some constitutional issues and a cost order would usually not be made under such circumstances, I am of the view that the conduct of the EFF in attaching the I-G’s report before its declassification cannot be countenanced."
In the judgment, the court agreed that just because the report made its way into the public domain, it did not make it declassified.
The court agreed that the report being in the public domain could pose a danger to agents, their families, and the workings of intelligence gathering.
The judgment also rejected the EFF’s contention that the release of the report was in the public interest.
In addition, Mngqibisa-Thusi dismissed a counter-application by the EFF for an order finding that the Protection of Information Act was unconstitutional on the basis that it is vague and over broad as it infringed on constitutional rights.
Dlodlo had applied for the interdict against the release of the report by the Inspector General of Intelligence dated 31 October 2014 titled "Report of an Investigation into media allegations against the Special Operations Unit and/or other branches of the State Security Agency".
According to the judgment, the then Minister of State Security David Mahlobo, had commissioned the Inspector-General of Intelligence (IG) Faith Radebe, to investigate and report on allegations made in the media that some members of the Special Operations Unit within the SSA were allegedly involved in unlawful activities.
The report by the former and late Radebe, had long been used by detractors of Gordhan and SARS as proof that the unit was indeed "rogue", and it was the first in a series of reports that made similar findings.
Many of these have since been withdrawn, most notably a R23 million report by audit firm KPMG. The Sunday Times, which published dozens of articles over two years labelling the High Risk Investigations Unit as "rogue", withdrew the articles and apologised to Van Loggerenberg and other SARS officials.
In August 2014 Radebe handed her report to Mahlobo for safekeeping. Mahlobo classified it as secret in terms of security policy known as Minimum Information Security Standards.
In her application in November 2019, Dlodlo wanted to prevent the further public dissemination of the report, mainly on the grounds of national security, for the safety of operatives and their families, and to keep secret the way they work.
Mngqibisa-Thusi noted that at the time the supposed SARS unit was allegedly established and operating, Pravin Gordhan was the Commissioner for SARS, and Ivan Pillay was a senior executive within SARS.
The purported report was leaked to the media even though it was classified secret and was attached to an affidavit in an Equality Court case brought by Gordhan against EFF leader Julius Malema after Malema made certain remarks about Gordhan.
In that matter the Equality Court noted that there was no reason to suppress the attachment, but it was not relevant to the Equality Court matter.
However, in the course of a complaint lodged by EFF deputy leader Floyd Shivambu, regarding alleged intelligence gathering activities at SARS, the Public Protector asked the Minister of State Security for a declassified copy of the IG’s report.
In turn, the Minister asked the Public Protector to give her the IG’s report that she had.
Mngqibisa-Thusi noted that a redacted version was eventually given to Mkhwebane.