The Supreme Court of Appeal in Bloemfontein has set aside an order made by the High Court in Pretoria in December 2021 to interdict the publication of a secret intelligence report compiled by the South African State Security Agency (SSA).
This comes after Daily News and Independent online journalist Thabo Makwakwa sent a message to State Security, the African National Congres, and the US Embassy’s press and media coordinator, demanding a response from each of them on the contents of the report.
The purpose of the report was to inform the minister of the extent of the United States’ interest in the political dynamics of the ANC.
The Minister of State Security at the time launched an urgent application in December 2021 in the High Court seeking an interdict to prevent the publishing of a secret intelligence report.
On 24 January 2022, the Minister of SSA applied to the High Court in Pretoria seeking confirmation of the interim interdict. The SSA argued that Makwakwa was in possession of the report unlawfully and that its publication would harm State Security.
The Independent Media, Independent Online SA, and Makwakwa appealed the Court ruling in the Supreme Court of Appeal.
The appellants submitted that the classification of a document is not decisive and that the minister failed to discharge the onus resting on her. They argued that the Minister did not observe the requisite of good faith in the ex parte proceedings.
In its judgment, the SCA has upheld an appeal with costs, on the basis that the Minister had failed to discharge the burden of proving that national security would be affected by the publication of the report. On this basis as well, the appeal is likely to succeed.
