This is an interlocutory application in which the applicant, the Minister of State Security (“the Minister”), seeks the following relief: 1.1 an interdict against the release publication and/or public access 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” (“the I-G’s report”). 1.2 an order striking out of any reference to the I-G’s Report in paragraph 37 of the founding affidavit of the tenth respondent, the Economic Freedom Fighters (“the EFF”), marked “JMS2” in the main review application. 1.3 an order that the EFF be ordered to pay the costs of this application.

1. 1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 48521/19
In the matter between:
MINISTER OF STATE SECURITY Applicant
and
PUBLIC PROTECTOR 1st
Respondent
BUSISIWE MKHWEBANE 2nd
Respondent
THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 3rd
Respondent
THE SPEAKER OF THE NATIONAL ASSEMBLY 4th
Respondent
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 5th
Respondent
THE NATIONAL COMMISSIONER OF POLICE 6th
Respondent
VISVANATHAN PILLAY 7th
Respondent
GEORGE NGAKANE VIRGIL MAGASHULA 8th
Respondent
PRAVIN JAMNADAS GORDHAN 9th
Respondent
ECONOMIC FREEDOM FIGHTERS 10th
Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
…………………….. ………………………...
DATE NP MNGQIBISA-THUSI

2. 2
_________________________________________________________________________
JUDGMENT
_________________________________________________________________________
MNGQIBISA-THUSI J
Introduction
[1] This is an interlocutory application in which the applicant, the Minister of State
Security (“the Minister”), seeks the following relief:
1.1 an interdict against the release publication and/or public access 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” (“the I-G’s report”).
1.2 an order striking out of any reference to the I-G’s Report in paragraph 37
of the founding affidavit of the tenth respondent, the Economic Freedom
Fighters (“the EFF”), marked “JMS2” in the main review application.
1.3 an order that the EFF be ordered to pay the costs of this application.
[2] The first respondent, the Public Protector, the second respondent, Ms Busisiwe
Mkhwebane (“Ms Mkhwebane”), and the EFF is opposing the application.

3. 3
Further, the EFF has filed a counter application in terms of which it seeks an
order declaring that:
2.1 the I-G’s report may be publicly disclosed;
2.2 the EFF is entitled to be in possession of the I-G’s Report; and
2.3 section 4 of the Protection of Information Act1 read with the definition of
“security matter” in s1 of that Act is unconstitutionally vague and
overbroad and therefore invalid.
[3] The applicant is the political head of the Department of State Security that has
overall responsibility for the civilian intelligence service. Ms Mkhwebane is cited
in her official capacity as the Public Protector. Hereinafter reference to the
‘Public Protector’ will be used as a composite reference the first and second
respondents.
[4] The seventh respondent, Mr Visvanathan Pillay (“Mr Pillay”) and the ninth
respondent, Mr Pravin Jamnadas Gordhan (“Mr Gordhan”), have filed papers
in support of the relief sought by the Minister and oppose the EFF’s counter-
application.
[5] On 10 July 2019 Mr Gordhan issued an application for the review and setting
aside of the Public Protector’s Report titled “Report on an Investigation into
Allegations of Violations of the Executive Ethics Code by Mr Pravin Gordhan,
MP as well as allegations of maladministration, corruption and improper
conduct by the South African Revenue Services” (“the main application”). In
1 Act 4 of 1982.

4. 4
her report, the Public Protector based her findings, amongst others, on the I-
G’s report.
[6] In part A of the main application, Mr Gordhan sought on an urgent basis, an
interdict suspending the enforcement of the recommended remedial action
pending the finalisation of Part B (the review application).
[7] On 15 July 2019, the EFF sought and was granted leave to intervene as a
respondent in the main application in order to oppose the relief sought by Mr
Gordhan in Part A of the main application. In paragraph 37 of its founding
affidavit (deposed to by Mr Julius Sello Malema, the president of the EFF) in
the application to intervene (which also served as its answering affidavit to Part
A of the main application) reference is made to the I-G’s Report, attached
thereto as annexure “JMS2”.
[8] Although the Minister is cited as a respondent in the main application, she filed
a notice to abide by the court’s decision. At the hearing of Part A of the main
application, the Minister informed the court of her intention to bring the current
interlocutory application in which an order preventing the public dissemination
of the I-G’s Report would be sought. By agreement between the Minister and
the EFF, the court made a ruling that in its argument, the EFF would not make
reference to the I-G’s Report pending the determination of its status.

5. 5
[9] On 29 July 2019, the relief sought by Mr Gordhan in Part A was granted, which
order has since been confirmed by the Constitutional Court save on the issue
of costs in the EFF’s application for leave to appeal to that court2.
Factual background
[10] In 2014 the then Minister of State Security, Mr Mahlobo, commissioned the
Inspector-General of Intelligence (“the I-G”), Advocate Faith Radebe, to
investigate and report on allegations made in the media that some members of
the Special Operations Unit (“SOU”) within the State Security Agency (“SSA”)
were allegedly involved in unlawful activities. In August 2014 the I-G handed
her Report titled “Report of an Investigation into the media allegations against
the Special Operations Unit and/or other branches of the State Security
Agency” (“the I-G’s report”) to the Minister for safekeeping. The Minister
classified the I-G’s Report as ‘secret’ in accordance with the national
information security policy known as the Minimum Information Security
Standards3 (“MISS”). In the I-G’s Report, the I-G made a finding that there was
no evidence that members of the SSA were involved in any unlawful activities.
Further, even though the I-G conceded that she had no jurisdiction over the
South African Revenue Service (“SARS”), she, however, deals extensively with
the activities an alleged illegally established and operated intelligence unit
within SARS (“the SARS Unit”), pointing the finger at, amongst other, Mr
2 Economic Freedom Fighters v Gordhan and Others; Public Protector and Another v Gordhan and
Others (CCT 232/19; CCT 233/19) [2020] ZACC 10; 2020 (8) BCLR 916 (CC) (29 May 2020).
3 MISS was adopted by the Cabinet on 4 December 1996. In terms of s 85(2) of the Constitution the
executive is vested with the power to develop and implement national policy. In MISS ‘classified
information’ is defined as “sensitive information which in the national interest is held by, is produced in,
or is under the control of the State and which must by reasons of its sensitive nature, be exempted from
disclosure and must enjoy protection against compromise”.

6. 6
Gordhan and Mr Pillay. At the time the SARS unit was allegedly established
and operating, Mr Gordhan was the Commissioner for South African Revenue
Services (“SARS”), and Mr Pillay was a senior executive within SARS.
[11] It is to be noted that, even though the I-G’s Report is a classified document, it
was leaked to certain media, amongst others was Noseweek and the Daily
Maverick, who reported on it. Further, the I-G’s Report forms part of the court
record in an earlier case which served before the Equality Court between Mr
Gordhan and Mr Julius Malema.
[12] In February 2019 the EFF’s Deputy President, Mr Floyd Shivambu, laid a
complaint with the Public Protector to investigate the alleged unlawful existence
and operation of an intelligence unit within SARS. Before releasing the Report
on her investigation of Mr Shivambu’s complaint, in February 2019 the Public
Protector requested the Minister to furnish her with a declassified copy of the I-
G’s Report. In turn, the Minister asked the Public Protector to provide her with
the I-G’s Report in her possession, pending the undertaking of a process to
declassify the I-G’s Report, which would be given to her in due course.
[13] Without returning the I-G’s Report allegedly in her possession and on 5 July
2019, the Public Protector released the impugned report. In her report, the
Public Protector concluded that an intelligence unit was unlawfully established
and operated within SARS during the period when Mr Gordhan was
Commissioner. Further, the Public Protector imposed certain remedial action
on, amongst others, the State President, the Minister, the I-G and the National
Prosecuting Authority.

7. 7
[14] On 19 July 2019, the EFF made a request (as envisaged under the Promotion
of Access to Justice Act4) to the Minister to be furnished with a declassified
copy of the I-G’s Report.
Issues to be determined
[15] The issues to be determined in the two applications are the following:
15.1 whether the applicant is entitled to an order interdicting the further
publication of the I-G’s Report and that reference to the I-G’s Report in
the EFF’s founding affidavit should be struck out;
15.2 whether s 4 of the Protection of Information Act read with the definition
of ‘security matter’ in s 1 of this Act should be declared constitutionally
invalid; and
15.3 whether the EFF is lawfully in possession of the I-G’s Report.
[16] I wish to point out that these proceedings do not purport to deal with the veracity
or validity of the contents of the I-G’s Report.
[17] In her application, the Minister seeks to prevent the further public dissemination
of the I-G’s Report mainly on the ground of national security. In paragraph 9 of
her founding affidavit, the Minister avers that:
17.1 “The Report exposes the identities of agents, operatives and sources of
the SSA and endangers their lives, compromises their safety and
4 Act 2 of 2002.

8. 8
undermines the role of the SSA in gathering intelligence directed at
enhancing national security;
17.2 These agents are posted abroad, and their identities by the nature of
their operations must be kept secret. The consequences of this
exposure are that these agents cannot be deployed in future operations
on behalf of the SSA;
17.3 The exposure of the identities of the agents and operatives of the SSA
also exposes the identities of family members and other agents that they
work with;
17.4 The exposure of the agents and operatives of the SSA posted abroad
further compromises the agent networks as established by them;
17.5 The preparations for the posting of SSA members involves extensive
training and at huge costs to the SSA;
17.6 The Report outlines methods used by the SSA in intelligence gathering
and therefore exposes and impairs its intelligence-gathering capabilities
and its functioning. This also prejudices the SSA and the foreign
intelligence services it liaises with thus rendering us ineffective and
untrustworthy;
17.7 The Report also exposes intelligence that was gathered in the course of
intelligence operations;
17.8 This ultimately impairs or threatens the ability of the government to
discharge its duties in terms of the Constitution and other relevant
legislative provisions; and
17.9 The public disclosure of classified information in the Report would violate
the rights of persons associated with the SSA, potentially disrupting the

9. 9
SSA’s operation and impairing its intelligence-gathering methods and
threatening its operational co-operation with domestic institution
particularly those mentioned in the Report”.
[18] On behalf of the Minister the following submissions were made. In light of her
constitutional obligation and duty to protect and maintain the security of the
country and its citizens, and the fact that the Minister is the lawful custodian of
the I-G’s Report, its public dissemination has to be done lawfully. It was
submitted that the Minister’s main concern about the publication of the I-G’s
Report was that it would expose the names and identities of the SSA’s agents
mentioned therein, sources and methods used by the intelligence service to the
detriment of the safety and security of the agents and their families. It was
further argued on behalf of the Minister that the EFF could not rely on the fact
that the I-G’s Report was already in the public domain as they had decided to
attach it to its founding papers in the intervention application a few days before
requesting, in terms of PAIA, a declassified report and without waiting for the
prescribed days to lapse. It is the Minister’s contention that the fact of the
document being already in public, does not remove the document’s
classification. Counsel submitted that the EFF could not leak a classified
document in contravention of s 4(1) of the Protection of Information Act and
want to justify its unauthorised public dissemination on the basis of public
interest. In this regard the court was referred to the international authority in
Canada (Attorney General) v O’Neill5 where the court held that:
5
2004 CanLII 41197 (ON SC).

10. 10
“Just because a secret document already is in the public domain does not justify
its further disclosure by order of this court”.
[19] It was further contended on behalf of the Minister that inasmuch as the Minister
recognised the investigative powers of the Public Protector and her right to
access any document; and the Minister’s obligation to provide the necessary
support, the Public Protector does not have the right to disclose the names and
identities of secret agents as it is expected of her to act within the parameters
of the law. However, it is the Minister’s contention that the Public Protector’s
possession of the I-G’s Report was obtained unlawfully and that such conduct
should not be countenanced. It was further argued on behalf of the Minister
that it could never be in the public interest to reveal the identities of the agents,
particularly as that information was received unlawfully.
[20] In support of the Minister’s application, it was submitted on behalf of Mr Pillay
that the EFF had resorted to self-help and its conduct should not be approved
as the EFF would benefit from its unlawful conduct.
[21] On behalf of Mr Gordhan, his counsel submitted that the character of the
information contained in the I-G’s Report was confidential and that the EFF’s
conduct was an abuse of intelligence resources for nothing other than for
factional political purposes. It was further submitted on behalf of Mr Pillay and
Mr Gordhan that even if the I-G’s Report is already in the public domain, the
court should take cognisance of the circumstances under which it became
public, particularly as both the Public Protector and the EFF have failed to
disclose how they came to have possession of the report.

11. 11
[22] One of the arguments raised by the EFF and the Public Protector is that a
previous decision of the Equality Court dismissing Mr Gordhan’s application to
strike out the I-G’s Report, which was attached to the answering affidavit in
those proceedings, was binding and should be followed.
[23] I interpose to indicate that during 2019 the Equality Court6 (“the Equality Court
matter”) dismissed Mr Gordhan’s interlocutory application to strike out, amongst
others, the I-G’s Report which was attached to the answering affidavit in an
application by Mr Gordhan based on s 10 of the Promotion of Equality and
Prevention of Unfair Discrimination Act7. The grounds on which the Equality
Court dismissed Mr Gordhan’s application was that the document was already
in the public domain as it was previously the subject of media reports and that
it was irrelevant to the issue at hand.
[24] On behalf of Mr Pillay and Mr Gordhan, it was submitted that the Equality Court
matter was distinguishable and the decision of that court did not set a
precedent, firstly, because the issue raised in that court for the striking-out of
the I-G’s report was different from the issue in the current application which is
based on national security. Secondly, that the Minister did not participate in the
Equality Court proceedings and her views, in spite of the fact that her affidavit
in the current application was attached to Mr Gordhan’s affidavit, were not
canvassed. And, thirdly, that the decision to dismiss the application to strike
out was that the I-G’s report was not relevant to those proceedings.
6 In Gordhan v Malema and Another 2020 (1) SA 587 (GJ).
7 Act 4 of 2000.

12. 12
[25] The Public Protector and the EFF are opposing the granting of the relief sought
by the Minister mainly on the ground that the relief sought was futile since the
I-G’s report is already in the public domain as it formed part of the court record
in the Equality Court and has been reported on in the media. Further, in its
answering affidavit, the EFF has mentioned the names of the intelligence
operatives, claiming that these were operatives not of the SSA but of SARS’s
unlawful intelligence unit.
[26] The Public Protector also opposes the granting of the relief sought by the
Minister on the following grounds. Firstly that such relief would in effect prevent
the release, publication and/or public access to her report contrary, to the
provisions of the Public Protector Act8. Secondly, that since rule 53 of the
Uniform Rules obliges her to file the record of the documents relied upon in her
report, the interdict would prevent her from complying with the provisions of the
said rule. It was argued on behalf of the Public Protector that if the relief sought
is granted, she would be hamstrung in defending the findings she made in her
report. It was further argued on behalf of the Public Protector that had the
Minister provided her with a declassified copy of the I-G’s report as undertaken,
the Public Protector would not have used the classified copy of the report.
[27] The Public Protector has, however, conceded that the disclosure of the
identities of the SSA’s agents mentioned in the I-G’s report would undermine
national security. Further, although in her answering affidavit the Public
Protector was, in view of the security risk posed by the disclosure of the
8 Act 23 of 1994.

13. 13
identities of intelligent operatives, amenable to a redacted version of the I-G’s
report, in submissions by counsel it appeared that the Public Protector was now
insisting on the disclosure of the classified I-G’s report, arguing that a redacted
version would not present a complete picture of what the Public Protector relied
on in reaching her findings.
[28] It is common cause that the Public Protector has now been furnished with a
declassified redacted version of the I-G’s Report.
[29] Relying on the concept of ‘open justice’ as set out by the Constitutional Court
in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re
Masetlha v President of the Republic of South Africa9, counsel for the EFF
submitted that a restriction on the publication of an unedited version of the I-G’s
Report would amount to a violation of the right of access to information as
envisaged in of s 3210 of the Constitution as encapsulated by the provisions of
the PAIA and the right of the public to access court documents.
[30] In Independent Newspapers (above), the Constitutional Court stated the
following with regard to the principle of ‘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
9 2008 (5) SA 31 (CC).
10 Section 32(1)(a) and (b) of the Constitution provide that everyone has the right of access to any
information held by the State as well as by any other person that is required for the exercise or protection
of any right.

14. 14
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)11
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 the freedom to receive
and impart information or ideas. Section 3412
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)13
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
a 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”.14
[31] Counsel for the EFF further submitted that the onus was on the Minister to
justify her powers to restrict access to the document in the interests of national
security as in the EFF’s view, the I-G’s Report does not relate to national
security but to SARS, and that the Minister should identify the source of her
powers. It was further submitted that the MISS had no binding effect on private
11 Section 16(1)(a) and (b) provides: “Everyone has the right to freedom of expression, which includes—
(a) freedom of the press and other media; (b) freedom to receive or impart information or ideas”.
12 Section 34 reads: “Everyone has the right to have any dispute that can be resolved by the application
of law decided in a fair public hearing before a court or, where appropriate, another independent and
impartial tribunal or forum.”
13 Section 35(3)(c) reads: “Every accused person has a right to a fair trial, which includes the right- (c)
to a public trial before an ordinary court”.
14 See section 1(d) of the Constitution which provides that the founding values of our Constitution
include: “Universal adult suffrage, a national common voters roll, regular elections and a multi-party
system of democratic government, to ensure accountability, responsiveness and openness.”

15. 15
citizens. Furthermore that it was in the public interest to publish the I-G’s Report
as it exposed malfeasance on the part of public servants.
[32] Counsel for the EFF further submitted that since Mr Gordhan had attached the
Minister’s affidavit filed in support of the relief sought in the Equality Court
matter, in dismissing Mr Gordhan’s application to strike out the I-G’s Report, the
Equality Court had taken into account the contents of the Minister’s affidavit and
such decision was binding on this court.
[33] The regulatory framework in terms of the government’s authority to classify
documents is set out by the Constitutional Court in the Independent
Newspapers matter (supra) in the following terms:
“[49] … The authority of the Cabinet to make and implement national policy
derives from the Constitution.15
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;16
to maintain national security;17
to
defend and protect the Republic;18
to establish and maintain intelligence
15 Section 85(2)(b) which reads: “The President exercises the executive authority, together with the
other members of the Cabinet, by— (b) developing and implementing national policy”.
16 Section 41(1)(a) and (b) provides: “All spheres of government and all organs of state within each
sphere must— (a) preserve the peace, national unity and the indivisibility of the Republic; (b) secure
the well-being of the people of the Republic”.
17 Section 44(2)(a) reads as follows: “Parliament may intervene, by passing legislation in accordance
with section 76(1), with regard to a matter falling within a functional area listed in Schedule 5, when it is
necessary— (a) to maintain national security”.
Section 146(2)(c)(i) reads: “National legislation that applies uniformly with regard to the country as a
whole prevails over provincial legislation if any of the following conditions is met: (c) The national
legislation is necessary for: (i) the maintenance of national security”.
And section 198 reads: “The following principles govern national security in the Republic: (a) National
security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to
live in peace and harmony, to be free from fear and want and to seek a better life. (b) The resolve to
live in peace and harmony precludes any South African citizen from participating in armed conflict,
nationally or internationally, except as provided for in terms of the Constitution or national legislation.
(c) National security must be pursued in compliance with the law, including international law. (d)
National security is subject to the authority of Parliament and the national executive.”
18 Section 200(2) states: “The primary object of the defence force is to defend and protect the Republic,
its territorial integrity and its people in accordance with the Constitution and the principles of
international law regulating the use of force.”

16. 16
services;19
and to prevent, combat and investigate crime.20
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 1998.21
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”.22
In addition, national legislation and
regulations prohibit the disclosure of certain classified information.23
[34] It cannot, therefore, be disputed that the Constitution has vested the Minister
with the powers to classify documents under her custody either as ‘confidential’,
‘secret’ or ‘top secret’.
[35] However, as alluded to in the Independent Newspapers matter (above), in
terms of their inherent powers24, courts have the jurisdiction to determine
whether or not such classified documents should be made accessible to the
public. In this regard the Constitutional Court held that:
19 Section 209(1) provides: “Any intelligence service, other than any intelligence division of the defence
force or police service, may be established only by the President, as head of the national executive,
and only in terms of national legislation.”
20 Section 205(3) states: “The objects of the police service are to prevent, combat and investigate crime,
to maintain public order, to protect and secure the inhabitants of the Republic and their property, and
to uphold and enforce the law.”
21 MISS can be accessed by visiting http://www.kzneducation.gov.za/policies/MISS96.pdf, accessed
on 20 May 2008.
22 This classification is provided for in Chapter 2 of MISS.
23 See in this regard: section 4 of the Protection of Information Act 84 of 1982, which prohibits the
disclosure of protected documents or information in relation to, amongst other things, security matters;
sections 26(1)(a)(iii), (f)(i) and (g) of the Intelligence Services Act, which makes it an offence for any
person, members or former members of any intelligence service to disclose classified information
without permission of the relevant government official; and regulation E of Part II of Chapter 1 of the
Public Service Regulations, 2001 GN R1 GG 21951, 5 January 2001, which prohibits an employee from
releasing official information to the public without the necessary authority.
24 Section 173 of the Constitution provides that: “The Constitutional Court, the Supreme Court of Appeal
and the High Court of South Africa each has the inherent power to protect and regulate their own
process, and to develop the common law, taking into account the interests of justice”.

17. 17
“[52] 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 well apply where the request to disclose classified
intelligence documents occurs in any context other than where the documents
have been placed before court by a party to the proceedings and thus forms
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 s 173 of the
Constitution with inherent power to regulate its own process, taking into account
what is in the interests of justice”.
[36] The Constitutional Court went further and stated that:
“[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. Mere classification of a document within court
records 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 court, they are susceptible to its scrutiny and direction as to
whether the public should be granted or denied access”.
[37] In light of the conflicting interests involved, as set out in the Independent
Newspapers matter above, it is required to balance the interest of the operatives
against their identities being publicly disclosed and the need of the Minister to
safeguard the operatives’ safety and identity in the interests of the country’s
security on the one hand, and the entrenched right of access to information held
by a public body as envisaged in s 32 of the Constitution read with s 9 of PAIA.
In this regard the court in Independent Newspapers matter (above) held that:

18. 18
“[55] It follows that where a government official objects to the 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 s 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 statue 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 material 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 inquiry.”
[38] The main reason for the Minister seeking the non-disclosure of the I-G’s Report
is that there is a need to protect the names and identities of intelligence
operatives mentioned in the Report, sources and the methods used by the
intelligence services in pursuing their mandate. On a perusal of the I-G’s report,
the names and identities of the SSA operatives and sources and the methods
used are referred to. It cannot be disputed that the disclosure of the names and
identities of the country’s intelligence operatives would not be in the interest of
national security. As correctly pointed out by counsel for the Minister, the
disclosure of the identities of the intelligence operatives not only endangers

19. 19
their lives and those of their families, it also undermines the role of the
intelligence-gathering capability of the SSA in gathering intelligence both at
home and internationally and would threaten networks they have established.
[39] The Public Protector has conceded that the disclosure of intelligence operatives
would be prejudicial to the country’s national security. The EFF has not,
however, advanced any cogent reasons why the names and identities of the
SSA operatives should be disclosed to the public. The intelligence operatives
whose disclosure the Minister seeks to restrict, were not, as incorrectly
submitted by counsel for the EFF, employees of SARS nor were they in any
way linked in the I-G’s report with the activities of the alleged unlawful SARS
intelligence unit.
[40] Since it is accepted that court records should be accessible to the public in
pursuance of our constitutional imperative of ‘accountability, responsiveness
and openness’, the disclosure of intelligence operatives and the risk of the
danger they will be exposed to, trumps the public interest to information.
[41] The Public Protector and the EFF’s argument that the information is already in
the public domain, and therefore, any prejudice has already occurred has no
merit. In the Independent Newspaper matter, the court held that:
“[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 might be encouraged to reap the benefit
of their own misconduct by leaking classified or protected documents and

20. 20
thereby rendering the documents beyond the protection they may
deserve. However, the fact that the contents of the document have been
referred to in public is not alone sufficient reason to order that the entire
document should be accessible to the public”.
[42] The fact that the I-G’s report is in the public domain does not result in it losing
its classification. 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. The Public Protector and the EFF cannot, therefore
rely on the ground that the I-G’s report is in the public domain since their
unauthorised possession of the classified report is a continuing offence25. As
alluded to by the Constitutional Court in the Independent Newspapers matter,
the fact that a classified document is in the public domain is not decisive. The
Public Protector and the EFF cannot seek to rely on their unlawful conduct. The
fact that the I-G’s report forms part of a court record and that Mr Van
Loggerenberg has disclosed some of the identities of the SSA operatives does
not justify putting the safety and lives of the intelligence operatives and their
families in danger.
[43] Although the Minister’s initial stance was to seek the restriction of the whole of
the I-G’s report, it appears that she has abandoned her objection and conceded
that a redacted version of the I-G’s report could be disclosed to the public. The
Minister has provided the Public Protector with a declassified redacted copy of
the I-G’ Report.
25 In the Canadian authority (Canada (Attorney General v O’Neill) relied on by the Minister, the court at
para [59] – [60] stated that just because secret information is already in the public domain does not
justify its further dissemination as it retains its classification.

21. 21
[44] On a perusal of the declassified report and comparing it to the I-G’s report, it is
apparent that the redaction undertaken by the Minister is in line with her
objective to protect the disclosure of the intelligence operatives, sources and
intelligence methods mentioned in the I-G’s report in that save the mentioning
of one or two members and/or sources of the SSA whose connection to the
SSA has not been disclosed. The substance of the contents of the I-G’s report
has been left intact.
[45] The right of the Public Protector to defend the findings made in her report and
her obligation to file the documents relied upon to reach her conclusions as she
argued cannot override the needs of national security. In any event, the
declassified redacted version of the I-G’ report would not put the Public
Protector at a disadvantage in defence of her findings, and the legitimacy of the
review proceedings would not be undermined if the I-G’s report is not used.
Further, the public will have the opportunity to access its contents and if
necessary debate it.
[46] Having considered the evidence before me and submissions made by counsel,
and recognising the right of the public to information, I am of the view that the
disclosure of the classified I-G’s report would be to the prejudice of the national
security interest of the country if the identities of the intelligence operatives, the
sources of the SSA and their methods are disclosed. I am satisfied that a
restriction of the publication of the I-G’s report does not disproportionately
impinge on the public’s interest in accessing the contents of the report. The
substance of the contents of the declassified redacted report has not been
compromised.

22. 22
[47] The right of access to information like all other rights in Chapter 2 of the
Constitution are not absolute. S 36 of the Constitution provides for the limitation
of such rights by a law of general application that is 'reasonable and justifiable in an
open and democratic society based on dignity, freedom, and equality'. The Minister
has not sought a total black-out of the contents of the I-G’s report. She has released
a declassified and redacted version of the report for public disclosure. By declassifying
and redacting the I-G’s report the Minister has taken the least restrictive manner of
violating the public’s access to the report. Taking into account the government’s
obligation to protect the identities of its intelligence operatives, intelligence sources and
its intelligence methods, I am of the view that restriction sought to be placed on the
publication of the I-G’s report is reasonable and justifiable in an open and democratic
society based on’ dignity, freedom and equality. I am satisfied that it is in the interest
of justice that the relief sought by the Minister should be granted.
[48] I am not convinced that the decision of the Equality Court to dismiss Mr
Gordhan’s application to strike out reference to the I-G’s report sets a precedent
and that it should be followed. The issues serving before that court were
different from the issues before this court, and the Minister’s views on the
application were not canvassed. The mere fact that the Minister’s affidavit was
attached to Mr Gordhan’s papers does not translate into the Minister to being
part of those proceedings. Further, the court dismissed the application as it
was irrelevant to the issues at hand.
[49] For the reasons given above, I am also satisfied that the publication of the
classified I-G’s report without the authority of the Director-General of
Intelligence was unlawful and that the relief fought by the EFF in prayer 2 of its
counter-application ought to be dismissed.

23. 23
[50] In its counter application the EFF is seeking an order declaring s 4 of the
Protection of Information Act read with the definition in the Act of ‘security
matter’26 unconstitutional for being vague and overbroad.
[51] S 4 of the Protection of Information Act reads as follows:
“(1) Any person who has in his possession or under his control or at his disposal-
(a) Any secret official code; password; or
(b) Any document, model, article or information-
(i) Which he knows or reasonably should know is kept, used, made
or obtained in a prohibited place or relates to a prohibited place,
anything in a prohibited place, armaments, the defence of the
Republic, a military matter, a security matter or the prevention or
combating of terrorism;
(ii) Which has been made, obtained or received in contravention of
this Act;
(iii) Which has been entrusted in confidence to him or by any person
holding office under the Government;
(iv) Which he has obtained or to which he has had access by virtue
of his position as a person who holds or has held office under
the Government, or as a person who holds or has held a contract
made on behalf of the Government, or a contract the
performance of which takes place entirely or partly in a
prohibited place, or as a person who is or has been employed
under a person who holds or has held such office or contract,
and the secrecy of which document, model, article or information
he knows or reasonably should know to be required by the
security or the other interests of the Republic; or
26 ‘Security matter’ includes any matter which is dealt with by- (a) the Agency as defined in section 1 of
the Intelligence Services Act, 2002(Act 65 of 2002); or (b) the office as defined in section 1 of the
Regulation of Interception of Communications and Provision of Communication-related Information Act,
2002 (Act 70 of 2002), or which relates to the functions of the Agency or the Office or to the relationship
existing between any person and Agency or the Office”. ‘Agency’ is defined in s 1 of the Intelligence
Services Act as the State Security Agency.

24. 24
(v) of which he obtained possession in any manner and which
document, model, article or information he knows or reasonably
should know has been obtained by any other person in any of
the ways referred to in paragraph (iii) or (iv) and the unauthorised
disclosure of such document, model, article or information by
such other person he knows or reasonably should know will be
an offence under this Act,
and who-
(aa) discloses such code, password, document, model, article
or information to any person to whom he is authorised to
disclose it or to whom it may lawfully be disclosed or to
whom, in the interests of the Republic, it is his duty to
disclose it;
(bb) publishes or uses such code, password, document,
model, article or information in any manner or for any
purpose which is prejudicial to the security or interests of
the Republic;
(cc) retains such code, password, document, model, article or
information when he has no right to retain it or when it is
contrary to his duty to retain it, or neglects or fails to
comply with any directions issued by lawful authority with
regard to the return or disposal thereof; or
(dd) neglects or fails to take proper care of such code,
password, document, model, article or information, or so
to conduct himself as not to endanger the safety thereof,
shall be guilty of an offence and liable on conviction to a fine not
exceeding R10 000 or to imprisonment for a period not exceeding 10
years or to both such fine and such imprisonment, or, if it is proved that
the publication or disclosure of such secret code, password, document,
model, article or information took place for the purpose of its being
disclosed to a foreign State or to a hostile organisation, to the penalty
prescribed in section 2.
(2) Any person who receives any secret official code, password, document, model,
article or information, knowing or having reasonable grounds to believe, at the

25. 25
time when he receives it, that such code, password, document, model, article
or information is being disclosed to him in contravention of the provisions of this
Act, shall, unless he proves that the disclosure thereof to him was against his
wish, be guilty of an offence and liable on conviction to a fine not exceeding
R10 000 or to imprisonment for a period not exceeding 10 years or to both such
fine and such imprisonment”.
[52] In its counter application the EFF is seeking an order declaring s 4 of the
Protection of Information Act as unconstitutional on the basis that it is vague
and over broad as it unjustifiably infringes on the right encapsulated ins 32 of
the Constitution. Counsel for the EFF submitted that s 4 read with the definition
of ‘security matter’ is overbroad and unconstitutional to the extent in that it fails
to include a safe harbour for disclosures made in good faith and in the public
interest. Further, counsel submitted that the Constitution requires where an
Act’s constitutionality is challenged, there is a need to look at the historical
context of that Act. Furthermore, counsel submitted that because the
Promotion of Information Act was broadly worded, it allowed abuses by the
apartheid regime for secrecy. Counsel further submitted that the Minister has
not justified, in terms of s 36 of the Constitution, the infringement of rights
encompassed by the concept of open justice.
[53] The purpose of the Protection of Information Act is:
“To provide for the protection from disclosure of certain information; to provide
for matters connected therewith”.

26. 26
[54] In Natal Joint Municipal Pension Fund v Endumeni Municipality27 at para 18,
stated that:
“[18] …Interpretation is the process of attributing meaning to the words used
in a document, be it legislation, some other statutory instrument, or contract,
having regard to the context provided by reading the particular provision or
provisions in the light of the document as a whole and the circumstances
attendant upon its coming into existence. Whatever the nature of the document,
consideration must be given to the language used in the light of the ordinary
rules of grammar and syntax; the context in which the provision appears; the
apparent purpose to which it is directed and the material known to those
responsible for its production. Where more than one meaning is possible each
possibility must be weighed in the light of all these factors. The process is
objective, not subjective. A sensible meaning is to be preferred to one that
leads to insensible or unbusinesslike results or undermines the apparent
purpose of the document. Judges must be alert to, and guard against, the
temptation to substitute what they regard as reasonable, sensible or
businesslike for the words actually used. To do so in regard to a statue or
statutory instrument is to cross the divide between interpretation and legislation;
in a contractual context it is to make a contract for the parties other than the
one they in fact made. The inevitable point of departure is the language of the
provision itself, read in context and having regard to the purpose of the
provision and the background to the preparation and production of the
document.’
[55] Taking into account the purpose of the Protection of Information Act and the
Minister’s reasons for seeking the restriction of the I-G’s report, for reasons I
have given above for the relief sought by the Minister to be granted, taking into
account the context of the enactment of the Act, I am of the view that s 4 of the
Protection of Information Act is not vague and overbroad. The section clearly
provides for a prohibition for the public disclosure of a security matter as
27 2012 (4) SA 593 (SCA).

27. 27
defined, save with the authority of the government officer vested with the power
to give such authority.
Costs
[56] In the event of the prayers sought being granted, the Minister seeks 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. I am therefore satisfied that a cost
order against the EFF is appropriate under the circumstances.
[57] In the result the following orders are made:
1. That an interdict against the release publication and/or public access 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” (“the I-G’s report”) is granted.
2. That any reference to the I-G’s Report in paragraph 37 of the founding
affidavit of the tenth respondent, the Economic Freedom Fighters (“the
EFF”), marked “JMS2” in the main review application is struck out.
3. That the EFF is ordered to pay the costs of this application.
4. That the EFF’s counter application is dismissed.

28. 28
5. That no order as to costs is made with regard to the EFF’s counter
application.
___________________________
NP MNGQIBISA-THUSI
Judge of the High Court
Date of hearing: 06 November 2019
Date of judgement: 29 October 2020
Appearances
For applicant and third to sixth respondents: Adv K Moroka SC assisted by Adv M
Seti-Baza (instructed by the State Attorney)
For first and second respondents: Adv T Masuku SC assisted by Adv B Matlhape
(instructed by Seanego Attorneys Inc.)
For seventh respondent: Adv R Hutton SC (instructed by Werksmans Attorneys)
For ninth respondent: Adv M Le Roux (instructed by Malatji & Kanyane Inc.)
For tenth respondent: Adv T Ngcukaitobi and Adv J Mitchell (instructed by Ian Levitt
Attorneys)