By Lehlohonolo Lehana.
The Madlanga Commission of Inquiry chairperson Mbuyiseli Madlanga has reserved judgement in the application by evidence leaders regarding Dr. Ntandazo Sifolo, the Acting Coordinator of the National Intelligence Coordinating Committee (NICOC), to be conducted in a closed session.
NICOC is a body that integrates all the country’s intelligence structures, comprising Crime Intelligence, the State Security Agency, Defence Intelligence and the Intelligence Coordinator.
Sifolo was scheduled to testify from 13 October but the evidence leaders want his testimony to be heard behind closed doors because much of the evidence relates to classified intelligence documents.
Media organisations are challenging the application, arguing that the commission must consider the legal framework governing classified information and whether the documents can be made accessible to the public.
The documents relate to the commission’s central investigation into the alleged infiltration of the criminal justice system by organised crime syndicates.
According to evidence leader Matthew Chaskalson, the commission is restricted to hearing evidence on those documents only when the proceedings are held in public.
A fundamental disagreement persists between commission and the media regarding the commission’s authority to declassify documents, with Chaskalson asserting that such power is absent.
Chaskalson maintains that the commission is not a High Court and cannot overturn the classification of information.
He said either the commission or the media organisations would have to approach the High Court to challenge the restrictions.
However, he warned that court proceedings could divert the commission’s time and attention from its core mandate.
The media’s legal team argued that Section 4 of the Commissions Act prevents summoned witnesses from refusing to answer questions, except when invoking their right against self-incrimination.
Chaskalson, however, argued that the commission’s primary responsibility is not to provide the public with “daytime television”, but to gather evidence and make coherent recommendations to the President.
He urged the chairperson to hear Sifolo’s views on the arguments before making a ruling.
“What I want to emphasise is that I am acutely aware that Dr. Sifolo may have a lot that he wants to say before hearing the terms of his declassification order. I urge the commission not make an order against him in his absence,” Chaskalson said.
Madlanga suggested that, at the very least, Sifolo should explain himself and provide a more comprehensive view on the issue in which there might be a public affidavit and a confidential one.
He said the decision would be announced in due course. The commission is expected to resume open-session proceedings on 9 November.