By Lehlohonolo Lehana.
The Supreme Court of Appeal (SCA) has cleared the way for Independent Media to publish contents of a leaked State Security Agency (SSA) report alleging the United States of America (USA) is collecting information on the African National Congress (ANC).
The SCA judgement handed down on Friday, 05 April.
The appeal was upheld with costs, including the costs of two counsels.
In December 2021, Independent Media journalist Thabo Makwakwa got hold of the report, but the State Security Minister at the time, Zizi Kodwa, obtained a final interdict from Judge Daisy Molefe, preventing him from publishing the report.
In the ruling, SCA Judge Tati Makgoka found the SSA “did not observe the requisite of good faith” in the ex parte proceedings that interdicted Independent and Makwakwa from publishing any details of the report in December 2021.
Makgoka found that this apparent lack of good faith by intelligence authorities was evidenced by the fact that the ministry had inexplicably failed to make the report available to the court that first granted the interdict.
He said the minister applied to the high court seeking confirmation of the interim interdict and that the founding affidavit was deposed to by the Deputy Director General of State Security.
“By and large, he repeated the evidence of [MAVA] Scott [SSA spokesperson] during the ex parte proceedings. The only difference was in the classification of the report. Whereas Scott had testified that the report was classified ‘Top Secret’, the Deputy Director said that it was simply classified as ‘Secret.
“Having outlined the salient features of the report, the statement by counsel and the testimony of Scott that the report was compiled by the USA in collaboration with the SSA is simply not correct. Far from being a co-author of the report, the USA Embassy appears to be the subject of counter-surveillance by the SSA,” the judge said.
The SCA’s ruling also revealed the contents of the report that the SSA tried to suppress.
“A copy of the report was given to each member of the court. The purpose of the report is set out in clause 1 as being to inform the Minister of the extent of the United States’ (USA) interest in the political dynamics of the ANC.
This was ‘specifically in relation to developments regarding [former] ANC Secretary-General… and his perceived anti-President Cyril Ramaphosa’s positioning’. The report further states in clause 2 that the USA had collected its information mainly from its embassy in Pretoria, which coordinates the US Mission in South Africa and includes the USA consulates in Johannesburg, Durban and Cape Town, “Makgoka said.
Makgoka said the report “alludes to factional battles within the ANC and that the Political Office has drawn its conclusions about them through a network of ANC party officials, ‘who wittingly or unwittingly share privileged information.”
“No names are mentioned in this regard. It is further stated that the conclusions were that the former ANC Secretary-General was galvanising support in anticipation of his arrest for corruption.”
Makgoka said the report does not say that USA intelligence was making any allegations.
“It says that it is taking note of the allegations, which had been widely reported about factions in the ruling party, to influence the ruling party’s policy. Scott’s evidence conveyed to the court an impression that the report contained ‘sensitive’ allegations against individuals who are ‘implicated’ in something sinister or some wrongdoing.
Makgoka ultimately found that, far from containing “sensitive” information, the report simply recorded information that was already in the public domain.