South Africa Constitutional Court on open justice and national security

The South African Constitutional handed down its judgment in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services last week. In what seems like a reasonably good judgment, the Court ruled that the in-camera evidence in the case of former National Intelligence Agency chief Billy Masetlha be made available to the public, but that certain disputed parts should not be published. This follows Independent Newspapers' application to get access to restricted material in the case of the former spy boss. The Minister for Intelligence Services, Ronnie Kasrils, had opposed the application on the grounds that the material was classified and could not be divulged, citing national security concerns.

The following is from the Court's press release:

Writing for the majority, Moseneke DCJ considered the cluster of rights that establish the right to open justice. He observed that the right to open justice is not absolute, but that a court must decide in all the circumstances of a particular case whether its limitation is in the interests of justice. Moseneke DCJ recognised that what is in the interests of justice has to be considered in the light of two competing constitutional claims: the first being open justice; and the second being the government’s obligation to pursue national security. In considering the Minister’s argument that the fact that documents are classified renders them immune to disclosure, he held that the mere fact that the documents in a court record carry a security classification does not oust the jurisdiction of a court to decide whether they should be protected from disclosure to the media and public.

Moseneke DCJ then considered each of the documents separately. He ruled that the whole of the in camera affidavit made by Mr Masetlha should be made available to the public but that the three disputed annexures to the affidavit should not.

Yacoob J wrote a dissenting judgment. He held that all the documents should be released to the public mainly because the information in them is in the public interest. The national security interest, he reasoned, may be protected by further redaction of the documents. His judgment emphasises that the public version of the Inspector General’s report by the government was both misleading and deceptive and took the view that the Court should not be used as an instrument for concealment in the circumstances.

Yacoob J further held, in relation to the interlocutory application, that it would have been in the interests of justice for the documents to be made available to the legal representatives of Independent Newspapers and some of their senior personnel to help Independent Newspapers prepare their case.

Sachs J in his judgment, which aligns itself with the outcome proposed by Yacoob J, placed reliance on the constitutional principle of openness to justify the disclosure of the relevant material. In contrast to the hegemonic and secretive agencies of the past, he reasoned, the South African intelligence services are required at all times to act within the limits defined by the Constitution, and in line with the spirit and purport of the Constitution. Sachs J concluded that more damage would be done to the national interest in general, and to the vitality of the intelligence service in particular, by withholding stale and routine information about the workings of the agency, than by allowing the normal rules governing public access to all court documents to apply.