‘No law to classify secret info’
THE government and State Security Minister Ayanda Dlodlo do not have a law which exclusively empowers them to classify “top secret” information.
Parliament has also never been approached by the executive to pass such a law.
This was the shocking revelation made by EFF counsel advocate Tembeka Ngcukaitobi when he yesterday asked the North Gauteng High Court in Pretoria to dismiss Dlodlo’s application to interdict the red berets from publishing and distributing a 2014 report by the Inspector-General of Intelligence (IGI) into the alleged existence of a “rogue unit” at the South African Revenue Service.
In the report, former and late IGI head advocate Faith Radebe found that incumbent Public Enterprises Minister Pravin Gordhan – while Sars commissioner in 2007 – was allegedly instrumental in the formation of a “covert and intrusive unit” at Sars which was allegedly used to spy on high-profile individuals and politicians in the country.
Radebe, in the report, also stated that the formation of such a unit was the sole responsibility of the president.
Last month, the EFF successfully petitioned the Equality Court in Joburg to allow it to use the contents of the report in their hate speech court case lodged against them by Gordhan.
Gordhan asked the court to deny EFF access to the report, but Judge Roland Sutherland ruled against him, although he has yet to give reasons.
Yesterday, Ngcukaitobi argued that Dlodlo’s separate application contained similar facts to those advanced by Gordhan in his failed application before the Equality Court.
“If the court permits relitigation over the report, there is a real risk of a possibility of conflicting decisions by different courts on the same issue,” Ngcukaitobi said. He explained that it would “be absurd” that the Equality Court rules that the report be made public and the High Court in Pretoria makes a different ruling.
Ngcukaitobi also highlighted that Dlodlo, in her papers, did not reveal what was wrong with Judge Sutherland’s ruling.
“The minister says that the report is ‘secret’, in accordance with the national security policy, known as the Minimum Information Security Standards. The Minimum Information Security Standards appear to be a mere government policy document.
“A government policy document can neither bind a non-government party nor justifiably infringe constitutional rights. Judge Sutherland recently rejected a similar reliance on government policies purportedly authorising overbroad surveillance.”
However, Dlodlo’s counsel, advocate Kgomotso Moroka, disagreed with Ngcukaitobi’s submission.
She said the government had legislation such as the National Intelligence Act, National Strategic Intelligence Act and the National Oversight Act which allows the State Security Minister to classify and declassify secret information.
Judgment has been reserved.