Cape Argus

‘No law to classify secret info’

- BALDWIN NDABA baldwin.ndaba@inl.co.za

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.

 ?? | JAIRUS MMUTLE GCIS ?? MINISTER in the Presidency for Women, Youth and Persons with Disabiliti­es Maite Nkoana-Mashabane addresses delegates at the South Africa Investment Conference welcome reception held at Summer Place, Hyde Park, ahead of official proceeding­s which kicked off yesterday.
| JAIRUS MMUTLE GCIS MINISTER in the Presidency for Women, Youth and Persons with Disabiliti­es Maite Nkoana-Mashabane addresses delegates at the South Africa Investment Conference welcome reception held at Summer Place, Hyde Park, ahead of official proceeding­s which kicked off yesterday.

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