Johannesburg - The government and State Security Minister Ayanda Dlodlo do not have a law that 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 revelation made by EFF counsel advocate Tembeka Ngcukaitobi when he on Wednesday asked the North Gauteng High Court 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 SA Revenue Service (Sars).
In the report, former and late IGI head advocate Faith Radebe found that the incumbent Public Enterprises Minister, Pravin Gordhan - while Sars commissioner in 2007 - was allegedly instrumental in the formation of a “convert and intrusive unit” at Sars that was used to allegedly to spy on high profile individuals and politicians in the country.
Radebe, in the report, further maintained that the formation of such a unit was the sole responsibility of the president.
Last month, the EFF successfully petitioned the Equality Court to allow it to use the contents of the report in their hate speech court case lodged against them by Gordhan.
Gordhan had initially asked the court to deny the EFF access to the report, but Judge Roland Sutherland ruled against him.
On Wednesday, Ngcukaitobi argued that Dlodlo’s separate application contained similar facts as advanced by Gordhan in his failed application.
“If the court permits re-litigation 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” for the Equality Court to rule that the report be made public, only to have the high court make a different ruling.
He also highlighted that Dlodlo, in her papers, did not reveal what was wrong with Sutherland’s ruling.
“The minister says 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.”
He added: “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 overboard surveillance.”
According to Dlodlo’s counsel, advocate Kgomotso Moroka, the government has national legislation such as the National Intelligence Act, National Strategic Intelligence Act and the National Oversight Act that allow the State Security minister to classify and declassify secret information.
Moroka, however, conceded in her submission that at the end of the day, the courts had jurisdiction to determine whether the top-secret report could be released or not.
In her address to Judge Nomonde Mgqibisa-Thusi, who presided over the matter, Moroka said: “These (three government) acts allow us to address the courts and give reasons why certain documentation should be classified.”
Ngcukaitobi, meanwhile, said Dlodlo in her court papers only referred to the Minimum Information Security Standards - insisting they were government policy.
Judgment was reserved.