AMABHUNGANE: Openness or secrecy: media and evidence leaders square off at Madlanga Commission

Justice Mbuyiseli Madlanga has reserved judgment on whether National Intelligence Coordinating Committee (NICOC) Acting Coordinator Dr Ntandazo Sifolo may testify behind closed doors.

NICOC is a body that integrates all the country’s intelligence structures, comprising Crime Intelligence, the State Security Agency, Defence Intelligence and the Intelligence Coordinator (Sifolo).

In a stand for open justice, amaBhungane, News24 and Daily Maverick opposed the blanket secrecy approach that Sifolo presented to the commission, as outlined by the evidence leaders in their application for his evidence to be heard entirely in camera.

In August amaBhungane reported on NICOC’s alleged involvement in “permanently revoking” the security clearance of the country’s spy watchdog, Imtiaz Fazel.

NICOC advises the president and the Cabinet on national strategic intelligence to pre-empt threats and safeguard constitutional order.

Sifolo’s testimony is central in understanding to what extent parts of our intelligence structures have been captured or infiltrated by criminal organisations.

It is also crucial to disclosing what the intelligence services knew and reported about it and what was done in response – in other words to what extent they did their job.

‘Sensitive intelligence matters’

Arguing on behalf of the commission’s evidence leaders, Advocate Matthew Chaskalson said Sifolo’s evidence would cover sensitive intelligence matters, justifying why it would need to be heard in secret.

“This includes four National Intelligence Estimates issued from 2022 to 2025, 11 NICOC Intelligence Briefs [and a] a Special Report issued January to July 2025, dealing with infiltration of the criminal justice system by organised crime syndicates.”

Chaskalson said Sifolo’s 25-page statement and 536-page exhibit bundle, as well as some additional documents had “been declassified for the limited purpose of their use by the Commission” and “not… for general publication or public dissemination”.

He argued that the commission didn’t have the power to override the classification regime imposed by Sifolo in order to make any of the evidence available for public consumption.

In an argument that appeared to find favour with the commission chairperson, he said only a high court could vary the secrecy imposed by the classification of the documents. 

He said the only options were for the commission or media to approach the high court to make an application for this purpose.

But he suggested that this process could delay the commission, interfere with its scheduled witnesses and would see it regress from its core function.

The other option, according to Chaskalson, was for the commission to refuse to hear Sifolo’s evidence in camera, which would mean that commissioners would not be able to question him at all about the classified information contained in his statement – which would be self-defeating.

Representing the media, Advocate Ben Winks argued that in the democratic constitutional era secrecy must be justified, not assumed simply on the say so of an official.

Immunity

Winks argued that, in effect, Sifolo was refusing to testify, except on his own terms – and that the mere classification of documents did not grant him immunity from having to justify that parts of the evidence should be heard in camera – as other witnesses had done. 

Crucially, Winks added that there was no act or law in the country that properly governed the classification/declassification of confidential documents, other than the Minimum Information Security Standards, which he said was effectively a rule book for the government and not anchored in any statute.

Chaskalson disputed this.

With regard to approaching the high court for declassification of the record of Sifolo’s evidence, Winks said it wasn’t realistic and could take up to four years for such a process to be finalised.

Justice Mbuyisela Madlanga suggested that, at the very least, Sifolo should explain himself and provide a more comprehensive view on the issue in which there might be a public affidavit and a confidential one. 

Winks made it clear that the media was not arguing for blanket openness, but for some more limited secrecy regime that allowed the public to have insight into what was a core subject of the commission.

Winks presented the following less restrictive alternatives:

• Sifolo’s evidence be heard in public, save for passages that cannot be given without disclosing the contents of material that the evidence leaders have specifically identified as security sensitive.

• Names of operatives and persons of interest, and dates and places of specific operations still relevant to ongoing matters, be redacted and replaced by codenames to be used in oral evidence.

Chaskalson, on other hand, argued the commission was not empowered to dictate terms to Sifolo – and his evidence was so bound up with classified material that nothing useful could be separated for public consumption.

For now, Justice Madlanga will mull over the key points presented today before he delivers his ruling, which is expected to be done electronically. DM

This story was produced by the amaBhungane Centre for Investigative Journalism. Sign up for their newsletter.