Evidence leader Matthew Chaskalson said the commission did not have powers to declassify intelligence documents while media houses argued for open justice and public access to information
Media houses have opposed an application by the evidence leaders at the Madlanga Commission to hear the testimony of Ntandazo Sifolo, the acting coordinator of the National Intelligence Co-ordinating Committee (Nicoc), in camera.
Sifolo was scheduled to testify from 13 October but the evidence leaders want his testimony to be heard behind closed doors because much of the evidence relates to classified intelligence documents.
“The evidence leaders seek a ruling that the evidence of Dr Sifolo be heard in camera,” advocate Matthew Chaskalson told the commissioners.
The questioning is expected to cover several hundred pages of classified documents, including four national intelligence estimates, intelligence briefs and special reports.
Chaskalson said the documents had been declassified for the commission’s use but this did not permit the commission to make them available to the public or the media.
He said the commission did not have the power to declassify the documents. He outlined three possible options. The first would be for the commission to approach the high court urgently for an order permitting the documents to be declassified for an open hearing.
Chaskalson described this as undesirable. “It would divert the time and focus of the commissioners and evidence leaders away from their core task and into a collateral dispute over the terms of the declassification of the documents, on which it needs to question Dr Sifolo and other witnesses.”
He added that even if the high court granted the application, much of the evidence would remain classified. The process would also interfere with the commission’s limited timeframe.
The second option would be to hear Sifolo’s testimony in public while the documents remained classified. However, Chaskalson said that would prevent the commissioners from questioning him about the intelligence contained in the documents.
“The second option is self-defeating. If the commission were to refuse to hear the evidence of Dr Sifolo, it would deprive itself of the opportunity to question Dr Sifolo,” he said.
The third option, which the evidence leaders prefer, is to hear Sifolo’s testimony in camera, allowing him to be questioned about the classified documents. Media houses could then approach the high court for access to the record of the proceedings.
“That leaves the third option as the only desirable option for the commission, namely to proceed with the questioning in camera of Dr Sifolo and to leave it to the media respondents, if they so choose, to approach the high court for access in whole or in part to the record of that questioning,” Chaskalson said.
He said that this would allow the commissioners and evidence leaders to focus on the commission’s mandate within the time available.
The media houses argued for open justice at the Madlanga Commission. Ben Winks, representing media houses including amaBhungane, Daily Maverick and Media24, argued that the application effectively gave the commission an ultimatum on behalf of Sifolo: either hear his testimony in secret or risk losing access to meaningful evidence.
“He is saying either you hear my evidence and look at my evidence in total secrecy or I won’t give you those documents and I won’t be able to say anything meaningful,” Winks said.
He argued that proceeding with an open hearing while preventing the commissioners from questioning Sifolo about the classified documents would undermine the commission’s work.
Winks said the laws governing the classification and declassification of documents were vague, raising concerns that Nicoc could unilaterally withdraw permission to use the documents without input from the commission.
He argued that the minimum information security standards (MISS) were the only rules governing the classification and declassification of documents.
Winks also referred to the Protection of State Information Bill, which he described as a framework for classifying documents but which has not been assented to by President Cyril Ramaphosa.
He said Nicoc’s assertion that certain documents were classified was not, in itself, an adequate explanation for withholding them from public scrutiny.
“Post-1994, it is untenable for an executive or an administrative functionary to say, ‘we will tell you what we decided to tell you’. That is not the culture of justification,” Winks said.
He rejected the distinction between declassifying documents for the commission and making them available to the public, arguing that the commission was investigating matters on behalf of the public.
The media houses said they were willing to accept that some parts of Sifolo’s testimony could be heard in camera. Winks suggested that code names could be used to conceal sensitive information while allowing the rest of the evidence to be heard publicly.
Chaskalson responded that the commission did not have the power to arrange a partially closed hearing in the manner proposed. He said only the high court could order the declassification of the documents to allow the relevant information to be aired in an open hearing.
The commission is considering the arguments and will deliver its ruling in due course.