PRESS FREEDOM: Media groups launch urgent bid to reopen R12m SSA spy trial to public

Media24, Daily Maverick, amaBhungane, and the Campaign for Free Expression have launched an urgent high court application challenging the blanket exclusion of the public and media from the criminal trial of former State Security Agency (SSA) officials Thulani “Silence” Dlomo and Patrick Mshothola.

The application, filed in the Gauteng High Court in Pretoria, seeks to vary an order granted on 14 October that restricts access to evidence in the trial concerning the alleged misappropriation of R12-million in SSA funds.

The applicants argue that the order has been implemented as a blanket prohibition on public access, with three days of proceedings seemingly already conducted in complete secrecy.

They argue that the order does not authorise closing the entire trial in camera and that its implementation violates constitutional guarantees of open justice, freedom of expression and access to information.

“The present blanket exclusion of media from proceedings is therefore not sanctioned by the order itself,” attorney Charl du Plessis states in the founding affidavit.

The application follows an incident on Friday, 16 October, when News24 journalist Kyle Cowan was barred from entering the courtroom after the public gallery was cleared.

The applicants want the court to restore open proceedings as the default position and require any party seeking to withhold evidence on national security grounds to justify the restriction through a specific application, giving the media an opportunity to respond.

The notice of motion requests that the matter be heard urgently before trial proceedings resume or, alternatively, that the criminal trial be postponed to allow the respondents time to file answering papers.

Trial closed beyond the order’s terms

In the founding affidavit, Du Plessis says the order of 14 October was granted without notice to the media or an opportunity for affected media organisations to make representations.

According to the affidavit, the order provides for restrictions on evidence involving current or former SSA members, operational methods and classified documents. However, the applicants argue these targeted provisions do not justify excluding the public and press entirely.

Du Plessis argues the order permits broad exclusions without requiring the court to evaluate whether disclosing specific evidence causes actual harm or if less restrictive measures could protect national security, noting: “The fact that evidence is marked confidential does not provide a sufficient basis to exclude evidence from the public record.”

Given the high public interest, they maintain the media should have received prior notice.

The affidavit detailed how the applicants learnt of the proceedings on Friday morning after Cowan received word that the trial was under way. He travelled from News24’s offices in Randburg to the high court in Pretoria, where court security prevented him from entering.

During an adjournment, Cowan requested the court order and the application that had led to it. The State provided the order but declined to release its application, saying it contained “classified information”, according to the affidavit.

Du Plessis says the applicants sent urgent correspondence to the presiding judge, the acting Deputy Judge President and relevant parties, seeking access in accordance with the order’s terms and directions on how the media could participate in proceedings concerning restrictions on disclosure.

The affidavit says no response had been received by the time the application was delivered.

Balancing act

The application asks the court to vary the existing order so that the trial is conducted in open court, with no blanket exclusion of the public or media.

It proposes evaluating any future restriction requests through formal, evidence-specific applications detailing the precise harm of disclosure.

Under the proposed framework, such applications would need to be supported by affidavits from knowledgeable parties, specify the exact documents or oral evidence to be protected, state whether the material is already public, and prove why narrower measures would be insufficient.

The applicants also want the media to be allowed to file answering affidavits within three court days of service and to be heard before the court decides whether evidence should be withheld. The proposed applications would ordinarily be heard in open court, except to the extent that the argument itself could not be presented without revealing the material at issue.

The proposed relief balances public access with security needs by allowing protected SSA witnesses to testify under pseudonyms or behind screens. Witnesses could testify in camera only if the court is satisfied that harm is likely, while considering whether accredited media could remain present.

Regarding evidence already heard behind closed doors, the media groups ask that parties seeking confidentiality identify specific transcript lines within five court days; otherwise, non-sensitive portions would be unsealed and released with protected identities redacted.

For documents withheld under the 14 October order, the media groups propose they remain sealed temporarily, provided an application to justify continued protection is served within 10 court days. Any unreferenced documents would automatically become publicly accessible.

These are the remedies sought by the applicants. The court has yet to determine the application.

A case with a significant public interest

The criminal trial concerns Dlomo, who headed the SSA’s Chief Directorate for Special Operations (CDSO) from 2012 to 2017, and Mshothola, who served as an investigator and later a project manager within the directorate.

Dlomo was subsequently appointed South Africa’s ambassador to Japan. His tenure at the CDSO has featured prominently in investigations into the alleged politicisation and misuse of the intelligence agency during former president Jacob Zuma’s administration.

The affidavit also highlights the 2019 High-Level Review Panel report on the SSA and the findings of the State Capture Commission, both of which raised serious concerns about the directorate’s operations during Dlomo’s tenure. It led to him being recalled by President Cyril Ramaphosa.

The High-Level Review Panel concluded that the agency had become deeply politicised and factionalised, with parallel structures serving personal and political interests. It found that the SSA’s Special Operations Unit operated unlawfully and served partisan political goals.

The panel described the consequences of widespread resource abuse, saying the SSA had become a “cash cow” for some of its members and external stakeholders.

The State Capture Commission subsequently examined the CDSO’s operations, including allegations of unlawful projects, irregular contracts and the handling of large sums of cash.

It found that the unit, particularly under Dlomo’s direction, had operated outside the law and recommended that law enforcement agencies investigate the role played by Dlomo, former state security minister David Mahlobo, former SSA Director-General Arthur Fraser and others in the withdrawal, handling and distribution of agency funds.

The applicants contend that these official findings and years of reporting emphasise the crucial public interest in allowing open media coverage of the trial.

The R12m Project Mayibuye case

The underlying criminal trial also concerns allegations that Dlomo and Mshothola misappropriated R12-million in SSA funds in 2015 under the guise of a covert operation known as Project Mayibuye.

According to the charge sheet, the money was allegedly obtained through three temporary cash advances linked to a purported contract with Kimberley-based Korolo Investment Holdings.

The charge sheet reportedly alleges that the contract and associated invoices were fraudulent. Although Korolo was involved in private-sector surveillance support, the company allegedly had no contract with the SSA and was not listed on the agency’s supplier database.

According to the report, the company’s sole director told investigators that he had neither signed the agreement nor met Dlomo. He said he prepared invoices at the request of officials but that the company never received payment from the SSA.

The charge sheet further alleges that Korolo performed no services under the purported contract and received no payment. These allegations have yet to be established through a conviction, and both accused are presumed innocent.

The founding affidavit also describes the alleged funding arrangements and the wider chain of authorisation. It states that funding motivations were prepared by Mshothola and approved by Dlomo, with the project authorised by then SSA director-general Sonto Kudjoe in January 2015 and renewed in 2016 by Fraser.

The case also sits within a broader history of allegations about the use of intelligence resources during the Zuma administration. News24 reported in February 2022 that R84-million had allegedly been siphoned from the SSA under the umbrella of Project Mayibuye, ostensibly for covert purposes but allegedly in support of Zuma’s interests. DM