In Minister of State Security v Makwakwa, the court prevented Makwakwa from publishing a classified intelligence report on any medium or platform. The court took a “judicial peek” at the report titled “US interest in ANC party dynamics”. The judge ruled that the Minister was justified in preventing the media from publishing the report due to the contents of the report.

Who should care about this judgment and why?

  • The media because the judgment shows why journalists can’t publish classified information.
  • The information regulator because of their mandate to promote access to information.

What could you do about it?

  • Read the full judgment by downloading it.
  • Access other relevant PAIA judgments by joining the Michalsons Access to Information programme.

Our insights on the judgment

We wanted to share some other information about this judgment with you. We took longer to publish this insight because the judge did not publish a record of this judgment. The judge marked the judgment as confidential but later changed her mind about it.

If you happen to read the full judgment, please note that the court incorrectly refers to the Protection of Information Act as “the PAIA”. The court also references the Promotion of Access to Information Act in this judgment and adds “PAIA” in brackets. PAIA is the common acronym we use to refer to the Promotion of Access to Information Act.

There have been a few recent PAIA judgments demonstrating how our courts are giving effect to the fundamental human right of access to information by granting advocacy groups and media houses their requests for “seemingly” confidential records. This judgment showed otherwise because the court looked at the contents of the report. If someone can prove that disclosing information can lead to disruption, the courts will preserve the confidential nature of a record or report.

Incorrect application of PAIA

Our courts have repeatedly demonstrated that they will grant access to information. However, this judgment showed us how important it is to apply the provisions of PAIA correctly. You must apply for access to a record before you plan to use a record and its contents.

It is unlawful to hold a record or use the contents of a record if you did not apply for access to it.

If you get access to a record without following the correct process to request access, the courts and other authorities will deem your possession of the record as unlawful. You could face other consequences in law for this. For example, the record holder could take action against someone who holds a record unlawfully.

Digest

Makwakwa is a chief reporter at the Daily News. He claimed to have received a copy of a classified report from a source at the State Security Agency (SSA). The report was titled “US interest in ANC party dynamics”. After going through the report, Makwakwa contacted the head of the SSA and asked questions about the report. He also attached a copy of the report which was classified as secret. When the SSA head refused to answer Makwakwa’s questions, Makwakwa approached other members of the government with his questions. With no response in sight, Makwakwa later tweeted that he was about to expose a “big leak”.

When the SSA became aware that Makwakwa intended to publish a story about the report, the Minister launched an urgent application to court to prevent Makwakwa from publishing the intelligence report. In this judgment, the court considered whether it should confirm the Minister’s urgent application.

The court discussed the reasons why the report was classified as “secret” and agreed with the Minister’s point that if Makwakwa published the report it could disrupt the effective execution of information or operational planning. The court highlighted that the report implicates high profile politicians in cooperating with the USA and the USA’s involvement in causing conflicts and instabilities in the ANC.

Classification of the report as secret

Makwakwa claimed that the contents of the report did not justify any classification. He also believed that the report should be disclosed in the interests of open justice. The Protection of Information Act 84 of 1982 aims to protect the disclosure of certain information. The Minister claimed that according to the Act, until the report is declassified, unauthorised possession is unlawful.

Incorrect application of PAIA

Makwakwa and the media houses in this matter tried to rely on section 46 of the Promotion of Access to Information Act (PAIA), the Constitutional provisions promoting access to information, and case law to persuade the court to grant them the right to publish the report. However, the court found that Makwakwa interpreted the case law incorrectly because this case does not deal with access to information or to a record. Therefore, Makwakwa’s reliance on certain PAIA provisions were misplaced.

Very importantly, the court held that although Makwakwa understood that he needed to balance the interests of the Minister and the SSA on the one hand, and access to information as envisaged by section 32 of the Constitution read with section 9 of PAIA, he did not follow the process of PAIA to request access to a record. Instead, he chose to obtain and retain a copy of the report unlawfully.

The court’s decision

In the absence of a request for access to information in terms of PAIA, or an application for a declarator, the court held that the report would remain classified. The court held that the mere classification of a document as confidential, secret, or top secret, did not place it beyond the reach of the court. Our courts are authorised to decide whether to grant access to the public. The judge said that she had a “judicial peek” of the report. The court was satisfied that the Minister proved that the report contained classified information. The court held that Makwakwa could not publish the intelligence report on any medium or platform.

Order

The Court:

  • confirmed the interim order,
  • prohibited Makwakwa interdicted from publishing the report on any medium or platform, and
  • ordered Makwakwa to return the report to the Minister.

Details of Minister of State Security v Makwakwa

  • Universal citation: [2022] ZAGPPHC 605
  • Case number: 64148/2021
  • Full name: Minister of State Security v Makwakwa and Others

Please note: This judgment summary is not intended for a general audience. It is specifically drafted for the members of the Michalsons Access to Information programme.