A table of newspapers at the 2017 African National Congress conference in Johannesburg, South Africa as pictured on December 19, 2017. (AFP/Mujahid Safodien)

South African court bans Independent Media outlets from publishing leaked intelligence report

Lusaka, October 13, 2022 – A South African court judgment banning the publication of an intelligence report about alleged U.S. efforts to gather intelligence about South Africa’s ruling African National Congress party must be made public and should be overturned on appeal, the Committee to Protect Journalists said Thursday. 

On October 5, Gauteng High Court judge Daisy Sekao Molefe issued a final order banning the Daily News newspaper and Independent Online (IOL) news website from publishing a leaked November 5, 2020 intelligence report marked “secret” by South Africa’s State Security Agency and ordered that all copies of the document in Daily News reporter Thabo Makwakwa’s possession be returned to the agency, according to a statement by IOL and a tweet by Anton Harber, the executive director of local rights organization the Campaign for Free Expression. 

However, the court order has not been made public, contrary to the international legal principle of open justice whereby court processes and records should as a general rule be transparent and open to the public and as of Thursday, October 13, neither Harber nor CPJ had been able to obtain a copy of the judgment from the judge’s office and the court registrar.

Harber told CPJ via messaging app that he called the judge’s office on October 6 requesting a copy but the judge’s clerk told him that she had been instructed not to release it. He said that a formal request sent via his lawyer to the judge on October 7 also received no response. CPJ emailed Molefe’s office October 12 requesting a copy of the judgment and also called and emailed the office of the chief court registrar in Pretoria on October 13 for a copy but received no responses at the time of publication. 

Independent Media, which owns Daily News and IOL, and Makwakwa will appeal the judgment, according to the IOL statement.

“In the spirit of open justice, the court ruling banning the publication of this intelligence report must be made public immediately,” said CPJ Africa Program Coordinator Angela Quintal, in New York. “An appeals court must reverse this ruling regarding a publication that is a matter of public interest, especially when information appears to have been classified incorrectly or exposes criminal activity. Too often the default when it comes to intelligence classification is ‘secret,’ even when the information is public and the subject of robust debate. The courts should guard against giving the intelligence service a blank check to censor at will.”

The report, titled “Intelligence brief: US interest in ANC party dynamics,” reportedly describes attempts by the United States to gather intelligence about the ANC and influence its policies. 

The October 5 order confirmed a late-night interim order by the same court on December 22, 2021, after an application by South Africa’s State Security Agency in the absence of the media outlet’s representatives, which barred Independent Media, the Daily News, Makwakwa, and any other person from publishing or disseminating the report, according to Daily News editor Ayanda Mduli, who spoke to CPJ via messaging app.

State Security Agency spokesman Mava Scott did not respond to a request for comment via messaging app from CPJ.