The Constitutional Court on Monday released an abridged record of the proceedings in the appeal by former National Intelligence Agency (NIA) director general Billy Masetlha.
The record was released minus pages 114 to 175, or the whole of an affidavit made in camera by Masetlha.
Also not publicly disclosed were pages 198 to 209 and 330 to 341, or the whole of a report by the inspector general of intelligence (IGI) on the legality of a surveillance operation.
Earlier on Monday, Constitutional Court judges were ”in conference” over whether to make part of the public record the two documents submitted in the trial of former National Intelligence Agency (NIA) director general Billy Masetlha.
Intelligence Minister Ronnie Kasrils and President Thabo Mbeki have objected to the public disclosure of an affidavit made in camera by Masetlha and a report on surveillance by the IGI.
Their objection was filed under an interim ruling by Chief Justice Pius Langa on Thursday in an application by Independent Newspapers for access to both the heads of argument and the record of proceedings.
Independent Newspapers brought the application after the heads of argument were removed from public domain because certain documents were marked ”top secret”.
While there were no objections by counsel for the president and Masetlha, Independent Newspapers’ counsel Gilbert Marcus SC asked that the court make a finding contending that a mere agreement between parties could subvert the interests of justice.
Langa ordered that the heads of argument be available from noon on Friday and the record of proceedings from noon on Monday.
However, he added that any party objecting to the disclosure of any documents in the record file a notice no later than noon on Friday, identifying the documents to which the objection related and the grounds for the objection.
Independent Newspapers was meeting its lawyers on Monday to decide whether to oppose the objection, and if so, on a legal strategy to do so.
Initial indications were that it would indeed take the matter back to court.
”By tomorrow [Tuesday], we’ll know,” said Dario Milo, the Webber Wentzel Bowens media lawyer representing Independent Newspapers.
The newspaper group would meet its advocate, Marcus, about the matter on Tuesday.
Milo said that while time was of the essence, it was procedurally quite complex to oppose the objection.
In the notice of objection, Kasrils and Mbeki stated that Masetlha’s in-camera affidavit had ”never been made public”.
They submitted that it contained ”classified information” relating to NIA investigations into subversive activities, and confidential information about Cabinet discussions on intelligence, particularly activities of a third force and the Boeremag.
This information also related to past and present NIA operations, counter-intelligence operations and the names and sources of intelligence.
Objecting to the disclosure of the IGI report, Kasrils and Mbeki contended that it was made available to Masetlha when he was still privy to classified information.
”The document is presently classified ‘secret’, subject to the Protection of Information Act,” they submitted.
Although it did not disclose names, it did detail existing NIA operations and, ”read with other information that is available in the public realm, would undermine national security”.
In an application in support of the notice, attorney Tembeka Ngcukaitobi of Bowman Gilfillan, for Kasrils, stated that the minister became aware for the first time on Thursday of the application to publicly disclose the information.
While the order related only to documents in the record which had already been publicly disclosed, the effect of the court’s interim ruling was that the entire record of appeal be made public.
The minister, who is not party to the Masetlha challenge, was merely intervening to object to the disclosure.
Masetlha is asking the Constitutional Court to overturn a Pretoria High Court ruling upholding his dismissal.
He was suspended in October 2005 and dismissed in March 2006 over hoax e-mails purporting to show that senior African National Congress members were conspiring against its deputy president Jacob Zuma and secretary general Kgalema Motlanthe. — Sapa