National key point case - police minister's argument is 'indefensible'
Saying a place is a national key point (NKP), and that this will endanger the state, is indefensible, counsel for the Right2Know Campaign (R2K) said in the Johannesburg high court on Monday.
“The assumption through papers is that saying a place is a NKP and will be detrimental to state security ... is simply untenable as a matter of logic, matter of fact, and events that have transpired in this case,” advocate for the campaign, Steven Budlender, said.
He was responding to argument made by counsel for the Minister of Police Nkosinathi Nhleko, who said that revealing which buildings and places were NKPs would place national security at risk.
“[His arguments] don’t stand up to logical scrutiny,” said Budlender.
He said the mere declaration of a place as a NKP – and that this will draw attention to it – “does not demonstrate in any way a danger to the state”.
He said it would not make a difference to the country’s security if places like OR Tambo International Airport were publicly known as NKPs.
This is because the “dark forces” that the minister’s counsel feared would inflict harm on the country do not need to be told that a place is important.
They would already know.
Budlender also represented the the other applicant in the case, the South African history Archive Trust, who asked the court to set aside the South African Police Service’s refusal to release a list of about 200 NKPs in terms of the Promotion of Access to Information Act.
In a statement released on Sunday, the movement said its call for transparency came “after years of complaints from civic organisations that this security law has been used to undermine both the right to protest in public spaces, and the public’s right to know”.
Knowing the status of a place is crucial
Nhleko, as the first respondent, said in his answering affidavit that NKPs “are such that if information regarding them were to be disclosed, it would cause prejudice to the defence and the security of the Republic”.
Places or areas are deemed NKPs under the National Key Points Act – created by the apartheid government – which allowed the police minister to declare anything he deemed a security risk a NKP.
Some of these, according to the minister’s affidavit, include “banks, munitions industries, petrochemical industries, water supply, electricity ...”
The papers said that this was the only information that could be given as any more would “prejudice the defence and security of the Republic”. “The mere mention of the name of a place will attract unnecessary attention to that place”.
Budlender refuted that naming a place would put the state at risk, saying “it would be different if my clients were seeking the security measures [applied] at those places”.
He said his clients were not even asking for the addresses of the NKPs.
The Mail & Guardian, as a friend of the court, was represented by advocate Matseleng Lekoane. She told the court that according to the Act, security guards were allowed to search and seize peoples’ belongings if the people were in an NKP.
They were also allowed to use guns to do this. She added that if this was the type of reaction that people, including journalists, might face, then they had the right to be prepared for it.
“You need to know the status of a place so you can inform your conduct,” she said.
NKP Act is being used to ‘silence activists’
R2K activists picketed outside the court holding posters and banners. One of them, Thato Mashilwane, said government was using the NKP Act to “intimidate us and silence activists”.
“Imagine they put municipal offices under this Act? We would not be able to protest about services.”
The movement’s Gauteng organiser, Bongani Xezwi, said he wanted the movement to have a presence inside and outside the court.
“We wanted to get the message out there ... we wanted to be able to talk to people as they were walking past and tell them why were in court today,” he said.
Many of the people he and other activists spoke to did not know what the Act was. This was a problem because “some of these NKPs are paid for using taxpayers money”.
“People must know what their money is being used for,” said Xezwi.
He also said people needed to know what was on the NKP list so that government employees could not mislead them when they applied to protest.
“It’s happened to me many times before where we go to apply to protest somewhere and we are told we can’t do that because it’s a NKP. How do we know they are telling us the truth or they are just trying to stop us protesting?”
He was once told by a Johannesburg Metro Police Department policeman that “Right to Know could not protest outside Luthuli House because the president would be there, and everywhere the president is is an NKP”. – Mail & Guardian