Key points list no threat to national security, says judge
The minister of police has been ordered to hand over the list of national key points after a Johannesburg high court judge said the police had failed to prove that its release it would prejudice state security.
On Wednesday Judge Roland Sutherland gave Police Minister Nkosinathi Nhleko 30 days in which to deliver the list to the applicants – the Right2Know Campaign, the South African History Archive and the Mail & Guardian, which appeared as amici curiae in the proceedings.
Sutherland said Nhleko’s refusal to release the list was unlawful and unconstitutional. He ordered the state to pay the legal costs of the two applicants and the amici.
It was still unclear on Wednesday whether the minister of police and the national deputy information officer of the South African Police Service would appeal the judgment, which they said they were still considering.
The national key points are protected at present from being photographed or identified as key points.
These include military installations and other buildings or complexes that are considered strategic.
It is said there are about 200 national key points on the list.
The South African History Archive, Right2Know and the M&G wanted the national key points to be made public in terms of the Promotion of Access to Information Act. They said the “blanket secrecy over which sites have been declared national key points has helped officials and politicians use and abuse the Act to undermine our constitutional rights”.
The M&G recently won the right to access to the Khampepe report that was applied for in terms of the Act. The report, commissioned by former president Thabo Mbeki, found that the 2002 Zimbabwean elections had not been free and fair.
The public was told in January this year that President Jacob Zuma’s Nkandla home, on which R246-million was spent on security upgrades, was a national key point, which justified the high level of security upgrades required. Apparently the current and all former presidents’ homes are on the list.
Sutherland said the Act had never intended for national key points to be kept a secret and the minister of police had not put forward a compelling argument that disclosure “could reasonably be expected to cause prejudice” to the state’s security.
He said if the Protection of Information Act was seen as the successor statute for the Promotion of Access to Information Act, then section 14 of that Act required all prohibited places to be gazetted and, accordingly, their identity to be published.
Viwe Notshe, appearing for the state, had said that although the National Key Points Act did not prohibit disclosure, such disclosure would put the country’s defence and security at risk.
Sutherland said it did not help their case that ministers had revealed a number of key points in Parliament, including Nkandla, the department of justice building in Cape Town after the arrest of vagrants and the Rustenburg magistrate’s court to justify the arrest of protestors outside the court.
Search for transparency
In one case, photographs by a journalist of warders fatally hitting a prisoner were forcibly taken away on the grounds that Groenpunt prison in Bloemfontein was a key point.
He said: “Transparency about all the facts is necessary to either repair the rot, if any exists, or dispel the lack of confidence, which the citizenry will continue to nurse if the facts are concealed.”
He acknowledged problems facing the media, as put forward by the M&G, that if “citizenry cannot know what places are key points, how can they avoid transgressions”. Sutherland said no counterargument was provided by the state.
Sutherland said the action taken against homeless people, the protesters and a journalist illustrate this problem. Allegations were made that action was taken because a crime had been committed because the location enjoyed special status.
“Despite the patent inability of the ignorant populace to know how to avoid committing such an offence, [it] is problematic for our constitutional values.”
The amended apartheid-era National Key Points Act of 1985 will remain on the statute book. Right2Know said the number of buildings, facilities and places listed had grown by 70%.
Right2Know Gauteng co-ordinator Dale McKinley said: “We feel great at the moment. It’s very important that the court found in our favour.”