EFF wins secret report round one

Determined: The equality court has ruled that a secret 2014 report can be admitted as evidence in a hate speech case brought by Minister Pravin Gordhan against EFF leader Julius Malema. (Wikus de Wet/AFP)

Determined: The equality court has ruled that a secret 2014 report can be admitted as evidence in a hate speech case brought by Minister Pravin Gordhan against EFF leader Julius Malema. (Wikus de Wet/AFP)

NEWS ANALYSIS

The Economic Freedom Fighters achieved a significant victory this week in its ongoing feud with Pravin Gordhan, when the equality court rejected Gordhan’s bid to strike out of evidence a damning report about the so-called rogue unit at the South African Revenue Service (Sars).

The EFF and the public enterprises minister are slinging it out in various forums. There are two public protector reports that Gordhan is litigating against, and in which the EFF have intervened. And there is Gordhan’s equality court case against EFF leader Julius Malema — for calling him “a dog of white monopoly capital” who had “removed black excellence” from state-owned enterprises.

The Sars “rogue unit” — allegations of an unlawfully created, covert intelligence-gathering unit that illegally spied on political enemies — is one of the weapons in the party’s arsenal.

After a series of now discredited reports in the Sunday Times about the unit, a panel appointed in 2014 by Sars and chaired by senior counsel Muzi Sikhakhane found that the creation of the unit was unlawful because Sars did not have a legal mandate to covertly gather intelligence.

The Sikhakhane report was seized on by former Sars commissioner Tom Moyane to suspend a number of senior Sars officials and subject them to disciplinary proceedings, triggering an exodus of senior staff from the revenue service and severely weakening it.

Sikhakhane’s finding on the creation of the unit has been disputed as wrong in law — but this has yet to be determined by a court.

But the report in the news this week — that equality court Judge Roland Sutherland has admitted into evidence — agreed with Sikhakhane; and went significantly further.

The report — compiled in 2014 by the Inspector-General of Intelligence (IGI) and still classified “secret” — found that Sars had “an interception and monitoring of communications capability which ...
was used for political purposes” and that Gordhan was one of the people who created it.

It recommended criminal charges against Gordhan and others.

Before Sutherland, Gordhan’s counsel had argued that the report was still a state security classified document, that it was irrelevant to the case before the equality court and that it was “vexatious” — included into evidence purely to harass or annoy.

But Sutherland rejected the application to strike out the report. He is yet to give reasons for his decision, but EFF counsel Tembeka Ngcukaitobi said in his heads of argument that, as previously found by the Constitutional Court, the mere fact that the report was classified did not mean it could not be put before the court as evidence. The report had also long been in the public domain as deputy EFF leader Floyd Shivambu had attached it to his court papers last year and it had been widely reported on.

The allegations that the release of the report, which contains names of State Security Agency agents, would expose the identities of SSA operatives, compromise their safety and expose the methods used by the agency in gathering intelligence were sweeping and broad, argued Ngcukaitobi.

Most of the people named in the report were already in the public domain, he said, and “all that can be gleaned from the report about the SSA’s activities is that the SSA uses undercover agents who have handlers — the standard stuff of any spy novel and hardly a national secret”.

Sutherland’s decision means that the report can be used to defend Malema’s comments about Gordhan, which he says were robust political speech and not hate speech.

The order also emboldened the EFF leaders, who immediately uploaded the report onto the party’s website, saying it is now a public document.

As far as protecting the report from dissemination, the horse has now well and truly bolted. But, as the EFF argued, it already had. The IGI report has long been reported in the media, including by the Mail & Guardian.

But, the fact that its contents have been widely published does not, in law, mean that it is no longer classified.

So perhaps the bigger battle is still to come: the IGI report also made its way into the public protector’s “rogue unit” investigation. Her report found that the unit was indeed formed “in violation of South African intelligence prescripts” and that it had carried out unlawful intelligence operations. As remedial action, public protector Busisiwe Mkhwebane specifically directed that the recommendations of the IGI report be implemented. Her direction was made despite criminal charges against Gordhan on this very issue having already been rejected by the National Prosecuting Authority in 2016.

Gordhan has challenged Mkhwebane’s report in court, saying the Sars unit was lawful.

When the EFF sought to join the case, they once again attached the IGI report to their court papers.

This prompted State Security Minister Ayanda Dlodlo to enter the fray, asking the high court to strike it from the EFF’s court papers just as Gordhan did in the equality court.

Dlodlo’s reasons for why the report should be struck from the high court review are identical to some of the arguments made by Gordhan’s counsel before the equality court. Indeed, a large chunk of Dlodlo’s affidavit to the high court is quoted verbatim in the heads of argument before Sutherland.

But how far Sutherland’s order would affect the outcome in the high court depends on the reasons he gives, which are still to come.

It is also likely that the credibility of the IGI report will be attacked. Gordhan has already said that he was never interviewed by the office of the inspector general, nor offered an opportunity to respond to the allegations. Some of the main witnesses interviewed by the office of the IGI are well-known players in the controversy and have repeatedly been accused by those denying any unlawful conduct of being peddlers of the “rogue unit narrative”.

The EFF leaders did not disclose in court where and when they came to possess the report.

Mkwebane’s report is also coy on this, saying that — despite a subpoena and even a criminal complaint — she has not been provided with a declassified copy.

But, she said, she interviewed the current inspector general of intelligence and had it “on good authority” what the report contained. In the section of the report listing documents relied on by Mkhwebane, she refers to “further documents blurred and/or not listed due to their nature”.

But in her affidavit opposing Dlodlo’s application, Mkhwebane directly states that she obtained the report from an anonymous source. She is also emphatic that “in law I am entitled to access any document, whether such document is classified or not”. Mkhwebane said she would consent to a redacted version of the report being before the court.

Dlodlo’s application is expected to be heard on October 14.

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