For decades, stories have been told about foreign governments conducting clandestine intelligence operations to gain access, spy, and influence the policy direction of other countries.

In the case of South Africa, the United States has been found wanting as an intelligence report about alleged US efforts to gather intelligence about South Africa’s ruling African National Congress (ANC) party was leaked to Independent Media journalist Thabo Makwakwa.

The report was dated November 5, 2020, titled “Top secret: US interest in ANC party dynamics” and commissioned by the US intelligence operating at the country’s offices in Pretoria.

Historical Background: The emergence of the Secret Report

On December 2021, the Daily News attempted to finally bring to light the involvement of the US government in working with certain prominent ANC leaders to drive the US interests within the ruling party.

This was after a series of engagements between Makwakwa who was investigating the matter, the US embassy, and the South African State Security (SSA) which had received the intelligence report from the US intelligence before it was leaked to Makwakwa and other media houses not linked to Independent Media.

In early December, a highly placed source within the State Security gave Makwakwa the intelligence report and also disclosed that the report had already been leaked to other media outlets.

In an attempt to verify the document, Makwakwa hit the ground running and enquired with the ANC, US consulate, SSA, and the Presidency.

On December 20, 2021, at 6.35am Makwakwa sent questions via WhatsApp to Skhumbuzo Majola of the United States of America Consulate. Shortly thereafter he received a reply from Majola who asked that he email the report.

Having provided the information as requested by the US Consulate, Majola immediately phoned Makwakwa on the same day to discuss the matter. Majola explained that the US intelligence was not the author of the “Top secret” report and distanced themselves away from it.

On December 20, 2021, at 10.48am, Makwakwa sent a WhatsApp message to Brian Dube, a spokesperson for the SSA to which he appended the report. The message was detailed in that it provided background and then posed six questions.

Dube did not respond to this message. On the same day at 10.49am I sent a similar message by WhatsApp to Zizi Kodwa the Deputy Minister of State Security, and no response was received.

Also on the same day at 12.28pm Makwakwa addressed an email to Mava Scott from the SSA with the report appended. On December 21, 2021 at 7.58am, having had no response from Scott, Makwakwa followed up via WhatsApp and made two calls to Scott to no answer.

Eventually, Scott contacted Makwakwa and demanded to know who leaked the report. Contrary to what the US had said denying knowledge of the report, Scott stated that this was a classified document and that whoever had leaked the document would be arrested.

The ANC and president Cyril Ramaphosa were also contacted with Ramaphosa’s former spokesperson advising that the SSA be the ones to answer. The ANC spokesperson Pule Mabe never replied although a deadline was disclosed.

Court battle: SSA V Thabo Makwakwa and Independent Media

Following the intensive engagements with all the parties who were made aware that a story would be published on December 23, 2021 - On December 22, 2021, Makwakwa posted a tweet that was “sensitising readers about a shocking leak that was to be published”, the minister launched the urgent, ex parte (without notice to the other side), application and obtained an interim interdict barring publication in the interests of state security.

At 11.20pm Makwakwa was contacted by Advocate Ntopane Mashabela and reported to him that a court interdict had been granted in his absence prohibiting the publication of the report. This was done without notice of the hearing.

This was also despite the fact that the Daily News and The Star newspapers had already printed and distributed the newspapers across the country with the story as a front page.

Court Hearing: SSA V Makwakwa & the Independent Media

The matter was finally heard in the Pretoria High Court where the SSA, Makwakwa and the Independent Media argued and presented their case.

The minister had argued that the report was classified as a secret because it contained allegations regarding the interaction and the nature of the working relationship between the US and SSA, “the disclosure of which can disrupt the effective execution of information or operational planning”.

Furthermore, he argued that the report implicated “certain high-profile South African politicians” and specifically dealt with the US’s involvement in causing conflicts and instabilities in the ANC and which members of the ANC pose a threat to the US’s interest in South Africa.

The disclosure, the minister argued, “may seriously compromise the peace and well-being of the people of South Africa as it may cause civil unrest, damage the diplomatic relationship between South Africa and the USA and endanger the lives of the persons mentioned in the report”.

In their defence, Makwakwa and Independent Media argued that the contents of the report did not justify any classification, that most of its contents were already in the public domain, and that it was evidence of involvement by the SSA in ANC politics, said Judge Daisy Molefe. They said that the “language used in the report is disturbing as it appears that the SSA is issuing orders to the government to not only take steps regarding the factional dispute within the ANC but to promulgate legislation”.

Molefe said the Protection of Information Act provided that after a document was classified as “secret”, possession by an unauthorised person was unlawful. She said it was common cause that Makwakwa was not an authorised person, and his continued possession of the report constituted a crime under the Act.

Judge Molefe said the report had been given to her at the hearing for her to determine if it could be described as “national security information”.

“Although Makwakwa is not a specialist or an expert to interrogate the report, in the answering affidavit he provided a detailed analysis and concluded that the report had nothing to do with state security and everything to do with the factional in-fighting within the ANC. His view is also that the SSA has no business getting involved in party political contest and that in the public interest, the report should be interrogated in the public domain in furtherance of transparency, accountability and responsiveness,” she said.

The judge said she had had a “judicial peek” at the SSA report and was satisfied that the minister had made out a case for a final interdict.

She interdicted Makwakwa and Independent Media from publishing the report or any part of it and ordered that they immediately return the document to the minister.

She ordered that Independent Media pay the costs of the application and also ordered the judgment not be published, however, Judge Molefe changed her mind and said that the judgment could be published after she was challenged.

South African Law: Access to information

The law provides that information, held by government departments or any public body, can be obtained if a requisition is made and that the Promotion of Access to Information Act should not be used when:

the record is requested to be used in criminal or civil proceedings
a criminal or civil proceeding has already commenced.

In the case between Makwakwa, Independent Media, and the SSA, the request was unnecessary as the document was already in the public domain and leaked to various media houses. It is also important to note that the classification of the report was also viewed as an abuse of state resources as the ANC party politics does not pose a threat to national security, and does not deserve special protection from the state.

Makwakwa and Independent Media accept that the state has the authority to classify documents but it must do so in furtherance of its duties to preserve the peace, secure the well-being of the people of South Africa, maintain national security, defend and protect the Republic of South Africa, to establish and maintain intelligence services and to prevent combat and investigate crime.

However, it must be noted that ANC political factions do not form part of the duties of state security, therefore, the classification of information by the SSA must be done within the policy known as the Minimum Information Security Standards (MISS).

MISS states: “It is necessary to constantly guard against both the over-classification and the under-classification of information. Misuse of classifications can result in the system being treated with contempt. The consequence will be carelessness with respect to the security system.”

Thabo Makwakwa is an Independent Media journalist.

Daily News