SCA overturns State Security ruling barring ‘secret report’ on US spying on ANC

The Supreme Court of Appeal (SCA) has unanimously overturned a ruling by the State Security Agency (SSA), which barred Independent Newspapers from publishing the details of its “secret” report on alleged US perceptions of the African National Congress (ANC).

The SCA judgement handed down on Friday now clears the way for Independent Media to publish the contents of the leaked SSA report.

The appeal was upheld with costs, including the costs of two counsels.

In December 2021, Independent Media journalist Thabo Makwakwa got hold of the report, but the State Security Minister at the time, Zizi Kodwa, obtained a final interdict from Judge Daisy Molefe, preventing him from publishing the report.

Good faith

In the ruling, SCA Judge Tati Makgoka found the SSA “did not observe the requisite of good faith” in the ex parte proceedings that interdicted Independent and Makwakwa from publishing any details of the report in December 2021.

Makgoka found that this apparent lack of good faith by intelligence authorities was evidenced by the fact that the ministry had inexplicably failed to make the report available to the court that first granted the interdict.

He said the minister applied to the high court seeking confirmation of the interim interdict and that the founding affidavit was deposed to by the Deputy DirectorGeneral of State Security.

“By and large, he repeated the evidence of Mr [MAVA] Scott [SSA spokesperson] during the ex parte proceedings. The only difference was in the classification of the report. Whereas Mr Scott had testified that the report was classified ‘Top Secret’, the Deputy Director said that it was simply classified as ‘Secret.

“Having outlined the salient features of the report, the statement by counsel and the testimony of Mr Scott that the report was compiled by the USA in collaboration with the SSA is simply not correct. Far from being a co-author of the report, the USA Embassy appears to be the subject of counter-surveillance by the SSA,” the judge said.

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Contents of report

The SCA’s ruling also revealed the contents of the report that the SSA tried to suppress.

“A copy of the report was given to each member of the court. The purpose of the report is set out in clause 1 as being to inform the Minister of the extent of the United States’ (USA) interest in the political dynamics of the ANC.

“This was ‘specifically in relation to developments regarding [former] ANC Secretary-General… and his perceived anti-President Cyril Ramaphosa’s positioning’. The report further states in clause 2 that the USA had collected its information mainly from its embassy in Pretoria, which coordinates the US Mission in South Africa and includes the USA consulates in Johannesburg, Durban and Cape Town,” Makgoka said.

Allegation against Zuma

Makgoka said the report “alludes to factional battles within the ANC and that the Political Office has drawn its conclusions about them through a network of ANC party officials, ‘who wittingly or unwittingly share privileged information.”

“No names are mentioned in this regard. It is further stated that the conclusions were that the former ANC Secretary-General was galvanising support in anticipation of his arrest for corruption.”

Makgoka noted that Scott had testified that the report made “certain allegations… implicating certain high political people, some of whom involve the former president [Jacob Zuma]”.

“The second [point of concern] relates to the implicated people in that report who happen to be high office bearers of political office. The type of information that is being disseminated with regards to the factions of the ruling party and who [are] still in those.

“Those [have], in our view,. . . the potential to return us to what I would call the July events because some of the insinuations made, especially in the questions are leading us to that direction. It also has the potential on our own national security given the sensitivity of the issues that are in those questions,” he said.

Incorrect statements

Makgoka said there are also several incorrect statements in Scott’s testimony.

“First, the report does not ‘implicate’ anyone. It simply states what the Political Office would have analysed regarding reported factions in the ANC. I have already stated the context in which individuals named in the report were mentioned, namely, their alleged loyalty to former President Zuma in reported factions of the ruling party.

“This has been widely reported in the media. If this is what Mr Scott sought to convey to the court when he testified that there were ‘allegations’ against certain individuals who were ‘implicated’ in the report, he was mistaken,” Makgoka said.

US allegations

Makgoka said the report does not say that USA intelligence was making any allegations.

“It says that it is taking note of the allegations, which had been widely reported about factions in the ruling party, to influence the ruling party’s policy. Mr Scott’s evidence conveyed to the court an impression that the report contained ‘sensitive’ allegations against individuals who are ‘implicated’ in something sinister or some wrongdoing.

“As seen from the outline of the contents of the report, there is nothing in the report to that effect,” he said.

Public domain

Makgoka ultimately found that, far from containing “sensitive” information, the report simply recorded information that was already in the public domain.

“For example, the mention of certain leaders of the ANC as being supporters of former President Zuma is nothing new. Thus, there is nothing ‘sensitive’ about the contents of the report. They are so banal that one could even doubt whether the conclusions said to be drawn by the USA intelligence community resulted from any intelligence-gathering exercise, as opposed to ordinary research.

“Indeed, a browse through the local media on the reported factions in the ruling party would easily enable one to make the same conclusions,” Makgoka said.

SSA and USA response

Sipho Mbele, the spokesperson for minister of state security Khumbudzo Ntshavheni told The Citizen: “The matter preceded the minister’s appointment, and therefore we will not be commenting.”

David Feldmann, Mission Spokesperson at the U.S. Embassy in Pretoria told The Citizen: “The document you reference was not produced by the U.S. Government.”

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