Independent Newspapers (Pty) Ltd v Minister for Intelligence Services; In re: Masetlha v President of the Republic of South Africa

Independent Newspapers sought access to, and public disclosure of, certain restricted portions of the record in the Constitutional Court relating to Masetlha v President of the Republic of South Africa. The underlying case concerned the suspension and dismissal of Mr Billy Masetlha, former Director-General of the National Intelligence Agency. Parts of the High Court record included an in camera affidavit by Masetlha and an Inspector-General of Intelligence report dealing with intelligence operations, marked confidential or secret. Although the High Court proceedings were held in open court with no restriction on access, the Constitutional Court, mero motu, temporarily sealed parts of the record due to national security concerns. The Minister for Intelligence Services objected to disclosure of specified portions on grounds of national security. Independent Newspapers argued that, based on the principle of open justice, the public was entitled to access the full court record.

The application for disclosure of the restricted portions of the court record was dismissed. The restricted documents remained sealed and withheld from public access. Costs of the interlocutory application were made costs in the main application.

The case is a leading authority on the limits of open justice in South African constitutional law, particularly where national security is implicated. It clarifies that the right of public access to court records is not absolute and may be restricted where disclosure would pose a genuine risk to national security. The judgment also affirms the Constitutional Court’s power to regulate access to its records and to adjudicate confidentiality disputes without necessarily disclosing sensitive material to the contesting party.