Makwakwa and Others v Minister of State Security

In December 2021, journalist Thabo Makwakwa (first appellant) came into possession of a classified intelligence report compiled by the State Security Agency of South Africa (SSA). The report concerned alleged monitoring by the United States Embassy of internal political dynamics within the ANC. Makwakwa, who writes for news publications owned by the second and third appellants (Independent Media and Independent Online), sought comment from various officials on 20 December 2021. On 22 December 2021, the Minister of State Security brought an urgent ex parte application for an interim interdict to prevent publication. The interdict was granted by Mundzelele J without the Minister providing the report to the court. The court was told the report was classified "Top Secret" when it was actually classified "Secret". The interim interdict was later confirmed by Molefe J on the return date, who did have sight of the report. The appellants appealed, arguing the Minister failed to observe good faith in the ex parte proceedings and failed to establish that publication would harm national security.

• Whether the Minister observed the duty of utmost good faith in ex parte proceedings
• Whether classification of a document as 'Secret' precludes a court from scrutinizing its contents to determine if it should be protected from publication
• Whether the Minister discharged the onus of establishing that publication of the report would harm national security
• Whether a court can consider classified documents without a formal PAIA application
• Whether misstatements and misrepresentations in ex parte proceedings warrant discharge of an interim interdict

The appeal was upheld with costs, including costs of two counsel. The High Court order confirming the interim interdict was set aside and replaced with an order discharging the interim interdict granted on 22 December 2021 with costs.

The binding legal principles established are: (1) In ex parte proceedings, parties owe a duty of utmost good faith to disclose all material facts, and material misstatements or misrepresentations, whether deliberate or negligent, warrant discharge of interim relief unless there is a cogent practical reason not to do so. (2) The classification of a document as 'Secret' or 'Top Secret' does not preclude a court from examining its contents to determine whether it warrants protection from publication - the mere say-so of a Minister does not place documents beyond judicial scrutiny. (3) The Masetlha principle that courts may examine classified documents applies equally to cases involving proposed publication of documents already in a party's possession, not only to PAIA applications for access. (4) The burden rests on the party seeking to prevent publication on national security grounds to substantively establish that publication would harm national security - bare assertions of harm are insufficient. (5) Where classified documents are central to an application, particularly in ex parte proceedings, they should ordinarily be made available to the court for its assessment.

The court made several non-binding observations: (1) The court noted that the appellants appeared to have published the article despite being informed of the interim interdict, which on its face constituted contempt of court, but declined to comment further as this was not before the court. (2) The court observed that the contents of the report were "so banal" that one could doubt whether they resulted from intelligence-gathering or merely ordinary research of publicly available media reports. (3) The court suggested that had Mundzelele J been given the report during the ex parte hearing, some of the factual inaccuracies would have become apparent and the outcome might have been different. (4) The court noted the absence of any confirmatory affidavit from Mr. Scott to explain his alleged error regarding classification, drawing an adverse inference. (5) The court observed that the report did implicate the mandate of the SSA regarding foreign intelligence monitoring, disagreeing with the appellants' contention that it concerned only internal ANC politics, though this did not determine the outcome.

This case is significant for: (1) reaffirming the strict duty of utmost good faith in ex parte applications, particularly where fundamental rights like freedom of expression are at stake; (2) clarifying that mere classification of documents does not oust a court's jurisdiction to scrutinize whether they warrant protection from publication; (3) establishing that the Masetlha principle (that courts may examine classified documents to determine if they should be disclosed) applies not only to PAIA applications but also to cases involving unauthorized possession and proposed publication; (4) requiring the state to substantively prove harm to national security rather than relying on bare assertions or classification status; (5) demonstrating that multiple material misstatements in ex parte proceedings, even if not deliberate, will result in discharge of interim relief; (6) balancing media freedom against legitimate national security concerns in the context of classified intelligence reports.