The high court has refused to declassify a confidential report by the inspector-general of intelligence into the “rogue unit” at the SA Revenue Service and has interdicted its release.
Minister of state security Ayanda Dlodlo had approached the court to interdict the release, publication or any public access of the 2014 report compiled by former inspector-general of intelligence Faith Radebe. She also asked the court to strike out any reference to it in the EFF’s affidavit in a review application of a report completed by public protector Busisiwe Mkhwebane.
Dlodlo had already made a redacted version available, but the order now interdicts the release of the full report. In June 2020, the IGI report was reviewed and set aside by the high court in Pretoria in another matter, which means it is now null and void.
Mkhwebane and the EFF had pushed for the declassification of the report on the establishment of the high-risk investigative unit at the country’s tax agency after she had probed this and reported that the structure was established unlawfully.
The report resurfaced in the public domain with the release of Mkhwebane's report on private enterprises minister Pravin Gordhan and controversial issues at Sars, including the establishment of the unit.
Mkhwebane, in her final report released in 2019, stated she “had it on good authority” what the findings were and recommendations in the 2014 IGI report stating that Sars had created a unit using covert and intrusive methods in direct contravention of its mandate.
The public protector also said in her report that she had tried to get a declassified copy of the report to no avail, and had asked President Cyril Ramaphosa to assist her in getting it from the state security minister. She acknowledged only in a court hearing earlier this year that she had the controversial report at the time of compiling the report on Gordhan and issues at Sars.
In the judgment dated October 29, high court judge Nomonde Mngqibisa-Thusi wrote that it could be disputed, as argued by Dlodlo, that “the disclosure of the names and identities of the country’s intelligence operatives would not be in the interest of national security”.
“I am of the view that the disclosure of the classified I-G’s report would be to the prejudice of the national security interest of the country if the identities of the intelligence operatives, the sources of the SSA and their methods are disclosed,” she said.
The judge said the redacted version did not change the substance of the IGI report.
“The right of the public protector to defend the findings made in her report and her obligation to file the documents relied upon to reach her conclusions as she argued cannot override the needs of national security,” said judge Mngqibisa-Thusi.
She said that the declassified redacted version of the report would in any event not put the public protector at a disadvantage in defence of her findings, and the legitimacy of the review proceedings would not be undermined if the report was not used.
The public would also have the opportunity to access its contents and if necessary debate it, the judge said.
The EFF was ordered to pay costs. The judge said she was of the view that the conduct of the EFF in attaching the report in court papers before it was declassified could not be “countenanced”.
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