EXPLAINER | Why Madlanga believes it doesn’t have power to declassify secret documents

Share current article via EmailShare current article via FacebookShare current article via TwitterShare current article via LinkedInHerman MoloiJournalist

Opens in new windowOpens in new windowOpens in new windowOpens in new windowEnter fullscreen mode displaying this image.ExpandMadlanga commission chief evidence leader Adv Matthew Chaskalson announced on Wednesday that some documents in Dr Sifolo’s evidence have been partially declassified for the commission’s purposes only. Picture: Business Day/Freddy Mavunda Story audio is generated using AI

Evidence leaders of the Madlanga commission argue that the inquiry does not have the power to declassify classified documents.

This is among the reasons they have raised in their application to have the evidence of the acting co-ordinator of the national intelligence co-ordinating committee, Dr Ntandazo Sifolo, be heard in camera.

Sifolo’s testimony, among others, relates to how the committee identifies, assesses, and reports threats of infiltration by organised crime syndicates, and the relationship between the committee and other intelligence and security structures.

On Wednesday, chief evidence leader advocate Matthew Chaskalson SC said the documents and Dr Sifolo’s evidence had been partially declassified for the commission’s purpose and not for public dissemination.

“The entire debate [here] turns on the central issue of whether this commission has power to declassify [classified documents], and our submission is that it does not, and if it does not, then that should be the end of the matter,” he said.

Chaskalson said a remedy to this would be for the commission to approach a high court with an urgent application to have the declassification order reviewed, but warned that it would affect the commission schedule.

Chaskalson also proposed that members of the media challenging the application could approach the high court to seek access to the transcript after the evidence has been heard.

Media houses that have submitted an opposing application have mainly argued that Dr Sifolo’s evidence is in the public interest and that not everything falls under the classification.

Some of the factors they cite include what the intelligence community does, what the failures were, and why there were those failures. They also conceded that some parts could be heard in camera.

Advocate Ben Winks, representing the media, argued that there is no law governing the declassification of documents before the commission.

“We do stand by our submission that section 31 of the commission does cloth the commission with the same powers as those of the high court to release, redact and refuse public access to information, regardless of the classification status,” he said.

The Madlanga commission is investigating allegations of infiltration in the criminal justice system by criminal syndicates.

The commission’s chairperson, Justice Mbuyiseli Madlanga, has proposed obtaining a statement from Dr Sifolo to check with him whether some parts of his evidence could be heard in open proceedings.

Judgment on whether Dr Sifolo should testify in camera has been reserved.

Would you like to comment on this article?Sign up (it's quick and free) or sign in now.

Please read our Comment Policy before commenting.