This case was a furtherance of the initial constitutional court case in which Mr Billy Masetlha sought leave to appeal in a matter concerning his dismissal by the government of South Africa, The respondent of that case was the president of South Africa.
A day before the hearing of the Masetlha matter as indicated above, Independent Newspapers sought to join the proceedings because they wanted to gain access to the written argument lodged by the parties in the case. They also sought access to certain documents in the record of proceedings which had been removed from this Court’s website. It is believed that the registrar of court had been instructed by the judges to remove same. The request to gain access to these records was opposed by the minister.
The Minister of Intelligence Services joined the proceedings for the purpose to opposed the release of an in-camera affidavit deposed to by Mr Masetlha (and in particular specified paragraphs of it) and certain annexures to it. Some of the annexures whose release was opposed by the minister contained a report compiled by the Inspector General of Intelligence on the legality of a certain surveillance operation conducted by agents of the National Intelligence Agency. Independent Newspapers then brought an interlocutory application for an order to gain access to the same documents, they said the access was required only for the preparation of its case, but that application was refused by a majority of this Court (See judgement for reasons for refusal). The court then directed that the main application be set down for hearing on 22 November 2007.
In ruling on the mail application ruled that the whole of the in camera affidavit made by Mr Masetlha should be made available to the public but that the three disputed annexures to the affidavit should not. Moseneke DCJ in delivering the ruling considered the cluster of rights that establish the right to open justice. He went on to observe that the right to open justice is not absolute, but that a court must decide in all the circumstances of a particular case whether its limitation is in the interests of justice. He went on to argue that in considering the Minister’s argument that, classification of the documents renders them immune to disclosure, however the mere fact that the documents in a court record carry a security classification, does not oust the jurisdiction of a court to decide whether they should be protected from disclosure to the media and public.
Fellow Yacoob J held dissenting view as regards the outcome; he held that, all the documents should be released to the public mainly because the information in them is in the public interest. The national security interest, he reasoned, may be protected by further redaction of the documents. Yacoob J’s position was supported by both Sachs J and Van der Westhuizen J.
The FXI was amicus in the matter and in seeking admission as amicus in the matter wanted to assist the court in addressing the question of the proper procedural approach to be adopted when documents which forma part of the court record are sought to be withheld from the public.