Open justice at stake in bid to close spy trial, says CFE

The Gauteng High Court in Pretoria upheld the principle that criminal proceedings and related documents should not be hidden without strong justification. The decision followed a challenge by Media24, amaBhungane, Daily Maverick, Mail & Guardian and the Campaign for Free Expression. They opposed restrictions imposed on parts of the trial of former State Security Agency officials.

The judge declined to order production of the state’s original application. However, after a request from the Mail & Guardian, the SSA disclosed a redacted copy. The media also received an index of disputed documents and were told they could access the contract and three invoices.

The ruling was described as a victory for open justice. It did not end every restriction. The SSA separately sought to exclude the media and public from the remaining evidence, while some material involving agency members, operational methods and classified documents remained contested.

Open justice is the principle that court proceedings should generally be accessible to the public and the media. Public hearings let people see how evidence is handled, how arguments are tested and whether judges act fairly. Reporting also allows decisions to be examined beyond the courtroom.

In this case, the Criminal Procedure Act was cited as presuming that criminal proceedings take place in open court. The Constitution protects expression, press freedom, access to information and public hearings. The media argued that secrecy should be an exception, not the normal rule.

The principle is especially important here because South African law enforcement and security services face allegations of criminal infiltration and scrutiny by high-level inquiries. Campaign for Free Expression director Nicole Fritz said open justice is essential to the legitimacy of the criminal justice system and the courts themselves.

Thulani Dlomo and Patrick Mshothola are accused of four offences: theft, fraud, forgery and uttering. The charges concern about R12-million linked to Korolo Investment Holdings. “Uttering” refers to presenting a forged or false document as genuine, but the article does not detail each alleged act.

Dlomo was the SSA’s former deputy director for counter-intelligence. Mshothola was a project manager in the agency’s chief directorate for special operations. Both men headed that directorate between 2012 and 2017, placing the case within the agency’s senior operational structure.

They were arrested on 30 November 2025. Their prosecution is described as the first involving SSA personnel arising from findings of the High Level Review Panel and the Zondo commission. The money figure and charges make the case a major test of accountability within the intelligence service.

The state initially sought to keep parts of the trial closed when evidence concerned SSA members, agency methods and classified documents. These categories can reveal sensitive information, but the article does not set out a detailed explanation of the SSA’s claimed risks. It reports the restrictions and the agency’s later request for complete exclusion.

An order granted around 14 October limited access to evidence involving those subjects. It also identified documents to be withheld and required the record to remain confidential. Three trial days proceeded without the media or public, and a Media24 journalist was refused entry to the public gallery.

The media organisations argued that closure required particularised evidence of a real national-security risk. They said less restrictive options, such as redaction, should be considered. The court’s response allowed a redacted state application and access to selected documents, rather than accepting an automatic blanket ban.

Closing an entire criminal trial would remove independent public and media scrutiny of the evidence, arguments and judicial process. People would have to trust official accounts without being able to observe proceedings directly. That can damage confidence in both the verdict and the institutions delivering it.

This concern is sharp in the SSA case. A state order already kept three trial days from the media and public, and a journalist was refused entry to the public gallery. The Campaign for Free Expression said a blanket exclusion was improper and inconsistent with the approach of the highest court.

The article connects open justice to the courts’ legitimacy. South Africa’s law enforcement and security services are facing allegations of criminal infiltration and have been examined by high-level inquiries. In that setting, secrecy could intensify suspicion, while carefully limited and justified restrictions may protect sensitive information without closing the whole trial.

The legal balance begins with constitutional rights. The Mail & Guardian relied on protections for freedom of expression, including press freedom and receiving and imparting information. It also cited access to information and public hearings. The Criminal Procedure Act presumes that criminal proceedings take place in open court.

Those rights are not unlimited. The party seeking restricted access must justify the limitation under section 36(1) of the Constitution. The inquiry considers the right affected, the extent of the restriction, the purpose’s importance, the connection between restriction and purpose, and less restrictive alternatives.

In this case, the media argued that closure required particularised evidence of a real national-security risk. They proposed redacted documents and transcripts, plus notice of future secrecy applications. The court allowed a redacted state application and selected document access, showing how confidentiality can be narrowed rather than imposed across the entire case.

The article presents the State Security Agency, or SSA, as an intelligence agency and security service. Its structures included counter-intelligence and a chief directorate for special operations. The agency is also the employer connected to the two former officials whose prosecution is under way.

Evidence about such an agency may reveal operational methods, information about members or classified documents. The SSA’s restrictions specifically covered those subjects. Protecting them could prevent sensitive material from becoming public, but the article does not give a fuller account of the possible harm or the agency’s complete legal argument.

The need for protection does not automatically defeat open justice. The media argued that the state had to show a real, particularised national-security risk and consider less restrictive measures. The court’s disclosure of a redacted application, an index, a contract and three invoices illustrates a narrower approach than closing the whole case.