Judge opens Gauteng court to media in R12m spy fraud trial

The R12-million fraud trial of Thulani “Silence” Dlomo and Patrick Mshothola will now run in open court. On Thursday, 22 October, Judge Mashudu Munzhelele of the Gauteng Division of the High Court in Pretoria varied an earlier order that had effectively shut the public out, directing that the trial of the two former State Security Agency officials proceed with members of the public and accredited media allowed into the gallery.

The order does not simply reopen the doors. It keeps restrictions in place to protect intelligence sources, operational methods and other sensitive information, and it states plainly that “the trial shall be conducted in open court as contemplated in section 152 of the Act”, with the public and media “subject to the restrictions contained in this order”.

The court also moved to unblock the trial itself, which had been slowed by the access dispute. It directed the SSA to “immediately provide Exhibits G, H, I and J to the applicants to allow the trial to proceed”. Those exhibits are the operational core of the case: a contract between the SSA and a company called Korolo Investments, plus applications for temporary advances and invoices linked to the matter. The media applicants have reserved the right to pursue the remaining undisclosed documents through further litigation, so another challenge remains possible.

The ruling followed a failed attempt on Wednesday to reach agreement on access to the disputed documents. Munzhelele had urged continued engagement, indicating the court would decide the matter itself if no deal was reached.

What was actually in dispute was the implementation of the 14 October order. The media organisations argued its application had produced a blanket exclusion of journalists and the public. The SSA countered that unrestricted access could expose intelligence sources, methods, operations and cooperation arrangements with foreign intelligence services, potentially compromising national security.

The challenge was brought urgently by Media24, Daily Maverick, the amaBhungane Centre for Investigative Journalism and the Campaign for Free Expression (CFE), with Mail & Guardian Media joining as the fifth applicant. In their papers, the applicants argued the 14 October order had been implemented further than necessary, and that targeted measures such as redactions and restrictions on individual pieces of evidence could protect national security without closing the proceedings. In their replying affidavit, they contended the SSA had not sufficiently demonstrated the specific harm that would result from public disclosure, and that the law required the court to consider less restrictive measures. They relied on prior judgments on national security, classified information and public access to courts, including the Constitutional Court’s decision in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services, known as Masetlha.

They also noted that aspects of Project Mayibuye and the allegations against the two accused had already been discussed publicly, including at the State Capture Commission and the High-Level Review Panel on the SSA. The agency argued that disclosure could have consequences beyond the trial, because information that appears innocuous in isolation could reveal sensitive sources, methods or operations when read alongside other material.

The case itself concerns the alleged misappropriation of R12-million in SSA funds in 2015 under a covert operation known as Project Mayibuye, allegedly weaponised to neutralise political opposition to former president Jacob Zuma. Dlomo and Mshothola face allegations of fraud, forgery and theft. The prosecution’s case turns on three temporary cash advances linked to a purported contract with Kimberley-based Korolo Investment Holdings. According to the case papers, the contract and related invoices were fraudulent, and the company’s director reportedly told investigators he had not signed the agreement or met Dlomo, and that the company had not received payment. These allegations have yet to be tested in court, and both accused are presumed innocent.

The new order builds in a working mechanism for handling secrets as the trial proceeds. The State, either accused, or the SSA may ask the court to withhold evidence, a document, part of a document or part of a transcript on the grounds that it contains secret information, with the presiding judge determining the procedure for such requests. The media applicants are entitled to legal representation during proceedings and may respond to any request, giving them a standing opportunity to challenge proposed restrictions. The order also makes clear that the use or admission of classified documents does not automatically declassify them or authorise their publication, and whether such material forms part of the public record remains subject to the court’s direction.

Protections for witnesses remain in place. Certain current or former SSA members whose identities the court has directed may not be published must testify anonymously, with neither their real names nor associated pseudonyms stated in open court or included in the public record. The court will assign each protected witness a neutral alphanumeric designation revealing nothing about their identity or service details. Publication, broadcast or dissemination of information that could identify such witnesses, including their images, voices, rank, posting, unit or functions, is prohibited, as is publication of information the court has ruled classified and whose disclosure would pose a material risk to national security, an identifiable person, an intelligence source, a current intelligence-collection method or an ongoing operation. Further restrictions cover information relating to South African or foreign intelligence and security services, including their members, sources, methods, techniques, operations, operational infrastructure and cooperation or information-sharing arrangements, unless the court directs otherwise.

Photography, filming and audio or video recording of witnesses or proceedings are barred except by those authorised to produce the official court record, and live broadcasts or transmissions through television, radio, livestreams, social media or other means are prohibited. Despite this, the order expressly states that “the media may report on the proceedings”, subject to its provisions and any further directions from the court.

The CFE welcomed the ruling as a victory for open justice. Its executive director, Nicole Fritz, said it helped restore a principle essential to the legitimacy of the criminal justice system, particularly at a time when South Africa’s law enforcement and security services face credible allegations of criminal infiltration and what she described as “general rot”, alongside scrutiny through several prominent high-level inquiries. “The ability of the public to observe their processes, how they arrive at their decisions, the justifications thereof, is critical to their being able to restore and enjoy public trust,” Fritz said.

She cautioned, however, that the SSA’s initial attempt to exclude the public and media entirely remained concerning. “It seems to me improper that the SSA would even have asked for an order that our highest court has long indicated will not be countenanced: a blanket exclusion of the public and media from court proceedings,” she said. The failure of that application, she added, was consistent with the precepts of the Constitution and demonstrated the importance of media vigilance and persistence.

The order now establishes a framework in which transparency and national security can be weighed case by case, replacing the blanket exclusion that had kept the trial behind closed doors. Whether that framework holds as the exhibits, contracts and invoices at the heart of Project Mayibuye enter evidence is the next test.