Secrecy surrounding state capture trial is ‘dangerous’ for democracy

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JEREMY MAGGS: A criminal trial involving two former senior State Security Agency (SSA) officials and the alleged misappropriation of around R12 million in public money is taking place, as I understand it, behind closed doors.

Among the accused is Thulani Dlomo, a controversial intelligence figure associated with former president Jacob Zuma.

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The Campaign for Free Expression, and three other media organisations have launched an urgent court challenge, arguing that the secrecy surrounding the trial undermines the principle of open justice.

Nicole Fritz is the executive director of the campaign. Nicole, just explain to us in the broadest terms then, why the public needs to have access to a trial involving, as I understand it, highly sensitive state intelligence.

NICOLE FRITZ: I think justice is a sacrosanct principle. It’s a principle on which the rule of law depends. It’s important not only for the accused, the parties to a matter, certainly a criminal defendant should have the right to enact their defence, execute their defence and have their name cleared publicly.

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But it’s also absolutely essential for the accountability of the institutions that uphold our criminal justice system.

Their legitimacy and authority depends, in large part, on transparency and the ability of the public to observe, to understand, to question, and indeed to criticise those processes.

As I say, that’s true of all the institutions that uphold our criminal justice system, whether that’s the National Prosecuting Authority (NPA) or the police.

But I would say it is particularly important, even more important in respect of our courts. They are not elected and they should not be. That is not how our constitutional process works, but they depend for their legitimacy on the openness, the responsiveness and the accountability of their processes.

JEREMY MAGGS: Nicole, without getting bogged down in too much legalese, where exactly then does the court’s order go too far? And are you challenging the judge’s decision or the way in which it is being implemented?

NICOLE FRITZ: Essentially both. We are challenging the order that was made on 15 October, which imposes very broad restrictions on the public and the media’s access to these proceedings.

We are saying that order, overly broad as it is, is being implemented as a blanket exclusion, which we say is not the way in which that order should be read.

So we’re applying for a variation of that order to say there may well be circumstances in which national security and protection of witnesses requires that proceedings be held in camera, that the media and the public be barred, but those should be very narrowly crafted and properly justified.

But even so, the manner in which this order, the 15 October order that we’re seeking a variance of, the manner in which that is being implemented is improper.

So the fact that we’ve had three days of this trial now that has been conducted in complete secrecy is entirely improper and unacceptable.

JEREMY MAGGS: How difficult do you think it is for a court to distinguish then genuine security risk from attempts to conceal wrongdoing?

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NICOLE FRITZ: This is what judges are trained to do. Applications need to be made as to why specific evidence must be held in camera. There must be proper justification. The judge is properly placed, has received the training to engage in the type of proportionate balancing exercise that is needed.

As I said, the applicants are not saying that no part of this trial should be conducted in camera, but if that is going to happen, there has to be a particular application made and there has to be scrupulous justification provided, because the default position has to be that the public gets access, is able to understand the prosecution and the proceedings that are essentially happening in their name.

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The state prosecutes and obtains its authority to do so on behalf of the public, and the public has the right to be able to observe and understand those proceedings, and that is the default position.

JEREMY MAGGS: What about the argument that intelligence operatives whose identities or lives would be disclosed could then be endangered by public testimony?

NICOLE FRITZ: Again, Jeremy, I would say we concede that there may be particular circumstances, particular witnesses who require special protection.

It’s not clear, though, that ridding the court of the public and the media is the least restrictive means by which we achieve that goal.

It may be that the witnesses testify under a pseudonym, that they are protected from the public gallery by a screen.

There are various other ways in which we secure their protection, but are nonetheless able to understand and observe the testimony that they are giving and to look to scrutinise it and understand the extent to which it upholds the prosecution or the defence and helps the judge reach the conclusion she will.

JEREMY MAGGS: If the court, Nicole, rejects your application, what type of precedent do you think that sets for future corruption trials involving national security? I think what I’m asking you is how important your application is in terms of the law moving forward.

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NICOLE FRITZ: I think that if we are denied this, it will set a terrible precedent.

We would look to appeal it, recognising how important it is, the extraordinary public interest that attaches to this case, and how important it is that in trials of this nature, which are so vital to the public interest – it’s the first time that we are seeing senior state security agents face some prospect of accountability for the crimes they are alleged to have perpetrated at the height of state capture – that we might have a precedent which says the public and the media are barred from scrutinising those proceedings is dangerous for our democracy and we would certainly look to give serious consideration to appealing if we face a dismissal of our application.

JEREMY MAGGS: Nicole, just finally, maybe I should have asked you this right at the very beginning, but what precise ruling then are you seeking? And how much of this trial are you prepared to accept remaining confidential?

NICOLE FRITZ: We are seeking a variation of the order, which was granted on 15 October, which has essentially then led to these first three days of the trial being completely secret.

We’re suggesting that if there are portions of this trial that are to be held behind closed doors, there must be specific applications made in respect of what that evidence is.

Is it a particular witness’s testimony, is it a specific document that must be withheld and that there is to be specific justification given as to why that evidence or that witness’s testimony is to be withheld.

But the default position has to be that these proceedings are open and observable to the public.

JEREMY MAGGS: Nicole Fritz, thank you very much indeed, executive director of the Campaign for Free Expression.

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