FACT CHECK | No, the EFF is not allowed to share IGI's 'rogue unit' report

• The EFF claimed a 2019 court ruling allowed them to distribute a discredited IGI report on the so-called SARS "rogue unit".
• Media reports on testimony at the Section 194 Committee said Floyd Shivambu provided the report to an official of the Public Protector.
• An October 2020 court ruling found the EFF's "unauthorised possession of the classified report is a continuing offence" and interdicted the distribution of the report.

The EFF responded with attacks on the media after it emerged the party's deputy leader, Floyd Shivambu, illegally shared a classified Inspector General of Intelligence (IGI) report on the so-called "rogue unit" at the South African Revenue Service (SARS) with a manager at the Public Protector in 2018.

It kept quiet, however, about a court ruling explicitly prohibiting the dissemination of the report.

On Thursday, the executive manager of investigations in the Public Protector's office, Ponatshego Mogaladi, told the Section 194 Committee, which is investigating Public Protector Busisiwe Mkhwebane's fitness for office, of a meeting she had with Shivambu on 8 December 2018 about his complaints against Pravin Gordhan.

"The meeting was initially supposed to be chaired by the PP (Mkhwebane), however I was informed by the investigators that she was not available. I have not been able to find the recording of the meeting. During the meeting however, the complainant sent me a copy of the classified 2014 IGI Report via WhatsApp text. This was followed with an email with the same attached," read an affidavit Mogaladi submitted to the Section 194 Committee.

The email, which was shown to the Section 194 Committee, was sent on Tuesday, 11 December 2018, at 09:37.

Mogaladi said she couldn't access the version forwarded on WhatsApp.

Mogaladi emphasised that she only read the first two pages, as the second page indicated that it was top secret. She also assumed that it was from the State Security Agency (SSA) and unrelated to the SARS unit.

"I just closed it and did not go back to it. I did not print it, nor did I disseminate it," Mogaladi stated in the affidavit.

There is no testimony before the committee that the report Mogaladi received from Shivambu made its way to Mkhwebane.

Mkhwebane's version is that the report was "dropped off" at the Office of the Public Protector.

On Saturday, the EFF issued a statement responding to media reports regarding Mogaladi's testimony – some of which incorrectly stated that Shivambu provided the report to Mkhwebane, News24 excluded.

"In a testament to their illiteracy and their thirst to attack the enemies of Pravin Gordhan, hired guns who call themselves journalists have sought to criminalise the EFF Deputy President Floyd Shivambu for sharing an intelligence report that was part of the public record and readily available to the public since 2019," reads the statement.

"The report, which Pravin Jamnandas (sic) Gordhan tried to have removed from the court papers was publicly available and could be shared with everyone by the EFF as part of the court record. This was after the Equality Court dismissed Gordhan's attempt to have it removed from the court record in 2019."

Shivambu also tweeted: "I see that Fools & semi-literate militia of the establishment are excited over nothing. The @EFFSouthAfrica was permitted by a Court of Law in 2019 to publish the Rogue Unit report & we published it in our website."

Shivambu also included a link to a blog post, which appeared on IOL on 19 October 2018.

Shivambu's missive, which appeared when the EFF intensified its attacks on Gordhan as the party faced scrutiny over its part in the looting of VBS, made no mention of the IGI report, even though some of Shivambu's assertions against Gordhan and the "so-called rogue unit" could conceivably have emanated from the discredited report.

The EFF is correct that a court judgment in the Equality Court by Judge Roland Sutherland didn't grant Gordhan's application to strike out the IGI report from the court record. The report was part of EFF leader Julius Malema's affidavit.

Sutherland dismissed Gordhan's interlocutory application to have the report struck on the grounds that no intelligence agents' identities were disclosed – the reason why the state security minister opposed the release of the report in another matter.

"The persons described are not secret operatives in the least. Moreover, at the time the document was attached to Shivambu's affidavit, the document was already in the public domain and had been the subject of media reports. Any confidentiality claimed for the document is futile," reads Sutherland's judgment. "The upshot is that no sound reason exists why its contents could usefully or appropriately be suppressed."

Sutherland also found that the report was irrelevant in the case before the court.

Nowhere in the judgment did Sutherland issue an order to declassify the report or grant the EFF the right to disseminate it beyond the court record.

The judgment was handed down on 31 October 2019, 10 months after Shivambu disseminated the report to Mogaladi.

However, this court case wasn't the only one involving the EFF, in which the IGI report came up.

Then state security minister Ayanda Dlodlo applied for an interdict against the release of the report.   

Judge Nomonde Mngqibisa-Thusi explicitly interdicted the release, publication and providing public access to the report in a 29 October 2020 ruling.

No reference to this ruling is made in the EFF's statement.

"The Public Protector and the EFF's argument that the information is already in the public domain, and therefore any prejudice has already occurred has no merit," reads Mngqibisa-Thusi's judgment.

"The fact that the I-G's report is in the public domain does not result in it losing its classification. Until the report is declassified, its unauthorised possession is unlawful in terms of s 4 of the Protection of Information Act and s 26 of the Intelligence Services Act."

The ruling states: 

Mngqibisa-Thusi also wasn't convinced that she should be bound by the Sutherland ruling, as the "issues serving before that court were different from the issues before this court".

The EFF and Shivambu's reliance on the October 2019 Sutherland ruling – which to their mind, gave them the right to publish the report – doesn't hold water in defence of Shivambu, as he sent the report to Mogaladi on 8 December 2018 and again on 11 December 2018.

Furthermore, Mngqibisi-Thusi also pointed out in her ruling that the EFF approached the state security minister on 19 July 2019 to be furnished with a declassified copy of the IGI report – seven months after Shivambu provided the report to Mogaladi.

It appears, further, that Mkhwebane was aware that using a classified report was illegal.

In her ultimately invalidated report on the "rogue unit", Mkhwebane omitted that she possessed the classified IGI report.

Instead, she claimed to have it "on good authority" that the IGI found that the high-risk investigative body within SARS was "a covert unit utilising covert and intrusive methods, which were not in line with the SARS mandate", that it violated the Constitution and that establishing an intelligence capacity within SARS was "illegal".

Only when Gordhan and others challenged her report did Mkhwebane admit that she had the IGI report, which had been "dropped off" at her office.

Meanwhile, Mkhwebane, in March 2019, laid criminal charges against then state security minister Dipuo Letsatsi-Dube as she was interfering in her work by refusing to hand over a declassified version of the report.

Two months later, Letsatsi-Dube opened a criminal case against Mkhwebane, charging her with theft of information and violation of South Africa's security laws.

Earlier in the inquiry into her fitness to hold office, Mkhwebane's advocate, Dali Mpofu SC, revealed that she sought to "regularise" her unlawful possession of the IGI report and admitted that she was "in possession off something illegal and [she wanted] to make it legal," as witness Johann van Loggerenberg put it.

In her written responses to MPs' questions, Mkhwebane continued to insist that the IGI report had been "dropped off" at her office and contended that being in possession of it was not an offence, despite Mngqibisa-Thusi's ruling.

"The Protection of Information Act 84 of 1982 deals with offences for the possession and disclosing of classified information. I must emphasise that, in terms of this legislation, physical possession is one thing, however the disclosure of such information is an offence," she said.

The IGI report was reviewed and set aside by a court in June 2020.

Most of the other reports related to the "rogue unit" have been disowned or discredited, and the EFF and Mkhwebane appear to be the lone voices left in the "rogue unit" choir.

On Thursday evening, after Mogaladi's testimony, News24 emailed questions to Shivambu. He is yet to respond.