Madlanga commission told witness cannot disclose classified intelligence

Evidence leaders have argued that disclosing classified intelligence constitutes a criminal offence, while the media has warned against allowing intelligence agencies to dictate what information is revealed to the Madlanga commission.

The dispute centres on an application to have National Intelligence Co-ordinating Committee (NICOC) acting coordinator Ntandazo Sifolo testify behind closed doors, with evidence leaders arguing that his testimony involves sensitive information.

The matter came before the commission held at the Bridgette Mabandla Justice College in Pretoria on Wednesday, 21 October 2026, when proceedings briefly returned to the public domain to hear arguments from the evidence leaders and media representatives.

Media organisations – amaBhungane, News24 and Daily Maverick – oppose a ruling that would potentially be in favour of an in camera testimony, arguing that the public interest in the commission’s work cannot be sidelined by claims of confidentiality.

Sifolo heads NICOC, which brings together South Africa’s intelligence structures, including the South African Police Service’s (Saps) Crime Intelligence division and the State Security Agency (SSA).

Evidence leaders and media clash at Madlanga commission

Chief evidence leader Matthew Chaskalson told the commission that the dispute hinges on whether the inquiry has the authority to declassify documents linked to Sifolo’s testimony.

“There is a classification, and there are documents that have been entrusted to us expressly in confidence, not for further dissemination.

“The commission is not legally empowered to go behind that,” Chaskalson argued.

The advocate outlined three possible approaches.

The first would be for the commission to urgently approach the high court for an order allowing the documents to be declassified so that Sifolo could testify in public.

However, Chaskalson warned that pursuing this route could divert attention from the commission’s central mandate.

The second option would allow Sifolo to testify publicly while the documents remained classified.

He argued that this would restrict the commissioners’ ability to question the witness about the intelligence contained in the documents.

The evidence leaders’ preferred option is to conduct the testimony in camera, enabling the commissioners to question Sifolo on the classified material.

The media could subsequently approach the high court to obtain access to the proceedings’ record.

Chaskalson further argued that if the commission were to disclose classified information, it would be a criminal offence as outlined in law.

“These are very clear legal consequences.”

Media challenges the basis for closed proceedings

Advocate Ben Winks, representing the media organisations, challenged the reasoning behind the options presented to the commission, particularly the suggestion that a public hearing would prevent meaningful questioning of Sifolo.

“How it was put by my learned friend was that if the commission takes option two and refuses in camera – and I wrote down exactly what my learned friend said – which is that the commission would deprive itself of the opportunity to question Dr Sifolo, which frames this as though these documents and this testimony is a favour or a gift from Dr Sifolo or NICOC or the intelligence services,” he told the commission.

Winks argued that intelligence agencies should not be allowed to determine what a commission of inquiry may examine or disclose.

“It cannot be that any intelligence service can dictate to a commission post-1994 what we will and will not tell you.

“They can motivate and say this will jeopardise personal safety of an operative. This will jeopardise the viability of an operation.

“This will jeopardise our relationship with the CIA or with the MI6 or whomever, but it’s classified because we say so is not good enough,” the lawyer added.

Apartheid-era inquiry raised

To illustrate the risks of allowing intelligence agencies to control what they reveal, Winks referred to the Harms Commission, established in 1990 by then-president FW de Klerk to investigate politically motivated state assassinations of anti-apartheid activists.

He argued the inquiry was “widely acknowledged” by the Truth and Reconciliation Commission (TRC) as a “farce” because apartheid-era intelligence and security structures were permitted to dictate what information they would disclose.

“They appeared in ridiculous disguises and hid their identity of the witnesses.”

Winks also challenged the distinction drawn between making documents available for the commission’s work and releasing them to the public.

He contended that the commission’s purpose extended beyond receiving evidence behind closed doors, emphasising that its responsibility was to investigate matters, report its findings and make recommendations in the public interest.

“On whose behalf does the commission do this? Does it do so as an agent of the president?

“No, it does so as a protector, in a sense, or an investigator on behalf of the public.”