Daily Maverick and News24 challenge Madlanga Commission's push for in-camera testimony

If the Madlanga Commission conducts a whole week of testimony behind closed doors, it would amount to “entirely closing the hearings to the media and, by implication, the majority of South Africans”.

If this is allowed to happen, it would “imperil the integrity of the commission, rather than safeguarding it”.

This is the argument mounted by lawyers on behalf of Daily Maverick and News24, in response to an application made by the commission’s evidence leaders to hold the hearings scheduled for 13 to 17 October “in camera” — in other words, closed off to the public.

Instead, attorney Charl du Plessis has argued on behalf of the media that the evidence leaders should have to apply individually for in-camera hearings before each witness testifies, rather than the commission granting a blanket secrecy order.

The media outlets are also arguing for the commission to be required to release transcripts of the closed sessions, even if redacted as necessary, before it finalises the request.

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Safety of whistleblowers paramount

The application by the evidence leaders for a week of in-camera proceedings specifies four major reasons for the request.

The first is the safety of “certain witnesses”, who “will be seriously endangered if their identities are made public”.

The application states that some witnesses due to implicate members of a criminal cartel have only agreed to do so “on the assurance that their identities and testimony will not be publicly exposed”.

The second reason is that some of the evidence to be given relates to ongoing criminal investigations, and could jeopardise prosecutions.

The third is that the South African Police Service (SAPS) needs to preserve the confidentiality of policing methods.

“Disclosure of investigative techniques — such as intelligence-gathering, surveillance methods, or analytical tools — would risk revealing how SAPS detects and disrupts criminal activity,” the application states. Criminals could be taking notes.

The final reason given by the application is that some of the evidence to be given by witnesses comes from “informants and whistleblowers” whose identities have to remain secret, the evidence leaders argue. This is both because their safety might be compromised by the disclosure of the information, and because if their identities are blown, police investigators won’t be able to use them in future.

In conclusion, argue the evidence leaders, “Ensuring that witnesses can testify fully and frankly serves the commission’s mandate more effectively than risking the loss of critical evidence through fear of exposure”.

In addition to asking to hold hearings in camera between 13 and 17 October, they have also requested that hearings on 20-22 October be conducted with witnesses testifying anonymously, remotely and with only an audio feed.

Media: principle of open justice trumps all

Daily Maverick and News24 have drawn on case law to argue in response: “The constitutional principle of open justice mandates that adjudication in an open and democratic society takes place in the open, for all to see.”

The answering affidavit states that this principle applies to proceedings ranging from CCMA hearings to disciplinary hearings of public officials — such as former NPA prosecutor Glynnis Breytenbach.

“The matters that the [Madlanga] Commission are dealing with are matters of manifest public interest that the public have a right to be informed about, and that the media have a concomitant constitutional right and obligation to report on,” it contends.

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Du Plessis argues that the fact that the media has been given no indication as to the identity of the witnesses to be protected “gives insufficient regard to the need to balance openness with protection of the integrity of the commission’s work”.

If President Cyril Ramaphosa is one of these witnesses, for instance, the media will not know about it and not be able to scrutinise whether this decision has “sound reasons” or is designed to “spare the president political embarrassment”.

The compromise suggested by the media applicants is that Justice Mbuyiseli Madlanga not grant the entire closure of the proceedings between 13 and 17 October, but make the decision on a case-by-case basis depending on the witnesses.

In addition, they have asked Justice Madlanga to require the commission to release the transcripts, together with any relevant evidence, “redacted only to the extent strictly required”, before it submits its final report.

Madlanga Commission spokesperson Jeremy Michaels said on Monday that both sides would file heads of argument by 9pm on Monday night.

Justice Madlanga and his co-commissioners, Sesi Baloyi and Sandile Khumalo, will then consider the arguments, with the commission due to resume at 9.30am on Tuesday, 12 October 2025. DM