Madlanga Commission hears bid to shield witnesses amid threats and ongoing probes

Chief Evidence Leader, Advocate Matthew Chaskalson, told the commission on Monday that the request is made under Rule 4 of the commission’s procedures, which allows hearings to be held in camera in appropriate cases.

He said the hearings scheduled from 13 to 17 October should be fully closed to the public, while those from 20 to 22 October should be anonymised, with witnesses testifying remotely and through audio only.

Chaskalson explained that the first consideration is the personal safety of witnesses.

He said many individuals who will appear before the commission face real and documented threats.

"The personal safety of certain witnesses who will appear before the commission will be seriously endangered if their identities are made public. Exposure could lead to intimidation, retaliation, or physical harm. This risk is real and documented,” Chaskalson said.

He added that KZN Provincial Commissioner Nhlanhla Mkhwanazi, in his evidence to the commission, detailed the threats faced by officers investigating the Armand Swart murder case.

"A threat and risk assessment conducted by a Colonel in Crime Intelligence found that the investigators were at high risk.

"Of the five detectives assigned to that case, two withdrew out of fear after receiving threats; one has since been replaced with another officer whose identity is not yet publicly known, and the remaining two were placed under witness protection, where they remain to this day.

"Other witnesses who implicate cartel members or who disclose their identities as police officers with a central role in the investigation of the cartel face comparable threats, but many lack formal protection. Their cooperation depends on the assurance that their identities and testimony will not be publicly exposed,” he said.

Another key reason for the in-camera request is to protect ongoing criminal investigations.

 Chaskalson said that several witnesses are expected to testify about the operations of criminal syndicates and their connections within law enforcement, and that public disclosure at this stage could compromise investigative work.

"Several of the forthcoming witnesses will testify about the operations of these syndicates and their connections within law enforcement agencies.

"Portions of their evidence directly concern ongoing criminal investigations. If such information were disclosed publicly in real time, it could alert suspects, facilitate the destruction of evidence, or otherwise compromise the work of law enforcement authorities.

"The public interest in accountability and justice would be undermined if transparency at this stage were to prejudice the successful prosecution of offenders.

" A temporary closed session will allow the commission to receive vital evidence without jeopardising parallel criminal proceedings.

 It is hoped that by the time the commission finalises its proceedings, the relevant investigations will have reached a point where public disclosure will no longer compromise them. In such an event, the transcript of the relevant evidence can then be made public,” he said.

Chaskalson further highlighted the need to protect the investigative methods and operational strategies of the South African Police Service.

"Certain evidence will necessarily refer to internal operational strategies and methods of the South African Police Service.

"Disclosure of investigative techniques, such as intelligence-gathering, surveillance methods, or analytical tools, would risk revealing how SAPS detects and disrupts criminal activity.

"Revealing these techniques would equip criminal networks with the knowledge to evade law-enforcement scrutiny.

"A closed hearing is therefore warranted to preserve the confidentiality of policing methods and to protect the integrity of both ongoing and future investigations. This is critical not only for the current inquiry but for the continued effectiveness of law enforcement operations in the country,” said  Chaskalson.

He also emphasised the importance of protecting informants and confidential sources, whose cooperation is vital for uncovering organised crime.

"Some of the evidence relies on information provided by confidential informants and sources whose identities must remain secret. Disclosure of this information could endanger their lives and severely undermine the ability of investigators to obtain information in future.

"Informants and whistle-blowers provide critical assistance to law enforcement on the assurance of anonymity. Breaching that assurance would not only expose them to harm but would also have a chilling effect on others who might otherwise approach the SAPS or come to the commission with information about organised crime.”

Chaskalson said that the evidence leaders remain mindful of the need for transparency and proposed measures to allow public access wherever possible.

"The evidence leaders remain mindful of the importance of transparency. To balance openness with the need for protection, information will be disclosed publicly wherever it can be done without compromising investigations or endangering individuals. 

"This may take the form of publishing redacted statements, redacted transcripts, annexures to statements, or other underlying material that can safely be disclosed.”

The in-camera request is being challenged by News24 and Daily Maverick, represented by Advocate Charles du Plessis, who argued that the Commission should uphold open justice except where secrecy is absolutely justified.

"This commission is tasked with uncovering corruption and political interference within the criminal justice system. Shielding evidence from public view risks undermining the very accountability it was established to ensure,” Du Plessis said. 

"While we acknowledge the sensitivity of intelligence matters, secrecy should only be employed as a last resort. We have a mandate to oppose the granting of the order in the form that it currently takes, and we will file written submissions later today. We will then be guided by the commission on whether oral argument is required.”

Commission Chairperson Justice Mbuyiseli Madlanga directed both parties to file written arguments by the end of the day.

A ruling on whether the next witnesses will testify in camera is expected before proceedings resume on Tuesday.

The commission has so far heard testimony from National Police Commissioner Fannie Masemola, KZN Commissioner Nhlanhla Mkhwanazi, and Crime Intelligence boss Dumisani Khumalo, whose evidence remains incomplete.

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