The Mail & Guardian, FXI, MISA-SA and SANEF are delighted by a ruling in favour of open justice and media freedom in the Pretoria High Court today.  This follows an effort by the State to gag a vital nuclear smuggling case in which two individuals and a linked company are charged with smuggling components to an international syndicate. 

Today in the Pretoria High Court Judge Joop Labuschagne dismissed the State's application and ruled that it was in  the public interest to have an open court hearing. Open justice, the judge said, is the starting point and a principle fundamental to our law. If sensitive material will be exposed during the trial and it appears that it  is in the interest of good order or the administration of justice that the court is closed, then the State may reapply and the court will reconsider the issue.

Daniel Geiges, Garhard Wisser and Krisch Engineering are alleged to be part of an international nuclear smuggling network (the so-called 'AQ Khan network'), whose activities were exposed in 2003 while  attempting to smuggle components for uranium enrichment to Libya. According  to the Mail & Guardian, the arrest of Geiges and Wisser was a  product of close
collaboration between the NIA, MI5 and the  CIA.

t the court hearing on 2 May 2007, the  National Prosecuting Authority applied for virtually the entire trial to be  held in camera and for a prohibition of publication of information  related to the trial. The State argued that nuclear technology could fall into rogue hands if the nformation was made public and that the SA  government was obliged to maintain strict control and secrecy on the  development and manufacture of weapons of mass destruction in terms of  international and African treaties, as well as South Africa's Criminal  Procedure Act, the Nuclear Energy Act and the Non-Proliferation of Weapons of Mass Destruction Act.

The Mail & Guardian, FXI, MISA-SA and SANEF accepted that while there may well be parts of the hearing that would  have to be heard in camera, the State's application was over-broad, vague  and an unprecedented request for a secret trial, which other courts  described as a 'menace to liberty'. Deviations from the principal of open justice should be made in the least restrictive way possible. The State's  application was so wide that even relatives of the accused could not attend the trial without the judge's permission.  This would have amounted to an effective gag.

Both established international law and recent South  African law stress the importance of open justice and freedom of expression. The Constitutional Court has said that 'Closed court proceedings carry within them the seeds for serious potential damage to every pillar on which every constitutional democracy is based.'

The case is clearly a matter of considerable public  interest, given that it involves the prosecution of individuals for  allegedly smuggling nuclear material, in contravention of South Africa's  non-proliferation undertakings. Production of nuclear weapons is a matter of huge public interest internationally currently.  Today's judgement reinforces our right to know about the smuggling and development of  technology that has such a huge bearing on human wellbeing.

Last week the Supreme Court of Appeal  found in favour of eTV's right to broadcast a documentary without first  submitting it to the State for 'pre-screening'.. The court said that the  Directorate of Public Prosecutions (DPP) 'must expect that freedom will not  be abused until [the DPP] has adequate grounds for believing the contrary. But [the DPP] may not require the press to demonstrate that it will act  lawfully as a precondition to the exercise of the freedom to publish in the absence of a valid law that accords him that right.'

Similarly in this case the media raised concerns about the State's attitude that the media, generally, cannot be trusted or  relied upon to be careful and selective in handling and publishing sensitive information.  The judgement therefore holds up the rights of the media and entrusts it with the responsibility to deal professionally with the sensitive information likely to come up in the course of the trial.