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Court dismisses state request for ban on reporting of sensitive nuclear-smuggling case

(FXI/IFEX) - The following is a 25 May 2007 FXI press release:

FXI, Misa-SA, Sanef and the M&G welcome Pretoria High Court ruling in nuclear smuggling case

The Mail & Guardian, FXI, the South African Chapter of the Media Institute of Southern Africa (MISA-SA) and the South African National Editor's Forum (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.

At 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 information 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 upholds 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.

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