The drafting of the classification section is still much broader than the constitutional exemptions for particular forms of expression, although - in a welcome move - the definition of hate speech has been narrowed somewhat. The FXI expressed concern that the XX classification has been broadened to include material that “encourages or promotes harmful behaviour”, which is much broader than what the 1996 Act allows for, and cannot possibly be constitutional as it is simply overbroad. The FXI is especially concerned about the implications of the Bill for political • ALERT Date: May 28, 2007 Persons: The Mail & Guardian, FXI, MISA-SA and the South African National Editor’s Forum (SANEF) Violation: Victory The Mail & Guardian, FXI, 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 on May 28, 2007. 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. On May 28, 2007, 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 May 2, 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 overbroad, 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 nonproliferation 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. So This Is Democracy? 2007 -83- Media Institute of Southern Africa