Sometimes — such as when a former cabinet minister and presidential spokesperson stands accused of corruption and lying — justice demands transparency, the Supreme Court of Appeal (SCA) said on Friday.
And the National Prosecuting Authority (NPA) should have known as much.
The SCA dismissed with costs an appeal by Mac Maharaj, his wife Zarina, and the NPA in a six-year legal battle between them and the Mail & Guardian, following a dramatic censoring of the M&G in 2011.
Along the way the court delivered a ringing endorsement of transparency and media freedom — and also delivered some stern criticism of the NPA.
“The objective of policing State officials to guard against corruption and malfeasance in public office forms part of the constitutional imperative to combat crime,” said Judge Visvanathan Ponnan in judgment. “The NDPP [National Director of Public Prosecutions] is an important bulwark in that regard.
The NDPP is there to inspire confidence that all is well and, if there is corruption and malfeasance in high public office, that it is being effectively dealt with. The public needs to be assured that there is no impropriety in public life and that if there is, then it should be exposed. In that sense, the media plays a vital watchdog role. One of the aspirational goals of the media is to make governmental conduct in all of its many facets transparent.”
South African courts recognise the key role the media plays “in ensuring that members of the public are informed about issues that are in the public interest”, Ponnan said.
Several recent attempts at pre-publication or pre-broadcast interdicts failed in recent weeks, including one by deputy president Cyril Ramaphosa.
In 2011, however, Maharaj for a time succeeded in preventing the publication of information around him, after warning the M&G that staffers could face up to 15 years in jail. Police later took warning statements from then editor Nicholas Dawes and amaBhungane Centre for Investigative Journalism journalists Stefaans Brümmer and Sam Sole, in a criminal investigation that was never pursued.
Maharaj, and later the NPA, claimed that the law forbade publication of details from a record of confidential interviews the NPA had conducted with him and his wife while investigating corruption in 2003, known as Section 28 interviews for their description in law.
In 2016 the high court disagreed. On Friday, the SCA said justice had actually demanded the exact opposite.
“…the administration and integrity of the very criminal justice system would itself appear to require that the M&G be permitted to publish the record to: first, reveal to this country’s citizenry what was said by a senior public office bearer in response to allegations of unlawful conduct involving public funds; and, second, whether what was said by him can withstand scrutiny in the light of other information that has since come to light,” said Ponnan.
Though Section 28 records are strictly confidential, the NDPP can permit their publication.
In November 2011, after the threat of criminal prosecution from Maharaj, the M&G wrote to then NDPP for such permission, saying the evidence suggested the Maharaj couple had provided false information — and that questions about the integrity of the then spokesperson for President Jacob Zuma should be disclosed in the public interest.
It later emerged that Maharaj himself had disclosed the supposedly highly confidential in not one but two instances, providing it to his biographer as well as putting it in the public domain by attaching it to a court filing.
“The M&G submitted its request for permission in circumstances where it had not just a right to publish, but indeed a duty to keep the public informed on an issue of high public interest involving a senior and high-ranking government official – a former Cabinet Minister and then Presidential Spokesperson,” said Ponnan.
“The NDPP ought to have realised that very little could have been achieved by refusing permission to publish.”
Maharaj retired as Zuma spokesperson in 2015, at the age of 80.