In a battle amaBhungane has pursued for almost six years, the Supreme Court of Appeal on Friday confirmed the court's vigorous defense of public interest journalism.
The lengthy journey to the SCA began in November 2011 with Mail & Guardian and amaBhungane attempts to publish an exposé on Mac Maharaj, the then presidential spokesperson.
In 2003 Maharaj and his wife Zarina gave evidence during what is known as a section 28 inquiry by the Scorpions in the course of an investigation of whether they had received bribes from businessman Schabir Shaik, who was later convicted of making corrupt payments to Jacob Zuma.
Section 28 interrogations take place in secret and do not permit the subject to refuse to answer or withhold information.
To balance that incursion on the normal right not to incriminate yourself, the evidence may not be used against the person being interrogated and it is kept confidential.
The catch is, it is an offence to give false information.
In 2011, amaBhungane came into possession of the section 28 inquiry transcripts.
By then other information had emerged about payments to Maharaj by Shaik that appeared directly to contradict what Maharaj had said behind closed doors in 2003.
It also appeared the National Prosecuting Authority (NPA) was well aware of these contradictions.
However, according to Maharaj the transcripts were protected by another legal provision which made it a criminal offence to disclose such information without the permission of the National Director of Public Prosecutions (NDPP) under pain of a hefty 15 year sentence.
The M&G then approached the then NDPP, Advocate Nomgcobo Jiba, for permission. This was denied, with Jiba relying on the secrecy provisions of the NPA Act.
The SCA has now confirmed the 2016 ruling of the high court in Pretoria, that the NPA Act does not impose a blanket ban on disclosure of section 28 confidential records, but rather that the decision requires “an appropriate balance between securing the criminal justice system and upholding freedom of expression”
Judge Visvanathan Ponnan, in delivering the judgment at the SCA on Friday last week, commented that “…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.”
The SCA confirmed that the NPA Act “confers a discretion on the NDPP, and that discretion must be properly exercised.”
Ponnan observed that the contents of the S28 record should have been the “first and most obvious factor” to consider, but was not in fact considered by the then NDPP in arriving at her decision not to allow the M&G to publish.
Ponnan J concludes that "without a consideration of the section 28 record, the discretion conferred could not have been properly exercised”.
The judgement smashed the idea that possession of the records was in itself a criminal offence, observing that "while it is true that the M&G was in possession of portions of the record in the section 28 inquiry, this in itself is not prohibited by section 41(6) of the Act.
"It is only the disclosure that would constitute a contravention thereof” and confirmed the High Court ruling that in any event, there was no evidence in the papers that the M&G had obtained ‘ any of the evidence unlawfully."
Significantly, the judgment tackles the public domain defence in the M&G and amaBhungane arguments, with Ponnan J confirming that “in South Africa, it is well-established that it is basic to the principle of confidentiality that information cannot be protected once it loses its secrecy … the Constitutional Court has also recognised that the concept of public domain is an important factor in determining whether classified documents before a court should be released to the public.”
The SCA dismissed the NPA and Maharaj's appeals with costs. AmaBhungane considers this an important victory against pre-publication censorship, and a triumph of transparency over undue secrecy.
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