"When Sandi Majali wrote cheques after getting a multimillion-rand advance from the state oil company, two of the first recipients were relatives of Cabinet ministers." Thus starts the Mail & Guardian's follow-up to its "Oilgate" exposé, which a Johannesburg High Court interdict kept out of print two weeks ago. On Tuesday, the court lifted the interdict.
“When Sandi Majali wrote cheques after getting a multimillion-rand advance from the state oil company, two of the first recipients were relatives of Cabinet ministers.”
Thus starts the Mail & Guardian‘s follow-up report to its earlier “Oilgate” exposé, which a Johannesburg High Court interim interdict kept out of print two weeks ago.
On Tuesday, the same court lifted the interdict after the legal teams of the newspaper and oil company Imvume Management agreed that the gagging order had become superfluous and that the issue had become academic.
The legal teams noted that issues relating to the interdicted report and allegations made in it were debated by the Freedom Front Plus in Parliament and reported in Business Day.
The M&G report names Minister of Minerals and Energy Phumzile Mlambo-Ngcuka and Minister of Social Development Zola Skweyiya.
The report continues: “The M&G revealed last week how, in December 2003, Majali’s Imvume Management—a company best known for its Iraqi oil dealings and closeness to the African National Congress—got a R15-million advance from oil parastatal PetroSA.
“The advance was for oil condensate Imvume was supplying to PetroSA. From that money, Imvume paid R11-million to the ANC. When Imvume defaulted on paying its own foreign supplier, PetroSA duplicated the advance, meaning the parastatal effectively subsidised the ruling party.”
The report then reveals how Majali wrote cheques to relatives of Mlambo-Ngcuka and Skweyiya.
The complete interdicted report will be published in the M&G newspaper this Friday.
On Tuesday, the M&G and the other respondents mentioned waived their right to claim for any damages against Imvume Management.
If the newspaper in future wants to use any information obtained from Imvume’s bank records, it has to inform the company and its attorney in writing at least a day before publication. Likewise, the company must inform the newspaper in writing if it objects to the information being used.
Majali also withdrew a defamation claim of about R1-million, lodged against the newspaper last year.
Imvume’s lawyer, Barry Aaron, said although the newspaper will be allowed to publish the story, his client “remains aggrieved that private and confidential information was obtained unlawfully”.
He said there is speculation about how the M&G obtained its information.
“We will ask the newspaper to disclose that.”
M&G editor Ferial Haffajee welcomed the outcome of the case.
“While we regret that the original issues—some of them important to the operation of the media in a free society—have not been tested in a full court hearing, we celebrate the opportunity to tell the public that which they’re entitled to know, and are extremely pleased to announce that we will publish the article in its original form this Friday,” Haffajee said.
The newspaper also welcomed the withdrawal of the defamation suit.
“This is a key victory for the newspaper, as it reconfirms the veracity of its original exposé, which highlighted close links between Imvume and senior ANC officials in the course of oil trades with Saddam Hussein’s Iraq.”
A R3-million defamation suit relating to the same article brought by the ANC, its secretary general, Kgalema Motlanthe, and treasurer general Mendi Msimang is still continuing.
How Imvume stopped the M&G
On Thursday May 26, as the M&G was going to print with this report as its lead, Judge Vas Soni ruled in the Johannesburg High Court that Imvume and Majali’s right to privacy, dignity and reputation trumped both freedom of expression and the public’s right to know about the conduct of their elected government.
Imvume’s advocate, Nazeer Cassim, argued that the information on which the article was based had been obtained unlawfully.
“In principle, once you have obtained information unlawfully, you cannot use it unless there is compelling circumstances,” he said. “It is an intrusion of privacy.”
The M&G argued that the legality of the sourcing of the information was irrelevant in determining the story’s public interest. The judge found that journalists “should not publish from a tainted source. It will allow journalists to taint society as a whole.”
Cassim said there was evidence in the previous week’s article suggesting that the newspaper had obtained its information illegally, and that Imvume’s lawyers had written to the newspaper on May 23 demanding that the information not be used.
On May 25, the M&G sent a draft of the story to Imvume for comment, leaving little time for Imvume to respond before Thursday’s noon deadline for printing.
Advocate John Campbell, for the M&G, argued that the information in the article had been confirmed by another source implicated in the story. It was therefore not only a matter of the company’s right to privacy.
It was the first time since the apartheid state’s banning of the M&G under emergency regulations in the late Eighties that the paper had been muzzled. It was also the first time since the mid-Eighties that the newspaper featured blacked-out text inside to illustrate that it had effectively been banned.
The newspaper’s print run of 45 000 had to be recalled, and reprinted copies of the paper, featuring a “Gagged” line running across the front page, appeared late across the country on May 27 and 28.
Meanwhile, the Office of the Public Protector received an FF+ complaint on Tuesday against PetroSA and the two Cabinet ministers named in the M&G report over the alleged misuse of public money.
Public Protector Lawrence Mushwana is out of town and will consider the matter upon his return later this week, spokesperson Selby Bokaba said.
“He will study the complaint and make a determination as to whether this matter warrants an investigation.”
Bokaba said the issue appears to fall within the public protector’s mandate, as it involves a parastatal and public officials.
“We have already sent an acknowledgement of receipt to the FF+.”
The FF+ said the complaint relates partly to claims that public money was channelled to the ANC via Imvume.
It also called for a probe into the nature of business relationships between Imvume and close relatives of Mlambo-Ngcuka and Skweyiya.
If true, claims of maladministration and of payments to people close to the two ministers not only constitute improper prejudice to the fiscus, but also amount to dishonesty and improper dealings with public money, the FF+ said.