Following the Mail & Guardian‘s forced suppression of a report about presidential spokesperson Mac Maharaj, he released a brief statement on Thursday night accusing the paper of seeking “to hide its complicity in criminal acts by raising the spectre of a threat to media freedom and invoking fears of censorship”.
To read the letter from Maharaj’s lawyers click here.
The M&G was compelled to hold back the report, following threats of criminal prosecution under the National Prosecuting Authority Act.
The Act makes it an offence to disclose evidence gathered in camera by a section 28 inquiry — providing for a maximum penalty of 15 years in jail.
Under section 28 of the Act, individuals can be subpoenaed to testify under oath. The section can also compel people to hand over relevant evidence. This was used to empower NPA and Scorpions investigations. Under section 41, sub-paragraph 6 of the Act, disclosure of any information gathered from a section 28 interview is a criminal offence. Maharaj and Mathews Phosa have in the past deemed section 28 of the Act unconstitutional.
After sending questions to Maharaj on Wednesday this week, the M&G received a letter on Thursday from Maharaj’s lawyers warning of a potential criminal prosecution if we published the story.
Maharaj said that the M&G could not have attained the documents lawfully and it was “in blatant and wilful contravention of provisions of the Act”.
“In the name of press freedom the M&G arrogates to itself the ‘right’ to break the law that has been on our statute books since 1998. Their editor Nic Dawes acknowledges as much when he states that they will now seek the permission of the national director of public prosecution, [Advocate] Menzi Simelane, for ‘permission to disclose the relevant material’. In short they want the NDPP to retrospectively give them legal protection against their unlawful actions,” he said.
“Through their sensational and at times distorted reportage, they want to deflect attention from their wrong doing and depict my upholding of my rights embodied in our laws as a threat to media freedom, ” he added.
Dawes responded: “Mr Maharaj is simply trying to avoid giving South Africans the answers he owes them. He should stop blustering about the Mail & Guardian and commit to making public the information he is trying to hide.”
‘I will take action’
A letter from Maharaj’s lawyers, BDK Attorneys, contended that the article by senior investigative reporters Sam Sole and Stefaans Brümmer quoted excerpts from an inquiry held under section 28 of the Act.
“We advise you that to the best of our knowledge the [director] has not authorised the disclosure of the inquiry or any part thereof,” it said.
The letter warned of “the consequences the use of unlawfully and illegally obtained information had on a publication such as the [British] News of the World”.
It said that unless it received an undertaking by 4pm on Thursday that any information drawn from records of the inquiry would not be published, Maharaj would consider appropriate action against reporters Stefaans Brümmer, Sam Sole and the M&G.
‘Vital public interest’
Dawes said the information that Maharaj was trying to keep under wraps was “of vital public interest”.
“We have no intention of bowing to his threats.
“We believe that we have every right to publish the information which raises serious questions about the conduct of the man who speaks on behalf of the president.
“However, faced with threats of both civil and criminal action, we have been advised by our lawyers to withhold publication pending an application to the national director of public prosecutions for permission to disclose the relevant material.
We hope that the director, Menzi Simelane, will demonstrate the government’s professed commitment to transparency,” he said.
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