Presidential spokesperson Mac Maharaj says the key part of his case against the Mail & Guardian is that the newspaper broke the law.
It is not surprising that the Mail & Guardian is so strident in condemning the criminal charges levelled against it as an "attack on the press". If no crime has been committed, why does it not let the matter take its course and let the courts decide?
The police are investigating two charges against Sam Sole, Stefaans Brümmer, Nic Dawes and the M&G (for brevity we shall refer to them as M&G): first, that the M&G acquired confidential records unlawfully, in that these could only have been stolen from where they were kept before they were handed to the M&G; and, second, that the M&G was in contravention of section 41(6) of the National Prosecuting Authority Act of 1998 for their part in the disclosing of such information.
Editor Dawes insists that the charges represent an attack on press freedom, and the NGO Right2Know (R2K) demands that President Jacob Zuma stop the police pursuing the charges.
In recent debates Dawes and R2K have maintained that individual citizens are sufficiently protected against media abuse by the laws of our country, including the laws relating to defamation.
How can we take them seriously when they want us to conveniently ignore the purpose served by the relevant provisions of the NPA Act relating to inquiries held in terms of section 28 of the Act? The Act serves a very specific purpose and in doing so seeks to counterbalance the intrusive measures contained in it by stipulating that these inquiries be confidential. This means that you may not steal that which is kept confidential and you may not disclose it. The M&G is in violation of the NPA Act.
The limitations to press freedom arising from the NPA Act are reasonable and justifiable. The right to press freedom is limited as much as almost all other constitutional rights. It is a right that, in certain situations, may very well be in competition with many other rights and the rights of other individuals.
In the present context the rule of law determines that you may not steal confidential records and disclose the contents thereof. What but self-serving motives explains the M&G's resorting to the defence of media freedom when I invoke the law and press charges?
Let us further scrutinise the stance of the M&G. Did the M&G acquire confidential state records unlawfully? This, says Dawes, is irrelevant and should not be investigated. In other words, the M&G considers itself above the law.
I have always claimed that the principal crime committed was by those inside the NPA and the Scorpions who leaked that information to some of the media. In January 2004, Judge Hefer described this as a serious criminal offence when he found it to have been established that officials of the NPA disseminated confidential information.
Though the M&G is aware of this, it does not want the police to unearth that cancer within a state institution. The M&G claims it has a duty to protect its sources of information. Does this protection extend to those who wilfully contravened the NPA Act and our laws?
This was not a whistleblower case. The leaks were a calculated manipulation of the media for unlawful purposes. Some media made themselves accessories to criminal acts.
Did the M&G contravene section 41(6) of the NPA Act? The M&G says this section is unconstitutional. It is within its rights to make this contention, but it is for the courts to decide whether the claim is indeed valid.
To cap it all, R2K then demands that the president intervene to stop the police from pursuing the charges. R2K unashamedly wants the executive to interfere in the administration of the law without regard for whether such an act by the president would undermine our constitutional order.
There is a solid case for an active citizenry to enhance and protect our freedoms. But R2K undermines its own integrity because it places its self-serving interests above the rights of others and spuriously calls on the president to do something it knows it would not countenance in any other circumstances.
Unfortunately Dawes and R2K fail to see that they have become so consumed by the defence of their own interests that they are blinded to the rights of others. When it comes to practice, press freedom for them is absolute. But there are no absolutes when the texts of rights from a printed page are applied to real-life situations that more often than not require an exquisite act of balancing of competing rights.
Could it be that when faced with the prospects of criminal charges against them, the M&G has lost faith in our courts?
I hope this is not so. My prime concern remains the abuse of power by the NPA in that instance.