It should also be noted that Maharaj's apparent concern about confidentiality is highly selective.
Mac Maharaj's disingenuous attack on the Right2Know campaign, "Mac: This is why M&G must be charged" (August 3 to 9), ironically smacks of the very "self-interest" of which he accuses his critics and shows an alarming disregard for the rights of whistle-blowers in the process.
R2K has been singled out for condemning Maharaj's attempts to have amaBhungane journalists Sam Sole and Stefaans Brümmer and Mail & Guardian editor Nic Dawes prosecuted for possessing a National Prosecutions Authority (NPA) transcript that allegedly reveals wrongdoing by Maharaj.
First, it is not clear how the M&G has broken the law. Section 41 (6) of the National Prosecuting Authority Act prevents disclosure of investigatory material, not its possession. The M&G did not publish the transcript – the relevant sections were blacked out - so the paper is not guilty of the crime of which Maharaj has accused it. That these charges are being pursued regardless suggests an attempt to isolate and intimidate critics of the presidential spokesperson.
It should also be noted that Maharaj's apparent concern about confidentiality is highly selective. The transcript that forms the basis of his charges against the M&G is already in the public domain; Maharaj himself handed the transcript to his biographer and City Press has published it.
Second, in his attack on R2K as a civil society movement and the M&G as a media outlet, Maharaj fails to acknowledge how the law places an unjustifiable limit on the rights of whistle-blowers.
Of course witnesses should be protected in criminal investigations, but the Act is extraordinarily broad. Essentially, any document in the NPA's possession is secret and anyone who discloses that information faces up to 15 years in prison: it need not be formally classified as a secret, it need not relate to national security or the personal safety of a witness to the state and, most importantly, there is no whistle-blower protection or public-interest defence in the law.
Maharaj appears to be arguing that it is justifiable to criminalise those – whether working in the media or not – who might receive "classified" information that exposes corruption or wrongdoing. He states that his "prime concern" is the breaking of the relevant law by those in the NPA who presumably "leaked" the information, but his support of the criminalisation of those in the media and civil society who receive and then impart some of that information to the public belies this. In other words, the act of reception is unlawful and thus the "transgressors" must be punished.
There are no charges being pursued against anyone in the NPA – who, in the narrow interpretation of the relevant law, are the ones who would have leaked the information, committing "unlawful" acts – so it is once again the messenger who is energetically targeted and also publicly attacked.
This is consistent with the broader trend of whistle-blower persecution, both in the state and in the private sector, in which those who expose and implicate the powerful are identified, isolated and intimidated.
Maharaj would like to frame this as a press freedom issue: as part of the broader political struggle between the media and the political elite. Yet the broader issue at stake is the right of any citizen, whether a journalist, civil servant or an ordinary member of the public, to expose unlawful conduct or wrongdoing, without which there can be no democratic accountability.
This is particularly concerning given that Maharaj has conveniently misrepresented R2K's call for the president to speak out against the charges – not, as Maharaj suggests, to "intervene to stop the police from pursuing the charges".
As organisations committed to social justice and the free flow of information, we do call on South Africa's leaders – and their spokespeople – to act in ways that show they are fundamentally concerned about the criminalisation and public targeting of whistle-blowers.
R2K is a civil society coalition working for freedom of information in South Africa. Go to r2k.org.za