The claim to records based on public interest is outweighed by the need to fight corruption, says the National Prosecuting Authority.
That presidential spokesperson Mac Maharaj himself disclosed the proceedings of a secret inquiry at which he was a forced witness was not enough reason to give the public access to the records, both Maharaj and the National Prosecuting Authority (NPA) said this week. Nor was it relevant that the important facts are already in the public domain.
Although Maharaj was a figure of considerable public interest, the NPA said, that interest was outweighed by the need to fight corruption.
These are some of the points made in affidavits filed on behalf of Maharaj and his wife by acting NPA head Nomgcobo Jiba in response to a legal bid by the M&G Centre for Investigative Journalism (amaBhungane) for access to the record of an inquiry launched in 2003. The inquiry came after questions were raised about the relationship between Maharaj at the time he was transport minister and Shabir Shaik, who was doing business with the department of transport.
Among the dramatic developments since those questions were first raised in 2001 are:
- Criminal charges by Maharaj against Mail & Guardian editor in chief Nic Dawes and amaBhungane investigative journalists Stefaans Brümmer and Sam Sole, which could carry 15-year jail terms;
- The M&G blacking out portions of an article due for publication shortly before going to print in November 2011; and
- A recommendation that Maharaj be prosecuted on the basis of discrepancies in evidence given on the matter.
Both Maharaj and the NPA are opposing an amaBhungane request that the courts review an earlier decision by the authority to deny access to the records, which are part of an increasingly complex series of legal proceedings dating back to 2005.
In June 2003 Maharaj and his wife Zarina were summoned to give testimony in an inquiry under section 28 of the National Prosecuting Authority Act, which strips interviewees of their right to remain silent but provides that proceedings cannot be made public – or used in any subsequent prosecution – except under exceptional circumstances. Those include the interviewee lying to the inquiry. Maharaj provided a copy of the proceedings of the inquiry to his biographer and City Press published extracts of the record of the inquiry in March 2007 and again in November 2011.
The M&G blacked out portions of an article that was due to be published on November 18 and has not published the content of the inquiry proceedings. But a request to the NPA to make the record public was denied, a decision by which Jiba stood this week.
The public interest in knowing what Maharaj had to say behind closed doors, Jiba said, was outweighed by the need for effective mechanisms of investigation. "This is particularly so in the current environment where the combating of crime and corruption is considered by the general public to be one of the highest priorities."
Maharaj and Zarina have a slightly different take. There can be no questions asked or requests made around the information, attorney Rudy Krause argued on their behalf, because the basis of such questions or requests must be the information itself, which is secret, and therefore cannot be used to argue that it should not be secret.
"Any analysis of alleged public interest being in existence cannot be admissible because the conclusion is reached on the basis of unlawfully obtained or hearsay allegations."
Similarly, Krause writes in the affidavit, using the publication of the information by other newspapers to argue that it was already in the public domain relies on an illegal act – the publication of the information – and can therefore not be used to argue that the information is already public.
The fact that Maharaj himself had put the proceedings of the inquiry on the public record in an earlier court case Krause dismissed as irrelevant.
Jiba, on the other hand, provided reasons for dismissing the prior publication argument.
If prior disclosure meant secret proceedings could be published, she said: "It would constitute an open invitation to those who wished to disclose a section 28 record to first make such information public and only then seek permission to disclose the information concerned.
"This permission could then be based on the fact that the information is, in any event, 'in the public domain'. The very purpose of the prohibition would have been undermined. This contention is simply not sustainable."
Jiba also argued that amaBhungane's application for access to the record amounted to an attempt to circumvent the criminal charges in the matter and those criminal charges served as yet another reason to deny the request.
But if a court should decide the decision to keep the record sealed required review, she said, the new decision should again be made by her.
The NPA has asked that the amaBhungane application be dismissed with costs.