The National Directorate of Public Prosecutions (NDPP) on Thursday applied for an urgent interdict preventing the Mail & Guardian from publishing a series of articles on police National Commissioner Jackie Selebi’s relationship with Brett Kebble murder accused Glenn Agliotti.
Hours before its print deadline on Thursday afternoon the M&G received a letter from the Office of the State Attorney, on behalf of the Scorpions, warning that if the newspaper failed to undertake not to publish a story relating to the Selebi-Agliotti scandal, an urgent interdict would be sought.
The report was the latest instalment in the newspaper’s long-running series of exposés detailing the links between Selebi; murdered mining magnate Kebble; the man accused of his murder, Agliotti; and organised crime.
The National Prosecuting Authority (NPA) claimed in the Johannesburg High Court that questions submitted to the police by the M&G suggested that its reporters had ”unlawful” access to a witness’s affidavit.
The court ordered the press not to identify the person who made the statement.
NPA counsel Mike van der Nest argued that this fundamentally prejudiced the rights of the Directorate of Special Operations (DSO) to a fair trial.
In court papers it contended that access to the affidavit was ”totally unauthorised”, that the investigation of which the statement was part was extremely confidential and that access to the statement was restricted to no more than five people.
The investigation was into an extensive network of organised crime in South Africa and abroad.
Van der Nest told Judge Hilton Epstein it was one of the most extensive, complex and sensitive investigations the DSO had ever undertaken, focusing on drug dealing, racketeering, money laundering and corruption. Some of the allegations under investigation included targeted corruption of law-enforcement personnel.
Van der Nest told the court that apart from compromising the investigation, the leaking of information could affect the safety of witnesses who might become targets for assassination.
The NDPP did not know how the M&G obtained access to the witness affidavit and said this would be the subject of investigations by the Directorate of Special Operations — the Scorpions.
Deadline
Thursday’s letter from the Office of the State Attorney letter arrived so close to the M&G‘s print deadline that it was effectively impossible for a court to consider the application before the presses began to roll. As a result, the newspaper was compelled to withdraw the story, which would have led this week’s edition.
In response, M&G counsel David Unterhalter told the court the M&G had taken ”no steps to procure the documents by any unlawful means whatsoever”. He said the Scorpions were free to investigate anything within their lawful mandate.
”The DSO must get its own house in order. If it has leaks, it must deal with them. It can’t use its own lack of security for gagging information in the public domain.”
Unterhalter confirmed that the M&G indeed had affidavits in its possession.
He pointed out to the court that the NDPP had brought the application even though it had no idea what would be contained in the story itself. The story had since been provided to the NDPP and the court.
The media were ordered not have any sight of the story. Unterhalter submitted that the story did not concern a ”trifling” matter. ”We are dealing with a story that goes to the fundamentals of how power is exercised by the police — the agency that is meant to protect us against crime,” he said.
Epstein ordered that arguments concerning the M&G article be heard in camera.
The hearing was continuing by 10pm on Thursday night.
Year of interdicts
This is the second time the Scorpions have threatened an interdict against the M&G. The first was in May, when the newspaper first revealed Selebi’s friendship with Agliotti, and a network of shadowy figures surrounding Kebble. The M&G suggested that the elite unit was looking into Selebi as part of its probe into Kebble’s affairs.
In June the M&G was barred from publishing allegations of tender rigging at the Post Office for a week, after a similar last-minute interdict application.
In October, the South African Broadcasting Corporation took a similar route, but failed outright when it tried to keep the M&G Online from publishing a report on the blacklisting of certain analysts and commentators by the broadcaster.
Last year the M&G was stopped by the Johannesburg High Court from publishing an instalment in its Oilgate investigation that revealed payments by oil trader Sandi Majali to the brother of then minerals and energy minister Phumzile Mlambo-Ngcuka, and for renovations to the house of Social Development Minister Zola Skweyiya.
The new gag bid came against the backdrop of a Cabinet statement last week threatening to crack down on leaks about the progress of the Kebble murder investigation from law-enforcement agencies.
Also, the National Director of Public Prosecutions, Vusi Pikoli, on Thursday sent a letter to news editors complaining about the conduct of the media in reporting on the ”Kebble matter”. He said recent coverage had had the effect of distracting the Scorpions from their work, and undermined public faith in its ability to conduct investigations.