The Johannesburg High Court has dismissed with costs an urgent application by the National Directorate of Public Prosecutions (NDPP) to prevent the Mail & Guardian publishing a series of articles on police National Commissioner Jackie Selebi’s relationship with Brett Kebble murder accused Glenn Agliotti.
”We’re absolutely elated,” said M&G editor Ferial Haffajee. ”Of the three attempted interdicts we’ve won this year, this is the most important because, as the judge says, it is a matter of fundamental public importance.”
The Directorate of Special Operation’s (DSO) Leonard McCarthy had no comment on the ruling.
M&G staff were changing the newspaper late on Thursday evening to publish the controversial articles — ”I told Selebi about Agliotti” and ”Selebi’s Sandton shopping sprees”. An earlier run of the newspaper had to printed without the articles as the interdict application was still being heard in court.
The NDPP on Thursday applied for an urgent interdict preventing the M&G from publishing the articles.
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. NPA counsel Mike van der Nest argued that this fundamentally prejudiced the rights of the 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.
Extensive investigation
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.
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.”
In the judgement given after a three-hour hearing, Epstein said the NDPP had failed to show how publication of the stories would compromise its investigation.
Epstein said there are no rights in the Constitution that are absolute. In certain instances it is necessary to balance certain of the rights contained in the Bill of Rights.
Van der Nest had argued that publication would undermine the state’s rights to a fair trial.
”That may be so. They are also matters which are concerning the nation and matters which concern the nation,” said Epstein, agreeing with the M&G‘s counsel, which had contended that the matters at hand were gripping the nation.
”This is a matter — and I refer to the Kebble murder and the arrest of Glenn Agliotti — which is unsettling the nation. It is reducing public confidence in the authorities,” the judge said.
Epstein found that the articles were in the interest of the public ”and it is in the interest of the public today”. While the article may contain ”explosive statements”, any restriction on the public’s right to know could only aggravate society’s distrust.
Year of interdicts
This was the second time the Scorpions had 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.
What the fuss was about: Read the full articles in Friday’s Mail & Guardian