What was it all for? After twice blocking the publication of allegations against him based on an internal SABC audit report — and causing enormous inconvenience to the Mail & Guardian — SABC legal chief Mafika Sihlali failed to file papers or even make an appearance at the final interdict hearing on Wednesday this week.
Refusing to confirm the temporary interdict that prevented us from publishing on July 20 — and making a cost order against Sihlali — Judge Ferdi Preller resoundingly proclaimed that “the public has the right to know what is happening in institutions where the taxpayer’s money is spent”.
That is the attitude we expect from the judiciary in a democratic state. It is essentially the viewpoint of the Appeal Court, which recently ruled that pre-publication interdicts should be granted only in the most extreme cases and not in a form that results in a blackout of the entire offending article.
Would the judge who made the extraordinarily wide order against us and the judge who extended it — even though Sihlali had more than a week to weigh up the allegations and respond — please take note?
It appears that Sihlali, desperate to prevent the publication of “defamatory” material against him, is not quite so attentive to other people’s rights. On Thursday he released a frankly defamatory and lie-strewn statement about the M&G, claiming it is bankrupt and has a policy of attacking the SABC to raise circulation and reduce a R60-million debt. No such luck, Mafika!
The other man at the centre of this protracted and pointless drama was Sihlali’s lawyer, Barry Aaron. Aaron has carved out a professional niche as the man to go to if you want to gag the M&G — he has represented Oilgate businessman Sandi Majali and the disgraced former post office boss Maanda Manyatshe in such applications.
It’s worth noting his poor record in such cases. Majali won a temporary order that was later lifted by agreement; Manyatshe lost after a postponement. Aaron is also thought to have been involved in the SABC’s failed attempt to stifle the M&G‘s disclosure of its blacklisting report.
Those who think that pre-publication censorship is the way to prevent damaging information from entering the public domain should reflect on Sihlali’s costly misadventure. If anything, such gagging attempts merely whet the public’s appetite for facts.
And, in the United Kingdom, such attempts have had the effect of dissuading reporters from approaching those implicated in investigative stories for pre-publication comment. But the most important factor to consider is that, increasingly, our courts are setting their face against this anti-democratic practice.
In service of a legacy
With 19 000 reported murders in the past year, South Africa does not have the luxury of chasing after feel-good prosecutions. Our crime-Âfighting resources are already subject to intense pressure and should be used in the pursuit of justice and where the odds of prosecution are more than even.
FW de Klerk almost certainly has some moral responsibility for assassinations and other crimes ordered by the apartheid government of which he was a minister, though he denies moral culpability for what was done during clandestine operations and claims they were kept from the larger Cabinet. As a participant in State Security Council debates, he must have known of the murders of high-profile activists such as Matthew Goniwe and Victoria Mxenge — and known of suspicions of state dirty tricks.
He could have raised his voice in protest or resigned from government, but it is equally important to note that there is no evidence that De Klerk ordered extra-judicial killings. Any attempt to prosecute him is almost certainly doomed and a waste of public money.
This has nothing to do with national reconciliation, as the DA has argued in calling for an end to such prosecutions. The truth commission never suggested that the pursuit of justice and reconciliation were in conflict — indeed, it was clear that those who failed to disclose their crimes and secure amnesty would remain in the firing line. Many took their chances and ignored the process. These are the men and women who really threaten national reconciliation.
Reconciliation is too important an issue to be left to the posturing of politicians. It does not revolve around whether streets are renamed or the Bok emblem stays. Neither is it affected by the prosecution of unrepentant criminals, nor the public questioning of leaders suspected of concealing the truth.
De Klerk evidently feels that his defeat of PW Botha and shepherding the National Party to the negotiating table is not appreciated sufficiently and should not be overshadowed by earlier events. Indeed, the country owes him a debt of gratitude for preventing a further slide towards racial war and military dictatorship and for that his Nobel Prize was probably merited. But it does not wipe the slate clean. There is a nagging suspicion that he has not levelled sufficiently with the nation.
The allegations will keep coming back until De Klerk offers a satisfactory response to a country looking to him for a more magnanimous response.
There is little doubt that he will be recorded in history as brave and visionary. Yet he seems not to realise that his responsibility goes beyond his own person; he has become symbolic of a group and of a government. It was a responsibility he bore bravely as apartheid entered its death throes, but now he is given only to blanket denial and counter-accusation.
De Klerk must step up to the plate and take the nation into his confidence. This will be the best possible service to national reconciliation and the final seal on his well-deserved legacy of peace-making.