Presidential spokesperson Mac Maharaj's attorneys have laid charges against the Mail & Guardian and two of our journalists, Sam Sole and Stefaans Brümmer.
"Attorneys acting on behalf of Mac Maharaj, laid charges against Mr Sam Sole, Mr Stefaans Brümmer and the Mail & Guardian newspaper for contravening the provisions of section 41(6) of the National Prosecuting Act of 1998," Maharaj said in a statement on Saturday.
After sending questions to Maharaj on Wednesday this week, the M&G received a letter on Thursday from Maharaj's lawyers warning of potential criminal prosecution if M&G published the story.
M&G editor-in-chief Nic Dawes said: "There's absolutely no basis for criminal charges against Sam and Stefaans or the Mail & Guardian".
Dawes said there had been no clarity on what the precise charges were. "I've got no idea what the charge is — being in possession of documents is not a crime and that's why I saw there's no basis for criminal prosecution."
Criminal prosecution
The charges are a result of an article meant to be published in last Friday's edition of the newspaper but was held back over threats of criminal prosecution that could carry a jail term of up to 15 years.
Following the M&G's forced suppression, Maharaj released a brief statement on Thursday night accusing the paper of seeking "to hide its complicity in criminal acts by raising the spectre of a threat to media freedom and invoking fears of censorship".
"What's going on here is very simple, Mac Maharaj wants to know who our sources are, he wants to know how much information we have about the serious allegations against him that were raised in investigations flowing from the arms deal and he's trying to abuse the resources of the police and the state in general to secure that information and to distract the public from the questions he ought to be answering," Dawes said.
"We have broken no laws and we will continue to work to bring South Africans information that is their right to know."
To read the letter from Maharaj's lawyers click here.
Section 28
The story was published with large black print covering sections of the article that were deemed by Maharaj's attorneys as contravening the National Prosecuting Authority Act that makes it an offence to disclose evidence gathered in camera by a section 28 inquiry.
Under section 28 of the Act, individuals can be subpoenaed to testify under oath. The section can also compel people to hand over relevant evidence. This was used to empower NPA and Scorpions investigations. Under section 41, sub-paragraph 6 of the Act, disclosure of any information gathered from a section 28 interview is a criminal offence. Maharaj and Mathews Phosa have in the past deemed section 28 of the Act unconstitutional.
Maharaj has said the M&G could not have attained the documents lawfully and it was "in blatant and wilful contravention of provisions of the Act".
"In the name of press freedom the M&G arrogates to itself the 'right' to break the law that has been on our statute books since 1998. Their editor Nic Dawes acknowledges as much when he states that they will now seek the permission of the national director of public prosecution, [Advocate] Menzi Simelane, for 'permission to disclose the relevant material'. In short they want the NDPP [National Director of Public Prosecutions] to retrospectively give them legal protection against their unlawful actions," he said.
"Through their sensational and at times distorted reportage, they want to deflect attention from their wrong doing and depict my upholding of my rights embodied in our laws as a threat to media freedom," he added.
Dawes responded: "Mr Maharaj is simply trying to avoid giving South Africans the answers he owes them. He should stop blustering about the Mail & Guardian and commit to making public the information he is trying to hide."
'I will take action'
A letter from Maharaj's lawyers, BDK Attorneys, contended that the article by senior investigative reporters Sole and Brümmer quoted excerpts from an inquiry held under section 28 of the Act.
"We advise you that to the best of our knowledge the [director] has not authorised the disclosure of the inquiry or any part thereof," it said.
The letter warned of "the consequences the use of unlawfully and illegally obtained information had on a publication such as the [British] News of the World".
It said that unless it received an undertaking by 4pm on Thursday that any information drawn from records of the inquiry would not be published, Maharaj would consider appropriate action against Brümmer, Sole and the M&G.
'Vital public interest'
Dawes said the information that Maharaj was trying to keep under wraps was "of vital public interest".
"We have no intention of bowing to his threats.
"We believe that we have every right to publish the information which raises serious questions about the conduct of the man who speaks on behalf of the president.
"However, faced with threats of both civil and criminal action, we have been advised by our lawyers to withhold publication pending an application to the national director of public prosecutions for permission to disclose the relevant material.
We hope that the director, Menzi Simelane, will demonstrate government's professed commitment to transparency," he said.
'Charges won't wash'
Dawes said the charges would "not wash in any court" as Maharaj's instigation of legal action leaned heavily on the newspaper's possession — rather than disclosure — of the information.
"The Act pertains to the disclosure of information, [the way the story was published] we did not disclose it," he said.
"There is absolutely no basis in fact or in law for charges to be brought against us. It is clearly a pretext to use the resources of the police to search for information on our sources and the state of our investigation into the arms deal."
Dawes said the newspaper would seek legal advice.
He said he hoped the attention the incident had generated would raise public awareness about threats to press freedom in South Africa.
"The public has the right to know," said Dawes.
For more news on the arms deal visit our special report.
