Presidential spokesperson Mac Maharaj on Saturday formally laid a charge against the Mail & Guardian and two of its senior journalists, Stefaans Brümmer and Sam Sole.
The charge relates to an article that was meant to appear in Friday's edition.
"Attorneys acting on behalf of Mac Maharaj, laid charges against Mr Sam Sole, Mr Stefaans Brümmer and the M&G newspaper for contravening the provisions of section 41(6) of the National Prosecuting Act of 1998," Maharaj said in a statement.
Brümmer and Sole are two of South Africa's most experienced, respected and decorated investigative journalists.
Brümmer joined the M&G at the dawn of democracy in April 1994 and Sole joined him in 2002.
They have forged a formidable partnership, working together to produce epoch-defining investigative stories.
- The arms deal, a decade-long series of ground-breaking investigations into the malfeasance surrounding R60-billion's worth of contracts for military hardware (2002, ongoing)
- The criminal investigation of then-deputy president Jacob Zuma (2002-2006)
- Oilgate — which traced the involvement of an ANC-linked company in diverting money from a state contract to the coffers of the ruling party (2002-2009)
- The Selebi affair, which exposed the links between former police commissioner Jackie Selebi, slain mining magnate Brett Kebble and various figures from South Africa's underworld, including Glenn Agliotti (2006-2011)
- Chancellor House, another ANC front company which landed lucrative contracts with the state (2006, ongoing)
- Zuma Inc — a series of investigations into the enrichment of Zuma family members and their close business associates after Jacob Zuma became president (2010, ongoing)
M&G editor-in-chief Nic Dawes, who has shared bylines with Brümmer and Sole on the Selebi investigation, said, "In quite different ways — because of their different styles and personalities — Sam and Stef are about the most rigorous and thoughtful journalists I've ever worked with."
During the past decade, Brümmer and Sole have won numerous awards and accolades, including the Mondi Shanduka South African Story of the Year, the Vodacom Journalist of the Year and the Taco Kuiper Award for Investigative Journalism.
In April 2010, Brümmer and Sole also co-founded the M&G Centre for Investigative Journalism (nicknamed amaBhungane, the isiZulu word for dung beetles).
The centre — the first of its kind in South Africa — is a non-profit, public interest initiative to produce better investigative stories and to plough back into the profession through internships and advocacy.
Brümmer is also a founding member of the Right2Know campaign, which has grown into a nationwide civil society movement opposed to the Protection of State Information Bill.
In its current form, the Bill would criminalise the dissemination of state information without giving whistleblowers and journalists a public interest defence when doing so.
Ironically, clauses in the National Prosecuting Authority Act, on which basis Brümmer and Sole now face criminal charges, are similar to how the secrecy Bill could affect investigative journalists in future.
Martin Weltz, Sole's former editor at hard-hitting investigative magazine Noseweek said, "I just think the timing of this event [criminal charges] is extraordinary. It's literally days before they're wanting to introduce the secrecy Bill, just as, I think, they thought they were going to get away with it.
"It's suddenly highlighted to the public a foretasting of things to come. It demonstrates to the public, even before the government's gotten out of the starting blocks, what it's all about … that the press is the last dyke before the flood."
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.
After charges were laid on Saturday,
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."
The charges are a result of an article the newspaper decided to hold 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".
Dawes said: "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."
"We have broken no laws and we will continue to work to bring South Africans information that is their right to know."
Read the letter from Maharaj's lawyers here.
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.
For more news on the arms deal visit our special report.