Mac's catch 22: Where to now?
The president’s spokesperson has appealed for rationality rather than emotion in dealing with the issue of his section 28 interview with the Scorpions on June 19 2003, so here goes:
Between a rock —
To start with, Mac Maharaj is in a difficult position. He cannot answer the question posed now about whether he lied to the Scorpions or not without potentially exposing himself to prosecution under section 28.
The section is invasive. It allows an investigator—in regard to specified serious offences—to question a witness under oath.
The witness may not refuse to answer questions, even if they are self-incriminating but the answers cannot be used against him—except, that is, when the answers indicate that the witness “gives false evidence knowing that evidence to be false or not knowing or not believing it to be true”.
That offence carries the possibility of a fine or imprisonment not exceeding 15 years, which is the same penalty that can be incurred for the unauthorised disclosure of which Maharaj accuses the Mail & Guardian. So, the exposure of a knowing lie under section 28 carries with it significant risk for Maharaj.
Following legal advice, we cannot tell you what Maharaj and his wife said in their section 28 interviews. Absurdly, we cannot even print what was reported in City Press in March 2007 in an article purported to be drawn from those interviews.
What we can say is that the Scorpions received new evidence from the Swiss judicial authorities in December 2004.
The Swiss evidence showed that a company controlled by Schabir Shaik, Minderley Investments, had made two payments of $111 111 and $100 000 into a Swiss account opened by Zarina Maharaj just two days before the first payment. These payments have never been explained by Maharaj, either to the Scorpions or to the public.
The Swiss authorities revealed to the Scorpions that the money that flowed into Zarina’s account from that of Shaik came from two transfers of 600 000 French francs that originated from an undisclosed client of a Paris bank. All this was revealed by City Press in 2007.
Thanks to last week’s Sunday Times, we know that in July 1996 Shaik signed a “consultant” agreement with IDmatics, a subsidiary of the French defence company Thales, to be paid a fee of 1.2-million francs for negotiating the credit card driver’s licence contract with the department of transport. For some reason, it appears that Shaik paid nearly all this money over to Zarina, wife of the then-minister of transport.
Mac’s defences then
Maharaj was confronted by the Scorpions with information about the Swiss payments in July 2005.
He responded by launching two court applications. The first was in the North Gauteng High Court to stop the Scorpions from using the information obtained from him under section 28, arguing that it would be unconstitutional.
In the second, as he was entitled to do, he lodged an objection in Switzerland to the final formal handover of the Swiss information.
These actions appeared to have put the investigation on hold.
In May 2008, the Federal Criminal Court of Switzerland ruled that the delivery of the information to the Scorpions was legal but by that stage the disbanding of the Scorpions was already in the pipeline and the legislation to dissolve the unit was passed in October that year.
At some unspecified date in 2008 or 2009, the “matter was closed” by acting national director of public prosecutions Mokotedi Mpshe.
It seems the Scorpions were never able to obtain any evidence indicating that Maharaj had exercised any influence over the awarding of contracts to Shaik, given that the decisions were taken by independent bodies such as the state tender board in the case of the driver’s licence contract.
Why or how Maharaj escaped being charged under section 28 for not being honest with the Scorpions remains unexplained.
But although he refused to answer the Scorpions’ questions, Maharaj did provide an explanation to the ANC—an irony, given he is now accusing the media of stepping outside the appropriate legal forums.
Writer and activist Padraig O’Malley set out his understanding of what happened in his Maharaj biography, Shades of Difference. Given the previous leaks from the Scorpions, Maharaj was, in 2005, understandably suspicious.
“The Scorpions seemed unwilling to say that they would provide assurances of absolute confidentiality; that is, they would not guarantee that strict measures could be put in place to ensure that neither some of their questions nor Mac’s responses would find their way into the public domain ... further destroying his name and humiliating his family —
“He took the questions and his responses to them, together with the requisite documentation, to a committee of ‘ANC stalwarts’, appointed by Kgalema Motlanthe. The stalwarts accepted that his actions ... were performed on behalf of the struggle.”
Mac’s defences now
Maharaj’s responses now boil down to two propositions: the “stolen evidence” defence and the “Scorpions never charged me” defence.
Maharaj has laid charges against the M&G based on the claim that the newspaper is in possession of evidence obtained illegally, notably, information derived from answers given in his section 28 interrogation.
According to the Act, “no person shall, without the permission of the national director ... disclose to any other person ... the record of any evidence given at an investigation as contemplated in section 28 (1)”.
It is a stretch for Maharaj to imply that the M&G may have had some hand in extracting this information from its legal custodians at the National Prosecuting Authority (NPA)—we did not—but he made the argument that possession of such information is the same as receiving and benefiting from “stolen goods”.
This ignores several issues.
The first is that Maharaj himself appears to have given the transcript of his and his wife’s section 28 interviews to O’Malley.
In an interview with O’Malley, dated October 17 2005, Maharaj states: “So that was the basic frame of mind and if you read the transcript, which I paid for and obtained because I had asked them whether I would be given a transcript of my evidence and they had said yes, so I got it, you will see that it was a very relaxed environment and yet they were interrogating me in an extremely adversarial way—adversarial and inquisitorial.”
O’Malley asks who conducted the investigation and Maharaj replies: “The names are there in the transcript. Yes, I have given you that ... If you read the transcripts you will find the next day when they interviewed Zarina they were very aggressive ...”
Maharaj also purports in his interviews with O’Malley to repeat some of the information or explanations provided to the Scorpions.
It furthermore does not appear that Maharaj laid charges in 2007 when City Press quoted extensively from the section 28 transcript.
He also ignores the fact that even illegally obtained evidence may be admissible in our legal system. The Constitution provides only that “evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice”.
This is for use in a trial. There are lower barriers in civil matters for the use of documents that may have been illegally disclosed.
Finally, the “stolen goods” argument ignores the fact that virtually every confidential document leaked to the media is the product of unauthorised disclosure.
Maharaj’s right not to incriminate himself by answering the media’s questions cannot be contradicted. What is in doubt is whether, given the unanswered questions, he should continue to occupy the position of presidential spokesperson.
The fact that Maharaj was never charged by the Scorpions remains, at best, an adjunct to the outstanding public questions about his conduct—at least until that decision is properly explained.
There are suggestions from within the NPA that the investigation of Maharaj was pursued beyond the normal bounds and was driven by the political imperatives that are laid at the door of the Thabo Mbeki-era.
That may or may not be so, but, equally, the decision to abandon the case might conceivably have been influenced by the pressures for an accommodation with new realities after Jacob Zuma had ousted Mbeki in December 2007.
Unlike the withdrawal of charges against Zuma, the public has never had the benefit of an explanation.
Mac’s unspoken defence
Reading between the lines, Maharaj seems to be saying he was hounded by the Scorpions and now he is being hounded by the press.
“I went though the process by the set of rules in our law books and I abide by those rules,” he told a media conference this week.
But did he? If he was of the view that the Scorpions were on a political witch-hunt in 2003, then lying to them in the section 28 interview might have been justified.
But that is not how he portrays his state of mind. In the same 2005 interview, he told O’Malley: “I was there in a frame of mind that says that I can be open, there is no problem, and when I can’t answer the question I’ll tell them I can’t because we were talking about reconstruction from memory from so far back. So that was my attitude”.
So if he lied, it seems it was because he thought he could get away with it, not because he was defending himself from an improper investigation.
Finally, there is the murky “struggle” justification. One version that is understood to have been presented to the ANC is that Shaik in 1996 was “repaying” money that had gone missing during the struggle era, when Shaik and Maharaj had both acted as necessarily covert conduits for ANC money.
If Maharaj personally provided funds for the ANC and was later repaid by Shaik, there should be no reason for this not to be disclosed. Likewise, if the money actually was paid onwards to the ANC, rather than being utilised by Maharaj, then this might account for his behaviour.
Both circumstances would demand that Maharaj indicate what he knew about the origin of the money.
If he knew it was coming from a company bidding with Shaik for transport department contracts, he then placed himself in an untenable position, even if he never played any role in the award of any contract.
At best for Maharaj he made a contract with the devil—and Thales’ deeply cynical attitude to tendering was amply proven in the Shaik trial—in a bid to fund the ANC or, more likely, a faction of the ANC that sought to sustain its contest with Mbeki from whatever source.
The last point goes to the heart of the question why this is an issue now. The Sunday Times may have received a copy of the agency contract between Shaik and IDmatics as a shot across the Zuma bows by the Mbeki camp ahead of the commission of inquiry into the arms deal.
For the M&G, the link to the arms deal—which only came later—goes further than just the involvement of some of the same players, notably Shaik and Thales.
The bartering of contracts for party, factional and personal funding—and the politicisation of investigations—go to the heart of the issues with which the inquiry must grapple.
Without “amnesty” provisions, the inquiry is forced to try to get to the truth while witnesses in a similar position to Maharaj have everything to lose by being open.
That must inevitably proliferate the conflict that the Maharaj case has already generated.
The Mail & Guardian’s legal fight-backThere are two separate but interwoven strands in the Mail & Guardian‘s legal fight back against presidential spokesperson Mac Maharaj in the aftermath of the newspaper’s blacked-out front-page news story “Censored: A buried trail of lies”, published last Friday. The M&G blacked out large sections of the story following threats of legal action by Maharaj.
He laid charges the following day against the newspaper and journalists Sam Sole and Stefaans Brümmer for theft and contravening a section of the National Prosecuting Authority Act.
According to section 41(6) of the Act, it is an offence punishable by a fine and up to 15 years in prison for anyone to disclose the content of a section 28 investigation without the permission of the national director of public prosecutions (NDPP).
The aborted M&G article suggested that Maharaj had lied to investigators in a 2003 section 28 hearing held to probe whether he received money from French company Thales or its local partner, Schabir Shaik.
On Tuesday Maharaj denied being “involved in corruption” but has refused to discuss what he told the Scorpions, calling this a demand that he should abdicate his constitutional rights.
Strand 1: Criminal charges
On Tuesday, the docket containing Maharaj’s charges was escalated to the Hawks’ national head quarters in Pretoria.
The Hawks confirmed that an investigating officer had been assigned to the case and work had begun on the investigation.
M&G editor Nic Dawes said: “It is outrageous that a highly specialised crime-fighting unit tasked with combating cash-in-transit heists, major corruption and drug smuggling should be asked to pursue some journalists on behalf of a senior politician they have embarrassed”.
But Hawks spokesperson McIntosh Polela disagreed, saying that, because of Maharaj’s public profile and the public interest generated by the charges, it was not unusual for the unit to investigate.
Maharaj has stated that he is merely defending his legal right not to have his section 28 testimony disclosed to the public.
Strand 2: Request to national director of public prosecutions
NDPP Menzi Simelane has acknowledged receipt of an M&G letter requesting his permission to disclose the contents of Maharaj’s section 28 testimony. He is expected to decide on the matter by Friday next week.
The M&G‘s case, broadly set out in its letter to Simelane, is as follows:
- There is overwhelming public interest in the disclosure of allegations of serious wrongdoing by a senior public official such as Maharaj.
- The prohibition against disclosure was designed to protect the integrity of the Scorpions’ investigation but, with the investigation closed, there is nothing left to protect.
- The content of Maharaj’s section 28 inquiry is already in the public domain. Maharaj has discussed the inquiry in public and purportedly shared the transcript with his biographer, Padraig O’Malley.
“We hope advocate Simelane will show his commitment to transparency by complying with our request,” Dawes said.
Maharaj said in a statement: “In short they [the M&G] want the NDPP to retrospectively give them legal protection against their unlawful actions”. —Lionel Faull
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