The National Prosecuting Authority (NPA) has yet to respond to an application by the Mail & Guardian to publish excerpts of a 2003 section 28 interview with presidential spokesperson Mac Maharaj — despite the Mail & Guardian‘s request for a response by December 7.
An inquiry under section 28 of the NPA Act empowers investigators to gather information before a possible criminal trial by summoning suspects to testify under oath in camera.
At the time the Scorpions were probing payments that had allegedly originated from French company Thales and gone to Maharaj and his wife, Zarina, through the electronics manufacturer’s local partner, Schabir Shaik.
The NPA Act criminalises the “disclosure” to “any other person” of the “record of any evidence” given during a section 28 inquiry. But it also allows for the disclosure of the contents of a section 28 inquiry only with the permission of the national director of public prosecutions, a position held by Menzi Simelane.
On November 22, the M&G applied to Simelane, the national director of public prosecutions, to the use of information which allegedly proves Maharaj lied to the NPA.
Prosecution possible
Maharaj has laid charges against M&G reporters Sam Sole and Stefaans Brümmer under the section of the Act prohibiting disclosure, and for already being in possession of the NPA document.
The charges relate to the censored November 18 edition of the M&G, which featured a blacked out report on the kickbacks Maharaj received from Thales when he served as transport minister.
M&G editor-in-chief Nic 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.
More charges threatened
In the meantime, City Press also faces the possibility of prosecution after publishing an article detailing the transcripts of the section 28 interview.
According to Rudi Krause, Maharaj’s legal representative, the Sunday paper has been reported to police for breaching the NPA Act as well as the Riotous Assemblies Act of 1956.
The apartheid-era legislation concerns itself with maintaining public safety and makes provision for sanctions in the event of “the inducement of another person to commit crime”.
Krause would not divulge further details of Maharaj’s criminal complaint against the City Press to the M&G.
Hawks’ spokesperson Macintosh Polela confirmed the complaint against the M&G had been handed over to the NPA “for further inspection” but could not confirm if any investigation was being carried out against City Press.
“We have done our investigations in the case [relating to the M&G] and handed it over to prosecutors. They will decide where to proceed from here,” Polela told M&G.
A new application
Dawes said the M&G was planning on filing a second application to the NPA, requesting further permission to utilise the documentation relating to Maharaj’s 2003 interview.
“There have been further developments that strengthen our formal application for this documentation to be released before we have to proceed to court,” Dawes said.
The NPA has declined to respond to repeated questions posed by the M&G about the progress of the original application to have the section 28 interview information made public or whether the newspaper and its reporters would be prosecuted.