M&G journalists warned of criminal charges

Sole, Brümmer and Dawes have been told they are suspects in a criminal investigation that could, in theory, earn each of them 15 years in jail.

Sole and Brümmer are managing partners at the M&G Centre for Investigative Journalism, amaBhungane.

The three reported for "warning interviews" at police offices in Pretoria on Thursday to hear charges on the theft of confidential records and disclosing information relating to a confidential inquiry by the National Prosecuting Authority (NPA).

Prosecutors will now have to consider whether to proceed with prosecution in the matter.

"We were informed of our right to remain silent, of our right to have an attorney present and told we could make a statement," said Dawes.

The investigation springs from criminal charges laid against the three by presidential spokesperson Mac Maharaj in November 2011. Maharaj contends the M&G cannot lawfully be in possession of a transcript of evidence that he and his wife gave at an NPA enquiry related to the arms deal held in 2003.

Arms deal links
That interview was conducted in the course of an investigation into allegations that Maharaj and his wife received large sums of money from companies associated with the arms deal and with Schabir Shaik, at a time when other Shaik companies were bidding for contracts from the transport department. Maharaj was transport minister at the time.

The warning interviews were conducted in Pretoria, just two blocks away from the Union Buildings.

Dawes said there were indications that the investigation could be broadened to other newspapers, but City Press said it had not yet been informed whether it was a target. Though the M&G refrained from publishing details of the 2003 proceedings, City Press published extracts in 2007 and again in November last year – a week after Maharaj laid his criminal complaint against the M&G.

"There is the worry that this legislation may be used in an attempt to prevent journalists from doing their jobs and reporting important information in the public interest," said Dawes.

The M&G has launched a high court bid for formal permission to publish the transcript of the confidential inquiry after formal requests to the national director of public prosecution (NDPP) were denied. The paper contends the material is already in the public domain and that publishing it is in the public interest.

Legal threats
The interviews with Mac and Zarina Maharaj were compelled under Section 28 of the National Prosecuting Authority Act. Giving testimony to such an inquiry is not optional and those interviewed may not invoke a right to silence, even if they incriminate themselves. But such a record may not be used in a court of law or in prosecuting those interviewed – unless certain extraordinary conditions are met. One of those conditions is if interviewees intentionally lie to the inquiry.

The M&G blacked out portions of an article that was due for publication on November 18 last year after legal threats from lawyers acting for Maharaj. Maharaj subsequently accused the paper of knowingly receiving stolen goods and of invoking undue fears of censorship in the context of a debate around the Protection of State Information Bill.

It subsequently emerged that Maharaj may himself be guilty of breaching the law under which Dawes, Brümmer and Sole are being investigated. In October 2005 he provided a transcript of the crucial interview to his biographer Padraig O'Malley – legal experts say doing so without formal permission from the NDPP is an offence, even though Maharaj was the interviewee.

Disclosing the contents of such an inquiry carries a potential 15-year jail term.

Maharaj could not be reached for comment.



Timeline of events:

Many of these events remain untested allegations, though they are extensively documented.

May 10 1994: Mac Maharaj is appointed the first transport minister under South Africa's democratic government.

December 1995: Denel enters a joint partnership with Nkobi Holdings, Schabir Shaik's company, and French arms group Thomson-CSF, in its bid for a contract to provide new driver's licences for South Africa.

June 1996: The transport department, under Maharaj, recommends a competing bidder for the driver's license contract.

July 1 1996: The state tender board sends the driver's licence recommendation back to the transport department.

July 2 1996: Shaik writes to a partner company in the US, asking for help in arranging a trip to Disney World for the Maharaj family.

July 5 1996: Shaik signs a consultant agreement with a subsidiary Thomson-CSF, under which he is to be paid 1.2-million francs to negotiate a contract to provide the transport department with driver's licences.

August 22 1996: The transport department recommends the Shaik consortium for the driver's license contract.

August 28 1996: A Shaik company pays R100 000 to the Maharaj family trust.

October 4 1996: The transport department informs the Shaik consortium that it has been selected for the contract.

October 11 1996: A Shaik company receives a 600 000 franc payment from Paris.

October 15 1996: 580 000 Francs is transferred from the Shaik-company account to a Swiss account held by Zarina Maharaj. The money is subsequently transferred to an account in the Isle of Man apparently held by Mac and Zarina Maharaj.

February 28 1997: The Shaik consortium signs the contract for the driver's licence contract.

March 11 1997: A Shaik company receives another 600 000 franc payment from Paris. The bulk of the money again flows to Switzerland, then to the Isle of Man account.

July 1997: The transport department, under Maharaj, provides bidders with tender documents for an upgrade of the N3 toll road between Johannesburg and Durban. A Shaik company is among those pre-qualified.

December 1997: Shaik arranges for computer equipment to be installed in Maharaj's home. Bids for the N3 tender close. A Shaik company makes a R50 000 deposit to a joint bank account of Mac and Zarina Maharaj.

May 1998: Shaik companies pay another R50 000 to accounts held by Maharaj and his wife. The Shaik consortium is short-listed for the N3 upgrade contract.

August 1998: Maharaj accepts a recommendation of the Shaik consortium as the winning bidder for the N3 contract. A Shaik company pays R25 000 into a Maharaj account.

September and November 1998: Shaik companies pay another R100 000 to a Maharaj account.

November 1 2001: Noseweek magazine publish the first report of Mac Maharaj's links to tenders awarded to Shaik companies.

February 16 2003: The Sunday Times publishes details of payments made by Shaik to Maharaj, and on the Disneyland trip.

March 24 2003: City Press publishes details of Maharaj's foreign cash holdings.

June 19 2003: Mac Maharaj is summoned to give evidence in terms of section 28 of the NPA Act.

June 20 2003: Zarina Maharaj gives evidence to the same panel under the same law.

August 14 2003: FirstRand bank announces the resignation of Mac Maharaj as a director.

December 2004: Swiss authorities provide the Scorpions with details of deposits to an account opened by Zarina Maharaj.

January 11 2005: A memorandum recommends the prosecution of Mac Maharaj and details discrepancies in the evidence given by both Maharaj and his wife in the 2003 interviews.

July 2005: The Scorpions confront Maharaj with the Swiss bank account evidence. Maharaj and his wife launch court applications to prevent the use of the Section 28 interview, and challenging the lawfulness of the Swiss information.

October 17 2005: Maharaj provides a transcript of the 2003 interviews to his biographer, Padraig O'Malley.

March 31 2007: City Press publishes extracts from the transcript of evidence given by Maharaj.

May 2008: A Swiss court rules that information on the bank account of Zarina Maharaj was provided to the Scorpions lawfully.

November 16 2011: The Mail & Guardian puts a list of questions to Mac Maharaj, relating to his evidence in 2003. Lawyers acting for Maharaj respond with a contention that possession of the records, and their disclosure, would be unlawful.

November 17 2011: Maharaj releases a statement accusing the M&G of invoking fears of censorship in order to hide complicity in criminal acts.

November 18 2011: The M&G publishes an edited version of an article around the discrepancies in what Maharaj told the Scorpions and documented evidence, with references to the 2003 interviews blacked out.

November 19 2011: Maharaj announces that he has laid criminal charges against three M&G employees with regard to the transcript of the 2003 interviews.

November 20 2011: The Sunday Times publishes details of payments made to the Maharaj family.

November 21 2011: The M&G formally requests permission from the national director of public prosecutions to publish the record of the 2003 proceedings.

November 22 2011: Maharaj's criminal charges against M&G staffers are handed to the Hawks; the unit says Maharaj's public profile and the public interest makes it a case that falls within its ambit.

November 27 2011: City Press publishes the contents of Mac Maharaj's 2003 interview.

November 29 2011: The M&G supplements its request to publish, pointing out that the record is already in the public domain.

December 14 2011: The M&G again points out to the national director of public prosecutions that the information is already in the public domain.

January 4 2012: The acting national director of public prosecutions declines the request for permission to publish.

July 2 2012: The M&G launches a high court application to have the decision to refuse permission to publish set aside.

July 26 2012: M&G editor-in-chief Nic Dawes and investigative reporters Sam Sole and Stefaans Brümmer report to police for warning interviews, a step towards a decision on whether prosecution will follow.

Information in this timeline is drawn from reports previously published by the Mail & Guardian, City Press, the Sunday Times and the South African Press Association. Our lawyers advise us to point out that it does not contain new allegations, and does not draw from the Section 28 inquiry transcript.

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Phillip De Wet
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