Mac Maharaj's decision to press charges against the Mail & Guardian raises a host of critical legal questions.
In 2009 a journalist requested information from Eskom on the pricing formulae in long-term bulk-purchase agreements between Eskom and Billiton for the supply of two smelters operated by Billiton.
Eskom refused, claiming confidentiality and that publication would cause harm to both itself and Billiton. This refusal led to a case in terms of the Promotion of Access to Information Act that was heard and decided last year in the South Gauteng High Court.
Finding in favour of the journalist, the court held that the public interest in the supply and pricing of electricity overrode Eskom's arguments about commercial harm. In its interpretation of the Act, the court noted that the legislation was mandated by section 32 of the Constitution, which provides a right of access to information and thus "makes a decisive break with the past".
The court held, further, that the purpose of the constitutional guarantee, and thus the Act, was "to subordinate the organs of the state to a new regimen of openness and fair dealing with the public".
In giving priority to the public interest, the court, in effect, held that the default position is that of openness, unless a clear case can be made to justify a refusal.
This emphatic approach to the importance of open government and the ability of the media to give content to the public's right to know is a useful starting point from which to assess the debate on presidential spokesperson Mac Maharaj's decision to press charges against this newspaper.
Disclosure
Without examining all the details of the case, Maharaj, in summary, contends that two journalists and the editor contravened section 41(6) of the National Prosecution Authority Act in that they published information, from a record of evidence, about allegations of receipt of payments. This was published without the permission of the national director of prosecutions.
In short, the charge relates to the disclosure of part of a record of evidence given by Maharaj in a probe called by the national director in terms of section 28 of that Act.
Reading the various accounts, including that of Maharaj in this paper ("Mac: This is why M&G must be charged", August 3 to 9), it appears to be agreed that the journalists did not publish the record or report on any details that emerged from it. Such references were blanked out, so no publication took place. Yet, according to Maharaj, one or more NPA staff members must have leaked information from the investigation for ulterior motives. There is no reason to disregard Maharaj's allegation against members of the NPA.
Still, that leaves open the key question of what a newspaper is to do if it receives such information. Rather then dealing with the facts of this case or the balance between Maharaj's understandable desire to protect the privacy of his family and a legitimate public interest in the workings of government, let us rely on a hypothetical case.
Let us assume the NPA is investigating a case of drug dealing. Assume further that the public knows about the problem and that it is causing havoc among the youth. Under pressure from the public, the police investigate, which leads to the NPA conducting a series of section 28 investigations.
From this, a member of the NPA who is involved in this process is appalled to learn that the responsible minister and members of his department are implicated in the crimes. She leaks reliable "section 28 information" to a newspaper, which shows that the minister and officials have lied.
Is the newspaper to say section 41(6) prevents disclosure and consequently it must trash this information, even to the extent of not being able to claim that a falsehood has been perpetrated in public?
Statutory prohibition
From this simple hypothetical case emerges the true problem in this kind of case: how is this blanket statutory prohibition to be reconciled with the principles of section 32 of the Constitution, as given meaning in the Eskom case?
To be sure, it cannot be accomplished by an automatic decision of criminal guilt. That the present charge takes place as the spectre of the "secrecy Bill" looms should highlight the problem of ensuring that the public interest in open and transparent government is resolved by the promotion of the spirit of the Constitution.
This does not mean that neither the principle of privacy nor the importance of section 28 investigations being conducted successfully enter the debate. They do, but not as a sledgehammer against the fragile principle of governmental integrity.
Maharaj also raises an important point about the NPA. Certainly, if members are acting outside the law it is hugely worrying. Similar allegations were raised when the so-called McCarthy-Ngquka tapes of prosecutors' recorded conversations reached Jacob Zuma's defence team in 2009, enabling the dismissal of the case against him.
Such cases strongly reinforce the argument in favour of a fiercely independent NPA, one that not only acts in this fashion but is also perceived to so do.