The Mail & Guardian's unauthorised publication of details of the public protector's provisional report on Nkandla has been used by some sections of our population and the media to charge, prosecute and convict President Jacob Zuma in one of the most procedurally unfair debacles in the history of this country since 1994.
From a principled constitutional standpoint, releasing a provisional report that adversely reflects on the integrity, good name or dignity of any individual, including a public official, requires that the individual be afforded advance notice and an opportunity to comment before the report is finalised and put in the public domain. It is common cause that a provisional report is by nature inconclusive and cannot be justifiably relied upon to judge anyone.
It is not impossible for the final report to be at variance with the provisional report with a margin that could even be greater than 40%. It is instructive to recall the leaked provisional report of the public protector on the procurement processes of the media contract of the Democratic Alliance government in the Western Cape – which was damning – and how different and mild the final report was.
The issue here is: What if the damaging public discourse is based on the 40% that, after comments by the respondent, may not find its way into the final report? The evil in leaked reports is that once the horse has bolted it is meaningless to close the barn door. The damage done to public officials and the regime by such leaks is irreversible. No amount of suing after the fact will restore the integrity and dignity of the affected party. So, procedural fairness is all I am arguing for here.
Greater circumspection, responsibility and ethical conduct on the part of the M&G, as envisaged in the press code, is therefore called for. Surely we must distinguish between what is in the public interest and what the public is interested in? Denying any person due process cannot be in the public interest.
Even the worst apartheid offenders were treated solicitously during the Truth and Reconciliation Commission process: the Appellate Division (now the Supreme Court of Appeal) held that the rules of natural justice must be observed against those charged as perpetrators of apartheid crimes. Thus even the executors of apartheid had a right to be treated fairly and to be heard, regardless of whether the body was quasi-judicial or administrative.
Our courts interpret the duty to act fairly by a public body to mean that a respondent has the right to reasonable and timeous notice of potentially damaging information being placed in the public domain, so as to enable the person to apply her or his mind to it and respond accordingly. If we interpret the Constitution as protecting apartheid perpetrators' right to due process, how can we now deny such elementary due process to a public official?
By what logic could the M&G print damaging yet unconfirmed information about a person and subject him to the torture of public condemnation without allowing due process to provide the individual an opportunity to respond? Surely the public protector should be hauling the M&G over the coals for conduct that could be construed as contemptuous in a court of law? Section 9(1)(b) of the Public Protector Act expressly states: "No person shall, in connection with an investigation do anything which, if the said investigation had been proceedings in a court of law, would have constituted contempt of court."
Publishing a leaked draft court judgment would undoubtedly be punishable as contempt of court. So why is the public protector skirting the issue instead of throwing the book at the M&G for its contemptuous conduct?
Furthermore, the claim by the public protector's office that it had not leaked the report is very curious in the absence of any transparent investigative steps being taken in this regard. As a chapter nine institution, meaning it is meant to be independent, the public protector is called upon to act against the M&G for transgressing section nine of the Public Protector Act. The public protector is also called upon to take immediate steps to institute an investigation to determine who leaked the provisional report in contravention of section 7(2) of the Public Protector Act, which states that "no person shall disclose to any other person the contents of any document in the possession of a member of the office of the public protector or the record of any evidence given before the public protector … during an investigation, unless the public protector determines otherwise".
Failure to do so will have a negative impact on the independence and integrity of the office of the public protector.
Jimmy Manyi is the president of the Progressive Professionals Forum.
Ethically, the Mail & Guardian had no choice but to publish the leaked report
To answer whether or not it was ethical for the M&G to publish the contents of the public protector's provisional report on Nkandla, one has to view the incident in context.
It is difficult to see how this controversy was not instigated by security and public works officials in government who, at every turn, have tried to stall the progress of the release of information about Nkandla from making its way into the public eye.
For example, a report prepared by a task team appointed by the ministers of public works, police and state security to probe security upgrades to Zuma's private Nkandla estate – although reported on by the joint standing committee on intelligence – at the time of writing remains otherwise top secret and not open to public scrutiny.
When the public protector, advocate Thuli Madonsela, distributed her provisional report to ministers of the security cluster for their comment, these ministers initiated a court interdict to prevent her from releasing the provisional report – something she claimed she did not intend to do.
Over the past two years, all requests for access to information on Nkandla by the media have either been met unsatisfactorily or denied outright. Not only does this violate the principles of the Promotion of Access to Information Act but also the Constitution, because information about the expenditure of public funds is something to which citizens in South Africa are constitutionally entitled.
Minister of State Security Siyabonga Cwele and Minister of Police Nathi Mthethwa recently asked the media to desist from publishing pictures of the Nkandla estate, apparently ignorant that such images are widely available electronically – they are already in the public domain.
They ignored, too, the implications of such comments for freedom of speech and expression. It must be emphasised that all of these – and there are more – examples of the political elite's clampdown on the publication of information on a matter of national interest relates to the biggest political news story of recent years, and potentially to a corruption scandal that may have greater eventual political consequences than the 1999 arms deal.
Government officials have slowly created this publicity mess. While security cluster and public works officials experience increasing desperation to keep things under wraps, the investigative media are desperate to bring the truth to light.
Faced with increasing tones of hostility from those in power who would like the Nkandla story simply to disappear, one begins to understand the urgency felt by journalists to uncover the full story. At the centre of the narrative is a man who, within a few months, will lead his party into elections and his bid for a second presidential term.
With regard to the public interest, the stakes could not be higher.
It also needs to be understood that the law and ethics are two different things. Was it unlawful for the M&G to publish the report? That can be debated. According to the public protector, the paper contravened section 7(2) of the Public Protector Act of 1994.
But was it unethical? Of course, that is more a matter of perspective. Security cluster officials, the office of the presidency and the ANC will say that it was, but that is evidently because they have credibility to lose.
What matters most, and what should matter most to the media, is the public that the media serve and not whether they are acting against the wishes of politicians.
Although it constitutes a limited audience, I doubt many readers of the M&G would have opted for the newspaper to decide against publication of the provisional report on Nkandla. The M&G knows this, and therefore acted not only in accordance with what its readers want but also in the public interest.
Once the report was leaked to the M&G, the question really is not whether it was ethical for the M&G's editors and reporters to publish the report they had in their possession. The question is, rather: How could they in good conscience not have published it?
According to Madonsela, there have been a number of versions of this provisional report, suggesting that the public should not put too much faith in the findings the M&G published last week, as these may not resemble her final report.
But Madonsela insists the leak did not happen from her office and suspects that the report leaked after she sent it to the ministers for their comment on security issues.
That suggests that the version published by the M&G is not only the version that drove the security ministers to interdict her release of the report, but also must be a near-final version – or she would not have sent it to the ministers.
The ANC's knee-jerk response was to urge South Africans to refrain from commenting on or debating the contents of the article because the report was not final. In other words, we have more attempts by the political powers that be to limit the constitutionally enshrined rights of South Africans to practise freedom of speech, while deflecting fire towards a question of supposedly dubious media ethics instead of accounting for the contents of the story.
If we are going to talk about ethics, then how this report was leaked to the media and whether or not the M&G was justified in publishing it pales into insignificance next to the crass and authoritarian abuse of power by a president who appears hellbent on self-enrichment while consistently being sheltered by his minions to make sure that he dodges accountability.
Telling others to keep to the rules when you are breaking them to a much greater extent is the highest form of arrogance.
Dr Julie Reid teaches communications science at the University of South Africa and is a leader of the Media Policy and Democracy Project.