Advocacy: Courts hand two info rights victories to amaB in a day
Picture: Sam Sole, Nic Dawes, Stefaans Brümmer, Delwyn Verasamy (M&G)
The amaBhungane Centre for Investigative Journalism obtained two court judgments on Thursday, May 12, solidly reaffirming the public’s right to know and journalists’ right and duty to research and publish information the public should know about.
In the North Gauteng High Court amaBhungane, joined by the Mail & Guardian (M&G), succeeded in a review application against the National Director of Public Prosecutions (NDPP), who had refused us permission to publish information from an in-camera bribery inquiry involving Mac Maharaj, the former transport minister and presidential spokesperson.
The drawn-out matter started in 2011 with us almost entirely blacking out an article on pain of 15 years’ imprisonment, and included Maharaj pressing criminal charges regardless against amaBhungane managing partners Sam Sole and Stefaans Brümmer, and then M&G editor Nic Dawes.
Separately, in the Supreme Court of Appeal, online publisher Moneyweb and amaBhungane obtained judgment ringingly endorsing the right of the public and the media to access company share registers.
Transparency in the ownership of companies is increasingly recognised as key to anti-corruption efforts; an issue placed firmly on the international stage by the recent “Panama Papers” exposés. The appeal court held that “an unqualified right of access to a company’s securities register is … essential for effective journalism and an informed citizenry”.
AmaBhungane, previously the M&G Centre for Investigative Journalism, is an independent non-profit founded to develop investigative journalism in the public interest. Its mandate includes to “help secure the information rights investigative journalists need to do their work”, which accounts for its involvement in both matters.
The Maharaj matter has its origins in an amaBhungane article, prepared for the M&G in November 2011, which intended to draw attention to contradictions between information about offshore financial flows and what Maharaj had told the National Prosecuting Authority’s then investigative arm, the Scorpions, when interviewed in a so-called “section 28” inquiry.
The inquiry was into bribery allegations involving Maharaj, his then transport department, businessman Schabir Schaik and French arms-and-technology multinational Thomson CSF.
Section 28 of the National Prosecuting Authority Act establishes a type of inquiry that deprives witnesses of the right to silence, but in return provides that the proceedings are held in camera and that witnesses’ testimony may not be used against them.
Before publication in November 2011, amaBhungane and the M&G were warned of a 15-year penalty should we publish information from the inquiry, and on legal advice published a largely blacked out version.
We felt it our duty to inform the public of our findings – which pointed to Maharaj having committed the offence of giving false testimony, which itself attracts a 15-year penalty.
We applied to the NDPP, as permitted by the Act, for permission to disclose the information. The then acting NDPP, Adv Nomgcobo Jiba, refused. We brought a High Court application to review her decision.
In the interim, Maharaj pressed criminal charges against Sole, Brümmer and Dawes. The NPA has not instituted any prosecution in response, but Maharaj attempted to have much of our founding affidavit struck out by the court on the allegation that we were in illegal possession of the interview records, which we denied. Maharaj’s challenge contributed to the hearing being delayed until March this year.
Judge Cynthia Pretorius rejected Maharaj’s application, saying no evidence had been presented of the journalists committing an offence. And she set aside Jiba’s decision, substituting it with a decision permitting amaBhungane and the M&G to publish the section 28 interviews.
Pretorius emphasised media freedom and the public interest, saying among other things that it was “evident that the NDPP had not properly considered the public interest in such an important matter as this”.
Maharaj’s lawyers gave notice hours after the judgment of an intention to apply for leave to appeal. An application for leave to appeal suspends the judgment.
AmaBhungane was instrumental in bringing about the current transparency regime regarding corporate ownership.
Share registers were historically public documents in South Africa, but the new Companies Act 2 initially eroded that right. AmaBhungane’s representations to parliament during an amendment process concluded in 2011 secured new wording for the relevant section, providing for an unqualified right of public access to share registers.
AmaBhungane and other journalists have since vigorously exercised the right in the course of our and their research, leading to significant public interest exposés.
The current matter started when Moneyweb journalist Julius Cobbett applied for the share registers of Nova Property Group and two related companies when investigating an alleged investment scam, in 2013. The companies refused, and Cobbett and Moneyweb applied to the North Gauteng High Court for an order forcing disclosure.
In an interlocutory judgment in 2014, this court held that the right to access share registers might be qualified after all and that companies might be entitled to refuse disclosure under certain circumstances. This threatened fatally to undermine the right, given that it would divert a simple procedure for disclosing records that are public by nature into contested terrain where access could be delayed interminably.
When the matter headed to the Supreme Court of Appeal, amaBhungane was granted permission to join as amicus curiae to present argument regarding the Act’s legislative history, parliament’s intention and the interest of the public and media in the corporate transparency provision.
The court, in a unanimous judgment handed down by Acting Judge Fayeeza Kathree-Setiloane, found unequivocally that the right is unqualified.
Kathree-Setiloane said among other things: “Interference with the ability to access information impedes the freedom of the press. The right to freedom of expression is not limited to the right to speak, but includes the right to receive information and ideas.
“Preventing the press from reporting fully and accurately, does not only violate the rights of the journalist, but it also violates the rights of all the people who rely on the media to provide them with ‘information and ideas’.
“An unqualified right of access to a company’s securities register is, therefore, essential for effective journalism and an informed citizenry.”