Picture: Mac Maharaj, Oupa Nkosi (M&G)
AmaBhungane and the Mail & Guardian have won a resounding victory in the North Gauteng High Court after a four-year effort to win the right to publish details of in-camera interviews with former presidential spokesperson Mac Maharaj and his wife Zarina.
The so-called Section 28 interviews were conducted by the Scorpions in 2003 while they were investigating allegations about the Maharajs’ relationship with Schabir Shaik, who was later convicted as part of the arms deal probe.
Section 28 does not permit the interviewee to refuse to answer questions, but the information cannot be used against them in a criminal case, except where interviewees are shown to have lied, which is a criminal offence.
The dispute dates back to November 2011, when amaBhungane prepared an article for the M&G examining whether Maharaj had been truthful in his secret 2003 testimony and put questions to him.
Maharaj’s lawyers in turn warned the reporters they would face criminal charges in terms of the National Prosecuting Authority Act, which prohibits disclosure of such material, except with the permission of the National Director of Public Prosecutions (NDPP).
Maharaj also laid charges against the reporters, despite the fact that the Act criminalises disclosure, not possession of the material. The charges are still pending at the prosecuting authority more than four years later.
The M&G blacked out the story. We later sought permission from the then acting-NDPP, Nomgcobo Jiba, to disclose the contents of the section 28 testimony.
Jiba refused to grant permission and amaBhungane and the M&G went to court to review her decision.
In a drawn out legal tussle, lawyers for Maharaj attempted to have most of the amaBhungane application struck out, based on a claim that the reporters had obtained the material unlawfully and were accessories to a crime.
Maharaj also attempted to have the court disregard information that was in the public domain.
Many of the key elements of the in camera interviews had been previously published by City Press, without seeking permission, but the newspaper was never charged.
In her ruling Judge Cynthia Pretorius rejected Maharaj’s arguments.
She said the court was provided with no evidence to support the claim that the reporters had obtained the material illegally – an allegation denied by amaBhungane – and she held these assertions were based merely on speculation.
The judge noted: “The applicants [amaBhungane and the M&G] argue that they had made every attempt to abide by the law. In this instance, the second respondent [Maharaj] had laid a complaint against the applicants more than four years ago, but the NDPP failed to prosecute the applicants, nobody has been arrested and there has been no investigation of the applicants. This leaves a question as to whether the NDPP has a serious intention to prosecute the applicants.”
Turning to the reasons given by Jiba for refusing permission, Pretorius refuted the NDPP’s reasoning point by point.
A key failure, Pretorius ruled, was Jiba’s admission that she had not considered the detailed contents of the Section 28 hearings before making her decision.
“The question posed is how she could have balanced the [Maharajs’] interests with that of public interest if she has not known what the section 28 transcripts contained at the time she had made the decision?”
The judge found this on its own would have been fatal to Jiba’s argument.Pretorius also held there was a clear public interest in the disclosure: “The issues in the present matter revolve around the allegations against both [Maharaj and his wife] relating to misappropriation of public funds and corruption. Although Mr Maharaj… is no longer the spokesperson for the presidency, at the time… he held a senior post in the Cabinet.”
Judge Pretorius found that the circumstances were exceptional and warranted her substituting her own decision instead of referring the matter back to the NDPP for a new decision. She granted permission to publish the section 28 record.
Hours after the judgment, the Maharajs’ attorneys indicated their intention to apply for leave to appeal. Such an application has the effect of suspending the judgment.