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amaBhungane and Mail & Guardian
06 Oct 2017 00:00
On November 18, 2011, the Mail &Guardian’s front page blared a headline alongside a photo of then presidential spokesman Mac Maharaj: “Censored. We cannot bring you this story in full due to a threat of criminal prosecution.”
Six years later, following a Supreme Court of Appeal (SCA) ruling, we can bring you that story, edited for space and the passage of time.
Essentially it revealed that Maharaj lied during what is known as a section 28 inquiry.
Maharaj was questioned in 2003 by the Scorpions in the course of an investigation into whether he had received bribes from businessman Schabir Shaik, later convicted of making corrupt payments to Jacob Zuma.
Section 28 interrogations take place in secret and do not permit the subject to refuse to answer or withhold information.
To balance that incursion on the normal right against self-incrimination, the evidence may not be used against the person being interrogated and is confidential.
The catch is, it is an offence to give false information.
In 2011, amaBhungane came into possession of the section 28 inquiry transcripts.
By then other information had emerged about payments to Maharaj by Shaik that appeared directly to contradict what Maharaj had said behind closed doors in 2003.
It also appeared the National Prosecuting Authority (NPA) was well aware of these contradictions.
However, when we put questions to Maharaj his lawyers warned the transcripts were protected by another legal provision criminalising their disclosure without the prior permission of the national director of public prosecutions (NDPP).
The M&G held the story and approached the then NDPP, NomceboJiba, for permission, which she flatly denied.
The SCA has now confirmed the NPA Act does not impose a blanket ban on disclosure, but rather that the decision requires “an appropriate balance between securing the criminal justice system and upholding freedom of expression”.
Judge Visvanathan Ponnan went further, noting:“…the very criminal justice system would itself appear to require that the M&G be permitted to publish the record to: first, reveal to this country’s citizenry what was said by a senior public office bearer in response to allegations of unlawful conduct involving public funds; and, second, whether what was said by him can withstand scrutiny in the light of other information that has since come to light.”
Maharaj is now retired, old and sick – putting him beyond any criminal accountability.
But when we tried to publish this story, he was still Zuma’s artful dodger — a gifted spokesperson, able to provide a veneer of respectability while Zuma entrenched an architecture of impunity and control over the levers of the criminal justice system.
Maharaj himself was a beneficiary of that architecture, as this story shows.
It was Mokotedi Mpshe, then acting NDPP, who took the decision to discontinue the Maharaj corruption investigation, allowing Maharaj to trumpet the line that no charges were brought against him — as the Guptas do today.
However the NPA has never explained why charges were not pursued over Maharaj’s dishonesty in the section 28 hearing.
Instead the NPA pursued spurious criminal charges laid by Maharaj against then M&G editor Nic Dawes and reporters Sam Sole and Stefaans Brümmer for being in possession of the section 28 documents.
They are still outstanding.
And Jiba, as she did in other cases involving Zuma or his allies, simply blocked attempts to establish accountability.
There is a line of failures that stretches from Mpshe to Jiba to Shaun Abrahams’ current paralysis on the #Guptaleaks.
Six years on, it is not Maharaj who should be on trial, but the NPA itself.
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