Mail & Guardian case raises difficult questions

News that Presidency spokesperson Mac Maharaj’s attorneys laid charges against the Mail & Guardian and two of its journalists on Saturday, comes as a bit of a surprise. The Mail & Guardian reports that attorneys acting on behalf of Mac Maharaj, laid charges against Mr Sam Sole, Mr Stefaans Brümmer and the Mail & Guardian newspaper for contravening the provisions of section 41(6) of the National Prosecuting Act of 1998.

This follows the “censoring” of the Mail & Guardian on Friday after it wanted to publish an article based on in interview conducted with Mr Maharaj by the now defunct Scorpions while it was investigating charges of corruption against Maharaj in connection with the awarding of a tender to produce credit card drivers licences to a company associated with fraudster Schabir Shaik. (If you are sympathetic to Mr Maharaj, you might argue that the Mail & Guardian was not censored but merely forced to comply with the provisions of the NPA Act – as any law abiding citizen would be expected to do.)

Section 28 of the NPA Act empowers the NPA to summons any suspect or witness who is then required to appear and to testify truthfully about any matter relating to a criminal investigation. The suspect or witness is also legally required to produce any book, document or other object in his or her possession or under his or her control which he or she has been summoned to produce. A persons who fails to answer fully and to the best of his or her ability any question lawfully put to him or her; or who gives false evidence knowing that evidence to be false or not knowing or not believing it to be true, is guilty of a crime and if found guilty would be liable to a fine or to imprisonment for a period not exceeding 15 years or to both such fine and such imprisonment.

I have no idea what allegations were contained in the blacked out report in the Mail & Guardian. However, if the newspaper had information in its possession that Mr Maharaj had lied to the NPA, this would be an explosive development as it would mean that Mr Maharaj had committed a crime for which he would be liable to a sentence of up to 15 years in jail. It would then clearly be in the public interest to publish this information because one has a legal duty to report the commission of a crime (and a cover up by the NPA or the Police who had failed to pursue it). If the newspaper has information which proves that there was a discrepancy between Mr Maharaj’s testimony and the proven facts, Mr Maharaj would have no leg to stand on.

However, if the report dealt with allegations levelled against Mr Maharaj during the criminal investigation, allegations which were never pursued in a court of law, the newspaper would be on more shaky grounds and Mr Maharaj might have been justified in stopping the newspaper from publishing its report. There are good reasons to prohibit the publication of documents in possession of the NPA or of the interview conducted with suspects and witnesses in terms of section 28 of the NPA Act. Confidentiality would normally be required to protect the NPA and to safeguard its work to ensure the successful prosecution of criminal offences. If documents and information dealing with a criminal investigation that is in possession of the NPA are routinely leaked, it would make it almost impossible for the NPA to do its job properly and may well sabotage criminal investigations and prosecutions — which would lead to many criminals being left off the hook.

Confidentiality also allows witnesses and suspects to speak truthfully to the NPA when they are interviewed without fear of having their words twisted or of being exposed unfairly by a newspaper for something the suspect might never have done. Publishing untested allegations against a person — especially if it emanates from a supposedly credible source like the NPA – could well ruin that person’s reputation. Where the information is credible and corroborated by various sources or by authentic documents, the situation will of course be very different and a newspaper will then more often than not be justified in publishing the documents — even if it risks damaging the reputation of the suspect. (That is why the Mail & Guardian could surely not be faulted for publishing information about the encrypted fax which implicated President Zuma in criminal activity.) However, where the allegations are not credible or backed up by other evidence, the suspect would need to be protected and confidentiality would have to be respected.

I have to admit that providing for a 15 year sentence to be imposed on anyone breaching these provisions is rather draconian, but any court asked to sentence a person found guilty of this section would surely take this into account and will never impose such  a harsh sentence — unless the judge has absolutely no sense of justice or fairness and the values of openness and transparency enshrined in the Constitution.

Section 46(6) of the NPA Act prohibits an NPA investigator from disclosing to any other person any information which came to his or her knowledge in the performance of his or her functions as an investigator. The section also prohibits any person from disclosing to any other person the contents of any book or document or any other item in the possession of the prosecuting authority (such as the infamous encrypted fax which implicated Jacob Zuma in bribery and corruption); or the record of any evidence given at an investigation done in terms of section 28 of the Act.

The National Director of Public Prosecutions can, however, give permission for such a disclosure. One assumes that this is what happened when the content of the encrypted fax implicating President Zuma was leaked to the Mail & Guardian and then published in that newspaper. If it was not, then the newspaper committed a crime that could have landed its journalists and editor in jail for 15 years.

A court of law can also require a person to hand over the above information or to disclose it. It is unclear whether the Mail & Guardian could rely on this section to approach a court for an order allowing it to publish the alleged incriminating evidence against Mr Maharaj. In the context of the Act, it might well be that this provision relates to the power of a court to order the release of information to other affected parties (like the accused) or to the court itself. I suspect the Mail & Guardian would not be able to rely on the right to freedom of expression to argue that a court has a duty to order the Mail & Guardian to disclose the information. That would be a rather novel interpretation of the section.

At the same time, the section does NOT prohibit anyone from possessing the said documents or from being in possession of information about the interview conducted in terms of section 28 of the NPA Act. This means the provisions of the NPA Act differ markedly from the provisions of the (still) rather draconian Protection of State Information Bill, which criminalises the mere possession of secret documents. Mr Maharaj is therefore barking up the wrong tree when he says the newspaper committed a crime. The newspaper would only have committed a crime if it had disclosed the content of the interview, something which it did not do because Mr Maharaj’s lawyers stopped them from doing so.

A question that arises is whether section 41(6) of the NPA Act may be declared unconstitutional. It clearly infringes on the right to freedom of expression as it prevents newspapers from publishing information about public figures like Mr Maharaj – even when such information may expose the public figure as a criminal or cast doubt on that persons probity or honesty. The only question would be whether the section is nevertheless constitutes a justifiable limitation on the right to freedom of expression in terms of the limitations clause contained in section 36 of the Constitution.

I suspect the issue here is not as clear cut as the Mail & Guardian suggests. As I noted above, there are very good reasons for protecting the confidentiality of NPA documents. However, I nevertheless suspect that there might well be a problem with the constitutionality of section 41(6) of the NPA Act. It places an absolute ban on the disclosure of the information and prescribes a maximum sentence of 15 years for anyone contravening the section. It does not allow for any exception to be made — even when the disclosure would be in the public interest and even when disclosure would be mandated by law (as our law places a legal duty on anyone to report the commissioning of a crime).

It is true that the National Director of Public Prosecutions (NDPP) may waive this provision if he believes that this would be appropriate. However, there is dark cloud hanging over the current NDPP and his credibility, honesty and respect for the law and the Constitution has been questioned by the Ginwala Inquiry and by our courts. The SCA may well soon find that his appointment was unlawful. In these circumstances, and given the fact that the President appoints the NDPP (the very President whose spokesperson is allegedly implicated in the Mail & Guardian story), the safeguard involving the NDPP might be illusory and of no use. In fact the safeguard may well be abused by a NDPP who might only allow the disclosure of documents relating to criminal investigations against individuals (inside and outside the governing party) who happened to be political opponents of the President.

Although this is a relatively close call, I would guess the Constitutional Court will find that the section is not justifiable in terms of the limitation clause because it is over-broad. A more limited provision, providing for confidentiality in most cases but also creating a more credible safeguard to ensure the confidentiality provision is not used to protect liars and crooks from exposure, might be required to safe the section from unconstitutionality. But the case may well go the other way in some of our courts. Judges who are not imbued with the values of openness and transparency, who take for granted the integrity and honesty of the NDDPP or are overly executive-minded, might well find this provision justifiably limits the right to freedom of expression as it allows the NDPP to allow for publication.

No wonder the editor of the Mail & Guardian did not publish the information which would have forced him to take his chances in court later on. He was probably advised that there is a real risk that he would be convicted and sentenced to imprisonment and that it was not an absolute certainty that a challenge to the impugned section would be successful.

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