Jacob Zuma’s private prosecution of journalist Karyn Maughan puts media freedom on trial

It was the evening of 9 May 2007. I received a call from the news editor of The Star. A journalist had been assigned to report on the Constitutional Court application by former director-general of the National Intelligence Agency, Billy Masetlha, against then president Thabo Mbeki. Masetlha alleged that Mbeki had unlawfully suspended and then dismissed him from his post. The court was due to hear arguments the next day. 

The problem for the journalist was that the heads of argument (the parties’ legal summaries of their case) were not available to download from the Constitutional Court’s website, as was usually the case. And when the journalist called the office of the registrar of the Constitutional Court to get copies earlier that day, the registrar said he had been instructed that the heads of argument could not be released because they contained information that if made public would harm national security. When the journalist approached Masetlha’s attorneys for the documents, they too declined, given the position that the registrar had adopted.

We worked through the night to bring an urgent application before the Constitutional Court the next morning, when the Masetlha case was due to be heard. The court granted immediate access to the heads of argument and placed the onus on the litigating parties to justify why any other records filed in the case should not be available to the public (most of the documents were eventually made public). And the journalist reported on the Masetlha case that day, guided by the heads of argument she had successfully obtained, and the oral submissions in court.

That journalist was Karyn Maughan, now accused number two in a private criminal prosecution brought by former president Jacob Zuma. 

Maughan is a specialist journalist – she reports on significant court cases, developments in the judiciary and legal issues. There are only a few such specialists in South Africa – and when they are reporting on high-profile legal cases – such as Masetlha’s, or the State’s prosecution of Zuma for alleged corruption – their currency, their tools of the trade, are the court documents which set out the parameters of the legal dispute, and which in some legal cases contain the evidence of each party. Access to such documents helps legal journalists understand the dispute so that – in addition to observing the case in court – they can report and provide analysis accurately and with appropriate context. 

The right to publish stories based on court documents is a fundamental principle of media freedom. That’s why, 15 years ago, The Star took urgent action to come before the Constitutional Court to get the documents in the Masetlha case. That’s why, in 2015, the Supreme Court of Appeal said, in one of the leading cases on open justice, that “the animating principle… has to be that all court records are, by default, public documents that are open to public scrutiny at all times”. And that’s why, when Zuma applied for a postponement of the resumption of his criminal trial in 2021, Maughan wanted to get access to the court papers that would inform the public why Zuma was arguing for the postponement, and the State’s response.

Read more in Daily Maverick: “Zuma’s strategy designed to grind down the prosecution – but SA’s robust legal system will prevail”

According to Adriaan Basson, editor of News24 (which published Maughan’s story about the postponement), the day before the court was to hear the postponement application, Maughan asked Advocate Andrew Breitenbach SC, representing the State in the application, whether court papers had been filed. He gave her an unsigned copy of the affidavit of Advocate Billy Downer SC (the lead prosecutor in the Zuma prosecution) on condition that she only reported on it once it had been filed in court. She complied. The next day, says Basson, Breitenbach sent Maughan a copy of Zuma’s affidavit, which had by then been filed in court. Both affidavits – Downer’s and Zuma’s – attached a letter from a medical professional (a brigadier-general in military health services) giving a medical reason for Zuma’s application for postponement. Maughan and News24 published a story about the postponement and the brigadier-general’s letter two hours later.

Jacob Zuma's private prosecution of Billy Downer and Karyn Maughan relates to the disclosure in a news story of a medical letter. (Picture: Thuli Dlamini)

Egregious action