SCA Ruling: Media freedom placed ahead of politicians’ right to gag

When former presidential spokesperson Mac Maharaj tried to prevent the Mail & Guardian from publishing details of a corruption investigation into him in 2011, he said it was a principled move to uphold the integrity of the criminal justice system.

Maharaj and his wife Zarina had been investigated by the Scorpions in 2003 to account for payments made to the couple by Shabir Shaik, his company Nkobi holdings and French arms group Thomson-CSF. The two gave interviews to the Scorpions at that time to explain the payments.

In 2011, amaBhungane journalists Stefaans Brummer and Sam Sole sent Maharaj questions probing the fact that what Maharaj and his wife told the Scorpions conflicted with documented evidence on the case. Maharaj succeeded in gagging the Mail & Guardian from publishing a story on the matter on the grounds that the publication of details from confidential interviews with the National Prosecuting Authority (NPA) was a violation of the NPA Act and thus illegal.

“CENSORED. WE CANNOT BRING YOU THIS STORY IN FULL DUE TO A THREAT OF CRIMINAL PROSECUTION,” ran the front page of the Mail & Guardian on 18 November 2011, alongside a photograph of Maharaj.

The threat of criminal prosecution subsequently was made real when Maharaj laid criminal charges against Brummer, Sole and erstwhile Mail & Guardian editor Nic Dawes.

At the time, Maharaj defended his actions as necessary in order to uphold the integrity of the NPA Act.

“The Act serves a very specific purpose and in doing so seeks to counterbalance the intrusive measures contained in it by stipulating that these inquiries be confidential,” Maharaj wrote in an op-ed. “The limitations to press freedom arising from the NPA Act are reasonable and justifiable. The right to press freedom is limited as much as almost all other constitutional rights.”

Now, however, the Supreme Court of Appeal has both upheld the Mail & Guardian’s right to publish details from Maharaj’s interview to the Scorpions and strongly defended the need for the press to be given the freedom to serve its watchdog role.

In doing so, the SCA upheld a 2016 ruling by the North Gauteng High Court giving permission to publish the record. That court also found that there was no evidence that the record had been obtained unlawfully, as Mac and Zarina Maharaj and the NPA had claimed. 

Lawyers for amaBhungane pointed out in court papers that Maharaj had already shared transcripts of the Scorpions interviews with his biographer Patrick O’Malley. Other newspapers, including City Press, had also shared aspects of the investigation.

The NPA had continued to argue that evidence given in an investigation could not be disclosed – “to encourage and preserve confidence and trust in the NPA”.

While noting that it was indeed important that the integrity of the criminal justice system be protected, Friday’s SCA judgment noted: “The M&G submitted its request for permission in circumstances where it had not just a right to publish, but indeed a duty to keep the public informed on an issue of high public interest involving a senior and high-ranking government official.”

As such, the judges held that it was not just permissible but necessary for the M&G to publish the relevant information.

“The administration and integrity of 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,” the judgment records.

It goes on to note that the courts recognise that “media play a key role in a democratic society in ensuring that members of the public are informed about issues that are in the public interest”.

This was doubly the case in this situation, where “serious allegations of corruption and mismanagement of public funds” were at stake.

Brummer, the managing partner and co-founder of amaBhungane with Sam Sole, told Daily Maverick on Monday that he welcomed the ruling.

“Denying us the right to publish on pain of serious criminal sanction was ‘legal’ censorship at its worst,” Brummer said. “It is heartening that the courts expressed themselves so clearly.”

Brummer added: “It shows it is worth pushing, even if it takes years, to right the balance between the public’s right to know and politicians’ right to impunity.” DM

Photo: Mac Maharaj and former M&G editor Nic Dawes