In a chilling forewarning of what may happen if the Protection of State Information Bill is adopted in its current form, the Mail & Guardian has been compelled to suppress a report about presidential spokesperson Mac Maharaj following a threat of criminal prosecution under the National Prosecuting Authority Act.
The Act makes it an offence to disclose evidence gathered in camera by a section 28 inquiry — providing for a maximum penalty of 15 years in jail.
After sending questions to Maharaj on Wednesday this week, the M&G received a letter on Thursday from Maharaj’s lawyers warning of a potential criminal prosecution if we published the story.
We believe that we have every right to publish the information which raises serious questions about the conduct of the man who speaks on behalf of the president.
However, faced with threats of both civil and criminal action, we have been advised by our lawyers to withhold publication pending an application to the national director of public prosecutions for permission to disclose the relevant material.
We hope that the director, Menzi Simelane, will demonstrate the government’s professed commitment to transparency. — Nic Dawes
‘I will take action’
Maharaj reacted to the M&G‘s questions this week by threatening to take “appropriate” court action unless it undertook not to publish an article about him.
A letter from Maharaj’s lawyers, BDK Attorneys, which reached the M&G on Thursday afternoon, contended that the article by senior investigative reporters Sam Sole and Stefaans Brümmer quoted excerpts from an inquiry held under section 28 of the Act.
“We advise you that to the best of our knowledge the [director] has not authorised the disclosure of the inquiry or any part thereof,” it said.
The letter warned of “the consequences the use of unlawfully and illegally obtained information had on a publication such as the [British] News of the World“.
It said that unless it received an undertaking by 4pm that any information drawn from records of the inquiry would not be published, Maharaj would consider appropriate action against Brümmer, Sole and the M&G.
M&G editor Nic Dawes said the information that Maharaj was trying to keep under wraps was “of vital public interest”.
“We have no intention of bowing to his threats.”
Maharaj released a brief statement on Thursday night accusing the paper of seeking “to hide its complicity in criminal acts by raising the spectre of a threat to media freedom and invoking fears of censorship”.
Maharaj said that the M&G could not have attained the documents lawfully and it was “in blatant and wilful contravention of provisions of the Act”.
“In the name of press freedom the M&G arrogates to itself the ‘right’ to break the law that has been on our statute books since 1998. Their editor Nic Dawes acknowledges as much when he states that they will now seek the permission of the national director of public prosecution, Adv Menzi Simelane, for ‘permission to disclose the relevant material’. In short they want the NDPP to retrospectively give them legal protection against their unlawful actions,” he said.
“Through their sensational and at times distorted reportage they want deflect attention from their wrong doing and depict my upholding of my rights embodied in our laws as a threat to media freedom,” he added.
Dawes responded: “Mr Maharaj is simply trying to avoid giving South Africans the answers he owes them. He should stop blustering about the Mail & Guardian and commit to making public the information he is trying to hide.”
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The M&G Centre for Investigative Journalism, a non-profit initiative to develop investigative journalism in the public interest, produced this story. All views are ours. See www.amabhungane.co.za for all our stories, activities and sources of funding.