On November 18 2011, the Mail & Guardian’s front page blared a headline across a photo of then presidential spokesperson 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 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 businessperson Schabir Shaik, later convicted of making corrupt payments to Jacob Zuma when he was deputy president.
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 during such a probe.
In 2011, amaBhungane came into possession of the section 28 inquiry transcripts. By then, other information had emerged about payments made to Maharaj by Shaik in direct contradiction of what Maharaj had said behind closed doors in 2003.
It also appeared that the National Prosecuting Authority (NPA) was well aware of these contradictions.
However, when we put questions to Maharaj, his lawyers warned that the transcripts were protected by another legal provision criminalising their disclosure without the prior permission of the national director of public prosecutions.
The M&G held the story and approached the then prosecutions head, Nomgcobo Jiba, for permission to publish, which she flatly refused.
The appeal court has now confirmed that 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, elderly and ailing — probably 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 prosecutions boss, who took the decision to discontinue the Maharaj corruption investigation, allowing Maharaj to trumpet the line that no charges were ever 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. The charges 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 and Jiba to Shaun Abrahams’s current paralysis on the #Guptaleaks emails.
Six years on, it is not Maharaj who should be on trial, but the NPA itself.