Has Mail & Guardian confused you on the Maharaj saga?

I could not help but suspect that Mail & Guardian had left many people confused this weekend after it was successfully advised by President Jacob Zuma’s spokesperson, Mac Maharaj – an advice that was also supported by its own lawyers – that publishing information not authorised by the National Prosecuting Authority would be a criminal offence punishable for up to 15 years imprisonment.

I believe the saga was confusing because of the confusing reaction from the social networks like Twitter and Facebook. But more specifically is comments by Lunga Mathe on Facebook today that “we are sick of the arms deal stories”. Mathe questioned how “journalists [of M&G] got access to info that was given under oath in an investigation”. Because SFO had inBritainbeen “given the directive to stop pursuing leads in Saudi rgd BAE”, claimed Mathe, “our govt. (also) needs to close the matter for good” because “it is clear the rules are not applied in the same manner everywhere”.

Although I disagreed with Mathe’s “directive” claim, I could not comment any further. But I took issue with his assertion that the arms deal inquiry commission – which will now take full two years to complete or even longer – be closed down. This I found “ridiculous because (for example) we never go to see proof of who authorised the ‘Zuma tape’ that resulted in his [Zuma’s] investigation being dropped by the NPA”.

I made this example because “there was and still is much public interest in that matter”. “As to how M&G came into possession of that Maharaj info is something else which according to the NPA ACT is legal but that only publication thereof is criminal, a crime M&G has not committed to date”, I told Mathe in response on Facebook. As expected, Mathe found my comments “bitter”, adding the “fact of the matter is that M&G is in possession and wanted to publish info in contravention of the provisions of section 41(6) of the National Prosecuting Act of 1998”.

Mathe said: “Theft or abuse or illegal use of NPA is a dangerous precedent that is a serious threat to the rule of law. You must not support an illegal act bcoz you hate the offended person bcoz you won’t have any grounds to question violations of existing laws in future. The rule of law must not be undermined. M&G must be prosecuted for this serious breach. The mere fact that a court concurred with Mac is good. Courts must remain independent and not be used to target the ANC. We are yet to see a comprehensive report on current corruption in WC. Fixation with the ANC is disgusting, people are prepared to break the law as long as the ANC is tarnished. This report was not newsworthy all the years Mac was in semi-retirement, the only reason he is now targeted is bcoz he is presidential spokesperson.

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”.

Here’s my full response to Mathe:

Yes, I agree that the tapes are not an issue here but I was only making an example. Oh, by the way, maybe my points do ‘sound bitter’ as they are true but personally, I would not be bitter. I mean this is an interesting debate on which I am writing a blog post on (check it out later).

Like I said to Angela [another commenter on the issue] earlier, I read the Act myself (check out my status on that, if you will) and there’s nowhere where it states that possession of that information (or even Maharaj’s) is a criminal offence. Section 40(6) of the NPA Act 32 of 1998 sates that “notwithstanding any other law, no person shall without the permission of the National Director or a person authorised in writing by the National Director disclose to any other person (a) any information which came to his or her knowledge in the performance of his or her functions in terms of this Act or any other law; (b) the contents of any book or document or any other item in the possession of the prosecuting authority ; or (c) the record of any evidence given at an investigation as contemplated in section 28 (1), except (i) for the purpose of performing his or her functions in terms of this Act or any other law; or (ii) when required to do so by order of a court of law”.

Section 40 (7) further states that contravening the above is an “an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 15 years or to both such fine and such imprisonment.” So your “possession” claim of this information by M&G in being an offence is not true. By this I am not supporting “an illegal act”, I am just stating the facts.

You are further wrong to claim that the court had “concurred with Maharaj”. No such thing happened. What happened, as said before, is that Maharaj’s lawyers in a letter to the newspaper (which is available in the M&G web site and also the charge letter against the newspaper and its two investigative journalists Sam Sole and Stefaans Brümmer) advised it on the crime it would be committing if it published that information M&G claimed it had in its possession. At this stage, my reading and analysis tells me that M&G cannot be persecuted for anything – not even possession of that information because under the act it is not a crime – because it never published the information to begin with as had been advised to do so by its lawyers and Maharaj’s.

The report was not newsworthy? Come on… It became a newsworthy now, again, because new information on him [Maharaj] had surfaced (see today’s Sunday Times report here). That’s why it is newsworthy now more than ever. It is not true that Maharaj is only “targeted bcoz he is presidential spokesperson”. The issue is brought forward, as M&G editor Nic Dawes said on Friday because Maharaj occupies a “position of immense public trust”. This is not a witch-hunt against him or President Jacob Zuma. And no one, at least not me, had disputed that the Act makes it an offence to disclose information that is gathered in camera by section 28 of the Act.

Responding to Angela Sobey that: “it is very said to see newspaper like M&G being dragged back into the dark past of apartheid of the same bullying tactics, more so by the same organisation [ANC] it fought to alongside with to liberate this country” – I mentioned very clearly that “Maharaj was within his right to advise the M&G (remember he did not stop the newspaper from publishing but only advised it that doing so [publishing that report] would be criminal). As for possession of that information, there’s nothing wrong with that. The information could have been passed on to it by sources and given the freedom of the media on that, revealing that ‘source(s)’ would never happen. So the ‘theft’ allegation against M&G by Maharaj would not stand in a country of law.”

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