Maharaj and Others v Mandag Centre of Investigative Journalism NPC and Others

• Jurisdiction: South Africa
• Citation: 2018 (1) SACR 253 (SCA)

Maharaj and Others v Mandag Centre of Investigative Journalism NPC and Others
2018 (1) SACR 253 (SCA)

2018 (1) SACR p253

Citation	2018 (1) SACR 253 (SCA)
Case No	844/2016; [2017] ZASCA 138
Court	Supreme Court of Appeal
Judge	Ponnan JA, Petse JA, Tsoka AJA, Mbatha AJA and Schippers AJA
Heard	September 29, 2017
Judgment	September 29, 2017
Counsel	MR Hellens SC for the first and second appellants.; K Pillay SC (with M Lekoane) for the third appellant.; GJ Marcus SC (with M Seape) for the respondents.

Flynote : Sleutelwoorde

Prosecuting authority — National Director of Public Prosecutions — Discretion to permit or refuse disclosure of record of evidence given at investigation under s 28 of NPA Act — Proper exercise of — National G Prosecuting Authority Act 32 of 1998, s 41(6)(c).

Fundamental rights — Right to freedom of expression — Freedom of press and other media — Prohibition on disclosure, without permission of National Director of Public Prosecutions, of record of evidence given at investigation under s 28 of NPA Act — Proper exercise of NDPP's discretion G — Discretion to be exercised on case-by-case basis, weighing up public interest against likelihood of harm — Failure to consider s 28 record rendering decision to refuse permission irrational — National Prosecuting Authority Act 32 of 1998, s 41(6)(c).

Headnote : Kopnota

In terms of s 41(6)(c) of the National Prosecuting Authority Act 32 of 1998 I (the NPA Act), 'no person shall without the permission of the National Director . . . disclose to any other person . . . the record of any evidence given at an investigation as contemplated in section 28(1)'. In this case the National Director of Public Prosecutions (the NDPP) refused the Mail & Guardian (the M&G), a national newspaper, permission to disclose the record of an interview conducted in 2003, in terms of s 28 of the NPA Act, by the former J

2018 (1) SACR p254

Directorate A of Special Operations with Mr Maharaj and his wife. This refusal frustrated the publication of an M&G article claiming that Mr Maharaj — a former Cabinet Minister and presidential spokesperson — and his wife had failed to disclose certain information, and provided false information, during the s 28 investigation.

The NDPP notified the M&G of its refusal in a letter setting out its reasons which B included 'compelling considerations of policy' and 'the balancing of different interests involved' (see [10]). In response, the Mandag Centre of Investigative Journalism NPC, its managing partner and the M&G, brought a successful High Court application to have the NDPP's refusal set aside, the court granting the requested permission and also dismissing the Maharajs' application to have allegations referring to the s 28 record struck C out of the applicants' founding affidavit. On appeal, the Supreme Court of Appeal first dealt with the Maharajs' appeal (against the dismissal of the striking-out application) and held that it was without merit (see [17 – 20]).

As to the NDPP's appeal against the rest of the High Court's order, the main issue was whether the NDPP had properly exercised her discretion to give or deny permission to disclose the s 28 record of evidence. This was against the factual background that the Maharajs' s 28 testimony was already in D the public domain (see [7]), and that the NDPP conceded that she did not consider the s 28 record in arriving at her decision, but was only aware of it in 'general terms' (see [24]).

Held

Section 41(6) constituted a limitation on the right to freedom of expression E contained in s 16 of the Constitution: it limited freedom of the media, as also the correlative right of the public to receive and impart information. The NDPP, in exercising its discretion, must strike the appropriate balance, in each case, between its purpose — securing the integrity of the criminal justice system — and upholding freedom of expression. The M&G submitted its request for permission in circumstances where it had not just a right to publish, but indeed also a duty to keep the public informed on an issue F of high public interest involving a senior and high-ranking government official. On the facts of this case, no valid countervailing concern regarding the integrity of the administration of the criminal justice system was discernible. (Paragraphs [21] – [22].)

The express conferral of a discretion clearly contemplated that there would be circumstances where disclosure would be appropriate. The Act did not spell G out the factors which the NDPP must consider in exercising her discretion in terms of s 41(6) of the Act. However, a consideration of the s 28 record would be the first and most obvious factor. That it was not properly considered rendered the decision irrational; it was susceptible to being set aside for this reason alone. (Paragraphs [23] – [26].)

In exercising her discretion the NDPP must weigh up public interest in the H publication against the likehood of harm. This case concerned the probity of a senior public office bearer, implicating overarching constitutional values of accountability, openness and responsiveness. Our courts recognised the key role the media played in a democratic society in ensuring that members of the public were informed about issues that were in the public interest. Given the scourge of corruption, the role of the media in reporting on such I activities is indubitably in the public interest. Once confronted with the possible implications of the appellants' participation in the investigation, the NDPP was obliged to consider the record carefully to ascertain whether the issues raised were genuinely of public interest, and what the extent of that interest might be. Her reliance on public interest, based only on a general awareness of the investigation, suggested a superficial consideration J thereof. (Paragraphs [27] – [29].)

2018 (1) SACR p255

The very purpose of s 41(6) was to require the NDPP to exercise an appropriate A discretion on a case-by-case basis — to examine each application with care and to exercise a proper discretion by balancing the competing interests at stake and weighing the relative degree of risk involved. Such an individualised enquiry was more finely attuned to reconciling the competing rights at play than was the rigid, inflexible denial which characterised the approach encountered here. Consistent with such approach, mere conjecture B or speculation that prejudice might occur would not be enough to refuse permission. (Paragraphs [32] and [39].)

The NDPP's rigid and inflexible adherence to the policy of non-disclosure meant that she had completely lost from sight that the appellants had themselves placed their evidence in the s 28 proceedings in the public domain. The fact that extensive prior publication of the allegations had taken place was an C important consideration; the public-domain doctrine — that it was basic to the principle of confidentiality that information could not be protected once it lost its secrecy — was well established in our and in international case law. (Paragraphs [32] and [34] – [37].)

The factors that appeared to have weighed with the NDPP neither individually nor collectively survived scrutiny. This was a case where the administrative D body should not be given a further opportunity to make a new decision, one where the court itself would make the decision. It followed that the appeals failed. (Paragraphs [40] – [41].)

Cases cited

Southern Africa E

Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social Security Agency and Others 2014 (4) SA 179 (CC) (2014 (6) BCLR 641; [2014] ZACC 12): dictum in para [72] applied

Bangtoo Bros and Others v National Transport Commission and Others 1973 (4) SA 667 (N): dictum at 685A – D applied F

Beinash v Wixley 1997 (3) SA 721 (SCA) ([1997] 2 All SA 241; [1997] ZASCA 32): dictum at 733E applied

Bridon International GmbH v International Trade Administration Commission and Others 2013 (3) SA 197 (SCA): referred to

Cape Town City v South African National Roads Authority and Others 2015 (3) SA 386 (SCA) ([2015] ZASCA 58): dictum in para [47] G applied

Democratic Alliance v President of the Republic of South Africa and Others 2012 (1) SA 417 (SCA) (2012 (3) BCLR 291; [2012] 1 All SA 243; [2011] ZASCA 241): referred to

Democratic Alliance v President of the Republic of South Africa and Others H 2013 (1) SA 248 (CC) (2012 (12) BCLR 1297; [2012] ZACC 24): dicta in paras [38] – [40] applied

Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580 (CC) (2016 (5) BCLR 618; [2016] ZACC 11): referred to

Fedics Group (Pty) Ltd and Another v Murphy and Others 1998 (2) SA 617 (C): referred to I

Gates v Gates 1939 AD 150: dictum at 154 – 155 applied

Gauteng Gambling Board v Silverstar Development Ltd and Others 2005 (4) SA 67 (SCA): dictum in para [1] applied

Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) (2011 (7) BCLR 651; [2011] ZACC 6): dicta in paras [57] and [105] applied J

2018 (1) SACR p256

Independent A Newspapers (Pty) Ltd v Minister for Intelligence Services: In re Masetlha v President of the Republic of South Africa and Another 2008 (5) SA 31 (CC) (2008 (8) BCLR 771; [2008] ZACC 6): dicta in paras [55] and [62] applied

Janit and Another v Motor Industry Fund Administrators (Pty) Ltd and Another 1995 (4) SA 293 (A): dictum at 306 – 307 applied

Kalik B NO and Others v Mangaung Metropolitan Municipality and Others 2014 (5) SA 123 (SCA) ([2014] ZASCA 90): dictum in para [30] applied

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; [2002] ZACC 12): dicta in paras [22] – [23] applied

Lenco Holdings Ltd and Others v Eckstein and Others 1996 (2) SA 693 (N): C ...