About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2017
>>
[2017] ZASCA 138
|
|
Maharaj and Others v Mandag Centre of Investigative Journalism NPC and Others (844/2016) [2017] ZASCA 138; 2018 (1) SA 471 (SCA); [2018] 1 All SA 369 (SCA); 2018 (1) SACR 253 (SCA) (29 September 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 844/2016
In
the matter between:
MAHARAJ
SATHYANDRANATH RAGUNANAN
FIRST APPELLANT
MAHARAJ
ZARINA
CARRIM
SECOND APPELLANT
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
THIRD APPELLANT
and
MANDAG
CENTRE OF INVESTIGATIVE JOURNALISM
NPC
FIRST RESPONDENT
M&G
MEDIA
LIMITED
SECOND RESPONDENT
STEPHAN
PATRICK “SAM”
SOLE
THIRD RESPONDENT
Neutral
citation:
Maharaj & others
v Mandag Centre of Investigative Journalism NPC & others
(844/2016)
[2017] ZASCA 138
(29
September 2017)
Bench:
Ponnan and Petse JJA and Tsoka, Mbatha
and Schippers AJJA
Heard:
31 August 2017
Delivered:
29 September 2017
Summary:
National Prosecuting Authority Act 32
of 1998
– whether discretion in terms of
s 41(6)
properly
exercised by the National Director of Public Prosecutions in refusing
to grant permission to publish record of investigation
in terms of
s
28.
ORDER
On
appeal from
:
Gauteng
Division, Pretoria (Pretorius J sitting as court of first instance):
(a)
The appeal by the first and second appellants against paragraphs 1
and 2 of the judgment
of the court below is dismissed with costs,
such costs to include the costs of two counsel.
(b)
The appeal by the third appellant against paragraph 3 of the judgment
of the court below
is dismissed with costs, such costs to include the
costs of two counsel.
JUDGMENT
Ponnan
JA (Petse JA and Tsoka, Mbatha and Schippers AJJA concurring):
[1]
‘Mac’s Secrets’
[1]
is pithy,
yet apt. It captures in just two words, who and what this appeal is
about. The who, is the first appellant, the then Spokesperson
for the
President of the Republic of South Africa and former Minister of
Transport, Mr SR ‘Mac’ Maharaj. The what,
is his
evidence, as also, that of, his wife Ms Zarina Carrim Maharaj (the
second appellant) under
s 28
of National Prosecuting Authority Act 32
of 1998 (the Act).
[2]
On 18 November 2011 the Mail & Guardian (the M&G), a national
weekly newspaper, ran a photograph of Mr Maharaj on its
front page.
Alongside the photograph and within a transverse block were the words
‘CENSORED. WE CANNOT BRING YOU THIS STORY
IN FULL DUE TO A
THREAT OF CRIMINAL PROSECUTION’. Readers were informed by the
editor-in-chief that the M&G had been
forced to suppress a story
about the Presidential Spokesperson following a threat of criminal
prosecution under the Act, which,
so stated the editor, ‘makes
it an offence to disclose evidence gathered in camera by a s 28
inquiry – providing for
a maximum penalty of 15 years’.
Accordingly, so went the explanation, the M&G had decided on the
strength of legal advice,
‘to withhold publication pending an
application to the National Director of Public Prosecutions (the
NDPP) for permission
to disclose the relevant material’.
[3]
For ease of narration the relevant statutory provisions are set out
at the outset. Section 28(1) of the Act authorises a Director
of
Public Prosecutions (DPP),
[2]
if he or she
has reason to suspect that a specified offence
[3]
has been or
is being committed, to conduct an investigation on the matter.
[4]
For the
purposes of such an investigation, the DPP may summon any person,
believed to be able to furnish any information on the
subject of the
investigation, to be questioned or to produce any book, document or
object in their possession.
[5]
The
proceedings contemplated in s 28(6) take place in camera
[6]
and the
procedure to be followed is determined by the DPP.
[7]
Should any
person who has been summoned, fail without sufficient cause to appear
before the DPP or answer fully or gives false evidence,
such person
shall be guilty of an offence.
[8]
In terms of
s 28(8),
[9]
a person
summoned is obliged to answer questions and no evidence given by such
a person shall be admissible in any criminal proceedings,
save to
establish a contravention of subsections 10(
b
)
or (
c
).
[4]
Section 41(6) of the Act, upon which the matter turns, provides:
‘
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 s 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.’
According
to s 41(7):
‘
Any
person who contravenes subsections (6) shall be guilty of 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.’
[5]
On 13 June 2003 Mr and Ms Maharaj were summoned in terms of s 28(6)
of the Act by the DPP to furnish information pertaining
to an
investigation by the then Directorate of Special Operations (the
Scorpions). On 19 June 2003 Mr Maharaj testified under oath
in terms
of s 28(6)(
b
)
of the Act before a DPP and other members of the National Prosecuting
Authority. The next day Ms Maharaj did the same.
[6]
The three respondents – the MANDAG Centre of Investigative
Journalism NPC (MANDAG), the M&G Media Limited (the publisher
of
the M&G) and Mr ‘Sam’ Sole, the managing partner of
MANDAG (collectively referred to as the M&G) –
considered
the publication of the answers given by the appellants during the s
28 investigation to be in the public interest. With
a view to
reporting on the matter, on 16 November 2011 the M&G presented Mr
Maharaj with a list of questions relating to the
evidence adduced by
both him and his wife during the course of s 28 investigation. The
response from Mr Maharaj’s attorney
was that possession of the
record of the investigation as well as disclosure of the evidence
furnished by them during the course
of the investigation would amount
to a contravention of s 41(6) of the Act. Only then, so says the M&G,
did it realise that
the permission of the third appellant, the NDPP,
was required to publish the evidence.
[7]
On 21 November 2011 the M&G’s attorney wrote to the NDPP
seeking permission. The letter read:
‘
11.1
Based
inter
alia
on the information contained in the record, our clients have reason
to believe that Mr and Mrs Maharaj failed to disclose certain
information during the course of the investigation and provided false
information. This is an offence in terms of s 41(2) of the
NPA Act.
11.2
Mr Maharaj has held the position of a cabinet minister, and is now
the Presidential spokesperson. Given
the public office that he held
and holds, and the public power that he exerted and continues to
exert, issues concerning his integrity
– and particularly
whether he lied under oath – are of public interest.
11.3
The company groups from which Mr and Mrs Maharaj are alleged to have
received payments, namely Thomson-CSF
and Nkobi, as well as Mr Shaik
personally, have been implicated for engaging in unlawful conduct in
respect of the arms deal. It
is in the public interest that any
allegations of unlawful conduct in procuring other government tenders
involving these parties
be disclosed.
.
. . .
12.
Furthermore, the substance of the record of the evidence in the s 28
enquiry is already
in the public domain, not least because of an
interview given by Mr Maharaj to Mr Patrick O’Malley in 2005.
Mr O’Malley
is Mr Maharaj’s biographer. It appears that
Mr Maharaj disclosed the record of his s 28 interview to Mr O’Malley
for
purposes of his biography. In other interviews which Mr Maharaj
has given he also addresses certain aspects of the allegations
against him.
.
. . .
14.
There has been extensive media coverage of the requested extracts and
the allegations against
Mr and Mrs Maharaj which formed the subject
matter of the s 28 investigation. A small sample of the relevant
material which is
already in the public domain includes the following
. . . .’
Some
17 sources, being newspaper reports, media statements and websites
were cited. Those reveal alleged impropriety on various
related
fronts.
[8]
When that letter failed to elicit a response, a further letter was
dispatched on 29 November 2011 to the NDPP. Reference was
made in
this letter to two further articles that had since been published by
the City Press Newspaper on Sunday 27 November 2011,
entitled ‘Mac’s
secrets’ and ‘Just give me peace of mind’. It was
pointed out that those articles,
which were also available on the
City Press website and had been republished on various other websites
contained ‘the essence
of the information which our client
wishes to disclose’. When the NDPP did respond on 14 December
2011, it was to inform
the M&G’s attorney that: ‘[i]t
is not the policy of the National Director to disclose the record of
evidence given
at an investigation as contemplated in s 28(1) of the
[Act].’ The NDPP added: ‘[h]owever, in view of your
submission
that the relevant information is already in the public
domain further consideration is being given to your request.’
[9]
That very day the M&G’s attorney once again wrote to the
NDPP. This time it was pointed out that the appellants had
themselves
placed the evidence in the public domain. The letter, to the extent
here relevant, read:
‘
2.1
In this regard, in addition to the sources of the public domain
referred to in our previous two
letters, we enclose a High Court
application by Mr and Mrs Maharaj in the Transvaal Provincial
Division (as it then was) under
case number 34526/06 (“the high
court application”). Mr and Mrs Maharaj brought this
application in an effort inter
alia to have sub-sections 28(2), (6),
(8) and (10) of the [Act] declared to be inconsistent with the
Constitution, or alternatively
to have the manner of the
investigations declared to be inconsistent with the Constitution . .
. .
2.2
You will note that the record of the s 28 enquiries into Mr and Mrs
Maharaj (“the
record”) – extracts of which our
clients seek to publish, as you are aware – are attached by Mr
Maharaj to his
founding affidavit in the high court application. Mr
Maharaj states at paragraph 20 that “The transcript of my
interrogation,
as provided to me by the DSO, is attached marked
Annexure SRM3
”; and at paragraph 25, in reference to Mrs
Maharaj (whose confirmatory affidavit is attached to the founding
affidavit),
that: “
The transcript of the Second Applicant’s
interrogation, as provided to her by the DSO, is attached marked
Annexure SRM5
”. These documents have accordingly been made
public in the court documents by Mr and Mrs Maharaj themselves.
2.3
The high court application has also been canvassed by the City Press
in its article dated
11 December 2011 entitled “Maharaj wanted
to rat on ANC”. A copy of this article is attached hereto
marked “B”.
The article states
inter alia
that:
“
The 2007 court file – Media24 Investigations now has
a copy – contains the controversial “secret”
transcripts
of their evidence to Scorpions investigators in 2003.”
’
It
was re-iterated that there could be no rational basis for refusing
our permission to publish.
[10]
When the refusal eventually came from the NDPP on 3 January 2012 it
was in these terms:
‘
3.
It is not the policy of the National Prosecuting Authority to
disclose the record of
evidence given at an investigation as
contemplated in s 28(1) of the NPA Act. This is necessary to
encourage and preserve confidence
and trust in the NPA.
4.
These legislative provisions, as is others restricting disclosure,
are very necessary
for the combating of crime and corruption, both
then and now. To the extent that the relevant provisions may infringe
on the right
to freedom of expression and of the media, such
limitation [is] justifiable.
5.
The legislature has further underlined the importance of
non-disclosure by prescribing
a penalty of a fine and/or period of
imprisonment not exceeding 15 years where a person is found guilty of
contravening s 41(6)
of the NPA Act. Unlawful disclosure is, indeed,
a very serious offence.
6.
The claim that disclosure could in no way interfere with a current
investigation
has to be approached with circumspection. We are
mindful of the fact that a Commission of Inquiry has been established
and a possibility
cannot be ruled out that this matter may as well
feature therein.
7.
Furthermore, as indicated above, there is a criminal investigation
currently
underway relating to a possible contravention of s 41(6) of
the NPA Act in relation to the very information in question. The
granting
of permission to disclose the information will no doubt
affect the investigation of such offence at a time when the
investigation
is not complete.
8.
The claim has also been made that, as the information has been placed
in the
public domain by Mr and Mrs Maharaj, a rational basis no
longer exists for refusing permission to disclose the record of
evidence.
However, it should be noted that, it is the National
Director who must give permission, not the witness in the enquiry.
The National
Director has not done so.
9.
Although it is acknowledged that there is significant public interest
in the
person of Mr Maharaj the interests of the public also extend
to ensuring that legitimate institutions and mechanisms established
by Government effectively serve their intended purposes. This is a
particularly acute interest in the current environment where
the
combating of crime and corruption is considered by the general public
to be one of the highest priorities.
10.
In considering a request for permission to disclose evidence,
attention must be given to
more than just the interests of the
particular witness. The interests of other persons must also be taken
into account. These would
include persons who are referred to both by
the witness in evidence and in questions that may be put into the
witness during the
inquiry.
11.
Consideration also needs to be given to the entire investigation, all
the persons who testified,
had documents seized or who were referred
to in the investigation. All the facts and circumstances must be
considered. Your application
does not seem to give consideration to
or recognise such competing interests.
12.
In conclusion, it is my view that the constructions of the relevant
provisions of the NPA
Act, compelling considerations of policy, the
effective functioning of the administration of justice and the
balancing of different
interests involved, taking into account
constitutional rights and values, support the non-disclosure of the
record of evidence
given at the investigation.
13.
In the circumstances, therefore, we are unable to accede to your
request.’
A
week later the NDPP clarified that the policy relied on is reflected
in paragraph 13 of the United Nations Guidelines on the Role
of
Prosecutors. She added that s 41(6) of the NPA Act requires a general
policy of non-disclosure.
[11]
On 29 July 2012 the M&G applied to the North Gauteng High Court,
Pretoria for an order in the following terms:
‘
1.
Reviewing and setting aside the decision of the first respondent
communicated to the
applicants on 4 January 2012, to refuse
permission to the applicants to disclose the record of an interview
conducted by the former
Directorate of Special Operations, popularly
known as “the Scorpions”, with the second and third
respondents in terms
of s 28 of the [Act] (“the decision”);
2.
Directing the first respondent to permit disclosure of the record of
the interview
referred to in paragraph 1 above.
3.
Directing that such respondents who oppose this application pay the
costs thereof,
jointly and severally, the one paying the others to be
absolved.’
[12]
All three appellants opposed M&G’s application. The NDPP,
who was cited as the first respondent filed an answering
affidavit,
in which, she substantially reiterated the reasons given in her
letter refusing permission. She added:
‘
15.
This case turns on the question of whether the exercise of my
discretion in refusing permission
to disclose the relevant
information, was lawful. I am advised and submit that:
15.1
I took all relevant considerations into account in coming to my
decision. That this is so, is clear
from the detailed reasons
contained in my letter refusing permission.
15.2
In exercising my discretion, I was required to take into account
competing interests, the provisions
of the NPA Act, the Constitution
and the NPA policy on non-disclosure of s 28 records. I also took
into account the fact that in
order to protect the rights and
interest of witnesses who give evidence in s 28 investigations as
well as the integrity of the
process, non-disclosure must be the rule
and disclosure the exception.
15.3
I must emphasis though that it is quite plain from the above that the
NPA policy referred to is not
rigid. It does admit of the possibility
of disclosure.’
The
appellants, who had been cited as the second and third respondents,
approached the matter on a different footing – they
restricted
themselves to an application to strike out substantial portions of
the M&G’s founding affidavit, without pleading
over.
[13]
The matter was heard by Pretorius J, who on 12 May 2016 issued the
following order:
‘
1.
The striking out application is dismissed.
2.
The second and third respondents to pay the costs of the striking out
application
in terms of s 6(15) of the Uniform Rules of Court.
3.
The first respondent, the NDPP’s decision is reviewed and set
aside;
4.
The applicants are granted permission to publish the s 28 record;
5.
The first respondent to pay the costs of this application, such costs
to include
the costs of two counsel.’
With
the leave of the learned judge the appellants appeal against
paragraphs 1 and 2 of the order (the strike out appeal) and the
NDPP
against the remaining paragraphs (the main appeal).
[14]
Turning, first to the strike out appeal: Rule 6(15) of the Uniform
Rules, upon which the appellants relied in support of the
strike out
application, provides that:
‘
The
court may on application order to be struck out from any affidavit
any matter which is scandalous, vexatious or irrelevant,
with an
appropriate order as to costs, including costs as between attorney
and client. The court shall not grant the application
unless it is
satisfied that the applicant will be prejudiced in his case if it be
not granted.’
Two
requirements must be satisfied before an
application
to strike out a matter from an affidavit can succeed: first, the
matter sought to be struck out must be scandalous,
vexatious or
irrelevant; and, second, the court must be satisfied that if such
matter was not struck out the
party seeking
such relief would be prejudiced.
[15]
The
strike out application is staggering in its breadth. It seeks to
preclude virtually every reference to the s 28 record from
the
founding affidavit. In the main, it is suggested that the passages
contain: (a) hearsay or (b) unlawfully obtained evidence,
both of
which are inadmissible.
[16]
As to (a): Pretorius J correctly recognised that the various
newspaper articles annexed to the founding affidavit were relied
on,
not to prove the truth of their content, but to demonstrate that the
information was already in the public domain.
In
The
Public
Protector v Mail & Guardian Ltd & others
[10]
Nugent JA
explained:
‘
Courts
will generally not rely upon reported statements by persons who do
not give evidence (hearsay) for the truth of their contents.
Because
that is not acceptable evidence upon which the court will rely for
factual findings such statements are not admissible
in trial
proceedings and are liable to be struck out from affidavits in
application proceedings. But there are cases in which the
relevance
of the statement lies in the fact that it was made, irrespective of
the truth of the statement. In those cases the statement
is not
hearsay and is admissible to prove the fact that it was made. In this
case many such reported statements, mainly in documents,
have been
placed before us. What is relevant to this case is that the document
exists or that the statement was made and for that
purpose those
documents and statements are admissible evidence.’
This
is an important nuance that appears not to have been appreciated by
the appellants.
[17]
As to (b): Pretorius J found that there was no evidence on the papers
before her that the M&G had indeed obtained any of
the evidence
unlawfully. She found the appellants’ assertions to the
contrary to be speculative at best. The appellants contend
that the
M&G must have obtained the evidence by inciting, instigating,
commanding or procuring a person to commit the offence
created by s
41(6) read with s 41(7) of the Act. This purportedly constituted an
offence in terms of s 18(2) of the Riotous Assemblies
Act 17 of 1956.
But, those are allegations of a most serious kind and are not easily
established in motion proceedings. A clear
factual basis must be laid
to support an allegation of criminal conduct. It is not sufficient
merely to put up speculative propositions
or advance arguments on
probabilities that might be suggestive of the commission of a
criminal offence. As long ago as 1939, Watermeyer
JA put the position
thus in
Gates
v Gates
:
[11]
‘
Now
in a civil case the party, on whom the burden of proof (in the sense
of what
Wigmore
calls the risk of non-persuasion) lies, is required to satisfy the
court that the balance of probabilities is in his favour, but
the law
does not attempt to lay down a standard by which to measure the
degree of certainty of conviction which must exist in the
court’s
mind in order to be satisfied. In criminal cases, doubtless,
satisfaction beyond reasonable doubt is required, but
attempts to
define with precision what is meant by that usually lead to
confusion. Nor does the law, save in exceptional cases
such as
perjury, require a minimum volume of testimony. All that it requires
is testimony such as carries conviction to the reasonable
mind.
It
is true that in certain cases more especially in those in which
charges of criminal or immoral conduct are made, it has repeatedly
been said that such charges must be proved by the “clearest”
evidence or “clear and satisfactory” evidence
or “clear
and convincing” evidence, or some similar phrase. There is not,
however, in truth any variation in the standard
of proof required in
such cases. The requirement is still proof sufficient to carry
conviction to a reasonable mind, but the reasonable
mind is not so
easily convinced in such cases because in a civilised community there
are moral and legal sanctions against immoral
and criminal conduct
and consequently probabilities against such conduct are stronger than
they are against conduct which is not
immoral or criminal.’
It
thus could not have been sensibly concluded on the papers as they
stood that the M&G had contravened the law.
[18]
But, even if the offending paragraphs did contain unlawfully obtained
evidence that would not, without more, render it inadmissible.
In
Janit
& another v Motor Industry Fund Administrators (Pty) Ltd &
another
[12]
Eksteen JA
stated:
‘
Courts
in England have for a long time accepted that they have a right
in criminal cases to exclude otherwise admissible evidence
when
justice and fairness to the accused require it, for example where the
evidence was obtained by a trick or by fraud . . . In South
Africa our courts have exercised a similar discretion . . . Until the
dictum
of Lombard J
[13]
to
which I have referred, there seems to have been considerable doubt as
to whether any such discretion existed in civil cases
.’
However,
Eksteen JA expressly left the question open. Our high courts have
since come to accept that they do indeed possess such
a
discretion.
[14]
In
Waste
Products Utilisation (Pty) Ltd v Wilkes & another
,
[15]
Lewis J
summarised the position as follows: ‘
[t]he
general rule is that if evidence is relevant it is admissible, and
the court will not concern itself with how the evidence
was obtained
. . . However, the Court has discretion to exclude evidence
improperly obtained’.
[19]
I have considerable difficulty in appreciating on what basis the
factual narrative sought to be excluded by the appellants
can be
characterised as irrelevant. It is part of the historical background
and appears quite useful for a proper understanding
of the matter.
The averments are clearly relevant in assessing whether
or not the
M&G was justified in its decision to launch the proceedings to
review and set aside
the
decision of the NDPP. ‘They cannot properly be said to fall
within the ordinary meaning of what the Oxford Dictionary
describes
as irrelevant matter: allegations which do not apply to the matter in
hand or which do not contribute one way or another
to a decision of
such matter’.
[16]
[20]
In
any event, even if it could properly be said that some or other part
of
the
founding affidavit was irrelevant, it does not follow that the
application to strike out should succeed. I am not persuaded
that the
appellants suffered any prejudice on account of the impugned portions
of the founding affidavit, not having been struck
out.
For,
even if material is indeed scandalous, vexatious or irrelevant,
relief will not be granted if an applicant cannot prove that
he or
she will be prejudiced if the offending matter is not struck out.
[17]
No
such prejudice was relied on in argument before us. The application
was heard by a judge, not a layperson. She would have been
able to
disabuse her mind of any vexatious, scandalous or irrelevant matter
contained in the affidavit. I accordingly conclude
that the strike
out appeal is without merit and it accordingly falls to be dismissed
with costs.
[21]
I now turn to the main appeal:
Section
41(6)(
c
)
of the Act does not contain an absolute ban on publication. Instead,
publication depends on permission first having been sought
and
obtained from the NDPP.
The purpose
of the limitation is obviously to protect the integrity of the
criminal justice system. There is no denying that s 41(6)
constitutes
a limitation on the right to freedom of expression contained in s 16
of the Constitution. In the present matter, it
limits freedom of the
media as also the correlative right of the public to receive and
impart information. Thus, utmost care must
be taken to ensure that in
exercising that discretion, the NDPP strikes the appropriate balance,
in each case, between securing
the integrity of the criminal justice
system and upholding freedom of expression.
[18]
[22]
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 –
a former Cabinet
Minister and then Presidential Spokesperson. On the facts of this
case, I can discern no valid countervailing
concern regarding the
integrity of the administration of the criminal justice system. On
the contrary, 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.
[23]
The NDPP approaches the matter so as to elevate the policy
considerations underlying the relevant provisions of the Act to
the
level of directives from which no deviation is permitted. The Act
confers a discretion on the NDPP. That discretion must be
properly
exercised. The express conferral of a discretion clearly contemplates
that there will be circumstances where disclosure
is appropriate.
[24]
The Act does not spell out the factors which the NDPP must consider
in exercising her discretion in terms of s 41(6) of the
Act.
One would have thought that a consideration of the s 28 record would
be the first and most obvious factor. It was not.
Approximately four
months after having deposed to her answering affidavit in the matter,
the rather startling revelation was made
that the NDPP had not
considered the record in arriving at her decision. Without a
consideration of the s 28 record, the discretion
conferred could not
have been properly exercised. It was not sufficient for the NDPP to
state, as she subsequently did, that she
was aware of the s 28
interviews in ‘general terms’. What was meant by that
rather vague expression remained unexplained.
The NDPP is no ordinary
litigant.
[19]
She is an
officer of the court, who is duty-bound to take the court into her
confidence and fully explain the facts so that an informed
decision
can be taken.
[20]
[25]
Moreover, a ‘general awareness’ (whatever that was
intended to convey) is difficult to reconcile with the reasons
given
for refusing permission to publish. For example, it is difficult to
understand how the NDPP could have performed the vital
balancing
exercise of weighing the public interest in publication against the
likelihood of harm without carefully considering
the contents of the
s 28 record; or how the interests of third parties feature as a
justification for refusing permission without
an appreciation of who
those third parties are, what the nature of those interests may be
and a determination of whether those
interests are indeed worthy of
protection. The NDPP cannot underplay the importance of the s 28
record to her decision. Her relegating
a factor of such obvious and
paramount importance to one of insignificance, amounts to a failure
to apply the mind properly to
the matter.
[21]
Plainly
therefore, the NDPP ought not to have refused permission without a
proper consideration of the record at the time of making
her
decision. The consequence of this failure is clear. Given the obvious
relevance of the s 28 record, the failure to consider
it rendered the
decision irrational.
[22]
For that
reason alone, the decision is susceptible to being set aside.
[23]
[26]
That conclusion ought to dispose of the matter. But, it may
nonetheless be desirable, particularly when regard is had to the
remedy sought by the M&G to examine the reasons advanced by the
NDPP for refusing permission in this instance.
[24]
Those will
be considered in turn.
[27]
First, the public interest: This case is not concerned with the class
of matters that may be said to be merely interesting
to the public.
It concerns the probity of a senior public office bearer and
implicates overarching constitutional values of accountability,
openness and responsiveness.
[25]
Our courts
recognise that the 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. In
Khumalo
v Holomisa
the Constitutional Court stated that:
[26]
‘
The
print, broadcast and electronic media have a particular role in the
protection of freedom of expression in our society. Every
citizen has
the right to freedom of the press and the media and the right to
receive information and ideas. The media are key agents
in ensuring
that these aspects of the right to freedom of information are
respected. The ability of each citizen to be a responsible
and
effective member of our society depends upon the manner in which the
media carry out their constitutional mandate.
.
. . .
Furthermore,
the media are important agents in ensuring that government is open,
responsive and accountable to the people as the
founding values of
our Constitution require.’
[28]
The matter raises serious allegations of corruption and mismanagement
of public funds. In
Glenister
v President of the Republic of South Africa & others
[27]
the
Constitutional Court said of corruption that it had ‘a
deleterious impact on a number of rights in the Bill of Rights’.
[28]
It added
that ‘[c]orruption has become a scourge in our country and it
poses a real danger to our developing democracy. It
undermines the
ability of the government to meet its commitment to fight poverty and
to deliver on other social and economic rights
guaranteed in our Bill
of Rights.’
[29]
Given the
scourge of corruption the role of the media in reporting on such
activities is indubitably in the public interest. What
is more, the
appellants are public figures. And, as the court in
Tshabalala-Msimang
& another v Makhanya & others
pointed
out:
[30]
‘
[i]n
her capacity as a Minister [of Health] the first applicant cannot
detract from the fact that she is a public figure. In such
a case her
life and affairs have become public knowledge and the press in its
turn may inform the public of them’.
It
further said:
‘
The
public has the right to be informed of current news and events
concerning the lives of public persons such as politicians and
public
officials. This right has been given express recognition in s
16(1)(
a
)
and (2) of the Constitution which protects the freedom of the press
and other media and the freedom to receive and impart information
and
ideas. The public has the right to be informed not only on matters
which have a direct effect on life, such as legislative
enactments,
and financial policy. This right may in appropriate circumstances
extend to information about public figures.’
[31]
[29]
The NDPP contends that notions of what constitutes ‘the public
interest’ are complex and nuanced. It is suggested
that public
interest considerations must necessarily be weighed against other
equally legitimate, but competing interests such
as third party
interests. However, the NDPP cannot contend that she considered the
obvious public interest and engaged in a delicate
balancing exercise
while still maintaining that she was only generally aware of the s 28
investigation. 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.
Here nuance is the very antithesis of
generality. Any consideration of the public interest based on a
general awareness of the
investigation suggests that it had to have
been superficial and was therefore unsatisfactory.
[30]
Second, the pending criminal charges: The NDPP’s reliance on
this factor indicates that her decision was influenced by
a material
error of law.
[32]
The NDPP
refused permission to publish because granting permission to publish
would inter alia amount to condoning criminal activity
and jeopardise
the investigation into a possible contravention of s 41(6) by the
M&G. However, granting permission to publish
could not condone
any unauthorised disclosures that may have occurred in the past. The
two disclosures are therefore unrelated.
The one is with the
permission of the NDPP, whereas the other is not. The NDPP’s
decision was based on her incorrect belief
that the M&G was
guilty of an offence under s 41(6) of the NPA Act. The M&G had
not committed any criminal offence. While
it is true that the M&G
was in possession of portions of the record in the s 28 enquiry, this
in itself is not prohibited by
s 41(6) of the Act. It is only the
disclosure that would constitute a contravention thereof. Instead of
disclosing the information,
the M&G sought to obtain permission
to publish in terms of s 41(6), having obtained legal
advice to the effect
that while possession was not criminalised,
disclosure was. Criminal charges were indeed laid for an alleged
contravention of s
41(6) by Mr Maharaj in 2011. To date, no
prosecution has been instituted against the M&G or any of its
employees. Notably,
although warning statements were taken by the
police from some of the M&G's employees relatively soon after the
charges were
laid, nothing further has come of that. Pretorius J was
therefore correct in finding that the pending criminal charges were
an
irrelevant consideration and that the NDPP’s decision was
materially influenced by an error of law.
[31]
Third, the interests of third parties: The NDPP claims to have taken
account of the interests of ‘other parties’
mentioned in
the s 28 record. She alleges that she refused permission to publish
to protect the interest of the other parties mentioned
in or affected
by the record. However, third party interests could not have featured
as a consideration given the NDPP’s
failure to consider the s
28 record. It follows that the NDPP could not assess the nature of
the interests of ‘other parties’
and determine whether
such interests required any protection. In any event the information
in question was already largely a matter
of public knowledge at the
time that the NDPP made her decision. To the extent, therefore, that
the interests of others would be
implicated, there was no longer any
basis for confidentiality in as much as the information was squarely
in the public domain and
had been for some time. But, even if the
interests of others were to be affected by the disclosure, there is
no reason in principle
why disclosure could not have been permitted
subject to certain conditions – such as protecting the
identities of those third
parties. It appears that the NDPP did not
even consider this option. It has long been recognised that courts
have the power to
protect confidentiality in appropriate
circumstances.
[33]
[32]
Fourth, the policy of non-disclosure: When asked for the policy
on which reliance was placed, the NDPP referred to the
UN Guidelines
which provide in para 13(C) that prosecutors shall ‘[k]eep
matters in their possession confidential, unless
the performance of
duty or the needs of justice require otherwise.’ It goes
without saying that the UN Guidelines cannot
trump s 46(6) of the NPA
Act, which expressly envisages publication with the necessary
permission. In any event, the UN Guidelines
are not absolute. They
specifically refer to exceptions relating to the performance of duty
or the needs of justice. The very purpose
of s 41(6) is to require
the NDPP to exercise an appropriate discretion on a case by case
basis. 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. That they did when they annexed the
relevant transcripts of their
evidence to their court application
challenging the constitutionality of certain provisions of the Act.
As this court observed
in
Van
Breda v Media 24 Limited & others
,
[34]
‘
a
judicial proceeding is a public event and information on the public
record may be broadcast despite its highly sensitive nature’.
In
Cape
Town City v SA National Roads Authority
[35]
,
it was pointed out:
‘
The
animating principle therefore has to be that all court records are,
by default, public documents that are open to public scrutiny
at all
times. While there may be situations justifying a departure from that
default position – the interests of children,
State security or
even commercial confidentiality – any departure is an exception
and must be justified.’
[33]
Fifth, the commission of inquiry: The NDPP’s reliance on the
ongoing commission of inquiry into the ‘arms deal’
was
irrelevant to the decision whether to permit publication or not. The
commission should never have been considered by the NDPP
because: (a)
the terms of reference of the commission of inquiry are limited to
the so-called ‘arms deal’;
(b)
the existence of the commission of enquiry is entirely extraneous to
the discretion conferred by the NDPP by s 41(6) of the
NPA Act; and
(c) there is no evidence, or any indication whatsoever as to why the
NDPP was of the view that the disclosure of the
record (much of which
is already in the public domain) would constitute interference with
the work of the commission of inquiry.
The allegations against the
appellants did not pertain to the arms deal. Nor does the NDPP give
any indication as to why the disclosure
would have interfered with
the work of that commission.
[34]
Sixth, information already in the public domain: The founding
affidavit is replete with allegations of the widespread presence
in
the public domain of information relating to the s 28 investigation.
This evidence is not disputed. The fact that extensive
prior
publication of the allegations has taken place in this case is an
important consideration.
The
NDPP dismissed the fact that the allegations are in the public domain
as irrelevant on the basis that only the NDPP has the
authority to
grant permission for the record of a s 28 enquiry to be published.
The NDPP was incorrect to dismiss the public domain
argument in this
manner.
[36]
The public
domain doctrine has been considered by courts both locally and
internationally in different contexts. In South Africa,
it is
well-established that it is basic to the principle of confidentiality
that information cannot be protected once it loses
its secrecy. This
is recognised in s 37(2)(
a
)
of
the
Promotion of
Access to Information Act 2 of 2000
,
which provides that, although an information officer of a public body
may in general refuse a request for access to a record if
the
disclosure of the record would constitute an action for breach of a
duty of confidence, he or she may not refuse to disclose
if the
record consists of information ‘already publicly available’.
The
Constitutional Court has also recognised that the concept of public
domain is an important factor in determining whether classified
documents before a court should be released to the public.
[37]
[35]
The public domain doctrine in the context of national security
restrictions has been especially prominent in the jurisprudence
of
the English courts and in the European Court of Human Rights. The
leading decision is that of
Attorney-General
v Guardian Newspapers (No 2)
[38]
(commonly
referred to as ‘the Spycatcher case’), in which the House
of Lords was requested to interdict the distribution
of a book by a
former MI5 agent. The contents of the book contained names of
colleagues, details of operational techniques and
specific operations
(including a plan by MI6 to assassinate President Nasser of Egypt).
The book had already been published in
other countries. Lord
Griffiths aptly observed that if the injunction had been granted:
‘
[T]he
law would indeed be an ass, for it would seek to deny to our citizens
the right to be informed of matters which are freely
available
throughout the rest of the world . . .’
[39]
[36]
In
Vereniging
Weekblad Bluf! V The Netherlands
,
[40]
the European
Court of Human Rights held that the Netherlands had infringed article
10 of the European Convention of Human Rights
because its courts
ordered the withdrawal of an issue of a magazine containing a report
on the internal security service which
was dated six years before the
magazine was published. The court held that the withdrawal of the
magazine could no longer be regarded
as necessary to safeguard
national security as the information was already in the public
domain. The court noted that 2500 copies
of the magazine had already
been sold in Amsterdam and that the media had commented on the
information in the report.
[37]
In
Independent
Newspapers
,
[41]
the
Constitutional Court dealt with an application for access to
classified documents which formed part of an appeal record. National
security, so the Minister asserted, required that the documents not
be made available to the media and the public. The Constitutional
Court confirmed that the default position is one of openness and
disavowed an approach that proceeded from a position of secrecy,
even
in a case where the documents in question had been lawfully
classified as confidential in the interest of national security.
[38]
The
Constitution upon which the nation is founded is a grave and solemn
promise to all its citizens.
[42]
As Nugent JA
put it, ‘[t]ruth and deceit know no status. One expects
integrity from high office but experience shows that
at times it is
not there’.
[43]
There can be
no gainsaying that if what the M&G says is true, they raise
matters of profound public importance. That is not
to suggest
findings have been made here as to their veracity. There might be
answers to those allegations or other facts not before
us that may
impact on inferences that might otherwise be drawn. The objective of
policing State officials to guard against corruption
and malfeasance
in public office forms part of the constitutional imperative to
combat crime.
[44]
The NDPP is
an important bulwark in that regard. The NDPP is there to inspire
confidence that all is well and, if there is corruption
and
malfeasance in high public office, that it is being effectively dealt
with. The public needs to be assured that there is no
impropriety in
public life and that if there is, then it should be exposed. In
that sense, the media plays a vital watchdog
role. One of the
aspirational goals of the media is to make governmental conduct in
all of its many facets transparent.
[45]
The M&G
asserts that Mr Maharaj has contravened s 28(10)(
c
)
of the NPA Act, which is a criminal offence in terms of s 41(2). Mr
Maharaj’s potential culpability in this regard as well
as his
moral fibre are matters of undoubted national significance. The
companies and individuals implicated in the alleged bribery,
namely
Shaik, Thales and the Nkobi Group, have previously been linked to
corruption.
[46]
Moreover,
as stated above, Shaik was convicted of fraud and corruption in 2005.
Any allegations that they may have also been involved
in corruption
in respect of other government tenders are of clear public interest.
[39]
I
t is obviously for the
NDPP to exercise a proper discretion having regard to the
circumstances of each case.
In
that regard it remains her duty to examine each application with care
and
she will be required
to exercise a proper discretion in such cases by balancing the
competing interests at stake and weighing the
relative degree of risk
involved. Such an individualised enquiry is more finely attuned to
reconciling the competing rights at
play than is a rigid, inflexible
denial as appears to have characterised the approach encountered
here. I do not purport to prescribe
to the NDPP how such applications
should be approached or whether a particular threshold will have to
be overcome by an applicant.
Nor do I suggest what considerations
should necessarily weigh in the exercise of her discretion. No two
applications will be the
same and considerations that are likely to
weigh in one matter may not necessarily in another. In striking a
constitutionally
appropriate balance the NDPP must perforce have regard to all the
relevant circumstances.
It goes without saying that she can hardly be predisposed one way or
the other, but will be required to bring an open mind to bear
in each
case.
[47]
Consistent with such an approach, m
ere
conjecture or speculation that prejudice might occur ought not to be
enough.
Of
course it will always be open to the NDPP to permit some and not all
of the evidence to be published.
[40]
It is so that usually when a court reviews and sets aside a decision
of an administrative body it almost always refers the
matter back to
that body to enable it to reconsider the issue and make a new
decision.
[48]
Occasionally,
however, as Heher JA added, ‘the court does not give the
administrative organ a further opportunity. Instead
it makes the
decision itself.’ This is such a case. The factors that
appeared to have weighed with the NDPP, neither individually,
nor
collectively, survive scrutiny. The NDPP ought to have realised that
very little could have been achieved by refusing permission
to
publish.
[41]
It follows that the appeal must fail. In the result:
(a)
The appeal by the first and second appellants against paragraphs 1
and 2 of the judgment
of the court below is dismissed with costs,
such costs to include the costs of two counsel.
(b)
The appeal by the third appellant against paragraph 3 of the judgment
of the court below
is dismissed with costs, such costs to include the
costs of two counsel.
_________________
V
M Ponnan
Judge
of Appeal
APPEARANCES:
For
First and Second Appellants: M R
Hellens SC
Instructed
by:
BDK
Attorneys, Johannesburg
Symington
& De Kok, Bloemfontein
For
Third Appellant:
K Pillay SC (with him M Lekoane)
Instructed
by:
The
State Attorney, Pretoria
The
State Attorney, Bloemfontein
For
Respondents:
G
J Marcus SC (with him M Seape)
Instructed
by:
Webber
Wentzel, Johannesburg
Van
der Berg Van Vuuren Attorneys, Bloemfontein
[1]
I borrow
from
the City Press
Newspaper. ‘
Mac’s
Secrets’ being the caption of an article published in
the
City Press of 27 November 2011. Similar captions were ‘
Mac’s
foreign stash’ in
the
City Press of 24 March 2011 and ‘
The
Mac behind the big cheese’ in
the
Mail and Guardian of 18 November 2011.
[2]
The
Act refers to an Investigating Director. According to s 1 of the Act
‘Investigating Director’: ‘(
a
)
means a Director of Public Prosecutions appointed under s 13(1)(b)
as
the
head of an Investigating Directorate established in terms of s 7(1);
and
(b)
in Chapter 5, includes any Director referred
to in s 13(1), designated by the National Director to conduct an
investigation in
terms of s 28 in response to a request in terms of
s 17D(3) of the South African Police Service Act, 1995 ( Act 68 of
1995 ),
by the Head of the Directorate for Priority Crime
Investigation.’
[3]
“
Specified
offence” means ‘any matter which in the opinion of the
head of an Investigating Directorate falls within
the range of
matters as contemplated in s 7(1) . . .’
[4]
Section 28(1) provides: ‘(1)(
a
)
If the
Investigating
Director
has reason to
suspect that a
specified
offence
has been or is
being committed or that an attempt has been or is being made to
commit such and offence, he or she may conduct
an
investigation
on the matter in question, whether or not it has been reported to
him or her in terms of s 27.
(
b
)
If the
National Director
refers a matter in relation to the
alleged commission or attempted commission of a
specified offence
to the
Investigating Director
, the
Investigating Director
shall conduct an investigation, or a preparatory investigation as
referred to in subsection (13), on that matter.
(
c
)
If the
Investigating Director
, at any time during the
conducting of an investigation on a matter referred to in paragraph
(
a
) or (
b
), considers it desirable to do so in the
interest of the administration of justice or in the public interest,
he or she may extend
the
investigation
so as to include any
offence, whether or not it is a
specified offence
, which he
or she suspects to be connected with the subject of the
investigation
.
(
d
)
If the
Investigating Director
, at any time during the
conducting of an
investigation
, is of the opinion that
evidence has been disclosed of the commission of an offence which is
not being investigated by the
Investigating Directorate
concerned, he or she must without delay inform the National
Commissioner of the South African Police Service of the particulars
of such matter. [Sub-s (1) substituted by s 12(
a
) of Act 61
of 2000 (wef 12 January 2001).]’
[5]
Section
28(6)(
a
)
provides: ‘the
Investigating
Director
may summon any person who is believed to be able to furnish any
information on the subject of the
investigation
or to have in his or her possession or under his or her control any
book, document or other object relating to that subject,
to appear
before the
Investigating
Director
at a time and place specified in the summons, to be questioned or to
produce that book, document or other object.’
[6]
Section
28(3) provides: ‘All proceedings contemplated in subsections
(6), (8) and (9) shall take place in camera. [Sub-s
(3) substituted
by s 12(
a
)
of Act 61 of 2000 (wef 12 January 2001).]’
[7]
Section 28(4) provides: ‘The procedure to be followed in
conducting an
investigation
shall be determined by the
Investigating
Director
at his or her
discretion, having regard to the circumstances of each case.’
[8]
Section 28(10) provides: ‘
Any
person who has been summoned to appear before the
Investigating
Director
and
who –
(
a
)
without sufficient cause fails to appear at the time and place
specified in the summons or to remain in attendance until he
or she
is excused by the
Investigating Director
from further
attendance;
(
b
)
at his or her appearance before the
Investigating Director
–
(i)
fails to produce a book, document or other object in his or her
possession or under his or her control which he or she has
been
summoned to produce;
(ii)
refuses to be sworn or to make an affirmation after he or she has
been asked by the
Investigating Director
to do so;
(
c
)
having been sworn or having made an affirmation –
(i)
fails to answer fully and to the best of his or her ability any
question lawfully put to him or her;
(ii)
gives false evidence knowing that evidence to be false or not
knowing or not believing it to be true, shall be guilty of
an
offence.’
[9]
Section
28(8) provides: ‘(
a
)
The law regarding privilege as applicable to a witness summoned to
give evidence in a criminal case in a magistrate’s
court shall
apply in relation to the questioning of a person in terms of
subsection (6): Provided that such a person shall not
be entitled to
refuse to answer any question upon the ground that the answer would
tend to expose him or her to a criminal charge.
(
b
)
No evidence regarding any questions and answers contemplated in
paragraph (
a
)
shall be admissible in any criminal proceedings, except in criminal
proceedings where the person concerned stands trial on a
charge
contemplated in subsections (10)(
b
)
or (
c
),
or in s 319(3) of the Criminal Procedure Act, 1955 (Act 56 of
1955).’
[10]
The Public Protector v Mail
& guardian Ltd & others
2011 (4) SA 420
(SCA) para 14.
[11]
Gates v
Gates
1939
AD 150
at 154-5.
[12]
Janit & another v Motor
Industry Fund Administrators (Pty) Ltd & another
[1994] ZASCA 110
;
1995 (4) SA
293
(A) at 306.
[13]
I
n
Shell SA (Edms) Bpk en
Andere v Voorsitter, Dorperaad van die Oranje-Vrystaat, en
Andere
1992 (1) SA 906
(O)
at 916E-I, Lombard J took the view that there was no good reason why
a court, in a civil case, should not have the same discretion
as it
had in criminal cases to exclude otherwise admissible evidence
because of the improper way in which it had been obtained.
[14]
See
inter
alia
Fedics
Group (Pty) Ltd & another v Murphy & others
1998
(2) SA 617
(C); Lenco Holdings Ltd & others v Eckstein &
others
1996 (2) SA 693
(N) at 704C and Protea Technology Ltd &
another v Wainer & others
1997 (9) BCLR 1225
(W) at 1234.
Several of the other authorities are set out in
Waste
Products Utilisation (Pty) Ltd v Wilkes & another
2003 (2) SA 515
(W) at 545.
[15]
Waste Products Utilisation
Ibid.
[16]
Per Mahomed
CJ,
Beinash
v Wixley
[1997] ZASCA 32
;
1997
(3) SA 721
(SCA) at 733E.
[17]
Ibid at 732-734.
[18]
Print
Media South Africa & another v Minister of Home Affairs &
another
2012 (6) SA 443
(CC) para 44;
Midi
Television (Pty) Ltd v Director of Public Prosecutions (Western
Cape)
[2007]
3 All SA 318
(SCA) para 12.
[19]
DA V
President of the RSA
2012
(1) SA 417
;
Zuma
v Democratic Alliance & others
[2014] 4 All SA 35 (SCA).
[20]
National Director of Public
Prosecutions v Freedom Under Law
2014 (4) SA 298
(SCA);
Kalik
NO & others v Mangaung Metropolitan Municipality & others
2014 (5) SA 123
(SCA) para
30.
[21]
Bangtoo Brothers v National
Transport Commission
1973
(4) SA 667
(N) at 685A-D;
Tellumat
(Pty) Ltd v Appeal Board of the Financial Services Board &
others
[2016] 1 All SA 704
(SCA) para 42.
[22]
Democratic Alliance v
President of the Republic of South Africa & others
2013
(1) SA 248
(CC) paras 38-40.
[23]
AllPay Consolidated
Investment Holdings (Pty) Ltd & others v Chief Executive Officer
of the South African Social Security
Agency & others
2014
(4) SA 179
(CC) para 72.
[24]
S v
Jordan & others (Sex Workers Education and Advocacy Task Force &
others as Amici Curiae)
[2002] ZACC 22
;
2002 (6) SA 642
(CC) para 21.
[25]
City of Cape Town v South
African National Roads Authority Limited & others
2015
(3) SA 386
(SCA) at paras 16-18;
Economic
Freedom Fighters v Speaker of the National Assembly & others
;
Democratic Alliance v
Speaker of the National Assembly & others
2016 (3) SA 580
(CC) para 1.
[26]
Khumalo
& others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) para 22-23.
[27]
Glenister
v President of the Republic of South Africa & others
2011 (3) SA
347
(CC) para 105.
[28]
Ibid para
106.
[29]
Ibid para
57.
[30]
Tshabalala-Msimang &
another v Makhanya & others
[2007] ZAGPHC 161
;
2008
(6) SA 102
(W) para 45.
[31]
Ibid para
38.
[32]
Sections 6(2)(
e
)(iii)
and 6(2)(
d
)
of the
Promotion of Administrative Justice Act 3 of 2000
. See
Security Industry Alliance
v Private Security Industry Regulatory Authority & others
2015
(1) SA 169
(SCA) paras 26-27.
[33]
See
Tetra Mobile Radio
(Pty) Ltd v Member of the Executive Council of the Department of
Works & others
2008
(1) SA 438
(SCA);
Bridon
International GMMH v International Trade Administration Commission &
others
2013 (3) SA 197
(SCA).
[34]
Van
Breda v Media 24 Limited & others;
National
Director of Public Prosecutions v Media 24 Limited & others
[2017] 3 All SA 622
(SCA) para 57.
[35]
City
of Cape Town v South African National Roads Authority Limited &
others
2015 (3) SA 386
(SCA) para 47.
[36]
See
Tshabalala
supra fn 29 para 45.
[37]
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom
of Expression Institute as Amicus Curiae)
In
re: Masetlha v President of the Republic of South Africa &
another
(Independent)
2008
(5) SA 31
(CC) paras 55
and
62.
[38]
Attorney-General
v Guardian Newspapers (No 2)
(the
Spycatcher case)
[1990] 1
AC 109, [1988] 3 All ER 545.
[39]
Ibid a
t
652 (ACR).
[40]
Vereniging
Weekblad Bluf! V The Netherlands
[1995] ECHR 3
;
(1995) 20 EHRR 189
at 203. See also
Weber
v Switzerland
(1990) 12
EHRR 508
;
Observer and
Guardian v The United Kingdom
(1992) 14 EHRR 153.
[41]
Independent Newspapers
supra fn 37.
[42]
The
Public Protector v Mail & Guardian Ltd
supra
fn 10 para 5.
[43]
Ibid para 143.
[44]
South
African Broadcasting Corporation Soc Ltd & others v Democratic
Alliance & others
2016 (2) SA 522
(SCA) para 44.
[45]
Van
Breda
supra
fn 34.
[46]
Mr
Shaik and 10 companies, which he controlled or in which he had a
major interest, were indicted on several counts relating to
corruption, in relation to payments he had made to the then Deputy
President of the Republic of South Africa, Mr Jacob Zuma.
It was
alleged that Mr Shaik had bribed Mr Zuma to protect a French
armaments company from exposure to official investigation.
Mr
Shaik was convicted and sentenced to 15 years’ imprisonment.
The companies were also convicted and required to pay fines.
(See
S
v Shaik & others
2007 (1) SACR 142 (D).)
[47]
As to what
constitutes an open mind see
The
Public Protector v Mail & Guardian
supra
fn 10 paras 21-22.
[48]
Per Heher
JA,
Gauteng
Gambling Board v Silverstar Development Ltd & others
2005
(4) SA 67
(SCA) para 1.