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[2016] ZAGPPHC 613
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M and G Centre for Invastigative Journalism NPC v National Director of Public Prcsecutions and Others (37510/2012) [2016] ZAGPPHC 613 (12 May 2016)
I
N
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
D
I
VISION, PRETORIA)
Case number:
37510/2012
DATE: 12 MAY
2016
In
the matter between:
M
AND G
CENTRE FOR
I
NVESTIGATIVE
FIRST APPLICANT
JOURNALISM NPC
M AND
G
MEDIA
LIM
I
TED
SECONDAPPLICANT
STEPHEN
PATRICK
"SAM" SOLE
THIRD APPLICANT
And
NATIONAL
DIRECTOR
OF PUBLIC
PROSECUTIONS
FIRST
RESPONDENT
MAHARAJ, SATHYAMDRANATH
RAGUNANAN SECOND RESPONDENT
MAHARAJ,
ZARINA
THIRD RESPONDENT
JUDGMENT
PRETORIUS
J.
(1) This is an application
where the following relief is sought:
“1Reviewing
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 section 28 of the National
Prosecuting Authority Act 32 of 1998
("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;"
(2)A further application
was launched by the second and third respondents against the three
applicants. The application was launched
in terms of Rule 6(15) of
the Uniform Rules of Court in which the two respondents seek an order
that certain paragraphs and statements
must be struck from the
applicants' founding papers in the main application.
THE
PARTIES:
(3) The applicants in the
main application are firstly the M and G Centre for Investigative
Journalism, a non-profit company. The
second applicant is M and G
Media Ltd, a company incorporated in terms of the Companies Act,
which publishes the Mail and Guardian
newspaper. The third applicant
is Mr SP Sole, who deposed to the founding affidavit.
(4) The first respondent is
the National Director of Public Prosecutions, who at the time the
decision that forms the basis of this
review was taken, was Adv
Nomgcobo Jiba. The second respondent is Mr Maharaj, who was employed
as Minister of Transport and thereafter
as the spokesperson of the
State President of the Republic of South Africa. He is only cited as
an interested party. The third
respondent is Mrs Zarina Maharaj, the
second respondent's wife who is cited as an interested party and no
relief is sought against
her and the second respondent.
(5) As the two applications
were dealt with simultaneously, this judgment deals with both
applications. The first, second and third
applicants will be referred
to as the applicants, and the first, second and third respondents
will be referred to as the respondents
throughout.
BACKGROUND:
(6)
In
June 2003 the Directorate of Special Operations ("DSO")
conducted an investigation in terms of section 28(1) of the
National
ProsecutingAuthority
Act
[1]
("the NPA
Act")
into
the
affairs of
the
second and
third respondents.
This
investigation
included
recorded
and transcribed interviews
with Mr
and
Mrs
Maharaj,
the second and
third
respondents,respectively.
(7) Although the inquiry
was supposed to be confidential, the applicants obtained copies of
extracts of the section 28 record of
investigation. The applicants on
21 November 2011 requested the National Director of Public
Prosecutions ("NDPP") permission
in terms of section 41(6)
of the
NPA
Act
to publish extracts from the interviews
held in terms of section 28(1).
(8) The reasons for the
request was set out as follows:
"That the
publication
of the information
is in
the public
interest;
much
of
the information
sought
to be
published
was already
in
the
public
domain,
as
the
second
and
third
respondents had
attached
the transcripts
of the section
28 enquiry
to court
papers;
that it
would
enable
the
applicants
to inform
the public
of an issue of
public
importance in accordance
with
media
freedom."
(9) The NDPP decided not to
grant this request as she contended that granting permission would
amount to condoning a criminal activity
and that the NPA operated
according to a general policy of non-disclosure. This policy was,
according to the NDPP, reflected in
paragraph 13 of the
United Nations Guidelines
on the Role of Prosecutors. Furthermore, she contended that section
41(6) of the
NPA
Act
requires a general
policy of non-disclosure.
(10) Her further reason for
non-disclosure was that the disclosure of the section 28 record would
have an impact on the Commission
of Inquiry into the arms deal. She
was of the opinion that it was irrelevant that the contents of the
section 28 inquiry were already
in the public domain. She contended
that so-called "other persons" mentioned in the section 28
record required protection.
This decision, not to grant permission,
lead to the current application for the review of the NDPP's
decision.
GROUNDS OF REVIEW:
(11)
The
applicants
rely
on
sections
6(2)(d),
6(2)(e)(iii), 6(2)(f)(ii), 6(2)(i)
of
Promotion Of
Administrative Justice Act
[2]
("PAJA"), alternatively the
principle of legality. The reasons advanced by the NDPP are being
attacked
by the
applicants
on
the following
grounds;
(i) she did not take
into
account
the
section
28
record;
(ii)
she failed to
consider the
public
interest;
(iii)
she
considered
the
pending
criminal
charges
against
the applicants;
(iv) she
safeguarded
the interests of
"others"
mentioned
in the record; (v) she took
into account the arms deal commission
of inquiry; and
(vi)
she
failed
to
consider
that
all
the
information
was
already
in the public
domain.
(12) he second and third
respondents had laid a criminal complaint against the applicants
alleging that the applicants had breached
the provisions of section
41(6) of the
NPA Act
as they had been unlawfully in possession
of the section 28 inquiry record.
(13) The second and third
respondents rely on the provisions of section 28(8) and section 41(6)
of the
NPA
Act
which guarantee that any
evidence obtained during a section 28 interview will not be used in a
subsequent criminal trial and that
such evidence cannot be leaked or
disclosed lawfully to any person, without the permission of the NDPP.
THE
NPA
ACT:
(14)
The NDPP is empowered by section 28(1) of the
NPA Act
to conduct an investigation into the commission of any offence.
(15)
Section 28(1)(a) and (b) 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
an 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 section
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."
(16)
An individual is obliged to attend such an investigation and to
answer all questions put to him or her. Section 28(8) provides
that
such information cannot be used in criminal proceedings against the
person concerned.
(17) In view of the fact
that the NDPP relies on section 41(6) of the
NPA
Act
for refusal of the transcripts the provisions of section 41(6)
are important. Section 41(6) provides:
"(6)
Notwithstanding any
other
Jaw,
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-
(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."
The criminal sanction
for contravention of the provision of section 41(6) is, according to
the provision in section 41(7), that
of a fine or imprisonment for a
period not exceeding fifteen years or both.
(19) It is common cause
between the parties that the purpose of section 41 is to preserve
confidentiality, but that it is not
a blanket prohibition of
disclosure of information given in terms of section 28(1)(c) but
that the NDPP has a discretion to give
permission to disclose.
STRIKING
OUT
APPLICATION:
(20) I must firstly deal
with the striking out application. If I find against the applicants
in the striking out application, most
of the review application will
be struck out and this will have an impact on the review application.
(21) The second and third
respondents request the court to strike out certain paragraphs and
statements of the founding affidavit
by SP Sole on behalf of the
applicants; any reference made to section 28 of the
NPA Act
and
certain words and phrases in certain paragraphs. This application is
brought in terms of rule 6(15) of the Uniform Rules of
Court. Rule
6(15) provides:
"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."
(Court emphasis)
(22) The reasons for this
application is that, according to the second and third residents the
information of the section 28 record
was unlawfully obtained and are
therefore inadmissible as evidence and secondly, the statements and
paragraphs in the founding
affidavit constitute hearsay evidence,
which is equally inadmissible. The applicants oppose this
application.
(23) According to the
respondents the applicants are in unlawful possession of the
information. The main argument by the respondents
are that should the
court grant the relief, it will have the result that any party
summonsed to appear in a section 28 investigation
will not be able to
rely on the guarantees of confidentiality set out in section 28 of
the
NPA
Act,
as it can illegally be disclosed
and permission to publish be requested at a later stage.
(24) The applicants argue
that they had not obtained the evidence unlawfully. The respondents
allege that:
"there
appears
to
be
a
real
possibility
that these documents
may have
been
disclosed to
the
applicants
in
contravention
of
the provisions
of
section
41(6)(a)
of
the
NPA
Act
and in which
instance it was unlawfully
obtained".
(Court
emphasis)
(25) There is thus no
positive allegation in this passage, as the second and third
respondents used the words
"appears",
"possibility", "may
have
been
disclosed".
The allegation is that the section
28 record may have been disclosed by a third party to the applicants
and due to the fact that
the third party was acting in contravention
of section 41(6), that the applicants had received the section 28
record unlawfully.
It is abundantly clear from these phrases that the
second and third respondents base these assertions on speculation and
not on
clear knowledge. No facts are laid before the court on which
the court can find that it had in fact taken place.
(26)
Up
to
date
there
has
been
no
comparison
by
any
party
of the
section
28 record
with
the
applicants'
documents.
Nowhere does the
NDPP confirm
that
the
applicants'
documents
form
part
of
the
section
28 record. The
NDPP
sets
out
[3]
:
"I have no
knowledge of the contents of these paragraphs."
(27) It is clear from the
second and third respondents' affidavits that they had not compared
the applicants' documents with the
record of the section 28 inquiry.
(28) Neither the first
respondent, nor the second and third respondents provided this court
with any evidence that a third party
had disclosed the contents of
the section 28 inquiry to the applicants. There is no indication as
to who the third party is, and
where and when the section 28 record
was provided to the applicants.
(29)
In
City of Cape Town v SANRAL
[4]
at paragraph 19 Ponnan JA held:
"Accordingly,
court proceedings
should
be
open
unless
a
court orders otherwise.
The
logical
corollary must therefore be that departures should
be
permissible
when the dangers of openness
outweigh
the
benefits.
And
by
extension,
the
right
of open
justice
must include
the right
to
have access to
papers and
written
arguments
which
are
an
integral
part
of
court proceedings
(Independent Newspapers at
paragraph
41).
That must
follow
axiomatically, it
seems
to
me,
because
the
public would
hardly
be
in
a position to properly
assess
the legitimacy or
fairness
of
the
proceedings if
they
could observe
the
proceedings in
open
court
but
were
denied
access
to
the
documents
that provide
the basis
for
the court's
decision."
(Court emphasis)
(30) In
the
Tshabalala-Msimang
case
[5]
Jajbhay J held in paragraph 56:
"This decision
has
not
been
concluded
easily.
The
difficulty
is
compounded
when
two
competing constitutional rights
come
into conflict, one right must suffer.
Thus, the
first applicant must
suffer the limitation of her right to
privacy.
However
within all the
euphoria
and
outcry
against
the
conduct
of
the
first
applicant,
she does
enjoy
support.
Just
because
we
possess
rights,
does
not mean
that
we must
exercise
them
to the hilt at every
opportunity. Though
we
enjoy
the
freedom
of
expression, we
would be ill advised
to
celebrate
them by
vilifying each other on
the slightest pretext."
(31)
In
SAA
v
BDFM
Publishers
[6]
Sutherland
J
referred
to
the
judgment
of
Sir
Nicolas
Browne-Wilkins
as follows
in
paragraph
32:
"The
spectacular
cases
often,
like
this
case,
involve
publications,
because,
it may
be
supposed,
in
the nature
of
disseminated information,
once
it
is
released it
cannot be retrieved,
and
no
court,
limited
by
territorial jurisdiction
can enforce
its
judgments
abroad.
In
the
controversy
about
the publication
in
Great
Britain,
and
elsewhere,
of the
book
'The
Spycatcher',
which
supposedly
revealed
British
state
secrets,
in refusing
an
injunction
against
the
publishers,
the
remarks
of
Sir Nicolas
Browne-Wilkinson
echo
still:
" ....
I have
borne
in
mind,
rightly
or
wrongly,
one
further
factor
of
the
public interest.
I
think that the
public interest requires that we
have
a
legal
system
and
courts
which
command
public respect.
It
is
frequently
said
that
the
law
is
an
ass.
I,
of
course,
do
not
agree.
But
there
is
a
limit
to
what
can
be
achieved
by
orders
of
the
court.
If
the
courts
were
to
make
orders
manifestly incapable
of
achieving their
avowed
purpose, such
as
to prevent
the dissemination
of
information
which is already
disseminated,
the law
would
to my
mind
indeed be an ass."
(Court emphasis)
(32)
The second and third respondents had not been
questioned or prosecuted
in
terms
of section 41(6) for
placing the
record
in the
public
domain without the NDPP's permission.
The NDPP had instead stated
[7]
:
"I do
not
dispute
the
contents
of
these
paragraphs save
to
note
that
the
fact
that
the
information concerned was
already
in
the public
domain is
not
decisive of
the
issue of whether
or
not I should
permit
the
disclosure
of
such
information. If
this
was
so,
it would constitute an open invitation
to those who
wished to disclose
a
section
28 record, to first make such
information
public
and only then seek permission to disclose the information
concerned. This permission could then be based on
the fact that the information is, in any event, "in the
public domain".
The very purpose of the prohibition would have
been undermined. This contention is simply not sustainable."
(33)
Thus
all
the
parties
involved
in
the
section
28
inquiry,
namely the
first,
second
and third
respondents jointly
placed
the section 28
record in the
public
domain.
In the
City
of
Cape
Town
case
[8]
at
paragraph
47
the
Supreme
Court
of Appeal
set
out the
constitutional
imperative
of
open
justice:
"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."
(Court
emphasis)
(34) The second and third
respondents concede in the answering affidavit that the mere
possession of the section 28 record is not
an offence. Once again no
positive assertion based on facts are made as they submit that the
record may have been disclosed by
a third party to the applicants and
such a third party was thus in contravention of section 41(6) and the
applicants, by receiving
the record, acted unlawfully.
(35) The applicants, after
having received some documents pertaining to the section 28 inquiry,
put certain questions to Mr Maharaj
and after being alerted of the
contents of section 41(6) of the
NPA
Act
did
not publish the report they had prepared. Instead they requested
permission from the NDPP, to publish, which resulted in the
decision
by the NDPP which is currently under review in this matter.
(36) The applicants argue
that they had made every attempt to abide by the law. In this
instance, the second respondent had laid
a complaint against the
applicants more than four years ago, but the NDPP failed to prosecute
the applicants, nobody has been arrested
and there has been no
investigation of the applicants. This leaves a question as to whether
the NDPP has a serious intention to
prosecute the applicants.
(37) The approach by our
courts is that the public interest must be weighed against keeping
the information confidential. This balancing
act must be done in line
with constitutional values, the fact that the information is already
in the public domain will, in many
instances, be an overriding factor
when a court makes a decision about the publication of unlawfully
obtained evidence.
(38)
The
applicants
contend that
they had not
obtained
this
evidence unlawfully and
this
court
cannot
find
any
evidence
that
the
record
had been
obtained
unlawfully
by
the
applicants.
The
decisions
in the
Tshabalala-Msimang
case
[9]
and
the
SAA
case
[10]
are
applicable
in this
instance.
The
SAA case
had
almost identical facts where the applicants
applied
to
the
court
to
prevent
publication
of
the
contents
of
a
document.
I cannot
find
any
evidence
that
the
applicants
had
obtained the
section
28
transcripts unlawfully
as
no
factual
basis
can
be found
in
the
answering
affidavit
which
is
not
based
on
speculation and conjecture.
Due
to
the
fact
that
the
second
and
third
respondents
had themselves
placed
the
section
28
record
in
the
public
domain,
there
can be
no
allegation that
the
applicants
are guilty of
contravening section 41(6)
of
the
NPA
Act.
Therefore
the relevant paragraphs
will
not
be
struck
out
on the
ground
of
unlawfully
obtaining
evidence.
(39) The second and third
respondents allege that certain allegations in the founding affidavit
of the applicants should be struck
out as the facts referred to are
irrelevant and based on hearsay.
(40) It is so that, should
this application succeed, there will be no evidence that the section
28 inquiry took place and that the
second and third respondents were
the subject of such an investigation as all mention of the section 28
inquiry will be struck
out.
(41)
The
law
of
hearsay
is
governed
by
section
3
of
the
Law
of
Evidence
Amendment Act
[11]
("the hearsay
Act").
The respondents submit
that
the
application
to
review
the
NDPP's
decision
in
itself
is
indicative
of
the applicants'
unlawful
possession.I was
referred
to
Fedics
Group
(Pty)
Ltd and
Another
v
Murphy
and
Others
[12]
where
Brand
J
held at
page
640:
"On
the
other
hand, the
Court
will,
in
the
exercise
of
its discretion,
have
regard
to
the
type of
evidence
which
was
in
fact
obtained.
It is the type of evidence
which
would never be lawfully
obtained
and/or
introduced without
the
opponent's
co-operation,
such
as
privileged
communications, or
the recording
of
a tapped telephone
conversation,
or is it the type
of
evidence
involved in
this
case,
namely
documents and information
which the
litigant
would or should eventually have obtained through lawful means?
In
the
latter case, the Court should,
I think,
be more
inclined
to exercise
its discretion in favour
of
the
litigant
who
seeks
to
introduce
the
evidence
than
it would
be
in
the
case of the
former. It
goes
without
saying that
the
Court
will,
in
any
event,
have
regard
to
all
the
other circumstances of
the
particular case."
(Court emphasis)
(42)
In
Lenco
Holdings
Ltd
and
Others
v
Eekstein
and
Others
[13]
it
was
confirmed
that
the
court
has
a
discretion
to
exclude
evidence
obtained by
a
criminal
act
or
otherwise
improperly
obtained and
that
each
case must be decided
on
its own facts. The
court
found
at
page 704:
"I do
feel
that
one
of
the
important
aspects
which
a
Court
must consider
when
it
exercises
a
discretion
as
vital
as
one
which
is aimed
at
excluding
otherwise
relevant
evidence,
is
the nature
of
the litigation
over
which it is
presiding."
(43)
In
Public
Protector
v
Mail
and
Guardian
Ltd and
Others
[14]
Nugent
JA
dealt with
reported
statements
in
paragraphs
14 and
15 as follows:
"[14] Following
upon
that
is
the
approach
that
is
to
be
taken
to the
evidence.
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.
[15]
I
need
to
deal
specifically with
one
form
of
such
evidence.
In his
founding
affidavit
Mr
Brummer
has
at times conveyed information
that
he
says
was
imparted
to
him
by
an
undisclosed source. The appellant
applied
to
strike
out
those
portions of
his evidence
but for the
reasons
I have given
that application
is misconceived.
What
is
relevant for
present
purposes is
that the
reporled
statements
were
made,
and not that the reporled
statements
are
true,
and
the
allegations
in
the affidavit
are
admissible
proof
of
that fact."
(Court emphasis)
(44) The applicants
submitted that the various newspaper clippings attached to the
founding affidavit were not submitted to demonstrate
the truth of
their content, but to demonstrate that the information relating to
the section 28 inquiry is already in the public
domain.
(45)
The applicants
rely
on section
3(1)(c) of the
Law
of Evidence
Amendment
Act
[15]
which
provides:
"(1)
Subject
to
the
provisions
of
any
other
law,
hearsay
evidence
shall
not
be
admitted
as
evidence
at
criminal
or
civil
proceedings, unless-
(c) the court,
having
regard
to-
(i)
the
nature
of
the proceedings;
(ii)
the
nature
of
the evidence;
(iii)
the
purpose
for
which
the
evidence
is
tendered;
(iv)
the
probative
value of
the evidence;
(v)
the
reason
why
the evidence
is
not
given
by
the
person
upon whose
credibility
the
probative value
of
such
evidence
depends;
(vi)
any
prejudice to
a
party which the admission of such
evidence might entail;
and
(vii)
any
other factor which should in the opinion of the court be
taken
into account,
is of the opinion that
such evidence should be admitted in the interests of justice."
(46)
I
have
to
decide
whether
the
impugned paragraphs or
statements constitute
hearsay,
and
if
so,
whether
it
should
be
struck
out.
In
McDonald's Corporation v Joburgers
Drive-Inn Restaurant (Pty) Ltd and
Dax
Prop
CC
[16]
the
court
held
that
the
decision
of
admissibility of evidence
is
"one of law, not
discretion
..
.
".
Should the court thus decide that the factors
mentioned in section 3(1)(c) weigh in favour
of admitting
the
evidence,
a court has minimal
discretion to refuse to do so. I cannot consider
only
the
factors
set
out
in
section
3(1)(c)
but
must
consider
it
against the background
of
the facts
of this
application,
as it was
set out by the
court
in
Makhathini
v
Road
Accident
Fund
[17]
.
The
main
contention by
the
applicants
is
that the second and
third
respondents did not
allege
that
they will be
prejudiced in
any
way if
the
offending statements
and
paragraphs are not struck out and I have to agree that
I could
not
find
that
the second
and third
respondents
alleged
any prejudice.
(47) The evidence sought to
be introduced is that a section 28 inquiry had taken place.
(48) Section 3(1)(c)(ii)
deals with the nature of the evidence. The nature of the evidence is
that there had been a section 28 inquiry
where both the second and
third respondents appeared. In some way this became known and several
newspapers published this fact.
Furthermore, the second and third
respondents attached the section 28 inquiry record to their court
application in 2006 and the
second respondent dealt with it in his
biography.
(49) Section 3(1)(c)(iii)
provides that the court must determine the purpose for which the
evidence is tendered. In the present
instance it is tendered to
obtain the contents of the section 28 inquiry record and to publish
this information. The information
as such is not before the court to
be dealt with by the court. (SO) Section 3(1)(c)(iv) requires the
court to consider the probative
value of the evidence. I find in the
present instance that the reference to the section 28 record
transcripts has relevance and
probative value and should be allowed.
(51)
Section 3(1)(c)(v) requires me to enquire as to why the
evidence is not given by the person responsible. The first, second
and third
respondents are the persons who could give the information,
but due to the nature of the review application it is clear that they
will not supply or confirm the evidence.
(52) I have already dealt
with the fact that none of the parties alleged prejudice as required
in section 3(1)(vi) of the Act. The
respondents cannot rely on this
subsection to dismiss the hearsay evidence.
(53) I agree with counsel
for the applicants that I have to consider all the facts before
reaching the conclusion whether the hearsay
evidence should be
admitted or excluded. This court has to be appraised of the basic
facts that the respondents want to strike
out.
(54)
I will now deal with the paragraphs and statements which the
respondents contend should be struck out. I do not intend quoting
each
paragraph as it forms part of the application.
(55) Paragraph 20 deals
with the contravening of the section 28 investigation. The
respondents want this to be struck out as hearsay.
It is evident that
the respondents' participation in the section 28 investigation was
widely reported and was and is in the public
domain. This is clear
from the annexures attached to the founding affidavit in the review
application. These annexures are media
clippings of articles which
had appeared in the press.
(56) As far as the contents
of paragraphs 22 to 24 are concerned, I find that the same reasons
apply to allow those paragraphs as
set out above to paragraph 20. The
fact that no corroboration for the contents of paragraph 25 exists is
no reason not to admit
it. Both paragraphs 25 and 26 do not
constitute hearsay as the deponent is personally aware that the
documents came into the applicants'
possession. I find that
paragraphs 27 and 28 should not be struck out due to the fact that
the documents were unlawfully obtained.
There is no shred of evidence
to sustain this submission. The corruption referred to in paragraph
27 is a matter of public record.
(57) Once more the second
and third respondents failed to show prejudice. I am allowing these
paragraphs to form part of the record
in terms of section 3(1)(c) of
the
Hearsay Act.
Paragraph 33 will not be struck out
for the same reason as set out above as the contents are in the
public domain. I cannot find
that paragraph 34 is irrelevant as it
confirms the applicants' contention that the information was already
in the public domain
and therefor the deponent has personal knowledge
of what is in the public domain.
(58) Paragraphs 35 to 39
deal with the publication of several newspapers and also with the
High Court application in which the second
and third respondents were
applicants and where the first respondent stated:
"The
transcript of the Second Applicant's interrogation, as provided to
her by the DSO, is attached marked Annexure SRM5."
(59) The applicants do not
rely on the veracity of the statements, but these statements are
tendered to prove that the allegations
are in the public domain, even
by the second and third respondents' own admission. There has been no
indication by the respondents
that they will be prejudiced if these
paragraphs are not struck out. I find that the contents of these
paragraphs should be admitted
in the interest of justice in terms of
section 3(1)(c) of the
Hearsay
Act.
(60) As far as paragraphs
41, 42, 44 and 45 are concerned I find that they should not be struck
out as they do not contain hearsay,
as the deponent had personal
knowledge of the facts.
(61)
I find that paragraphs 53, 58.2, 62.3 and 64.1 similarly should not
be struck out for all the reasons articulated in respect of
the other
impugned paragraphs above.
(62) I find that due to all
the circumstances of the case it is in the interest of justice to
allow the evidence, as that is the
only way that the court can deal
with the main application in a meaningful manner and therefor it is
allowed in terms of section
3(1)(c) of the
Hearsay
Act.
Furthermore I have set out the reasons for allowing the
paragraphs and statements in the paragraphs dealing with the
complaints.
(63) Therefor the strike
out application falls to be dismissed.
THE
REVIEW:
(64)
The applicants
argue
that the
prohibition
in section 41(6) of the
NPA
Act
of
publishing the
record
of
evidence
given
at
a section
28(1)
enquiry
is
a limitation on the
right to
freedom
of expression
as set out in section
16
of the
Constitution of
the Republic of
South
Africa
[18]
.
Section
16(1) provides:
"(1)
Everyone
has
the
right
to
freedom
of
expression, which
includes-
(a)
freedom
of
the press
and
other
media;"
(65) The applicants submit
that the NDPP failed to properly consider the right to freedom of
expression when relying on section
41(6) of the
NPA Act.
In
issue here was the involvement of the second respondent, who was the
presidential spokesman and a high ranking official in the
cabinet,
where there are
prima
facie
material
discrepancies between what the second and third respondents had
informed the NPA in the use of public funds during the
section 28(1)
investigation and what had in fact transpired. According to the
applicants the NDPP had failed to give proper consideration
to media
freedom in these circumstances.
(66) Section 41(6)(c)'s
provisions do not constitute a total ban on publication. The NDPP has
a discretion to grant permission for
publication to take place. The
present matter is concerned with an inquiry in terms of section
28(1)(a) and section 28(6) of the
NPA Act.
(67)
The
first
respondent's argument is
that
the
NPA
Act
does
not
empower the
NDPP
to
grant
permission
to
disclose
information
gathered
in terms
of
section
28
after
the
fact. It
is
however
clear
from
the
wording
that
it does not expressly
deal
with
permission to disclose
after there has already been
disclosure
of
the
information.The
first
respondent
relies
on
section 18(2) of the
Riotous
Assemblies
Act
[19]
which
provides:
"(2) Any
person
who-
(a)
conspires
with
any other
person to aid or
procure
the commission
of
or
to commit;
or
(b)
incites,
i
nstigates, commands, or procures any
other
person
to commit,
any
offence, whether at common law or against
a
statute or statutory regulation, shall
be
guilty of
an
offence
and
liable
on conviction
to the
punishment
to which
a
person
convicted
of actually
committing
that
offence
would
be
liable."
I cannot agree that in
these circumstances a crime is committed under this Act, as there is
no proof on the papers at all of a
conspiracy or act by the
applicants to
"incite,
instigate,
command
or procure"
anybody to
commit an offence. In any event, in my view, section 41 (6) and (7)
of the
NPA Act
makes it unnecessary to rely on the
Riotous
Assemblies
Act,
as adequate relief exists
in the provisions of the
NPA Act.
(69) The provisions of
section 28(1) is a drastic interference with freedom of speech,
which requires the NDPP to strike the correct
balance between
securing the integrity of the criminal justice system and upholding
freedom of expression.
(70) The main argument by
the second and third respondents' counsel is that where permission is
sought to publish in a high profile
case the present matter will be
used as an example as to why guarantees of non-disclosure are of no
value and will result in parties
refusing to partake in section 28
inquiries.
(71)
The first respondent's argument is based on whether section 41(6) of
the
NPA Act
provides that disclosure may be permitted by the
NDPP and the argument is that the provision must be interpreted in
the context
of all the provisions of the Act and the policies of the
NDPP.
THE
LAW:
(72) The
Constitutional
Court
held
in
Print
Media
South
Africa
v
Minister
of Home Affairs
[20]
at
paragraph
44:
"In answering this question, regard must, of
course, be had to our current jurisprudence on prior restraint, with
a view to
achieving an appropriate balancing of the scales in
relation to this matter. In the context of court interdicts, the
Supreme Court
of Appeal has, correctly in my view, endorsed the
following statement of Lord Scarman:
'(T)he prior restraint of publication, though
occasionally necessary in serious cases, is a drastic interference
with freedom of
speech and should only be ordered where there is a
substantial risk of grave injustice.'
The case law recognises that an effective ban or
restriction on a publication by a court order even before it has
'seen the light
of day' is something to be approached with
circumspection and should be permitted in narrow circumstances only."
(73)
In
Midi Television (Pty)
Ltd
tla
E-TV
v
Director
of
Public
Prosecutions (Western
Cape)
[21]
Nugent
JA
held
at
paragraph
19:
"In summary,
a publication will be
unlawful,
and
thus
susceptible to
being
prohibited,
only
if
the
prejudice that
the
publication might cause to
the
administration of justice
is
demonstrable and
substantial and there
is
a
real
risk that the
prejudice will
occur
if
publication
takes
place. Mere conjecture
or
speculation that prejudice
might
occur
will not be enough.
Even
then publication
will not
be
unlawful unless
a
court
is
satisfied
that
the
disadvantage
of
curtailing
the free
flow
of
information
outweighs
its
advantage.
In
making
that
evaluation it is not only
the interests
of those who
are associated with
the
publication that
need
to
be
brought
to account but, more important,
the
interests of
every
person
in having
access
to
information."
(Court emphasis)
I have to agree with these
findings in relation to the present application.
(74)
This court has been reminded by the applicants'
counsel that section 39(2) of the
Constitution
makes it imperative for every
court to promote the spirit, purport and objects
of the
Bill of Rights
[22]
.
(75)
In
Phumelela
Gaming
and
Leisure
Limited
v
Grundlingh
and
Others
[23]
at
paragraph
27:
"The initial question is not whether interpreting
legislation through the prism of the Bill of Rights will bring about
a
different result. A court is simply obliged to deal with the
legislation it has to interpret in a manner that promotes the
spirit,
purport and objects of the Bill of Rights. The same applies
to the development of the common law or customary law."
(Court's
emphasis)
(76)
According
to the
Constitutional
Court's
jurisprudence
on
the
obligations arising
from
section
39(2)
of
the
Constitution
there
are
two
independent
obligations.
The
first
thereof
is the
so-called
"Hyundai
obligation"
to
which
both
the
applicants'
and
the
first
respondent's
counsel
referred. In
the Investigating
Directorate:
Serious
Economic
Offences And Others V Hyundai
Motor
Distributors
(Pty)
Ltd
And Others: In
Re
Hyundai
Motor
Distributors
(Pty)
Ltd
And
Others
V
Smit
No And
Others
[24]
at
paragraphs
22 and 23 the court held:
"The
purport
and
objects of the Constitution find expression in s
1, which lays
out the fundamental
values which the Constitution
is
designed
to
achieve.
The
Constitution
requires
that
judicial
officers
read
legislation,
where
possible, in
ways
which
give effect to its fundamental values. Consistently with this,
when the
constitutionality
of legislation
is
in
issue,
they
are
under
a
duty
to
examine
the
objects
and
purport
of
an Act
and
to
read
the
provisions
of
the
legislation,
so far as is possible,
in
conformity
with the Constitution.
...Accordingly, judicial officers must prefer
interpretations of legislation that fall within constitutional bounds
over those that
do not, provided that such an interpretation can be
reasonably ascribed to the section."
(Court's
emphasis)
(77)The
second
obligation is
referred
to
as
the
"Wary
obligation"
which
emanate from
Wary Holdings (Pty) Ltd v Stalwo
(Pty) Ltd and Another
[25]
at paragraphs 46 and
107
where the court held:
"{46} A further
aspect arises. I deal below with the interpretative principle that
a
statutory provision should be interpreted in
accordance with the spirit, purport and objects of the Bill of
Rights. This court
has not yet been called upon to deal with the
situation where
two
conflicting interpretations of
a
statutory provision
could both
be
said
to promote
the spirit, purport
and objects
of
the
Bill
of
Rights
and
the
decision
to
be
made
is whether
the
one
interpretation is
to
be
preferred above
the other.
It
seems
to
me
that
it
cannot
be
gainsaid that
this court
is
required
to
adopt the
interpretation
which
better promotes
the
spirit,
purport
and
objects
of
the
Bill
of Rights. That
would,
after
all,
be
a
more effective
Tinterpretation} through
the
prism
of the Bill of
Rights"'
(Court emphasis)
(78) This court has to
apply the principles as set out above in deciding this application.
It is trite
that
if
even
one
reason
exists
to
set
aside
the
decision,
the
court is bound to
set
the
decision
aside.
The
principle was
reaffirmed
by Cameron
J
in
the
Supreme Court of
Appeal
in
Rustenburg
Platinum Mines
Ltd
(Rustenburg
Section)
v
Commission for
Conciliation, Mediation
and Arbitration
[26]
at paragraph
34:
"Nor
does
PAJA
oblige us
to
pick and
choose
between the
commissioner's
reasons
to
try
to
find
sustenance
for
the decision
despite
the bad
reasons.
Once
the
bad
reasons played
an
appreciable or significant
role
in
the
outcome,
it
is,
in my view, impossible
to
say
that the reasons
given provide
a
rational connection
to
it.
This
dimension of
rationality in
decision- making
predates
its
constitutional formulation."
(Court emphasis)
(80)
The
further
argument is
that
a
decision
maker is
bound
by
the
reasons given at
the
time of its
decision
and the available
information
that
was before it
when making
the
decision. It
was held in
National Lotteries Board and others v SA
Education and Environment Project and another
[27]
at
paragraph 27:
''The
duty
to
give
reasons
for
an
administrative decision
is
a
central
element
of
the
constitutional
duty
to
act
fairly.
And
the failure
to
give reasons,
which includes proper
or
adequate reasons,
should
ordinarily
render
the
disputed
decision reviewable.
In
England,
the
courts
have
said
that
such
a
decision
would
ordinarily
be
void
and
cannot
be
validated
by different
reasons
given
afterwards
-
even
if
they
show
that
the original decision
may
have been
justified.
For in truth the later
reasons
are
not
the
true
reasons for
the
decision, but rather
an ex
post
facto rationalisation
of a bad decision. Whether
or
not
our
law also
demands the
same approach
as
the English
courts
do is not
a
matter
I need strictly
decide."
(Court emphasis)
And
in
Zondi
v
MEC for
Traditional
and
Local Government
Affairs and
Others
[28]
at
paragraph
101 the
Constitutional
Court
held:
"All
decision-makers
who
are
entrusted
with
the
authority to make administrative
decisions by
any statute
are therefore required
to do
so in
a
manner
that is consistent
with PAJA.
The
effect of
this
is
that
statutes
that
authorise
administrative action
must
now
be
read together
with PAJA
unless,
upon
a
proper construction, the provisions of the statutes in
question are inconsistent with PAJA."
(Court
emphasis)
(81) It
Is
clear
from
the
NDPP
that
she
did
not
consider
the
section
28(1)
record
before taking
her
decision
to
refuse
the
applicants
permission
to publish
[29]
,
as it
was
conveyed to the applicants:
"Kindly be informed that the record of the
section 28 interview was not part of the documentation which was
considered by our
client when she reached the decision under review
as the ANOPP was aware of the section 28 interview in general terms."
This assertion cannot be seen to be that she had
considered the record - being aware
"in general
terms"
cannot be seen to be a consideration of the record and having
full knowledge of the contents of the section 28 record. She does not
explain what is meant by
"in general
terms".
(82) The submission by the
applicants is that the section 28 record is of utmost importance when
taking a decision in this matter
as it is the central issue on which
everything hinges. The submissions are that the NDPP could not on a
logical and rational basis
have concluded that the section 28 report
should not be published. The question posed is how she could have
balanced the second
and third respondents' interests with that of
public interest if she has not known what the section 28 transcripts
contained at
the time she had made the decision.
(83) In
Allpay Consolidated Investment Holdings
(Pty)
Ltd
and
Others
v Chief
Executive Officer, South African Social
Security Agency
and
Others
[30]
at
paragraph
72 the
Constitutional
Court
held:
"Given
the central and fundamental importance of substantive
empowerment under
the
Constitution
and
the
Procurement and Empowerment
Acts,
SASSA's
failure
to
ensure
that
the
claimed
empowerment
credentials were objectively confirmed was fatally
defective. It
is
difficult
to
think
of
a
more fundamentally
mandatory
and material condition prescribed by the
constitutional
and
legislative
procurement framework than objectively determined empowerment
credentials.
The
failure to
make
that objective
determination
fell afoul
of s
6(2)(b)
of PAJA (non-compliance with a mandatory and material
condition) and s 6(2)(e)(iii) (failure to consider
a
relevant consideration)."
(Court
emphasis)
Similarly,
in
this
instance, the
section
28
record
is
of vital
importance and
should
have
been considered
and dealt
with
by
the
NDPP.
It is not
good
enough
to
submit
that
she
"was
aware
of
the
interview
in general terms".
She
had
to
have
studied
the
section
28 record
to
objectively
decide whether
the contents
could
be published.
She
did not do so and failed
to
consider
it properly
before making a decision. The
first respondent referred
the
court
to
Democratic Alliance v President
of
the
Republic
of
South
Africa
and
Others
[31]
Where
Yaccoob
ADCJ set out at paragraph 37:
"We
must look at the process as
a
whole and
determine
whether
the
steps
in
the
process were
rationally
related
to
the
end
sought
to be
achieved
and,
if
not,
whether
the absence
of
a
connection
between
a
particular
step
(part
of
the
means) is so
unrelated
to the end as to
taint
the whole process
with irrationality."
(Court emphasis)
(84)
If
I apply the three stage enquiry as set out in the
DA
case
[32]
I come to the
conclusion
that
the
first respondent
failed
to
consider
a
relevant
consideration,
by
her own
admission,
by
not
considering
the
contents
of
the section 28 inquiry.
Therefore
this ground of review must succeed.
(85) The three reasons set
out by the applicants, as to why the matter is in the public interest
is that it deals with the allegations
of misappropriation of public
funds and corruption; Mr Maharaj holds high public office and that
both the second and third respondents
may have contravened the
NPA
Act
by publishing the transcript of the section 28
inquiry without permission from the NDPP, albeit in court papers.
(86)The
Constitutional
Court
emphasized
the
importance
of
a
free
press
in
Khumalo and
Others
V
Holomisa
[33]
at paragraphs
23:
"[23] 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. As Joffe J said in Government of the Republic of South
Africa v 'Sunday Times'
Newspaper and Another
1995 (2) SA 221
(T) at
2271 - 228A:
'It
is
the
function
of
the
press
to
ferret
out
corruption, dishonesty
and graft
wherever
it may
occur and
to expose the perpetrators.
The press
must
reveal
dishonest
mal-
and inept
administration.
. . .
It must
advance
communication between the
governed and
those
who
govern.'"
(Court emphasis)
(87)There rests an
obligation on the mass media to provide the country's citizens with
information in a responsible manner.
(88) The issues in the
present matter revolve around the allegations against both the second
and the third respondents relating
to misappropriation of public
funds and corruption. Although Mr Maharaj, the second respondent, is
no longer the spokesperson for
the Presidency, at the time the
decision was taken he held a senior post in the Cabinet. There can be
no doubt that Mr Maharaj
was a public figure at the time of the
section 28 inquiry and had a high profile.
(89)
The
applicants
argue
that
the case of
Glenister
V President
of
the Republic
of
South
Africa
and
Others
[34]
is
applicable
where
the
court
held
at paragraph 118:
"This is so because corruption largely involves the
abuse of power. In corruption cases involving the public sector, at
least
one perpetrator comes from the ranks of persons holding
a
public office.
Hence
the need to shield
anti-
corruption
units from undue influence. This is
a
theme that recurs
in the international
and regional
instruments
cited by the amicus.
Independence
in
this context
therefore
means
the ability
to
function
effectively
without
any
undue
influence.
It
is this
autonomy
that
is
an
important
factor
which
will
affect
the performance of
the anti-corruption agency."
(Court
emphasis)
(90)
The
dicta
in
Tshabalala-Msimang and Another V Makhanya and
Others
[35]
,
to
which
the
court
was
referred
to
by
both the
applicants'
and
the
first respondent,
is
applicable
in the present
instance as Mr Maharaj is similarly
"a
public
figure"
and had been so as Minister of Transport
and as
Presidential
spokesperson.
(91)
The argument that he no longer holds public office cannot be a reason
for the matter not to be of public interest as Mr Maharaj
held public
office as a Cabinet Minister and then as the spokesperson for the
President of the Republic of South Africa. The fact
that he has since
retired cannot detract from the fact that at the time of the section
28 inquiry he was holding high public office.
(92) According to the
applicants there is a possibility, in the present instance, that the
second and third respondents may have
contravened the
NPA Act
and
due to the second respondent being a public figure it should be in
the public interest if these facts were published. If these
allegations are true there may have been a criminal offence committed
by the second and third respondents for which they could
be
criminally prosecuted. It is clear that no such prosecution had been
instituted and this reflects not only on the second and
third
respondents, but on the NDPP as well.
(93) It is so that public
interest must be weighed against other interests, which may be
equally legitimate. The first respondent
argues that there is a
possibility that other third parties' information might be revealed
should the section 28 inquiry's transcript
be disclosed. This cannot
be a reason for her decision as the first respondent was only aware
of the inquiry in general terms according
to her evidence. Section
6(2)(e)(iii) of
PAJA
provides:
"(2) A court or tribunal has the power to
judicially review an administrative action if-
(e) the
action
was taken-
because irrelevant considerations were taken into
account or
relevant considerations were not
considered;"
(94) It is evident that the NDPP had not properly
considered the public interest in such an important matter as this
as she had
not considered the section 28 transcripts when making her
decision. This is a fatal defect in her decision, as the whole issue
turns on the section 28(1) transcripts.
(95) Counsel for the first
respondent quoted the dicta in
the
Tshabalala-
Msimang
[36]
matter where the court held in paragraph 34:
"The
freedom
of
the
press is
celebrated
as
one
of
the
great
pillars of liberty.
It is entrenched in our
Constitution but it is often misunderstood.
Freedom
of
the
press
does
not
mean
that
the press is free to ruin
a
reputation or to break
a
confidence,
or
to pollute
the
cause
of
justice
or
to
do anything
that is
unlawful.
However,
freedom
of
the press
does mean that
there
should be
no
censorship. No
unreasonable restraint
should
be
placed
on
the press
as
to
what they
should publish."
(Court emphasis)
(96) The NDPP failed to
adhere to these provisions, as in this instance the second and third
respondents had already published the
section 28 transcripts
themselves in their court application and the contents of the
transcriptions were in the public domain.
(97) The applicants argue
that the NDPP's further reason for not granting permission to publish
is that according to her, she would
condone criminal behaviour and
that a court cannot retrospectively grant permission for publication
which had already taken place.
The first respondent alleges that the
criminal conduct in issue relates to the applicants' conduct at the
time by the applicants
publishing protected information without the
required permission. According to the first respondent the NDPP
cannot permit an unlawful
possessor to publish. This is based on
conjecture and speculation and not on actual facts.
(98) The applicants admit
that they now are in possession of the section 28 inquiry
transcripts, but have not disclosed the contents
of these transcripts
at any stage, but sought permission from the NDPP to publish the
contents of the transcripts in terms of section
41(6) of the
NPA
Act
contrary to what other newspapers and the second and
third respondents themselves had done.
(99) It is strange that
criminal charges were instituted against the applicants for allegedly
contravening section 41(6) in 2011,
but no prosecution has ensued in
the intervening five years. None of the employees of the first
applicant, including the third
applicant, had at any stage appeared
in court on any charges relating to this particular section 28(1)
inquiry. It cannot be rational
for the NDPP, who has to make the
decision to prosecute, not to have done so in the intervening five
years if she was serious in
her intention to prosecute. The pending
criminal charges should not have been a consideration when taking the
decision to refuse
permission to publish as it could not have
impacted on the decision that had to be taken.
(100) I cannot find that
permission to disclose will condone criminal behaviour. Each case
will have to be considered on its own
merits. In the present instance
the contents of the section 28 inquiry is already in the public
domain. No criminal charges have
been pursued against the applicants
in the intervening five years. This ground for her decision cannot be
sustained. It should
therefore be set aside in terms of section
6(2)(e)(iii) and section 6(2)(d) of
PAJA,
which provides:
“(2) A court
or
tribunal
has
the
power to judicially review
an
administrative
action
(d) if-the action was
materially influenced by an error of law;"
(101)The reason that the
interests of others and third parties would be affected cannot be
seriously entertained as she had stated
that she did not consider the
contents of the section 28 inquiry when making her decision. It
follows that she had not known what
the contents of the section 28
inquiry were and cannot rely on this reason as she, according to her
own evidence, could not have
known whether any other party was
implicated. She cannot rely on being aware of the contents of the
section 28 inquiry in
"general
terms".
It
was imperative that she had to ascertain the contents of the
transcripts of the inquiry and had to consider and decide whether
it
would have an impact on others or third parties. This she clearly did
not do, by her own admission.
(102) It is common cause,
that at the time, the information in question had been in the public
domain for some time at the time
she had made her decision.
(103)
She
had
not
rationally
made
the
decision
as
she
did
not
have
knowledge whether any
other
party
or
third party
would
be
affected as
she
did
not consider
the
dicta
in
Chairman,
State
Tender
Board
v Digital
Voice Processing (Pty) Ltd; Chairman,
State Tender Board V Sneller Digital (Pty) Ltd and
Others
[37]
where
Plasket
AJA
held at paragraph 40:
" In order
to be
rational,
the decision
must
be
'based
on
accurate findings
of
fact
and
a
correct
application
of
the Jaw'. That being so,
no
rational
basis
existed
for
the
STB's
conclusions:
t
he
administrative action that it took was not rationally
connected
to the information before it, as required by s 6(2)(f)(ii)(cc)
of
the PAJA
."
(Court's
emphasis)
(104) The first respondent
relies on the fact that she had indicated to the applicants that
"further consideration
is being
given
to your
request"
to show that
she considered the application, although policy militated against
disclosure. She did not consider the contents of
the section 28
inquiry and her finding cannot rationally be connected to the
information she had.
(105) Her decision on this
ground has to be set aside in terms of section 6(2)(d) of
PAJA
and
section 6(2)(e)(iii) and section 6(2)(f)(ii)(cc).
(106)
Section 41(6) of the
NPA
Act clearly
cloaks the
NDPP with
a
discretion
to
grant
permission
to
publish.
Her
reason
for
refusal
was
that
there was
a
general
policy
not
to
disclose
thereby
compromising her discretion
as
granted
by
section
41(6).
Her
decision
falls
to
be
considered
against
the
authority
in
Johannesburg
Stock
Exchange
and Another
v
Witwatersrand
Nigel
Ltd and Another
[38]
at page 152 C to D
where
the Appellate
Division held:
"Such
failure may be shown by
proof, inter alia, that the decision
was
arrived
at
arbitrarily
or
capriciously
or
ma/a
fide
or
as
a result
of
unwarranted
adherence
to
a
fixed
principle
or
in order to further an ulterior or improper purpose;
or that the president
misconceived the
nature of
the
discretion conferred
upon
him
and
took
into
account
irrelevant
considerations
or ignored
relevant
ones;
or
that
the
decision
of
the president was
so
grossly
unreasonable
as
to
warrant
the
inference that
he
had
failed
to
apply
his
mind
to
the
matter
in
the
manner aforestated."
(Court emphasis)
It is clear
that
she
considered
herself
to
be
bound
by
the
general
policy and did
not
use
her
unfettered
discretion
as
she
had to
do
according
to
the
provisions
of
section
41(6).
She
did not
keep
an
open
mind
and
did
not
consider
the contents
of the section
28(1)
transcripts
when making
her
decision
as
she
was
only
aware
"in general
terms"
of
the contents
of
the
transcripts.
If
the
finding
in the
Johannesburg
matter
[39]
is applied to the present circumstances
I
find that she did not
exercise
her
discretion
in the
circumstances
of
this
case and therefor her
decision should be set aside.
(107)
The applicants argue that the decision should be set aside in terms
of section 6(2)(e)(iii) of
PAJA.
Her reason for
refusing to grant permission to publish was that the disclosure of
the section 28 record would compromise an on-going
commission of
inquiry. She relied on a statement by the applicants which set out:
"The company
group
from
which Mr and
Mrs
Maharaj
are
alleged to have received payments .
..as well as Mr Shaik personally,
have been
implicated for engaging in unlawful conduct
in
respect
of the
arms
deal
.
.. Allegations
that are
linked to the arms
deal
are
of particular
pertinence
at
present
given
the new commission
of inquiry
that has been established
by
President
Zuma."
In any event, if she had
not
taken
the contents of the section 28
inquiry into consideration, how could she have known whether it would
have had any impact on the
commission of inquiry? The allegations
against the second and third respondents at that stage did not
involve the arms deal. I
agree that the commission of inquiry was
irrelevant to her decision and should not have been considered.
should be set aside on
this ground.
Her decision
(108)
At
the time the NDPP took the decision some of the information the
applicants sought to publish, was already in the public domain,
as
various media houses had published articles in this regard before the
applicants had obtained the section 28 transcripts.
(109)
Mr and Mrs Maharaj had disclosed the contents of the
transcripts themselves, firstly in the application to the High Court,
Transvaal
Provincial Division under case number 34526/2006 where the
record of the inquiry in terms of section 28 of the
NPA
Act
of both the second and third respondents were attached. Some
newspapers published the allegations without requesting permission
from the NDPP and were never sanctioned in terms of section 41(6) of
the
NPA Act.
(110) The NDPP decided that
the fact that the information was already in the public domain, was
irrelevant. Furthermore she contended
that should permission to
publish be granted, a floodgate would be opened whereby information
would be published and permission
requested
ex
post
facto.
This cannot be tenable,
as the applicants did not publish,but is only in possession of the
information. The applicants want to prevent
prosecution by publishing
the contents of the section 28 transcripts without permission and
therefor they applied to publish it.
(111)
Paragraph 45
of
Tshabalala-Msimang
and
Another
V Makhanya and Others
[40]
is apposite where Jajbhay J stated:
"Much of
the information
that
was published
was already
in
the public domain.
Here the
information,
although unlawfully obtained, went
beyond
being
simply
interesting to
the
public; there
was in
fact
a pressing
need
for
the public
to be given
the information contained in
the
medical
records of
the
first applicant.
Then, the disclosure
made
by
the Sunday
Times did not
mislead
the public
about
an issue
in
which
the public
has
a genuine
concern.
And
finally,
the publication
of
the unlawfully
obtained,
controversial
information
was capable of
contributing
to
a
debate
in
our
democratic
society relating
to
a
politician
in the
exercise of
her functions."
(Court
emphasis)
I fully support this
dicta
as the principles are applicable to the present review.
(112)
The important decision by Moseneke DCJ in
Independent Newspapers (Pty) Ltd
v Minister
for
Intelligence
Services:
In
Re
Masetlha
v
President
of
the
Republic
of
South
Africa
and
Another
[41]
at paragraph 55 must be referred to in
this context, where he held:
"In
deciding
whether
documents
ought
to
be
disclosed
or
not,
a
court
will
have
regard
to
all
germane
factors
which
include
the
nature
of
the proceedings;
the
extent
and
character
of
the materials sought
to
be
kept
confidential; the
connection
of
the information to
national
security;
the
grounds advanced for
claiming
disclosure
or
for
refusing
it;
whether the
information is
already
in
the
public
domain
and if so,
in
what circumstances it
reached the
public domain;
for
how
long
and
to
what
extent
it
has
been
in
the
public domain;
and,
finally,
the
impact
of the disclosure or non-disclosure on the
ultimate
fairness
of
the proceedings before
a
court. These
factors
are
neither
comprehensive
nor
dispositive
of the enquiry."
(Court emphasis)
And
at paragraph 62:
"In
any
event,
it
is
evident
from
the
voluminous
press clippings
placed
before
us
that
the
issues
covered
by
the
conclusions
are all well
within
the
public domain and
media discourse and are not
worthy
of
any
confidentiality
protection."
(113)
The
facts
in
the
present
application
for
review
are
comparable
to
the
Masetlha
matter
[42]
if regard
is
had to all the
press
clippings
and
referrals to articles in this regard.
The section 28 record has been in the public
domain since 2006 when the second and
third
respondents placed
it
in the
public domain through
the court case.
There
is thus
no
longer any confidentiality to be preserved as was the case in
the
Independent
Newspapers
case
[43]
.
The
court
was
further
referred
to
the
leading
English
decision
where
the
House
of
Lords
in
Attorney-
General v Guardian Newspapers (No 2)
[44]
where Lord Griffiths held:
''The 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."
And Lord Goff at page 659:
"The
principle of confidentiality
only applies to information
to the
extent
that
it
is
confidential
...
Once
it
has
entered
...
the
public
domain
...
then, as a general
rule,
the principle
of
confidentiality
can
have
no
application
to
it."
(Court emphasis)
(114) In the present instance the NDPP failed dismally
in this regard as she did not give the fact that there had been
extensive
prior publication any weight as she had not considered to
what extent the facts had already been in the public domain and the
dicta
in the abovementioned cases confirm it.
(115) The applicants did
not publish and then request permission to publish. The applicants
had sought permission to publish from
the outset. The hypothetical
case set forward by the NDPP will still result in an offence under
the
NPA Act.
(116)
It is quite clear that although all these publications had
taken place prior to the applicants requesting permission no steps
were
taken to prosecute any of the other concerned parties. Even the
second and third respondents had breached the provisions as set
out
in section 41(6) where they published the contents of the section 28
inquiries in court papers and in Mr Maharaj's biography.
There is no
indication that they will be prosecuted. It is indeed strange that
the persons who took part in the section 28 inquiry
did not keep the
contents of the inquiry confidential, but even went so far as to have
it published in a biography. In such an
instance it would be unfair
to deny a party permission to disclose where the involved parties
have already published the required
information.
(117)
This results in the untenable position that only parties who
request permission to publish are denied such permission but parties
who publish without permission attract no consequences.
(118) This decision by the
NDPP on this ground cannot be sustained and the decision should be
set aside in terms of section 6(2)(e)(iii)
of
PAJA.
Due to my findings on all the relevant grounds set out by
the first respondent, the decision falls to be set aside.
(119) This court is
requested to set aside the decision of the NDPP and not to remit it
to the NDPP for a fresh decision, but for
the court to find
exceptional circumstances and to substitute the decision by the NDPP.
(120) Section 8(1)(c) of
PAJA provides:
"(1)
The
court
or
tribunal,
in
proceedings
for judicial review
in
terms
of
section 6
(1), may
grant
any
order
that
is
just
and
equitable, including orders-
(a) ...
(b)
...
(c)
setting aside the administrative action and-
remitting the matter for reconsideration by the
administrator,
with or without directions; or
(ii)
in exceptional cases-
(aa)
substituting
or varying
the
administrative
action
or
correcting
a
defect resulting from the administrative action;
or
(bb) directing
the
administrator
or
any
other
party to
the
proceedings to
pay compensation;"
(Court emphasis)
(121)
The
main fact
that
the
court
is
requested
to
consider
is
whether
it
is just
and
equitable
to
grant
permission
to
publish
the section 28(1) transcripts,
as
they
are already
in
the public domain. The applicants urge
this court
to
follow the approach
which
was set
out in
Hangklip Environmental Action Group v MEC for
Agriculture,
Environmental
Affairs
and
Development
Planning, Western
Cape,
and
Others
[45]
at pages 83 to
84 where
the court found
that
the decision
being reviewed
was wholly irrational and based on incorrect information.
(1
22)
The first respondent argues that the matter must be remitted
to the first respondent for reconsideration as she is best placed and
possesses the relevant facts and expertise to deal with the matter
and to make the decision. I cannot agree with this submission
due to
my findings on each and every fact she took into consideration and
the decision that her decision should be set aside for
all the
reasons mentioned above.
(123)
I must agree, if I have regard to my findings on each ground, that
the NDPP acted in an irrational manner by not considering the
section
28 record, the public interest and the fact that all the information
was already in the public domain where even the second
and third
respondents had published it, that it constitutes exceptional
circumstances.
(124) This matter has been
outstanding since 2011. If the court remits it, it would further
delay a matter which should have been
finalised much earlier and
further prejudice the applicants.
(
1
25}
In
Trencon
Construction (Pty) Ltd
v
Industrial Development Corporation
of
South
Africa
Ltd and
Another
[46]
Khampepe
J
held
at
paragraph
47:
'To
my
mind,
given
the doctrine
of
separation
of powers,
in
conducting
this
enquiry
there
are
certain
factors
that
should inevitably
hold
greater
weight. The first
is
whether
a
court
is
in as
good
a
position
as
the
administrator
to
make
the
decision.
The
second
is
whether
the
decision
of
an
administrator
is
a
foregone conclusion.
These
two
factors
must
be
considered
cumulatively.
Thereafter,
a
court should
still consider other
relevant factors. These may include delay, bias or the
incompetence
of
an
administrator.
The
ultimate
consideration is
whether
a
substitution order
is
just
and
equitable. This will involve
a
consideration of
fairness
to
all
implicated
parties.
It
is prudent
to
emphasise
that
the
exceptional
circumstances
enquiry requires an
examination of each matter on
a
case-by-case basis that accounts for all relevant facts and
circumstances."
(Court
emphasis)
(126) I have been urged to consider all the factors
cumulatively to come to the decision that exceptional circumstances
exist in
this application, as I have the requisite knowledge which
was available to the NDPP at the time she took the decision.
(127) Furthermore, the
section 28 inquiry's transcripts can by no stretch of imagination be
regarded as confidential under these
circumstances where it has been
in the public domain for at least 10 (ten) years.
(128) I agree that it will
serve no purpose to remit the matter to the NDPP, but it will be just
and equitable for this court to
substitute the decision of the NDPP.
(129) Therefore I make 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 section 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 section 28 record;
5.The first respondent to
pay the costs of this application, such costs to include the costs of
two counsel.
Judge C Pretorius
Case number : 37510/2012
Matter heard on: 23 March
2016
For the Applicant : Adv G
Marcus SC, Adv F Ismail, Adv M Seape
Instructed by: Webber
Wentzel Attorneys
For the
1st
Respondent : Adv K PiIlay SC, Adv M Lekoane
Instructed by : The State
Attorney
For the 2nd & 2nd 3rd
Respondent : Adv MR Hellens SC
Instructed by: BOK
Attorneys
Date of Judgment: 12 May
2016
[1]
Act no. 32 of 1998
[2]
Act 3 of 2000
[3]
Volume 3, page 253, paragraph 28
[4]
2015(5) BCLR 560 SCA
[5]
Supra
[6]
2016(2) SA 561 GJ
[7]
Volume 3, page 255, paragraph 33
[8]
Supra
[9]
Supra
[10]
Supra
[11]
Act 45 of 1988
[12]
1998(2) SA 617 (C)
[13]
1996(2) SA 693 NPD
[14]
2011(4) SA 420 (SCA)
[15]
Supra
[16]
1997 (1) SA 1
AD
[17]
2002 (1) SA 511
(SCA) at paragraph 28
[18]
Act 108 of 1996
[19]
Act 17 of 1956
[20]
2012(6) SA 443 (CC)
[21]
2007(5) SA 540 (SCA)
[22]
Chapter 2 of the Constitution, Act 108 of 1996
[23]
2007(6) SA 350 (CC)
[24]
2001(1) SA 545 (CC)
[25]
2009(1) SA 337 (CC)
[26]
2007(1) SA 576 (SCA)
[27]
[2012] 1 All SA 451 (SCA)
[28]
2005(3) SA 589
[29]
Annexure "RA 2" Page 284
[30]
2014(1) SA 604 CC
[31]
2013(1) SA 248 (CC)
[32]
Supra
[33]
2002(5) SA 401 (CC)
[34]
2011(3) SA 347 (CC)
[35]
2008(6) SA 102 (W) at paragraph 44: "In her capacity as a
Minister 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." And at paragraph 36: " Public interest, it must be
noted, is a mysterious concept, like a battered
piece
of string charged with
elasticity, impossible to measure or weigh. The concept changes with
the dawn of each new day, tempered
by the facts of each case. Public
interest will naturally depend on the nature of the information
conveyed and on the situation
of the parties involved."
[36]
Supra
[37]
2012 (2) SA 16 (SCA)
[38]
1988 (3) SA 132 (A)
[39]
Supra
[40]
Supra
[41]
2008 (5) SA 31 (CC)
[42]
Supra
[43]
Supra
[44]
[1990] 1 AC 109, [1988] 3 All ER 545
[45]
2007 (6) SA 65 (C)
[46]
2015(5) SA 245 (CC)