Access to Public Information, Political Expression, Privacy, Data Protection and Retention
Bainter v. League of Women Voters
Closed Expands Expression
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The North Gauteng High Court reaffirmed the public’s right to know and the journalists’ right and duty to publish information in the public interest. The Court ruled in the favour of the M and G Centre for Investigative Journalism and the Mail & Guardian (M&G) newspaper in their application against the National Director of Public Prosecutions (NDPP), who had refused M&G permission to publish information from a closed bribery inquiry involving the former South African transport minister and presidential spokesperson, Mac Maharaj.
In 2003, the Directorate of Special Operations (DSO), also known as ‘the Scorpions’, conducted an investigation under Section 28 of the National Prosecuting Authority Act (NPA Act) into the affairs of the former South African transport minister and presidential spokesperson, Mac Maharaj, and his wife, in particular with regards to an arms deal. The investigation produced recorded and transcribed interviews with Mr. and Mrs. Maharaj that were supposed to be confidential but copies of which were obtained by the applicants, M&G.
As required under the NPA Act, M&G requested permission from the NDPP to publish extracts of the interviews on the ground that the information was in the public interest, that most of it was already in the public domain, and that it would enable them to inform the public about an issue of public importance in accordance with media freedom. The NDPP denied the request, contending that granting permission would be tantamount to condoning criminal activity and that the National Prosecuting Authority (NPA) operated according to a general policy of non-disclosure as reflected in the UN Guidelines on the Role of Prosecutors and Section 41(6) of the NPA Act. The NDPP further reasoned that it was irrelevant that certain content was already in the public domain and that “other persons”, as mentioned in the Section 28 record, required protection.
The applicants sought to have the High Court review and set aside this decision by the NDPP and order that permission to disclose be granted. They argued that the prohibition in section 41(6) of the NPA Act of publishing the record of evidence given at a Section 28 enquiry is a limitation on the right to freedom of expression as set out in section 16 of the Constitution of South Africa. They also argued that the NDPP failed to properly consider the right to freedom of expression and media freedom in circumstances which involved material discrepancies between what a high ranking cabinet official and presidential spokesman had told the NPA about the use of public funds and what had in fact transpired.
The respondents argued that the applicants were in unlawful possession of information and that if the Court granted relief, it would result in parties summoned to appear in Section 28 investigations being unable to rely on the confidentiality guarantees of the NPA act. They further argued that Section 28 did not empower the NDPP to grant permission to publish information gathered under its procedures after the fact.
Justice Pretorius delivered the judgment. He found that the respondents had only offered speculation and conjecture and placed no facts before the court on which it could find that the applicants’ documents were received unlawfully or that the record was disclosed unlawfully by a third party. Thus, he held that he could not agree that in the circumstances a crime had been committed, as there was no proof. He found that while Mr. and Mrs Maharaj had not been questioned for public record without the NDPP’s permission, all the parties involved on the respondents’ side had jointly placed the Section 28 record into the public domain through court filings in this case.
The Court noted that Section 41(6) of the NPA Act did not constitute a complete ban on publication, but that it allowed the NDPP discretion in granting permission to publish. He held that Section 28(1) was a drastic departure from freedom of speech, which therefore required the NDPP to strike the correct balance between securing the integrity of the criminal justice system and upholding the right to freedom of expression. The Court emphasized that Section 39 of the Constitution makes it imperative that every court promotes the spirit, purport and objects of the Bill of Rights.
The NDPP had stated that she was aware of the Section 28 interview ‘in general terms’. The Court held that this made it clear that the NDPP did not properly consider the Section 28 record with full knowledge of its contents before refusing permission to publish. The Court found that this was not good enough to objectively decide whether the contents could be published. The Court pointed out that the Constitutional Court had already emphasized the importance of a free press and the obligation on the mass media to provide citizens with information in a responsible manner. The Court held that Mr Maharaj was a public figure at the time of the Section 28 inquiry, and rejected the argument that because he no longer held public office the matter was not of public interest. The court held that public interest must be weighed against other interests which may be equally legitimate. It was clear that the NDPP had not properly considered the public interest in such an important matter as she had not considered the Section 28 transcripts when making her decision.
The Court disagreed that granting permission to disclose would condone criminal behavior, noting that it was strange that criminal charges were instituted by the NDPP but no prosecution had followed in the intervening five years. This indicated that the NDPP was not serious about the intention to prosecute. Further, since in the present case, the contents of the Section 28 inquiry had been put into the public domain through court filings, this ground for refusing to grant permission could not be sustained.
The Court finally held that the NDPP’s finding was not rationally connected to the information she had at the time, and that she did not exercise her discretion in the circumstances of this case. The NDPP’s failure to consider prior publication and to what extent facts had already been in the public domain resulted in the untenable position whereby only parties who requested permission to publish were being denied such permission, while those who had published without permission faced no consequences. Therefore the NDPP’s decision should be set aside.
Given that the matter had been waiting to be resolved since 2011, the Judge decided not to delay further by remitting the case back to the NDPP and further prejudicing the applicants. He held that it would be just and equitable for the High Court to substitute the decision of the NDPP and granted the applicants permission to publish the Section 28 record.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case upholds media freedom with regard to information that is in the public interest and which is no longer subject to any prior considerations of confidentiality by virtue of having fallen into the public domain.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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