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

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.

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 offence3 has been or is being committed, to
conduct an investigation on the matter.4 For the purposes of such an investigation, the

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

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
camera6 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).

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).’

[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 & others10 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

10 The Public Protector v Mail & guardian Ltd & others 2011 (4) SA 420 (SCA) para 14.

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.

11 Gates v Gates 1939 AD 150 at 154-5.

[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 & another12 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 J13 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

12 Janit & another v Motor Industry Fund Administrators (Pty) Ltd & another 1995 (4) SA 293 (A) at 306.
13 In Shell SA (Edms) Bpk en Andere v Voorsitter, Dorperaad van die Oranje-Vrystaat, en Andere1992 (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 (3) SA 721 (SCA) at 733E.

[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

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.

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

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.

[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

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
(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

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 & others27 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:

Alliance v Speaker of the National Assembly & others 2016 (3) SA 580 (CC) para 1.
26 Khumalo & others v Holomisa 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 2008 (6) SA 102 (W) para 45.

‘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

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.

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

33 See Tetra Mobile Radio (Pty) Ltd v Member of the Executive Council of the Department of Works &

[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 Authority35,
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

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.

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

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.

[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

38 Attorney-General v Guardian Newspapers (No 2) (the Spycatcher case) [1990] 1 AC 109, [1988] 3 All
ER 545.
39 Ibid at 652 (ACR).
40 Vereniging Weekblad Bluf! V The Netherlands (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.

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

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).)

allegations that they may have also been involved in corruption in respect of other
government tenders are of clear public interest.

[39] It 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, mere 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

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.

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