It was the evening of 9 May 2007. I received a call from the news editor of The Star. A journalist had been assigned to report on the Constitutional Court application by former director-general of the National Intelligence Agency, Billy Masetlha, against then president Thabo Mbeki. Masetlha alleged that Mbeki had unlawfully suspended and then dismissed him from his post. The court was due to hear arguments the next day. 

The problem for the journalist was that the heads of argument (the parties’ legal summaries of their case) were not available to download from the Constitutional Court’s website, as was usually the case. And when the journalist called the office of the registrar of the Constitutional Court to get copies earlier that day, the registrar said he had been instructed that the heads of argument could not be released because they contained information that if made public would harm national security. When the journalist approached Masetlha’s attorneys for the documents, they too declined, given the position that the registrar had adopted.

We worked through the night to bring an urgent application before the Constitutional Court the next morning, when the Masetlha case was due to be heard. The court granted immediate access to the heads of argument and placed the onus on the litigating parties to justify why any other records filed in the case should not be available to the public (most of the documents were eventually made public). And the journalist reported on the Masetlha case that day, guided by the heads of argument she had successfully obtained, and the oral submissions in court.

That journalist was Karyn Maughan, now accused number two in a private criminal prosecution brought by former president Jacob Zuma. 

Maughan is a specialist journalist – she reports on significant court cases, developments in the judiciary and legal issues. There are only a few such specialists in South Africa – and when they are reporting on high-profile legal cases – such as Masetlha’s, or the State’s prosecution of Zuma for alleged corruption – their currency, their tools of the trade, are the court documents which set out the parameters of the legal dispute, and which in some legal cases contain the evidence of each party. Access to such documents helps legal journalists understand the dispute so that – in addition to observing the case in court – they can report and provide analysis accurately and with appropriate context. 

The right to publish stories based on court documents is a fundamental principle of media freedom. That’s why, 15 years ago, The Star took urgent action to come before the Constitutional Court to get the documents in the Masetlha case. That’s why, in 2015, the Supreme Court of Appeal said, in one of the leading cases on open justice, that “the animating principle… has to be that all court records are, by default, public documents that are open to public scrutiny at all times”. And that’s why, when Zuma applied for a postponement of the resumption of his criminal trial in 2021, Maughan wanted to get access to the court papers that would inform the public why Zuma was arguing for the postponement, and the State’s response.

Read more in Daily Maverick: “Zuma’s strategy designed to grind down the prosecution – but SA’s robust legal system will prevail”

According to Adriaan Basson, editor of News24 (which published Maughan’s story about the postponement), the day before the court was to hear the postponement application, Maughan asked Advocate Andrew Breitenbach SC, representing the State in the application, whether court papers had been filed. He gave her an unsigned copy of the affidavit of Advocate Billy Downer SC (the lead prosecutor in the Zuma prosecution) on condition that she only reported on it once it had been filed in court. She complied. The next day, says Basson, Breitenbach sent Maughan a copy of Zuma’s affidavit, which had by then been filed in court. Both affidavits – Downer’s and Zuma’s – attached a letter from a medical professional (a brigadier-general in military health services) giving a medical reason for Zuma’s application for postponement. Maughan and News24 published a story about the postponement and the brigadier-general’s letter two hours later.

Jacob Zuma’s private prosecution of Billy Downer and Karyn Maughan relates to the disclosure in a news story of a medical letter. (Picture: Thuli Dlamini)

Fast-forward just more than a year. Zuma has now instituted a private prosecution of Downer (accused number one) and Maughan relating to the disclosure in the news story of the brigadier-general’s letter. Our law on private prosecutions says this: if the National Prosecuting Authority (NPA) declines to prosecute, a private prosecution can be brought by any person who proves a “substantial and peculiar interest” arising out of “some injury which he individually suffered” from the commission of a crime. And such a prosecution can’t be brought for an ulterior purpose; that would be an abuse of process.  

Read more in Daily Maverick: “Zuma cocks a snook at press freedom and the justice system as he takes a top reporter to court”

Zuma laid a criminal complaint against Downer and “any other person” in relation to the disclosure of the letter. The NPA declined to prosecute, so Zuma is now doing so himself. His argument is that the injury he suffered from the disclosure is that his “right to confidentiality, dignity and fair trial rights have been prejudiced”. 

But what did Maughan do wrong? The charge sheet alleges that she has breached section 41(6)(b) of the National Prosecuting Authority Act.  

That provision prohibits anyone from disclosing “any book or document” in the possession of the NPA without permission from the National Director of Public Prosecutions. Now, while the Zuma and Downer affidavits (and the attached letter from the brigadier-general) are “documents” in the possession of the NPA, once they are filed in court, they become public documents. So, the provision cannot apply to disclosure of documents once they are filed in court. And Maughan’s story about the medical letter was published after the documents were filed in court.

What about the receipt by Maughan of Downer’s affidavit before it was filed? That can’t be hit by section 41(6)(b), because it prohibits disclosure not possession of documents from the NPA. Zuma’s charge against Maughan on this score is that she was an accomplice: she “facilitated, aided and/or encouraged” Downer to disclose the letter and thus aided or abetted him in committing a crime. 

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Yet, all Maughan did was ask for the court documents, which were voluntarily provided to her. What’s more is that she agreed they would not be published before they were filed in court. It seems a quantum leap from this to argue that she aided and abetted a criminal offence. She did what legal journalists do every day: they ask lawyers and others for court documents. She should not face criminal consequences for doing her job.  And Zuma’s claimed “injury” flowing from the disclosure is, in my view, also wildly exaggerated – the disclosure of the letter could not have impacted on the fairness of his criminal trial because the letter had already been disclosed in court by the parties themselves. And for similar reasons, there could be no breach of Zuma’s privacy through the disclosure by Maughan.  

Egregious action

In my view, what makes this legal action by the former president egregious – even more so than the litany of failed civil defamation lawsuits he brought against the media many years ago – is that this is a criminal case, where the State has already declined to prosecute. Moreover, Zuma could have claimed confidentiality over the medical letter when he filed his postponement application – but he did not. And Judge Piet Koen (who is presiding in the corruption case against Zuma) has already dealt with the disclosure of the medical letter in the context of Zuma’s unsuccessful argument that Downer should be removed from the case, saying that the disclosure did not violate Zuma’s right to privacy. 

Against that background, to bring a private prosecution against a journalist doing her job creates a chilling effect on other journalists. After all, if Maughan is convicted, she could face jail time of 15 years.  

That is why this is a case that should send shivers down our democratic spines.  

It is not just Maughan but media freedom itself that Zuma is putting on trial. DM

Dr Dario Milo is a partner at Webber Wentzel, visiting adjunct professor of law at the University of the Witwatersrand and a member of the High Level Panel of Legal Experts on Media Freedom chaired by Lord Neuberger.