Author of “Gangster State” does NOT have a duty to report Magashule’s alleged corruption to the Police

As often happens when journalists report on alleged corruption, some detractors of Pieter-Louis Myburgh’s book Gangster State – Unravelling Ace Magashule’s Web of Capture, complained that Myburgh should have reported the alleged corruption to the Police instead of doing his job and writing a book about it. Some have even argued that Myburgh (or at least his editor) has a legal duty to report the alleged corruption to the Police. Such claims attempt to draw attention away from the real issue – the alleged corruption of Ace Magashule and his network of collaborators – and are based on a misconception of the law.

Last week the Zondo Commission of Inquiry into state capture heard that between 2013 and 2018 the Special Investigative Unit (SIU) referred 686 matters of alleged corruption to the NPA for prosecution. Not one of these cases has been successfully prosecuted. Not a single one.

In January this year Police minister Bheki Cele further revealed that over the past four years only 135 convictions were secured out of 1959 cases of suspected corruption reported to police in terms of the Prevention and Combating of Corrupt Activities. A further 2262 cases were reported to the Hawks during the same period and of those cases only 523 had resulted in convictions.

It is impossible to know how many cases of alleged corruption have never been reported to the Police because of a well-grounded fear that neither the Police or the NPA would take any meaningful action to investigate the allegations or prosecute the culprits.

What is clear is that a miniscule number of individuals involved in corruption are ever successfully prosecuted. Because of the capture of the Hawks and the National Prosecuting Authority (NPA) during Jacob Zuma’s term as President, an even smaller percentage of powerful politicians and businesspeople have been successfully prosecuted for corruption. Markus Jooste, Adriano Mazzotti and all the politicians involved in Bosasa corruption come to mind.

These statistics illustrate the cynicism of some of those who respond to reports of alleged corruption by saying that “the law must take its course”, or that “these are mere gossip and no one has been charged’, or that the reporter “should have gone to the police” rather than expose alleged corruption in the media.

It is a form of “whataboutery”: the bullshitters’ way of deflecting attention from the allegations of corruption by blaming the journalists who did his or her job by investigating the alleged corruption and reported on it. It is a bit like a teacher who dismisses a child’s complaint that her parents are abusing her because the child did not report the abuse to her parents.

Those who indulge in this kind of rhetoric also ignore the fact that nothing prevents the police and prosecutors from reading the reports on alleged corruption in newspaper articles and books and then investigating these allegations and prosecuting the suspects – just as nothing prevents the police from investigating a murder even where the murdered person did not lay a charge against her murderer because the dead person was otherwise engaged.

But just because this argument is aimed at distracting attention from the alleged corruption, does not mean some people do not have a legal duty to report corruption. There is no general common law duty on citizens to report crime. However, section 34 of the Prevention and Combatting of Corrupt Activities Act (Precca) places a duty on a carefully defined group of individuals to re[port corruption. Section 34(1) states that:

Any person who holds a position of authority and who knows or ought reasonably to have known or suspected that any other person has committed [corruption]… the offence of theft, fraud, extortion, forgery or uttering a forged document, involving an amount of R100 000 or more, must report such knowledge or suspicion or cause such knowledge or suspicion to be reported to any police official.

Section 34(4) lists a number of persons as holding a “position of authority”, including the Director-General of a national or provincial department; municipal managers; any public officer in the Senior Management Service of a public body; any head, rector or principal of a tertiary institution; the manager, secretary or a director of a company or a close corporation; the executive manager of any; any partner in a partnership; and the chief executive officer of any institution; any other person who is responsible for the overall management and control of the business of an employer.

A search on Saflii did not produce a single reported judgment in which somebody was prosecuted for failure to report suspicions of corruption in contravention of section 34 of Precca. It remains unclear whether this failure is due to police and NPA incompetence, due to a lack of political will, or because of both.

What is clear is that no matter how you interpret this section, a journalist writing a news story or a book is not required by section 34 to report corruption which he or she uncovered as he or she is not serving in “a position of authority”. Those who claim that Precca places a legal duty on Pieter-Louis Myburgh to report any suspicions about Ace Magashule’s alleged corruption and his network to the Police are therefore mistaken.

It is true that an expansive (and almost certainly unconstitutional) interpretation of section 34 of Precca would require an editor (but not a journalist like Myburgh) to report corruption when he or she becomes aware of it. However, apart from the fact that such an interpretation would render the section unconstitutional, it would also lead to absurd consequences and would render the section completely unworkable.

Such an expansive interpretation would place a duty on all the people listed above to report to the Police all corruption or reasonable suspicions of corruption whenever they “know or ought reasonably to have known or suspected” that the crime of corruption was committed. In this view those in authority would not only have a duty to report corruption that occurred in relation to the people and institution over which they wield authority. It would apply to every single instance of corruption or suspected corruption that they become aware of.

According to this interpretation a director general, a director of a company, a chief executive, or and editor of a newspaper or a book would have a legal duty to go to the Police after they had read a report in The Sunday Times or Daily Maverick detailing credible allegations of corruption, theft, fraud, extortion, forgery or uttering a forged document against anyone.

That director general, director of a company, chief executive, editor, or other person in authority who attends a braai where a friend tells her about witnessing a motorist offering a traffic officer a bribe, would also have a legal duty to report this. But the deputy director general, a senior manager in a company, or the copy editor of a book would not have the same legal obligations.  Neither would the rest of the population.

In this view the persons in authority listed above would spend most of their days at Police stations as they would be committing a criminal offense if they become aware or reasonably suspect corruption have occurred and fail to report it. This interpretation is rather absurd and is almost certainly irrational.

The proper interpretation of section 34 must be that a person in authority  has a legal duty to report corruption or other listed crimes if he or she knew or reasonable ought to have known about it or have suspected that the alleged crime was committed by somebody over which he or she wields authority or where the alleged crime is linked to the institution over which he or she exercises authority.

The director general of the Department of Home Affairs must have a legal duty to report reasonable suspicion of corruption that occurred in his Department, but does not have a duty to report suspicions of corruption which occurred in the Mahikeng local municipality or at Steinhoff – even if he had read about this in the media.

Similarly, an editor might have a duty to report suspicions that one of her journalists are taking bribes from Ace Magashule, but does not have a duty to go to the police to report on allegations of corruption published in her newspaper (or in a book she edited). In any case, such information is readily available and any relatively alert police officer who is not completely allergic to reading would know about the allegations long before it is reported to him or her.

As far as journalists or editors are concerned, there is another reason why the expansive interpretation of section 34 of Precca is untenable. A legal provision that places a blanket legal obligation on a journalist or editor to report suspicions or knowledge of corruption to the Police may infringe or threaten to infringe on the right to free expression which includes freedom of the press and other media. This is because such an obligation may make it more difficult for journalists to do their work by threatening the confidentiality of sources and by discouraging whistle blowers to speak to journalists.

Such a limitation on the right to freedom of expression would not be justifiable in terms of the limitation clause, as there are “less restrictive means” available to ensure that the Police is made aware of suspicions of corruption, without placing a duty on journalists or editors to be seen to collude with the Police. One way to achieve the purpose without limiting media freedom is for Police officers to read the newspaper reports and books about corruption written by journalists. Another is to place the duty to report on those who are in fact in authority over those suspected of committing corruption or heading those institutions where suspected corruption has occurred.

The Constitutional Court held in 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 held that ”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.”

This means that the restrictive interpretation of section 34 of Precca does not only avoid the absurd consequences that must result from embracing the expansive interpretation, but also avoid unjustifiably infringing on the right to freedom of expression.

Maybe somebody can design an app which would automatically replace the phrase “journalist should have reported the alleged corruption to the Police” with the phrase “I am a bullshitter who is trying to deflect attention from serious corruption allegations”.

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