Quote of the week
Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
Judge errs in gagging Mail and Guardian, but truth reavealed
If the SABC internal audit report is to be believed, the head of the SABC’s legal services, Mafika Sihlali, is a fraudster and a thief of the most brazen kind. It is clearly in the public interest that such explosive allegations made by the most credible of institutions – the SABC internal auditing committee – be aired in public.
After all, we pay our TV licenses and have a right to know about serious, credible allegations of theft and fraud at the public broadcaster. However, Judge Lettie Molopa, of the Pretoria High Court disagrees. In the early hours of Saturday morning she granted an interdict against the Mail and Guardian prohibiting it from publishing details of the internal report.
She argued that Mr. Sihlali did not have sufficient time to respond to the allegations made in the report. Focusing on the potential harmful effect of publication on Sihlali she said: “No doubt once the article is published it will definitely destroy the applicant.” She said it was “just and equitable” to interdict the Mail and Guardian.
I find the logic of the learned judge, well, spectacularly flawed.
It is true that the findings in the internal audit report is damning, as it contains recommendations that Mr. Sihlali should be criminally prosecuted for theft and fraud. If the findings of the report are correct, Mr. Sihlali should surely also be barred from ever acting as an attorney again. The report finds prima facie evidence that Sihlali has defrauded the SABC of almost 2 million Rand. The fraud allegedly started only 3 weeks after he started working at the SABC.
He did this by allegedly irregularly outsourcing work to his own law firm, charging double for VAT, claiming double payments for work and giving work to his friends.
Troubling also is the fact that the Head of the SABC, Dali Mpofu (called a compulsive, sophisticated liar by Winnie Mandela in 1992) shares directorships with Sihlali in nine different companies, which are active in financial services, advisory services and mining. In addition, SABC chairperson Eddie Funde and Pearl Luthuli, the head of SABC3, share a directorship with him on Onetel, a publicly listed telecommunications company.
So far neither Mpofu or the SABC Board has taken any action against Sihlali despite the existence of the report. This seems fishy in the extreme.
In this context the judgment from the High Court seems deeply troubling. It seems to me not to have taken into account or misinterpreting the recent judgment of the Supreme Court of Appeal in Midi Television (Pty) Ltd vs National Directorate of Public Prosecutions.
In that case Judge Nugent argued that a publication could only be gagged if the prejudice that the publication might cause 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 the court would not gag a paper unless it believes that the disadvantage of curtailing the free flow of information outweighs its advantage.
In this case, Judge Molopa decided that the interest of one person – a servant of the people working for the public broadcaster who have been convincingly implicated in criminal activity – should weigh heavier that the interest of the 45 million South Africans who have a right to know how their TV licence fees and taxes are spent and how the public broadcaster deals with corruption in its midst.
This she could only do by not giving any weight to the interest of the 45 million ordinary South Africans and giving far too much weight to one (relatively important, politically connected and influential) person’s interests. It seems to me that this judgment shows a troubling contempt for the masses of the people and our Constitution, and a surprising loyalty to rich, well-connected elites.
It is profoundly in the public interest (and in the interest of democracy) for the M&G to publish such serious allegations. Mr. Sihlali could have been given the opportunity to respond to the allegations next week, but at some point surely the information would become known and he would suffer the consequences. The mere existence of the report hurts his reputation – the Mail and Guardian is merely reporting on facts but are now punished for this by the Judge. To give an interdict now only postpones the inevitable publication of the allegations that Mr. Sihlali is a crook. Why interdict the paper after it was printed except to teach the Mail and Guardian a lesson?
If Mr. Sihlali did not want to have his reputation destroyed, he should not have acted in a way that provided prima facie evidence of criminal activity to the audit committee. It is not for a judge to protect the actions of such a public servant from public scrutiny, because it sends a signal that the judge does not respect freedom of the media and thinks that the media did something wrong by exposing the credible findings of theft and fraud.
