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Akanyang Merementsi
 
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Is publication of leaked on-going investigations ever in the public interest?

21 November 2011, 07:17

Should we really get worried over Sunday Independent’s leaked reports on the imminent arrest of ANCYL President Julius Malema following the Hawks’ on-going investigation into his corruption and fraud allegations? This is one important question that not only us bloggers have to analyse but also that which all media houses (online, print and broadcast) have to tackle too. Or am I just wasting my time?

At first I was not worried at all (as some of you are not) when I saw Malema’s imminent arrest report but as I kept reading – and as a media observer – I then wondered whether these leaked reports were not a disadvantage to Malema himself as subject thereof. More than that I wondered at the impact they have or had on the entire (and related) investigations by the Hawks and whether any investigation would be lodged into how these leaks came about and the culprits responsible. Of course I am raising this issue being very aware and knowing very well of our country’s press/media freedom which is enshrined in the constitution. And like many other constitutional rights I think it is important to take into account and know our media’s press freedom rights limit.

One is raising this issue because at the time when Public Protector was still investigating the now amper-former police commissioner Bheki Cele over the lease deals – for which he has since been suspended by president Jacob Zuma and even had an inquiry set up to investigate his fitness to hold that office – Sunday Times was the first newspaper to report on the lease deal in August last and the subsequent leaked ongoing investigation by the protector. Following the leak Madonsela appealed to the entire media to refrain from publishing her investigations because they undermined her office as a constitutional chapter 9 institution.

In June I criticised the newspaper and even asked: “Sunday Times ‘against’ the Press ethics media and rules too?” after it published (see also here) the protector’s “provisional” findings which it claimed were leaked to it. Even public works minister Mahlangu-Nkabinde – who was fingered in the report to have committed “improper” conduct because despite two legal opinions saying the lease was invalid she went ahead anyway and authorised them – said at the time that the it was worrying that the leaked report was “made available to the media” long before she could even respond to it, and urged the protector to “seriously consider this matter as it is neither advisable nor acceptable to interact on the provisional report through the media”.

Following my criticism of the Sunday Times’ leaked reports Madonsela somewhat vindicated me and expressed her disappointment at the newspaper, saying: “this is the second time in less than a month that the newspaper in question publishes information contained in a confidential report”. She even planned an “urgent” meeting with the South African National Editors’ Forum (Sanef) to “establish why the newspaper continues to act unethically and in breach of the law [by publishing leaked and confidential investigation reports]”.

Although it is not clear whether investigations by the Hawks are ever declared confidential or provisional like the Public Protector’s, Madonsela mentioned, however, that section 7(2) of the Public Protector Act 23 of 1994 outlawed any “disclosure of the contents of documents such as provisional reports as such documents are part of investigations and therefore not for public consumption”. She said “publishing of leaked provisional reports undermines justice, fairness and the integrity of her investigations” and that “it also has the potential to strain relations between her office and some of its stakeholders, some of whom are at times the subject of investigations”.

Sunday Independent claimed that it was no longer a matter of “if” but that a matter of when Malema was likely to be hauled before the court. Headlined “Malema faces arrest”, the newspaper report claimed there was “uncovered prima facie evidence of wrongdoing relating to the warding of tenders to companies with close ties” to Malema in his home province, Limpopo. A source to the investigation told the newspaper (on condition of anonymity) that Malema’s acquaintances had approached the Hawks requesting co-operation instead of being arrested but were told to wait because the Hawks did “not need them to prove our case against him [Malema]. “A decision on whether they will be charged separately later or will testify against him will be taken later”, said the source. Malema’s case apparently “relied heavily” on SMSes exchanged between Malema and several businessmen.

It is worth mentioning, too, that not only is the Hawks investigating Malema and his alleged fraud and corruption allegations but that the South African Revenue Services and the public protector are also investigating him. Madonsela’s spokesperson Oupa Segalwe told the newspaper at the time that “Up to so far we have collected documents, identified some of the witnesses and agreed with the Hawks on the approach. We will be getting three investigators to help expedite the case” while the Hawks spokesperson Polela McIntosh refused to comment, saying: “We are not giving updates on investigations”.

And it is at the background of these – McIntosh’s comments that it is not Hawks policy (my emphasis) to give updates on investigations and Madonsela's that leaked reports undermine justice, fairness and the integrity of such investigations and their potential to straining relations between investigating offices and people who are subject to these investigations – that I ask whether the leaking of on-going investigations like this of Malema should be published by the media (print, online and broadcast) and whether their publication are in fact in the media interest as is always claimed by our Four Estate.

Again, I ask this bearing in mind the media’s freedom rights and limitations thereof.

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