Karyn Maughan prosecution branded ‘intimidation’ and ‘attack on media freedom’

By Michael Appel

The man tasked with prosecuting Jacob Zuma on corruption charges, and a journalist who’s written extensively about Zuma’s decades-long legal wranglings, will find themselves in the dock come 10 October.

On Tuesday, state prosecutor Billy Downer, SC and News24 specialist legal writer Karyn Maughan were served with summons in a criminal case brought against them by the former head of state in a private prosecution.

Downer is accused of contravening sections of the National Prosecuting Authority Act related to unauthorised disclosure of information, while Maughan, as an “accomplice”, is charged with unauthorised disclosure of the contents of a document.

The summons states that Downer “did unlawfully and intentionally” instruct his colleague advocate Andrew Breitenbach, SC to share court documents with Maughan which contained “a letter dated 8 August 2021, classified as ‘Medical Confidential’ and titled ‘Medical Support to the President of the Republic of South Africa and Former Presidents’, as authored by Brigadier General Dr M.Z Mdutywa of the South African Medical Health Service”.

Maughan was instructed – as is commonplace in journalism – not to run the story containing information taken from the court papers, including the attached medical letter, until they had been filed the proceeding day, thereby forming part of the public record once court had commenced.

In simple terms, the NPA’s legal team shared court papers with a journalist. The journalist waited until court was in session, and then News24 ran with the story. Maughan’s piece dealt with the “extensive emergency procedure” Zuma had undergone after having suffered a “traumatic injury”. Zuma’s legal team claims Maughan wrote about the former president’s “medical condition”. But nowhere can one find any mention of the said condition.

In fact, Judge Piet Koen – who presides over Zuma’s corruption case which continues to face perpetual delays – ruled in October 2021 that the medical letter Maughan wrote about did not contain anything confidential and did not mention the medical condition from which Zuma suffered.

Zuma was able to launch the private prosecution after the state declined to prosecute Downer on charges laid against him last year. The NPA subsequently issued a nolle prosequi certificate on 6 June – a legal requirement in order to pursue private prosecution.

JG Zuma Foundation spokesperson Mzwanele Manyi said in a statement they’re going after Downer “for his role in the criminal disclosure of confidential medical information which belongs to the former President”.

News24 assistant editor for investigations, Pieter du Toit explained in an analysis piece on Wednesday that: “No detail is given of what the procedure or the injury entailed. Obtaining court papers and writing news articles from it is part of a journalist’s job. No journalist worth his or her salt covering a case like Zuma’s corruption trial is not in contact with lawyers from both sides. And asking for and receiving court papers happens as a matter of course.”

The summons reads that the court documents shared with Maughan were done “without the permission of the National Director of Public Prosecutions, Shamila Batohi”. The implication is that every time journalists are given court documents – very often prior to the start of a trial – that somehow the NPA boss should have signed off on it.

Reaction to the criminal prosecution of Downer and Maughan has been swift, with the South African National Editors’ Forum (SANEF) registering its “disgust” at the development.

“The summons, served by former president Jacob Zuma’s legal team, is a clear case of intimidation solely intended to silence Maughan. As SANEF previously stated in June when Maughan was cited as a respondent, the information published by Maughan was of public record and not confidential. SANEF is of the view that the pursuing of this matter through private prosecution is not only vindictive but intended to intimidate Maughan and other journalists,” says SANEF.

Campaign for Free Expression executive director Anton Harber similarly regards Maughan’s prosecution as “an attempt to stop her doing her work as a reporter and to curb the freedom of the media to report on his [Zuma’s] many cases.”

Meanwhile, the NPA has come out in support of Downer, labelling the litigation intimidatory tactics aimed at further delaying the start of the trial. NPA spokesperson Mthunzi Mhaga says, “The private prosecution amounts to abuse of process. Adv Downer will continue to lead the NPA’s prosecution team in the Zuma/Thales trial. He has the NPA leadership’s full confidence. His track record of prosecutorial integrity and professionalism speaks for itself.”

Manyi says, “…the conduct of the two accused persons [Downer and Maughan] constitutes a serious criminal offence which carries a maximum sentence of 15 years imprisonment.” That’s the same length of time Zuma would face behind bars should he ever, one day, be found guilty of corruption.

Zuma is a man who has always maintained that all he desires is to clear his name of corruption charges linked to the multi-billion rand arms deal. He was first indicted in connection with that matter on 20 June 2005. He also claimed all he wanted was to clear his name and correct the narrative about him before the State Capture Inquiry – but we all know how that turned out. There has been a continuous weaponisation of his “medical condition” at very opportune moments, allowing him to escape accountability when the screws were turned.

The image below details everything the medical letter says. Read it and judge for yourself whether Zuma’s confidentiality was breached.