Report by the Public Protector on an Investigation into an Allegation
of the Leaking of Confidential Information to the Media by the
Directorate: Special Operations of the National Prosecuting Authority
 

REPORT OF THE PUBLIC PROTECTOR IN TERMS OF SECTION 182(l)(b)
OF THE CONSTITUTION, 1996 AND SECTION 8(5) OF THE PUBLIC
PROTECTOR ACT, 1994

PUBLIC PROTECTOR
SOUTH AFRICA

Report No 54


REPORT ON AN INVESTIGATION INTO AN ALLEGATION OF THE LEAKING OF CONFIDENTIAL INFORMATION TO THE MEDIA BY THE DIRECTORATE: SPECIAL OPERATIONS OF THE NATIONAL PROSECUTING AUTHORITY

 

INDEX

Executive summary
1. INTRODUCTION
2. BACKGROUND
3. THE COMPLAINT
4, THE POWERS AND FUNCTIONS OF THE PUBLIC PROTECTOR TO INVESTIGATE ALLEGATIONS AGAINST THE SCORPIONS
5. THE INVESnGAlTON
6. THE NATIONAL PROSECUTING AUTHORITY ACT, 1998
7, THE REASONS FOR THE MEDIA STATEMENT MADE ON BEHALF OF MR ZUMA
8. THE ORIGIN OF THE TRANSCRIPT
9. WHO HAD ACCESS TO THE TRANSCRIPT?
10. WAS THE TRANSCRIPT OFFICIALLY RELEASED
BY THE SCORPIONS TO THE MEDIA?
11, OBSERVAlTONS AND FINDINGS
12. KEY FINDING


Executive Summary

The Office of the Public Protector investigated a complaint by the National Director of Public Prosecutions in connection with an allegation that the Directorate: Special Operations of the National Prosecuting Authority (Scorpions) leaked confidential information to the media.

The complaint related to the transcript of a statement obtained by the Scorpions during a criminal investigation in October 2003, the contents of which was published by a Sunday newspaper on 4 December 2005, The statement alleged that a woman was paid by a businessman who was convicted on charges of corruption, to entertain Mr Jacob Zuma, the former Deputy President. In response, Mr Zuma's attorney issued a media statement, stating that the transcript may have been leaked to the media by the Scorpions.

From the investigation it was found that the transcript of the statement concerned was not under the exclusive control of the Scorpions at the time when it was reported on by the said newspaper and that the allegation that it was leaked to the media by the Scorpions could not be substantiated by evidence or information gathered during the investigation.


1. INTRODUCTION

This report is submitted to the Minister of Justice and Constitutional Development and the National Director of Public Prosecutions, by virtue of the provisions of section 182(l)(b) of the Constitution, 1996 and section 8(1) of the Public Protector Act, 1994. It relates to an investigation by the Office of the Public Protector into an allegation of the leaking of confidential information to the media by the Directorate: Special Operations of the National Prosecuting Authority (the Scorpions).

2.1 On 4 December 2005 an Afrikaans Sunday Newspaper, Rapport", published an article under the heading "Vrou glo betaal om Zuma 'te bedien' (woman allegedly paid to 'serve' Zuma). The article referred to former Deputy President Jacob Zuma and alleged that a young woman was paid a large sum of money by a businessman, Mr Schabir Shaik, to entertain him.

2.2 The said article was based on a transcript of a statement of a Mr Sheik-Ibrahim, provided to the Scorpions during the investigation of the criminal case against Mr Shaik, in October 2003. Rapport claimed to be in possession of a copy of the transcript.

2.3 MF M Hulley, the attorney acting on behalf of Mr Zuma, issued a media statement in response to Rappoe3article on 7 December 2005, under the heading: "Scorpions leaked untested documents to the Press". It stated that:

"Afrikaans Sunday newspaper, Rapport, quoted untested verbal evidence on Sunday where a woman was supposed to 'have been paid to service Jacob Zuma'. The paper has a copy of a 'transcribed version of testimony' that was in possession of the Scorpions. Rapport did not attempt to get any comment from Zuma on the issue.

'The National Prosecuting Authority did not enter the transcribed copy of the verbal testimony that they had gathered from Sabeeh (sic) Sheik-lbrahim into evidence at the Schabir Shaik trial, yet it was found important enough to share with the media only two days before I was charged with rape', Zuma said yesterday. Sheik-Ibrahim is a dismissed former managing director of Kobitech Transport that was part of Schabir Shaik's Nkobi Holdings.
'Even though I have never met this lady that I had reportedly been entertained by for payment, the newspaper still did not think it was relevant to contact me for comment,' Zuma said. 'The transcript was either released  to the media bv the Scoroions, alternativelv, it was obtalned unlawfully - both of which are equally distasteful and unethical. The Scorpions continue to use the media to bring me down, and the media continues to slander me by printing unchecked facts that were manufactured. I am outraged at the consistent unethical journalistic practice in this country. Some newspapers have made it their national sport to attack me, notwithstanding the truth, he said'." (emphasis added)


3. THE COMPLAINT

3.1 Adv V Pikoli, the National Director of Public Prosecutions, lodged a complaint with the Office of the Public Protector in connection with Mr Zuma's media statement, on 18 December 2005.

3.2 Referring to the allegation that the transcript concerned was leaked to the media by the Scorpions, Adv Pikoli stated:
"As the Head of the National Prosecuting Authority I consider these allegations to be extremely serious as well as unfounded. The integrity of this institution has been attacked to the extent that public confidence in the institution Is being seriously undermined."

3.3 The Public Protector was requested to investigate Mr Zuma's allegation and given the assurance that "should you find that Mr Zuma's allegations against the Scorpions are founded, and any official in this organization is responsible, then such official will be dealt with accordingly."


4. THE POWERS OF THE PUBLTC PROTECTOR TO INVESTIGATE ALLEGATIONS AGAINST THE SCORPIONS

4.1 The Public Protector is one of the independent constitutional institutions established by Chapter 9 of the Constitution, 1996, to strengthen the constitutional democracy of the Republic of South Africa.

4.2 In terms of section 182(1) of the Constitution, 1996, the Public Proteckor has the power to investigate any conduct in state affairs or in the public administration in any sphere of government that is alleged or suspected to be improper or to result in any impropriety w prejudice, to report on the conduct investigated and to take the appropriate remedial action.

4.3 Section 6(4)(a) of the Public Protector Act, 1994 provides that the Public Protector is competent to investigate any alleged maladministration in connection with the affairs of government at any level and any alleged abuse of power or other improper conduct by a person (or an institution) performing a public function,

4.4 The Directorate: Special Operations forms part of the National Prosecuting Authority (NPA), which falls within the jurisdiction of the Public Protector.


5. THE INVESTIGATION

The investigation comprised:

5.1 Evaluation of the complaint and the media article and media statement referred to;

5.2 Correspondence with the OfFice of the National Director of Public Prosecutions;

5.3 Evaluating documentation submitted by the National Director of Public Prosecutions;

5.4 Correspondence with the Editor of Rapport;

5.5 Correspondence with the attorney representing Mr S Shaik;

5.6 Correspondence with Mr M Hulley, the attorney representing Mr Zuma; and

5.7 Considering the relevant provisions of the Constitution, 1996, the Public Protector Act, 1994 and the National Prosecuting Authority Act, 1998.


6. THE NATIONAL PROSECUTING AUTHORITY ACT, 3998

6.1 In terms of section 28 of the National Prosecuting Authority Act, 1998 (the Act) an Investigating Director may investigate allegations that a specified offence has been committed. For the purposes of such an investigation he/she may summon any person who is believed to be able to Furnish any information on the subject investigated to appear before him/her to be questioned.

6.2 Section 40(6) provides that:

"Notwithstanding any other law, no person shall without the permission of the National Director or a person authorized in writing by the National Director disclose to any other person-

(a) any information which came to his or her knowledge in the performance of his or her functions in terms of this Act or any other law;

(b) the contents of any book or document or any other item in the possession of the prosecuting authority; or

(c) the record of any evidence given at an investigation as contemplated in section 28(1), except-

6.3 Any person who contravenes section 40(6) shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 15 years or to both such fine and imprisonment.


7. THE REASONS FOR THE MEDIA STATEMENT MADE ON BEHALF OF MR ZUMA

7.1 During the investigation Mr Hulley indicated that the statement made to the media alleging that the transcript was either released to the media by the Scorpions, alternatively, it was obtained unlawfully, was founded on the following:

''The statement made by Mr Sheik-Ibrahim was made to the Scorpions in the course of an investigation into bribery and corruption charges being investigated against Mr Shabir Sheik (sic) and/or Mr tuma. Such informatlon would have been retained confidentially and solely by the Scorpions. In the event of a prosecution based on these allegations, the parties sole (sic) prosecuted would have been presented with Sheik- Ibrahim's statement, wherein such allegations are contained. No-one has been prosecuted for such offence arlslng out of the allegations made by Sheik-Ibrahim. It must follow, therefore, that the Prosecution Authority would and should have retained canfidential possession of this information."


8. THE ORIGIN OF THE STATEMENT

The Scorpions obtained the statement concerned on 21 October 2003 by means of an interview conducted with Mr Sheik-Ibrahim, in terms of section 28 of the Act, It related to the criminal investigation against and prosecution of Mr Schabir Shaik and the Nkobi group of companies. The transcript OF the statement formed part of the Scorpion's prosecution file.


9. WHO HAD ACCESS TO THE TRANSCRIPT?

9.1 The transcript was in the possession and under the control of the investigation team of the Scorpions comprising of 5 senior officials. The forensic auditors appointed to assist in the investigation also had access to the transcript.

9.2 As Mr Shaik was by law entitled to a copy of the transcript, it was provided to the attorney representing him, Mr R Parsee, in electronic format prior to Mr Shalk's trial. During the investigation Mr Parsee confirmed having received the transcript in electronic format together with many other documents relating to the prosecution of his client.


10. WAS THE TRANSCRIPT OFFICIALLY RELEASED TO THE MEDIA BY THE SCORPIONS?

10.1 From the official records of the Scorpions in respect of the matter, it appeared that a journalist approached the NPA on 29 November 2005, requesting a copy of the transcript. According to the journalist, the contents of the transcript had already been reported on earlier by a publication based in the United Kingdom called: "Africa Conffdenlal'.

10.2 After some interaction between senior members of the Scorpions, the Head of the Directorate decided, on 2 December 2005 (i.e. 2 days before the article in question was published by Rapport), not to release the transcript to the media.

10.3 According to the Special Director in the Offlce of the National Director of Public Prosecutions, neither Rappod nor Afdca Confidenttlal approached the NPA in connection with the transcript. The contents of the transcript were not officially released to the media at any time.

10.4 The Editor of Rapport confirmed that the information on which the article of 4 December ZOOS was based, was not provided to the newspaper by the Scorpions. He was however, not willing to divulge when, where and how Rapport came in possession of a copy of the transcript.


11. OBSERVATIONS AND FINDINGS

The following observations and findings were made from the investigation:

11.1 On 23 August 2003 the former National Director of Public Prosecutions publicly announced that Mr Zuma would not be prosecuted on charges of corruption. Mr S Shaik and certain companies were however prosecuted and convicted in the matter concerned.

11.2 At the time when the statement In question was taken from Mr Sheik-Ibrahim (October 2003), the Scorpions were pursuing the criminal investigation against Mr Shaik and not against Mr Zuma. The decision to prosecute Mr Zuma was only taken after Mr Shaik's conviction in 2005.

11.3 The media statement issued on behalf of Mr Zuma on 7 December 2005 stated that "the transcript was either released to the media by the Scorpions, alternativelv.it was obtained unlawfully. It clearly implicated the Scorpions as a probable, but not the only possible source of the transcript.

11.4 An electronic version of the transcript was provided to the attorney representing Mr Shaik by virtue of the provisions of section 41(6)(c)(i) of the Act.

11.5 No evidence could be found that the NPA officially released the transcript to the media.

11.6 Should the contents of the transcript have been disclosed to the media or any other person or institution by a member of the NPA or any other person involved in the investigation against Mr Shaik, without the permission of the National Director and therefore in contravention of the provisions of section 41(6) of the Act, it would be criminal offence that should be investigated by the South African Police Service. However, no indication of such unlawful conduct could be found during the investigation.

11.7 After the transcript was released to the attorney representing Mr Shaik, the Scorpions had no exclusive control over access to it and disclosure of its contents by any person not related to the NPA and the investigation against Mr Shaik, would not have been unlawful.

11.8 The making or publication of unfounded allegations or unsubstantiated insinuations of impropriety against law enforcement agencies or institutions, such as the National Prosecuting Authority, which play a fundamental role in the protection of our society, upholding the rule of law and the democracy of our country, have a detrimental effect on its credibility and reputation. It causes perceptions of mistrust and a loss of confidence in the minds of millions of people that rely on the NPA to deal with our high crime rate in an effective and efficient manner and should be avoided at all costs.


12. KEY FINDING

From the investigation the following key finding was made:

12.1 At the time of the publication of the contents of the transcript of the statement by Mr Sheik-Ibrahim referred to in this report, it was not under the exclusive control of the Scorpions; and

12.2 The allegation that the Scorpions leaked the transcript to the media could not be substantiated by evidence or information gathered during the investigation.



ADV M L MUSHWANA
PUBLIC PROTECTOR OF THE REPUBLIC OF SOUTH AFRICA
3 March 2006