Maharaj Sathyandranath Ragunanan & Others v Mandag Centre of Investigative Journalism NPC & Others

The first appellant, Mr SR "Mac" Maharaj, was the Presidential Spokesperson and former Minister of Transport. On 13 and 19-20 June 2003, Mr Maharaj and his wife (the second appellant, Ms Zarina Carrim Maharaj) were summoned and gave evidence under oath in terms of section 28 of the National Prosecuting Authority Act 32 of 1998 (the Act) during an investigation by the Directorate of Special Operations (Scorpions). In November 2011, the Mail & Guardian (M&G) and other respondents obtained the record of the section 28 investigation and sought to publish it. They were warned this would constitute a criminal offence under section 41(6) of the Act, which prohibits disclosure of section 28 investigation records without permission from the National Director of Public Prosecutions (NDPP). The M&G applied to the NDPP for permission on 21 November 2011, arguing publication was in the public interest because Mr Maharaj allegedly provided false information during the investigation, and that the information was already in the public domain. The NDPP refused permission on 3 January 2012, citing a policy of non-disclosure, pending criminal investigations, protection of third-party interests, and the integrity of the criminal justice system. The M&G then applied to the High Court to review and set aside the NDPP's decision.

• Whether the NDPP properly exercised the discretion conferred by section 41(6) of the National Prosecuting Authority Act 32 of 1998 in refusing permission to publish the record of a section 28 investigation
• Whether the strike-out application against portions of the founding affidavit should succeed under Rule 6(15) of the Uniform Rules
• Whether the limitation on freedom of expression imposed by section 41(6) was appropriately balanced against the public interest in disclosure
• Whether the NDPP's failure to consider the actual section 28 record rendered the decision irrational
• Whether information already in the public domain affects the discretion to refuse permission to publish

The appeal by the first and second appellants (Mr and Ms Maharaj) against paragraphs 1 and 2 of the High Court judgment (dismissing the strike-out application) was dismissed with costs, including costs of two counsel. The appeal by the third appellant (NDPP) against paragraph 3 of the High Court judgment (reviewing and setting aside the NDPP's decision and granting permission to publish) was dismissed with costs, including costs of two counsel. The NDPP's decision refusing permission to publish the section 28 record was set aside and the M&G was granted permission to publish.

The binding legal principles established are: (1) The NDPP's discretion under section 41(6) of the NPA Act to grant or refuse permission to publish section 28 investigation records must be exercised on a case-by-case basis, not through rigid application of a blanket policy. (2) Proper exercise of the discretion under section 41(6) requires actual consideration of the section 28 record itself – reliance on mere "general awareness" of an investigation is insufficient and renders the decision irrational. (3) The NDPP must balance competing constitutional rights and interests, including freedom of expression, the media's watchdog role, the public interest in disclosure (particularly regarding senior public officials and potential corruption), against legitimate concerns about the integrity of the criminal justice system and protection of third parties. (4) Information already in the public domain is a highly relevant consideration that cannot be dismissed when exercising discretion to permit or refuse publication. (5) The failure to consider obviously relevant and paramount factors in administrative decision-making constitutes a failure to apply the mind properly and renders the decision susceptible to review and setting aside as irrational. (6) Material that is not hearsay (i.e., relied upon to prove it was stated, not for the truth of its content) and demonstrates public domain status is admissible and relevant in review proceedings.

The court made several non-binding observations: (1) The court noted but did not definitively determine whether courts have discretion to exclude unlawfully obtained evidence in civil proceedings, though it referenced high court authority suggesting such discretion exists. (2) The court observed that if the NDPP grants permission to publish, she may do so subject to conditions, such as protecting the identities of third parties. (3) The court deliberately did not prescribe to the NDPP how future applications should be approached, what threshold applicants should meet, or what considerations should necessarily weigh in her discretion, noting each case will be different. (4) The court suggested that "mere conjecture or speculation that prejudice might occur ought not to be enough" to refuse permission, though it did not establish this as a firm rule. (5) The court emphasized the aspirational role of the media in making governmental conduct transparent and referenced the "grave and solemn promise" of the Constitution, reflecting on the importance of integrity in public office. (6) The court observed that Mr Maharaj's potential culpability for contravening section 28(10)(c) of the NPA Act and his "moral fibre" were matters of undoubted national significance, though it emphasized it was making no findings on veracity of allegations.

This case is significant in South African administrative and constitutional law for several reasons: (1) It establishes important principles regarding the exercise of discretion by the NDPP under section 41(6) of the NPA Act, emphasizing that such discretion must be exercised on a case-by-case basis with proper consideration of all relevant factors, particularly the actual record sought to be published. (2) It affirms the constitutional importance of freedom of expression and the media's watchdog role in exposing potential corruption and malfeasance by senior public officials. (3) It confirms the "public domain doctrine" – that information already publicly available is a highly relevant factor in deciding whether to permit publication of otherwise confidential material. (4) It clarifies the threshold for striking out portions of affidavits under Rule 6(15), confirming that both relevance and prejudice must be established. (5) It demonstrates that administrative decisions based on rigid policies without proper individualized consideration are susceptible to review. (6) It reinforces that courts will intervene and substitute their own decision (rather than remitting to the decision-maker) where the administrative decision is fundamentally flawed and no legitimate basis exists for refusal.