Maharaj and Others v Mandag Centre of Investigative Journalism NPC and Others

Mr SR ‘Mac’ Maharaj, a former Cabinet Minister and Presidential spokesperson, and his wife were summoned in 2003 to give evidence under oath in a confidential investigation conducted in terms of s 28 of the National Prosecuting Authority Act 32 of 1998. Years later, investigative journalists (Mandag Centre of Investigative Journalism, M&G Media Ltd, and Sam Sole) sought to publish the record of that evidence, contending that it was in the public interest and already substantially in the public domain, including through disclosures made by the Maharajs themselves in court papers and interviews. Because s 41(6) of the Act criminalises disclosure of such records without permission, the journalists applied to the National Director of Public Prosecutions (NDPP) for consent. The NDPP refused, relying on a general policy of non‑disclosure, the need to protect prosecutorial processes, and possible prejudice to investigations. The journalists successfully reviewed that decision in the Gauteng Division of the High Court, which set aside the refusal and granted permission to publish. The Maharajs and the NDPP appealed to the Supreme Court of Appeal.

The appeals by the first and second appellants and by the third appellant (the NDPP) were dismissed with costs, including the costs of two counsel. The High Court order reviewing and setting aside the NDPP’s decision and granting permission to publish the s 28 record remained in force.

The case is a leading authority on the scope of the NDPP’s discretion under s 41(6) of the NPA Act and affirms that prosecutorial secrecy provisions must be applied rationally and on a case‑by‑case basis. It is significant for media freedom, confirming that a blanket policy of non‑disclosure cannot override constitutional values of openness, accountability, and freedom of expression, particularly where information is already in the public domain.