By Kim Heller
Whatever the outcome of the private prosecution of Advocate Billy Downer and journalist Karyn Maughan by former President Jacob Zuma, this week's appearance has been a historical moment for South Africa’s democracy.
This is the first time that this country has witnessed a prosecutor and journalist on the dock, facing criminal charges.
While former President Jacob Zuma is no stranger to being the accused, this time, in the dock is National Prosecuting Authority (NPA) prosecutor, Billy Downer, as accused number one.
His co-accused is News24 journalist Karyn Maughan.
Both have been in hot pursuit of Zuma over the years.
The two are accused of flouting section 41(6) of the NPA Act by disclosing information related to Zuma’s medical condition. This confidential information formed part of the court documents filed by the former President’s lawyers in applying for a postponement of his trial.
The private prosecution by Zuma places the conduct of Downer and Maughan, and their alleged transgressions, on trial.
But the importance of this case extends well beyond these two individuals for it places the justice system itself and South African media on trial.
Jacob Zuma has been subjected to a vicious decades-long trial by the media, which many have argued has biased, if not contaminated his legal proceedings. Monday’s appearance of Downer and Maughan in the dock must have held just a touch of poetic justice for Zuma.
Zuma argues that his private prosecution is simply about exercising the judicial principle that no one should be above the law. But journalists are spitting about how this private prosecution has little to do with justice and is a frontal attack on freedom of media and expression. For these journalists, October 10, 2022 will be remembered as a black Monday for South African media.
That the accuser in this matter is former President Jacob Zuma, a man who has never subscribed to the dominant mastered narrative, would undoubtedly supersize rage among mainstream journalists.
News24’s Editor-in-Chief, Adriaan Basson has written that the private prosecution against Karyn Maughan and News24 “is a full-blown attack on media freedom by the country's former president to divert attention from his own troubles”. But then Basson is the co-author of a book on Jacob Zuma entitled Enemy of the People: How Jacob Zuma stole South Africa and how the people fought back”. A book which the publisher describes as “the first definite account of Zuma’s catastrophic misrule”.
This book echoes the master narrative of Zuma as a corrupt and villainous leader, the collaborative and collective work of partisan journalism.
Zuma’s trial by the media is designed to influence and shape public thinking, in the preservation of a matrix of elite, largely white interests. There is a deliberate scripting of the public conversation to ensure the persecution of a leader who does not fit neatly into the preserve of white power and privilege, and who may in fact disturb it. Today this is the work of many of the mainstream media. During apartheid it was Stratcom, a band of journalists tasked with damaging the credibility of powerful political figures, including Winnie Mandela.
When the media becomes the public prosecutor, democracy and justice is weakened. Media that serves partisan interests, rather than public good, must take culpability for both informational and societal erosion.
The judicial ambit, and judges themselves, are not divorced from such a public discourse, and may well be influenced by such portraiture, especially when it is expressed in colourful 3-dimensional artistry across the mainstay of media.
Former Chief Justice Mogoeng Mogoeng warned against judges basing their views on what analysts say and the popular views on social media. "That would be corrupting justice.”
For Advocate Dali Mpofu representing the former President on this matter, “the criminal [private] prosecution is to enforce the criminal law”. Mpofu denied any harassment of Maughan by Zuma. Rather he argues that “she was a participant in the exchange of documents, which was done without the permission of the private prosecutor [Zuma] or the national director of public prosecutions”.
Journalism is not above the law, and Advocate Mpofu points out, “There are no special rules for special accused. All must come and face the music in this court.”
The South African National Editors’ Forum (SANEF) has been swift to express its outrage and has described the private prosecution as an attempt to intimidate not only Maughan, but journalists as a collective.
The trumpet of media freedom is a noble cause that anyone who cares for democracy should support.
However the “Hands Off Karyn Maughan” campaign appears to have less to do with media freedom and more to do with the preservation of a singular master narrative.
If this matter was about media freedom, pundits of this campaign and journalist bodies would have stood with the many black young journalists whose rights, dignity and livelihoods have been deeply compromised and who have been insulted by influential figures such as Pravin Gordhan and Trevor Manual. They did not.
The retort that the private prosecution infringes on the freedom of expression, has little currency. If freedom of expression and the right to know were indeed sacrosanct then there would have been a loud hail from journalists, media bodies and rights groups, against the sealing and concealing of information by President Cyril Ramaphosa, in relation to his Presidential funding, in the first instance, and more recently to the lack of disclosure in the Phala Phala matter.
The image of Downer and Maughan in the dock seems to have caused distress among many who have never spoken out against the sight of black social justice activists who have appeared in the dock. Even when Fees Must Fall activist Mcebo Dlamini, appeared in court in ankle-irons, mainstream media, justice crusaders bodies and civil society were largely mute.
If in the easy musing that ‘journalism is not a crime’ the notion of journalism not being above the law is swallowed, then this is a rather cheap sound bite, in the light of the history of South Africa where some media players were actively involved in upholding apartheid and violating and destroying the dignity, integrity, and lives of many political figures.
October was a Black Monday in another respect.
White people in the dock is a rare sighting in a post-apartheid South Africa where justice has yet to be done, and where the ready persecution of black people is still the norm. Despite apartheid being a crime against humanity, there has been no dock of shame or accountability for white people, or for white institutions, including media houses who were instrumental in upholding a vile racist regime which systemically destroyed black rights, dignity, and life.
In the bright glare of ongoing injustices against black South Africans, a white prosecutor, and a white journalist in the dock, proudly brought there by a black accuser, is to the eye of many black South Africans, a highly prized masterpiece of justice.
All must be equal before the law. If Jacob Zuma is guilty, he must like any other South African citizen be held accountable and face its full might. But the very prejudicial nature of the prolonged media assault that he has faced, may render him unequal before the law. Zuma, like any other South African citizen has the right to exercise his constitutional right and defend himself, including making use of private prosecution, should the State fail to charge the individuals in question. Perhaps the private prosecution by Jacob Zuma is best understood as a concomitant response to the public persecution that he has faced at the hands of the media for so long now.
Zuma is prosecuting Maughan because he is of the view that she violated the law and his privacy. But for mainstream journalists and SANEF, Maughan can do no wrong. The language of defence for Maughan is deceptively couched.
Her defenders would have us believe that she serves a higher purpose.
But Maughan is no arch angel of media freedom; she is simply a protagonist of a partisan media. A media which appears far less interested in pursuing high profile white people implicated in matters of corruption or criminality. A media that has become out of kilter with public good, and hardly reflects the views of the majority.
Those who depict Jacob Zuma as the Enemy of the People may find that this is a popular turn of phrase in the corridors of some newspaper houses, but I doubt that this is the sentiment of ordinary black South Africans whose constitutional rights have been trampled upon and whose injuries of indignation are disregarded.
In many ways those who define the media agenda define the society. As the African Proverb goes, “Until the lion tells the story, the hunter will always be the hero.”
Heller is a political analyst and author of ‘No White Lies: Black Politics and White Power in South Africa.’
This article was first published in The African. To republish, see terms and conditions.