Court reporters get information and documents from both sides of any case they are covering, routinely. They talk to both prosecutors and defence lawyers, and in civil cases plaintiffs’ and defendant teams, hear their points of view and get explanations and clarifications. It is a standard part of the process of ensuring coverage of open courts, particularly when the case is high-profile and complicated.
If a reporter gets something from one party in a case, it does not make them partisan. It just means they are doing their job of information-gathering. How and when they use the info is another matter – and it is on this that they are judged as good or bad reporters.
That is why it is so extraordinary that former President Jacob Zuma should pursue a private prosecution against journalist Karyn Maughan for disclosing a document that was part of the court procedure. It was a medical certificate and had nothing in it that was particularly sensitive or personal. Neither party asked for the document to be sealed. Publication was clearly in the public interest. That she might have got it from a prosecutor rather than from the court is a technicality. She published it after it was filed at court.
It is unheard of for a political leader to pursue a private prosecution against a journalist covering their court case. Zuma laid formal charges against prosecutor Billy Downer for disclosing them to Maughan and, when the police did not pursue the case, he chose to go after both of them privately. He is investing time, money and effort in vengefully going after people for doing their jobs.
That he does so tells you more about him than about Maughan. It shows his contempt for democratic and court processes, as well as for journalists and their role in ensuring court cases are public, open events. It demonstrates his willingness to attack whoever is in his way in his attempt to delay and divert attention from his own case. It reveals his capacity – Trump-like – to portray himself as the constant victim of conspiracies.
By going on the attack against the prosecutor and a journalist, Zuma is trying to taint them both. He is entitled to criticize them, but a private prosecution is an act of intimidation, an attempt to turn the contestation of a court hearing into an all-out war and instill fear in those who pursue justice against him. It is no coincidence that he is targeting two respected professionals with strong reputations, to send a signal to others, perhaps less experienced and more junior. It is also no accident that he chose not to complain to the media house who published her piece, or take it to the Press Council, or engage her in public, but chose to label her a criminal who belongs in prison.
It is Putinesque ruthlessness as part of a Stalingrad strategy, and his legal team often operate as the equivalent of Russia’s Wagner Group, the paid soldiers who do the dirty work.
It is not just two people under attack, but all prosecutors and journalists, as well as a court system designed to be open and allow the public to see that the trial is fair and proper. That is why the community of journalists have rallied behind Maughan. If they allow her to be isolated, then the work of all journalists covering high-profile trials becomes more difficult and the publics’ right to know is compromised. The fight is not just to protect her, but to protect an open justice system, in which reporters play a key role.
Zuma’s attack sets off his followers, who take to social media to go after those perceived as his critics and enemies, often without much knowledge of the law and courts, spreading rumour and disinformation to cloud the matter, and sometimes becoming threatening and intimidating, tainted with racism and misogyny. Zuma and his legal team point out the target and the swarm goes after them, like angry bees.
Some of this is a part of a democratic society where debate is robust and sometimes rough, where openness can carry a price. Journalists can report on all the allegations against Zuma, not always fairly, and Zuma can have a go at them. It can get rude and nasty.
But when it crosses a line into intimidation and harassment, into prosecuting people for doing essential jobs, and journalists for publishing information of public interest, then we are going to rally behind the target and ensure she is properly defended and able to do her work.
*Harber is executive director of the Campaign for Free Expression and Caxton Professor of Journalism at Wits.