by the Public Protector on an Investigation into an Allegation
of the Leaking of Confidential Information to the Media
Directorate: Special Operations of the National
REPORT OF THE PUBLIC PROTECTOR IN TERMS OF SECTION
OF THE CONSTITUTION, 1996 AND SECTION 8(5) OF THE
PROTECTOR ACT, 1994
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
3. THE COMPLAINT
4, THE POWERS AND FUNCTIONS
OF THE PUBLIC PROTECTOR TO INVESTIGATE ALLEGATIONS AGAINST THE SCORPIONS
6. THE NATIONAL PROSECUTING AUTHORITY ACT, 1998
REASONS FOR THE MEDIA STATEMENT MADE ON BEHALF OF MR ZUMA
8. THE ORIGIN OF
9. WHO HAD ACCESS TO THE TRANSCRIPT?
10. WAS THE TRANSCRIPT
BY THE SCORPIONS TO THE MEDIA?
11, OBSERVAlTONS AND
12. KEY FINDING
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
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.
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:
3. THE COMPLAINT
- "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
- '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'."
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
3.2 Referring to the allegation that the transcript
concerned was leaked to the media by the Scorpions, Adv Pikoli stated:
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."
- "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."
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.
The investigation comprised:
5.1 Evaluation of the
complaint and the media article and media statement referred to;
Correspondence with the OfFice of the National Director of Public
5.3 Evaluating documentation submitted by the National
Director of Public Prosecutions;
5.4 Correspondence with the Editor of
5.5 Correspondence with the attorney representing Mr S
5.6 Correspondence with Mr M Hulley, the attorney representing Mr
5.7 Considering the relevant provisions of the Constitution,
1996, the Public Protector Act, 1994 and the National Prosecuting Authority Act,
6. THE NATIONAL PROSECUTING AUTHORITY ACT, 3998
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)
"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
record of any evidence given at an investigation as contemplated in section
(i) for the purpose of performing his or her functions in
terms of this Act or any other law; or
(ii) when required to do so by
order of a court of law.
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
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:
8. THE ORIGIN OF THE
- ''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."
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.
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
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
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
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
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
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
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;
12.2 The allegation that the Scorpions leaked the transcript to the
media could not be substantiated by evidence or information gathered during the
ADV M L MUSHWANA
PUBLIC PROTECTOR OF THE
REPUBLIC OF SOUTH AFRICA
3 March 2006