National police commissioner Riah Phiyega takes an oath as she raises her right hand before giving evidence at the Farlam commission of inquiry in Rustenburg, South Africa, Thursday, March 14, 2012. Phiyega was set to give evidence on the role played by the police in the events leading up to and on Aug. 16, 2012, when 34 striking mineworkers were shot dead and 78 injured when police opened fire on them near Lonmin's platinum mine in Marikana. (AP Photo/Themba Hadebe)
National police commissioner Riah Phiyega takes an oath as she raises her right hand before giving evidence at the Farlam commission of inquiry in Rustenburg, South Africa, Thursday, March 14, 2012. Phiyega was set to give evidence on the role played by the police in the events leading up to and on Aug. 16, 2012, when 34 striking mineworkers were shot dead and 78 injured when police opened fire on them near Lonmin's platinum mine in Marikana. (AP Photo/Themba Hadebe)

Phiyega invokes apartheid law

By Candice Bailey. Time of article published Nov 3, 2013

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In a desperate attempt to save General Riah Phiyega’s career, the police have resorted to invoking unconstitutional, apartheid law to demand that The Sunday Independent and its sister titles hand over all material related to the national police commissioner’s intercepted calls.

On Saturday last week, Phiyega’s spokesman Solomon Magale threatened The Sunday Independent with an interdict in terms of the Regulation of Interception of Communications Act (Rica).

His threat followed the publication of the report that revealed Phiyega’s conversation with Western Cape commissioner Lieutenant-General Arno Lamoer.

The national commissioner could be heard discussing the crime intelligence investigations into Lamoer’s alleged link to a drug lord.

However, the report was published without any interdict application.

Phiyega is being investigated by the Independent Police Investigating Directorate for allegedly defeating the ends of justice.

On Friday, crime intelligence divisional commissioner Major-General Bongiwe Zulu sent all the Independent Newspapers titles that published reports related to Phiyega, including The Sunday Independent, a letter threatening legal action in terms of the Protection of Information Act of 1982.

The police stated that in terms of the act “a criminal office (sic) is therefore committed”.

The act stipulates that “any person who receives any secret official code or password of any document, model, article or information” could be fined R10 000 or face up to 10 years imprisonment.

The act is however being repealed by the equally controversial bill, dubbed the Secrecy Bill.

Ironically, the State Security Agency – on its website – said the rationale behind repealing the act was: “The act is outdated, due to the fact that it contains some provisions that are contrary to the Constitution and other legislation in that it contains legal presumptions which are deemed to be unconstitutional.”

The letter from state attorney, signed by Jeanne de Lange on behalf of crime intelligence - stated that “you are hereby demanded to provide the division: crime intelligence the original information and all copies of all such information in your possession pertaining to all such communication in whichever format whether transcripts/video/audio or any other electronic form and without delay to deliver the said communication at close of businesses..... to the offices of the state attorney, Pretoria.”

The state attorney claimed that the newspaper relied on “information obtained unlawfully”.

“The information disclosed pertains to information that the division: crime intelligence had obtained on application to a designated judge in terms of the Regulations of Interception of Communications and Provision of Communication Related Information Act, 70 of 2002 on July 16 2013 as well as 14 October 2012,” the letter said.

“We would appreciate your co-operation in this matter and would therefore endeavour to prevent an application to be bought for the surrender of the said communication.”

Yesterday, Makgale stuck by the police guns.

“We issued the letter of demand to exercise our legal rights as outlined in the letter. On the issue of why we rely on the 1982 act, our response is that we are not going to argue the merits of the matter at this stage,” he said.

Independent Newspapers’s attorney Pamela Stein, of Webber Wentzel, said it was unfortunate that police were relying on the discredited and patently unconstitutional Protection of Information Act of 1982, which is about to be repealed.

The information the police were looking for was not contained in documentary form and the newspaper did not possess the original information or copies, said Stein in her reply.

“Our client listened to a taped conversation. Our client was not provided with a copy of the contents of the tape recording in any form whatsoever,” she said.

Stein denied that the newspaper acted unlawfully and said the constitution protected the right of the media to publish information in the public interest. “Quite clearly the publication of the allegations which are the subject matter of your letter is profoundly in the public interest,” said Stein.

The state attorney responded that the police would not approach the court on an urgent basis but “in the normal course of events”.

It is not the first time that police try to intimidate The Sunday Independent. In October 2010, police successfully muzzled the newspaper, interdicting it from exposing the rot in crime intelligence, relying on the same legislation.

SA National Editor’s Forum deputy chairman Makhudu Sefara said it was “extremely concerned that at a time when Parliament, the president and all other progressive people in the country were repealing the legislation… crime intelligence found it necessary to… try to intimidate journalists and scare them off when they are pursuing a matter that is clearly in the public interest”.

Freedom of Expression Institute chairman Anton Harber said it was a “cynical use of old apartheid laws and a threat to the work of journalists.”

“The State Attorney is giving us a taste of how they intend to use the law to stop embarrassing leaks – even in they are in the public interest – and to threaten investigative journalists,” he said.

”In essence they are signaling that if they do not get the new Secrecy Bill enacted, they are prepared to use the repulsive old apartheid secrecy laws against journalists – even though they themselves have conceded that this law is inappropriate to a constitutional democracy.”

De Lange’s letter came six days after Makgale informed The Sunday Independent that Phiyega was considering to interdict the paper from publishing the article in Sunday’s edition.

At the time, he said the interdict would be under provisions of the Rica Act.

When details of Phiyega’s conversation first emerged earlier in the week, Makgale said no crime was committed by Phiyega.

He alleged that Phiyega had called Lamoer after a DA parliamentary question about an investigation of bribery against a provincial commissioner.

Phiyega said the charges against her as a smear campaign by the controversial crime intelligence unit, linked to her suspending its acting divisional commissioner Major-General Chris Ngcobo for discrepancies in his qualifications on October 19.

“It is clear this is a lame attempt by certain individuals within crime intelligence to discredit the national commissioner and derail the process of flushing out those within the SAPS who have no integrity,” she said - Sunday Independent

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