The admissibility of a video in which suspended Independent Development Trust (IDT) CEO Tebogo Malaka and her spokesperson allegedly offer a bribe to a journalist could be crucial in securing a conviction should the matter find itself before a criminal court.
The state will need to show the video is authentic, produce the chain of evidence relating to it, and secure an affidavit from the journalist and the person who recorded it.
“The affidavit would have to set out the basis of how the video was taken and why it was taken, and what procedures [were] taken to produce the video,” criminal law expert Ulrich Roux told the Sunday Times.
“The state would also have to show the authenticity of the video. In other words, that it is real, has not been tampered with and is a true reflection of what transpired during that meeting.
Malaka and her spokesperson, Phasha Makgolane, are alleged to have offered Daily Maverick journalist Pieter-Louis Myburgh R60,000 to drop a story he was working on relating to Malaka's business affairs, including how she was funding the construction of her multimillion-rand home at Waterfall Country Estate in Midrand.
A sting operation, which included placing hidden cameras at the venue ahead of a meeting last weekend at a restaurant in Stellenbosch, recorded the alleged attempted bribe on camera.
Public works & infrastructure minister Dean Macpherson laid a criminal case against Malaka and Makgolane at the Cape Town Central police station this week. He has also asked the new IDT board to investigate all contracts issued under Malaka and take swift action to restore stability and accountability at the entity.
Craig Pedersen, a digital forensic investigator, said that from what he has seen the video will “100% stand in court”.
“They [the Daily Maverick team] have taken time and forward planning to make sure that the video is correctly captured and that it keeps its evidentiary value,” Pedersen said.
He said unplanned recordings often did not have the “necessary degree of planning” and execution to pass the test of admissibility. “But they were meticulous in planning it to make sure it is captured in the right form as evidence for court. The lighting is good; I don't think they're going to have any problem in court.”
Pedersen said Malaka and Makgolane to fight against the admissibility of the video as evidence, they may need to come up with a different interpretation of what is seen in the footage.
“I think they will try an explanation that attacks the evidence. The evidence tells a story, just by watching it. They're probably going to counter it by saying that the journalist asked for the bribe, they felt pressured and that they had no option.”
In a statement issued on Friday, the Malaka Family Trust sprang to Malaka's defence, saying there was no crime called 'intention to bribe' and referring to the matter as a 'manufactured scandal'
Pedersen said crafting a narrative around what is on the video may be their only option. “I don't see them being able to challenge the actual footage. They might challenge their right to privacy but I don't think it would be successful.”
Roux agreed with Pedersen, saying it would be a difficult exercise for Malaka and Makgolane to get the video evidence rejected.
“If they want to dispute the admissibility of the video, they have to lay a basis along the lines that the video has been tampered with and that it is not a true reflection of what transpired,” he said.
In a statement issued on Friday, the Malaka Family Trust sprang to Malaka's defence, saying there was no crime called “intention to bribe” and referring to the matter as a “manufactured scandal”.
“Ms Malaka is being vilified not for wrongdoing but for standing her ground,” the statement said. “She deserves due process — not public trial by edited video and political theatre. We stand by her and call on all South Africans to defend truth, fairness and institutional integrity.”
Meanwhile, the Daily Maverick has been in contact with law enforcement authorities over the matter.
“Our legal team is in contact with the authorities and our lawyers have asked that, for the time being, we limit our comments to what we have already put in the public domain,” editor-in-chief Jillian Green told the Sunday Times.
Green said they were “planning to co-operate with the authorities on this issue” for reasons they had outlined in an editorial published on Thursday.
The editorial stated that “to safeguard our independence, freedom of expression and to fight against this tendency to bribe journalists, Daily Maverick will be taking legal steps in the form of criminal charges against our would-be bribers.”
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