Chantelle Benjamin
19 October 2007
Johannesburg — THIRTY years after the apartheid government banned two black newspapers, The World and Weekend World, many commentators say journalists are still restricted in SA's new democratic order.
Despite having one of the most progressive constitutions in the world, SA lags in media freedom -- in no small measure because many of the apartheid laws set up to control the media remain in force.
Media freedom is in the spotlight after recommendations by the African National Congress (ANC) that government control of the media be tightened, and possible legal action against the editor of the Sunday Times and a journalist over the medical records of Health Minister Manto Tshabalala-Msimang.
Dario Milo, media law specialist at Webber Wentzel Bowens, says: "While there have been many positive media freedom developments in recent years, in many areas the legal landscape remains substantially restrictive of media freedom.
"There is a vast amount of legislation that restricts publication with no inbuilt recognition of the need to balance the right being asserted against the freedom of the press."
Milo is one of the legal experts who has raised concerns about parts of the controversial Films and Publications Amendment Bill now before Parliament.
Among the apartheid-era laws restricting the media which remain in force are the National Key Points Act, the Defence Act, the Protection of Information Act and the Criminal Procedure Act.
"All of these, as well as the National Prosecuting Authority Act, do not contain the exception allowing media to report on issues if it is in the public interest," he says.
"The result is that an editor or journalist with information of crucial public concern on, say, a military or defence matter, faces criminal prosecution if they go with the story.
"This constitutes a significant chilling effect on the publication of material that voters are entitled to know."
Some of the provisions of the controversial section 205 of the Criminal Procedure Act have been relaxed but it is still possible for courts to imprison any person who refuses to disclose information relating to a criminal investigation. This could include naming a reporter's source.
The best known case in this regard involves the unsuccessful efforts to compel Cape Times chief photographer Benny Gool to provide information on the death of alleged druglord Rashaad Staggie.
Victoria Bronstein, professor of law at the University of the Witwatersrand, says in a document submitted to the African Peer Review Mechanism by the South African National Editors' Forum (Sanef) last year, that laws that conflict with the Promotion of Access to Information Act have "implicitly been repealed", but "so long as they remain on the statute books any conflict would have to be resolved on a costly case-by-case basis."
She says many statutes, such as the Magistrate's Court Act and the Criminal Procedure Act, give judicial officers the discretion to hold hearings behind closed doors.
"There are other areas of the law that remain in a state of schizophrenia," says Milo. "Defamation law now permits a defence of reasonableness, but damages awards are increasing and urgent interdicts often prevail."
Milo says privacy law does not yet give the media adequate guidance on how to balance a public figure's legitimate right to privacy with the public's right to know.
A recent ruling by the Supreme Court of Appeal, that received little attention has important implications for the sub judice rule, which prevents the publishing of information that may prejudice a judge or jury hearing a case.
In this case, e.tv refused to show a documentary on the murder case of baby Jordan-Leigh Norton to the director of public prosecutions before it was aired.
The appeal court found that prohibition on publication of material relating to forthcoming criminal proceedings was permitted unless it could be shown that "publication might cause substantial prejudice to the trial", which it could not in this case.
"This ruling is bringing us closer to English law with regard to the sub-judice rule, but we are still behind England and the US, particularly with regard to defamation law in the US," he says. "We still have stricter rules here than in England, and they have a jury system."
The idea that media should be part of nation building and less critical of the government is gaining momentum, which worries media experts.
The SABC cut its ties with Sanef last month over Sanef's decision to support the Sunday Times coverage of the health minister, in which she was called a drunk and a thief.
This followed reports that the ANC had drawn up a discussion document for its December conference on media regulation.
The document considers whether remedial measures are necessary to protect and promote the constitutional right to dignity and privacy.
Bronstein says in a recent report: "Over the past decade the right to freedom of speech has been rigorously upheld by the higher courts but in the lower courts and tribunals freedom of expression invariably loses out to dignity and equality.
"It seems that although there is a symbolic deference to free speech, there is a growing quasi-legal tendency to erode its importance. Underlying the idea that speech is not actually that important, appears to be the belief that SA is still fragile and that individual South Africans cannot be relied upon to exercise any type of discernment."
Anton Harber, professor of journalism at the University of the Witwatersrand, says his concern with the ANC document is a proposed media tribunal to address the weakness of the media's self-regulatory system.
"South African media certainly know about commissions of inquiry into the media that purport to be independent, having faced a series of them under apartheid.
All of them were designed to put pressure on the media and encourage journalists to fall into line to encourage more unity, national pride and consensus," says Harber.
Milo says the aim of media freedom is not to allow editors to publish anything that takes their fancy "but any restrictions on the right to publish need to be carefully assessed to determine whether they are important enough to override the right to publish.
"If we dilute the strong protection that media freedom should enjoy, we risk undermining the democratic project to which we are committed."
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