Protection of sources is key to a free press

Journalist?s privilege in respect of the protection of sources was brought into the spotlight with the Hefer Commission ruling that former Sunday Times journalist, Ranjeni Munusamy, must testify before it in relation to the article she initiated detailing accusations that Bulelani Ngcuka, the National Director of Public Prosecutions, was a former apartheid spy.

Journalist’s privilege in respect of the protection of sources was brought into the spotlight with the Hefer Commission ruling that former Sunday Times journalist, Ranjeni Munusamy, must testify before it in relation to the article she initiated detailing accusations that Bulelani Ngcuka, the National Director of Public Prosecutions, was a former apartheid spy.

Munusamy stands a solitary female figure amongst the otherwise all-male cast involved in South Africa’s latest stage show.  Her protestations that she had been threatened by her sources not to divulge their identity did not sway Judge Joos Hefer from upholding the subpoena that she testify.  Hefer’s ruling, however, was not without qualification. He said that she could voice reluctance to answer any specific question put to her.

Reading the press coverage, one would be forgiven for thinking that: the South African Constitution assures journalists certain rights relating to the non-disclosure of sources; that the mere act of appearing before a Commission of Inquiry, court or similar tribunal breaches these rights; and that the right of journalists to protect their sources does and should supersede all other rights and duties.

I say “forgiven for thinking” because it is not actually the case.

Undoubtedly South Africa recognizes the important role a free press plays in securing the conditions conducive to maintaining a healthy democracy.  Section 16 of the Bill of Rights clearly states “everyone has the right to freedom of expression, which includes freedom of the press and other media”.

Raymond Louw, veteran journalist and well respected campaigner for press freedom, petitioned Judge Hefer on behalf of the Southern African National Editor’s Forum(SANEF), for the subpoena issued against Munusamy to be withdrawn.

Louw alleges it violated a veritable shopping list of constitutional rights – the right to human dignity, freedom of expression, freedom to receive or impart information, freedom to receive information from the State and freedom to practise an occupation unimpeded.  In short, he claims a Constitutional legal privilege on behalf of journalists.

“Legal privilege” in South African common law is scarce to find beyond the obvious one of lawyer and client. For example, there is no privilege offered to priests for information obtained during Confession.  Courts have been unwilling to extend privilege to journalists, preferring instead a more pragmatic approach on a case-by-case basis.  As Judge Edwin Cameron  correctly ruled in Holomisa v Argus Newspapers, journalists enjoy no greater protection than other members of the public, otherwise a hierarchy of right holders would be created.

The principle mechanism for questioning witnesses under the criminal law is section 205 of the Criminal Procedure Act, so this is normally how journalists come to be subpoenaed to reveal their sources.  Section 205 compels witnesses to answer all questions unless they show “good cause” not to.

A journalist subpoenaed in 1994 during the Winnie Mandela case was excused from disclosing sources.

But the Constitutional Court’s reasoning for upholding section 205 as constitutional, makes clear that such decisions should only come after a court undertakes a balancing act between the interests of the community and the rights of the individual.  Remember, in South Africa no rights are absolute; all may be limited.

In Munusamy’s case, any requirement to divulge her sources would need to come after balancing her rights, the needs of the state to secure important information and any potential public prejudice which could result from the forced disclosure.  Hampering the ability of the press to function efficiently, and provide a means whereby people may come forward without fear of reprisal to disclose wrong-doing, for example, should be seen by the Courts as constituting a form of public prejudice.

International practice on this issue is divided with Sweden, for example, holding journalists criminally liable if they divulge sources in contrast to a legal compulsion to reveal sources in some US jurisdictions.

In his submission to the Hefer Commission, Louw also raised the issue of the ongoing discussions taking place between the Department of Justice, the Law Commission and the Editors’ Forum (SANEF) and the existence of a “Record of Understanding” that before a journalist is subpoenaed by the State, the matter must be referred to the National Director of Public Prosecution for consideration and discussed with the journalist’s editor.

 In this case, the process would be rather interesting, given that it is the National Director against whom the subpoenaed evidence would be directed, and Munusamy no longer has an editor as she resigned from her post at the Sunday Times when disciplinary proceedings were initiated against her.

But the interesting thing is that  retired Chief Justice Hefer was either not aware of the “Record of Understanding”, or chose to ignore it.  It is hard to believe the Minister of Justice would not inform his judicial officers that he had entered into such an important agreement affecting how witnesses are to be brought before the courts.

I feel certain Munusamy will achieve some of her aims.  She will probably receive an Order that she may not be forced to reveal confidential sources, but I doubt if the High Court will grant her blanket immunity over all her research materials.  But winning this battle will go a long way to ensuring that journalists retain an essential element to secure a free and vibrant press for South Africa.

Helen Fernand is the co-ordinator of Women’s Media Watch Unit.

 This article is part of the GEM Opinion and Commentary Service that provides views and perspectives on current events.