While the South African media is widely respected throughout the continent, the South African government’s attitude to press freedom is riddled with contradictions. On one hand, the Promotion of Access to Information Act, which went into effect in March, granted citizens access to any personal information held by the state and private entities. The authorities also posted public records on the Internet.
On the other hand, apartheid-era laws give the state power to subpoena reporters and compel them to reveal sources. In August, lawmakers debated a new bill that would allow security organs to eavesdrop on cellular communications and intercept electronic messages.
If passed, the Interception and Monitoring Bill will empower law enforcement and intelligence agencies to “establish, equip, operate and maintain monitoring centers” to tap electronic and cellular communication, in some cases without warrant. Authorities say they need the law to fight organized crime.
Journalists were wary of this argument, claiming that the law would compromise the confidentiality of their e-mail and cell phone exchanges with sources. At year’s end, the bill was still with Parliament’s justice committee, which had amended it so that a judge’s order would be required to conduct wiretaps and obtain telephone records.
In September, the Cabinet approved the Electronic Communications and Transactions Bill, which empowers the authorities to access private citizens’ e-mail messages.
Other new bills and statutory bodies were equally controversial. The Media Diversity and Development Agency (MDDA) was set up by the government to “increase access to the media for all citizens,” develop community radio stations and newsletters, and ensure a racial balance in newsrooms. South African press groups complained that the MDDA’s mandate gives the agency sweeping powers of investigation, lobbying and intervention.
But the MDDA has its supporters as well. The Media Workers Association of South Africa, for one, claimed that racism pervaded the country’s newsrooms, which it said needed constant monitoring to ensure South Africa’s commitment to diversity.
Investigative journalists were busy last year, and their stories led to the dismissal of more than 30 government employees for corruption. The media’s aggressive hunt for corrupt officials further strained relations with the ruling African National Congress (ANC), which often accused journalists of racism.
But no subject busied reporters as much as the trial of members of PAGAD (People Against Gangsterism and Drugs), a vigilante group charged with the brutal murder of a suspected Cape Town gangster in 1996. Three reporters who witnessed the killing were subpoenaed to testify and to provide unpublished photos of PAGAD members who lynched the gangster and set his corpse on fire. The reporters were subpoenaed under Section 205 of the Criminal Procedure Act, which allows the state to investigate journalists’ sources and seize any information relating to a crime.
Lawyers for the journalists successfully challenged the subpoenas; none of them testified, and no photos were handed over.
In another startling case, the police charged the Sunday Times with “interfering with police work” for publishing a December 9 photograph of a suspect in the murder of Marike de Klerk, the ex-wife of former president F.W. de Klerk. The paper was charged under Section 69 of the 1995 Police Act, which prohibits taking and publishing pictures of people connected to a crime. No ruling was available at year’s end.
Benny Gool, Cape Times
Arie Roussouw, Die Burger
Christo Lötter, Die Burger
Gool, a photographer for the daily Cape Times, was issued a second subpoena to testify in the murder trial of members of the vigilante group People Against Gangsterism And Drugs (PAGAD).
Gool was one of several Cape Town journalists, including Roussouw and Lötter, who witnessed the 1996 murder of Rashaad Staggie, a Cape Town drug dealer, by PAGAD militants. Gool’s pictures of the murder were widely published.
An earlier subpoena was withdrawn after Cape Times management reached an agreement with the state attorney’s office. Gool refused to testify after receiving the second subpoena, arguing that as a journalist he should not be seen to take sides in the case. Gool also claimed that his life would be in danger if he took the stand.
Since May 1998, seven witnesses in PAGAD-related cases have been murdered, according to the Freedom of Expression Institute in Johannesburg.
The Directorate of Public Prosecution threatened to jail Gool for up to two years. On May 15, however, a judge in Cape Town refused to issue a warrant for his arrest.
On June 21, Lötter and Roussouw moved successfully to have the subpoenas set aside.
Gool’s subpoena violated an agreement between the South African National Editors’ Forum, the Department of Justice, and the Department of Safety and Security, under which authorities agreed not to force journalists to testify without prior consultation.
However, Section 205 of the Criminal Procedure Act states, “A magistrate may, upon the request of the Attorney-General, require the attendance before him or any other magistrate, for examination by the attorney-general or a public prosecutor… of any person who is likely to give material or relevant information as to any alleged offence.”
Public Prosecutor Selby Baqwa banned all press coverage of court hearings about a questionable US$6.3 million arms procurement deal by the South African government.
Baqwa’s office was investigating allegations of wrongdoing in the awarding of arms contracts to Swedish, German, British, French, and Italian manufacturers.
Baqwa cited Section 118(a) of the Defense Act of 1957, which requires that media outlets obtain the minister of defense’s permission to publish information regarding certain aspects of the Defense Force.
The ruling notably affected the publicly funded South Africa Broadcasting Corporation and the private station E-TV, both of which have sued the government over the constitutionality of Section 118(a). Meanwhile, the South African Freedom of Expression Institute called the ban unacceptable.
Baqwa also cited Section 11 of the Armaments Development and Production Act of 1968, which prohibits unwarranted disclosure of information relating to the acquisition of weapons by the government. The public prosecutor further expressed concerns that news cameras in the courtroom might intimidate witnesses and prevent them from testifying to the full extent of their knowledge.