The Mail & Guardian this week went to court to defend its decision to protect the identity of its sources for a series of articles about facilities management company Bosasa, which has been investigated for having an allegedly corrupt relationship with the department of correctional services.
Bosasa has asked that the M&G turn over notes and recordings of interviews with sources, source documentation, unpublished drafts of stories relating to Bosasa and internal emails between former M&G investigative reporter Adriaan Basson, colleagues who assisted with articles concerning the company and their editors. The company says it needs the information to prepare for its upcoming defamation trial against the newspaper.
M&G editor in chief Nic Dawes said after the hearing that Bosasa’s attempt to discover its sources has “nothing to do with their rights and everything to do with their efforts to staunch the flow of damaging news about the way they do business”.
“The newspaper’s ability to protect the identity of confidential sources is crucial to its ability to expose corruption and serious wrongdoing,” Dawes said.
The newspaper and Basson, who now works for City Press, are facing a defamation suit launched by Bosasa over one article in a series published in 2009. Bosasa’s lawyers this week told the court that the media were asking for “press exceptionalism” and an absolute privilege to protect the identity of their sources, which may have a negative impact on the company’s right to a fair trial.
But lawyers for the M&G maintain that forcing journalists to reveal their sources would have a chilling effect on uncovering corruption and such action was not supported by the international body of case law.
They argued that there was no foreign authority for the disclosure of sources in pretrial processes and that, rather, in countries where defamation laws are similar to South Africa’s, the media’s right to protect its sources is highly valued.
Franz Krüger, director of the Wits Radio Academy and the M&G‘s ombudsman, said that protecting sources was a fundamental journalistic precept. “We, as journalists, feel very strongly about protecting our sources [and] we honour any undertaking to do so,” he said.
Irregular tenders: Where it all began
Bosasa, which has secured contracts from the department of correctional services worth billions of rands, first became involved in South Africa’s prisons in 2004 when it won a tender to provide catering services.
The Afrikaans newspaper Beeld began reporting on allegations of corruption involving Bosasa and the department as early as 2006. The company was alleged to have been involved in drafting tender documents, which gave it a clear advantage in later winning these tenders.
In late 2006 the Public Service Commission and the office of the auditor general referred specific allegations relating to improper behaviour with regard to contracts awarded to Bosasa to the Special Investigating Unit (SIU). The unit’s investigation, which began in 2007, focused on tenders for the supply of catering, fencing, security services and televisions. Bosasa later sought to interdict the unit from continuing its investigation.
Bosasa is headed by Gavin Watson, a member of a politically connected Eastern Cape family that has been linked to Linda Mti, one-time head of the ANC in the Eastern Cape and later national commissioner of correctional services.
Mti has been implicated in dubious transactions worth more than R1-million. He is alleged to have received free air tickets, hotel accommodation, a car and a R30-million house from Bosasa.
Also implicated was Patrick Gillingham, former chief financial officer for correctional services, a close ally of Mti and apparently a key contact person for Bosasa. He is alleged to have received cash, cars, payments towards a house and Blue Bulls season tickets through Bosasa. He faced internal charges of fraud and corruption and was suspended.
He later resigned.
The investigation was completed in mid-2010 and a report handed to the National Prosecuting Authority for further investigation into matters that might result in criminal charges. Bosasa is still receiving tenders from the government.—Faranaaz Parker
Case studies of press freedom
Freedom of expression is considered to be one of the essential foundations of a democratic society. Internationally, courts have placed particular importance on safeguarding that right.
The following three cases illustrate some of the arguments in favour of protecting the press:
Goodwin vs United Kingdom, 1996
In 1989 journalist William Goodwin received information about Tetra, a company that was experiencing financial problems, from a source. When he called Tetra for comment, he found that the information had come from a confidential document that had been stolen from the company’s premises.
The British High Court ordered Goodwin to disclose his notes of a telephone conversation with his source so that Tetra could recover the document and granted an injunction against publishing the article. But Goodwin said that this was not necessary in the interest of justice and that public interest in the publication outweighed the interest in preserving confidentiality. His appeal failed and he took the case to the European Court of Human Rights. In its judgment the court said that protection of journalistic sources was one of the basic conditions for press freedom. It concluded that the order requiring Goodwin to reveal his source had violated his right to freedom of expression.
The court said: “Freedom of expression constitutes one of the essential foundations of a democratic society and — the safeguards to be afforded to the press are of particular importance.”
Ashworth Security Hospital vs MGN Limited (UK), 2002
In what was considered an exceptional case, England’s House of Lords in 2002 upheld a court of appeal decision requiring the Daily Mirror to identify its source in a case involving Ashworth Security Hospital.
The paper had published an article containing extracts from a patient’s file and the hospital sought to discover the source of the leak, who was thought to be an employee at the hospital.
In the judgment the judge said that any disclosure of journalists’ sources had a chilling effect on press freedom. He compared journalists’ sources to police informants and said that if they were too easily disclosed, sources of information would dry up and preventing and detecting crime would become more difficult.
The judge said any limitations on the confidentiality of journalistic sources deserved careful scrutiny by the court, which must decide whether an exception should be made because of a pressing social need or a legitimate aim.
Because of the nature of the Ashford case, which involved the leaking of both medical and psychiatric records, an exception was made to maintain the important trust relationship between doctor and patient.
Sanoma Uitgevers BV vs Netherlands, 2010
In 2002 a journalist on a Dutch motoring magazine attended an illegal street race at the invitation of its organisers and on condition that the participants’ identities would be protected and their features blurred when photos of the event were published.
Later the police, who suspected that one of the cars in the pictures was used as a getaway vehicle in a robbery, obtained a court order compelling the magazine to turn over unedited versions of the photos.
A regional court found that the police’s interference was justified because the information the police seized was used in the investigation of a serious offence and all other avenues for the investigation had been exhausted.
The European Court of Human Rights, however, later found that the magazine’s right to protect its sources as part of the freedom to “receive and impart information and ideas without interference by public authorities” had been violated.—Faranaaz Parker