We regret that we are not permitted to tell you why. The same State of Emergency regulations which have brought the two to court prevent us from divulging full details of the charges against them. Only this much can be revealed: Anton Harber, co-editor of the paper, and reporter Jo-Anne Bekker are charged under the Emergency regulations for articles published more than two years ago. The articles deal with certain Emergency detentions and make certain allegations about matters which may perhaps have arisen in certain prisons in the Eastern Cape.
Many of the allegations were raised in parliament at the time by Progressive Federal Party MP Andrew Savage. Savage, however, was fortunate: he had the privileges of parliament behind him. There was a time when our courts had similar privileges. But under the State of Emergency, major inroads have been made into the traditional indemnity enjoyed by court proceedings. Emergency regulation 3 states that no evidence presented to a court concerning the treatment or circumstances or manner of arrest of an Emergency detainees may be divulged until final judgement is given.
In the Weekly Mail case, this means that both the specific nature of the charges and much of the evidence presented to the court may be with held from the public until after the trial has ended.Thus the charges represent a form of multiple censorship: they not only gag the journalists involved, they also gaga the detainees of whom the journalists have written and they even gag the court which hears the case. The Weekly Mail case is likely to be a watershed trial, one which will closely resemble the famous Rand Daily Mail prisons case of the late 1960s. In that trial – which the Rand Daily Mail eventually lost after some 14 months of argument – a precedent was set which deprived the media of the right to probe into prison conditions. It is likely that the Weekly Mail will, like the Rand Daily Mail, call upon a large number of witnesses, particularly ex-detainees, to present evidence to corroborate our claims.
In the Rand Daily Mail case, the evidence of the various ex-prisoners and warders was extensively reported upon in that paper. It is likely that the Weekly Mail will, like the Rand Daily Mail, call upon a large number of witnesses, particularly ex-detainees, to present evidence to corroborate our claims. In the Rand Daily Mail case, the evidence of the various ex-prisoners and warders was extensively reported upon in that paper. The difference, this time round, is that whatever evidence the ex-detainees present will be out-of bounds to the press until a final verdict has been delivered. Another difference is that the Rand Daily Mail case was unique. It was based on research over a long period, an ”exclusive” investigation of a kind which rarely appears in newspapers.
The Weekly Mail case, instead, revolves around the kinds of allegations which many newspapers have made about detainees, in particular during recent months when the hunger strike was at its height. The case therefore sets a grim precedent for the entire media. If we lose, the way is open for the state to pursue prosecutions across the board against almost every major paper in the country. It is known, for example, that investigations have been opened on similar counts against a number of major newspapers. Presumably, if this case is lost, many of those investigations could turn into actual charges. And the potential penalties are severe: a fine of up to R20 000 or a sentence of 10 years in prison. Even an editor who wins faces the prospects of long weeks in court and heavy legal costs.
One of the questions which the state may answer during the case will be this: Why have more than two years been allowed to pass before prosecution? If the damage to state security was as great as the charge sheet alleges, why was swifter action not taken? The answer to that question may resolve this mystery: where the target of the current state attacks is the press, or whether it is the detainees; or whether these charges are just a part of a new wave of clampdowns against opposition of all kinds.
* Although the Emergency has been in force for over three years, only one other case has been brought against the media, against Rashid Seria, former editor of South. The case is now proceeding in Cape Town.
From one charge to another
As Weekly Mail co-editor Anton Harber stepped out of court on Wednesday this week, security police were waiting to hand him another set of charges. The latest summons was for quoting African National Congress leader Harry Gwala, whom the state says is a ”listed” person, not to be quoted without ministerial consent. Also summonsed was reporter Thami Mkhwanazi. The two must appear in court on August 30. The alleged offence, under the Internal Security Act, carries a compulsory jail sentence without option of a fine. Max du Preez was found guilty of a similar offence and sentenced to six months’ imprisonment, suspended for five years. Charges against Harber and Mkhwanazi are the latest in a string of related prosecutions this month. Sowetan editor Aggrey Klaaste made a court appearance on August 9 for quoting Gwala, and Sunday Times editor Tertius Myburgh appeared this week. New Nation‘s acting editor Gabu Tugwana is to appear on August 30. The Sowetan and Sunday Times cases were remanded until next month.
This article originally appeared in the Weekly Mail.
