Social worker Tshengesiwe Mthembu was walking to work last Saturday morning when she found herself caught up in a modern-day pass raid. Yeoville police were cruising the street in search of “illegal immigrants”. They were stopping individuals – all black – asking them to speak their home language, questioning them on key words and making them speak Afrikaans. If they failed to pass this scientific test – the 1990s equivalent of a pencil in the hair – they were bundled into the police van.
Infuriated, Mthembu refused to speak in Afrikaans. And they ruled that her Zulu accent was “funny”, even though it is her first language and was not the language of her interrogator. She was placed in the van and taken to the police station.
She was, at some point in the proceedings, told the price of her freedom. A payment of R200 would secure her release.
(As she was driven to the police station, the van would have passed at least two Yeoville street corners where drug dealers were openly offering their wares within a couple of blocks of the police station. As always, the police would have taken no notice.)
Shortly after friends secured Mthembu’s release by threatening the policemen involved, I read of the bold victory for press freedom struck by the Cape Times and Cape Argus. In defiance of the Divorce Act, they published all the sordid details of Earl Spencer’s divorce. It was, the Cape Times editor wrote, a triumph for our constitutional right to freedom of speech and a victory for those wanting to deepen our democracy.
But Mthembu’s case had demonstrated for me how fragile is this country’s hold on law and order; how one of the greatest threats to our democracy is the lack of respect for the rule of law that permeates even the supposed enforcers. Is it worth contributing to that contempt for law for the sake of the titillating details of the Spencer case, I asked myself?
The answer is not simple. I do not count myself among those who are willing to see a dilution of newly won citizens’ rights for the sake of crime-fighting. I believe the unseemly rush to change the bail law is an act of sickening opportunism by politicians, intended to distract attention from the real causes of and solutions to crime.
And I am not averse to breaking the law when such a radical act is necessary and justifiable. I have a number of convictions for doing so during the 1980s.
Certainly, the Divorce Act is cast too widely. An attempt to protect the children of those involved in disputed divorces has – in the apartheid tradition – been worded so loosely that it prevents almost all coverage of all divorce cases, no matter the level of public interest.
“No person shall make known in public or publish for the information of the public or any section of the public any particulars of a divorce action or any information which comes to light in the course of such an action,” the Act reads. The wide definitions are more than likely unconstitutional – or at least they should be redrawn to meet their purpose and not prevent all divorce reporting.
But is it noble to defy this law? Is it so fundamental an attack on our rights that it justifies siding with those who show contempt for the rule of law? The editors argued two points: that there was overwhelming public interest in the case; and that the law was pointless and outdated anyway since all the information was available in overseas newspapers and the Internet.
The first argument is dubious: it is hard to see how the greater public good is served by knowing of Spencer’s wife’s allegations of his sexual misconduct. The second is even weaker, since it is quite possible that information in foreign newspapers and the Internet can be kept away from young children.
I fear that those editors did exactly what the Yeoville policemen were doing last Saturday – taking advantage of the lack of rule of law and the slackness in its implementation -to serve the prurient interests of their market. And in doing so, I suspect they demeaned the noble arguments we use in favour of freedom of information: that it serves the greater public good.
They behaved as recidivist activists, not realising that it may have been honourable to break the law with abandon under the previous regime, but it is an act with entirely different meaning and implications under democracy. And they sounded like the worst of British tabloid editors, who are constantly using notions of press freedom to justify the most despicable invasions of privacy.
Under the right circumstances – such as the lack of alternative remedies – defiance of a major law on the fundamental of our right to free expression may be justified, and even necessary.
But they had other remedies, such as legal challenges to the Act. That would allow for an informed discussion of its virtues – and a recognition that it is at least arguable that there is virtue in protecting the children affected by a divorce.
But by openly defying the law on such a petty case, they have given ammunition to those who charge that the media cites lofty ideals to justify lowly titillation. And by breaking the law for their own short-term gains, they are sinking to the level of the policeman supplementing his income by harassing people on the street.
— Anton Harber was the former editor, and a co-founder, of the Mail & Guardian