Richmond
There tends to be a false assumption that firm or tough government is conservative government and, as such, inimical to the liberal principles enshrined in our Bill of Rights.
For that reason, perhaps, those who take pride in the foundations of the new South Africa contained in our Constitution would see a declaration of a state of emergency in the Richmond area of KwaZulu-Natal as an abandonment of high principle and a reversion to the bad old days of PW Botha et al.
We would disagree. Our Bill of Rights makes specific provision for a state of emergency and, as far as we are concerned, there are enough safeguards to sufficiently minimise the abuse of additional powers it would grant to the government. That position would seem to us to be consistent with our judgments of our government’s performance in the past.
We have criticised its weak stance on financial corruption. We applauded the tough line taken with General Georg Meiring. We deplore what we see as the over-sensitive pussy-footing around with the Mozambican authorities in the matter of Robert McBride. We backed Dr Nkosazana Zuma (despite lambasting her in other respects) over her no-nonsense approach to price manipulation and profiteering by the international drugs companies.
This week we would welcome Minister of Justice Dullah Omar’s attempts to take on syndicated crime and the gangs …
The recent events in Richmond are an obscenity and there is persuasive, if not yet overwhelming evidence, that they are motivated by treasonous conspiracy. Those are grounds enough for the toughest of action.
In addition, innocent lives are being taken and that outrages our commitment to the most fundamental right guaranteed by our Constitution. If the security force commanders believe that a state of emergency would give them a necessary advantage to deal with the Richmond troubles, we would urge them to put their case to the executive, the legislature and, if necessary, the Constitutional Court.
With their collective experience as victims of emergency powers, these three arms of the government may not prove easy gatekeepers to pass. But they must be recognised for what they are: a mechanism to facilitate wise government, not to perpetuate weak government.
Not so free press
The Mail & Guardian faces a hat-trick of court appearances in the next six weeks. The cost of these trials is enormous, both financially and in terms of the time expended defending them. The three plaintiffs lined up against us have little in common, apart from the fact they have all been employed by the state.
First off is Hlengiwe Mkhize, a truth commissioner, who will today (Friday) seek to defend her name against an article in which she was accused of a chequered history where management skills were concerned.
On Monday, KwaZulu-Natal Attorney General Tim McNally embarks on his R3-million suit over an article suggesting he was insufficiently conscientious prosecuting perpetrators of “third force” violence.
And on September 7, Emanuel Shaw II, the Liberian financier who bagged an extraordinary R3-million contract with the state oil company, will seek R7-million in damages for a series of articles which explored his dealings in South Africa and in West Africa.
Libel cases are unpredictable at the best of times, but as the law stands in South Africa, a very uncertain fate awaits this newspaper as we go into battle. There is a post-1994 high court decision which reflects the spirit of the new Constitution by giving newspapers immunity from attack by public figures – providing the defamatory material is written diligently and without malice.
But there is also a strong body of case law, affirmed in the Supreme Court of Appeal in Bloemfontein, which requires us to prove our defences against a libel charge by showing our facts are substantially true.
There is considerable debate within legal circles about the importance that should be afforded the right to free speech, compared with other rights such as privacy and dignity. Those who have recently launched attacks against our vigorously independent editorial policy will no doubt be hoping that the courts favour the older body of case law. They, and the many members of government who show a strong dislike for an independent press, will be treading the same path as their National Party predecessors who on several occasions sought to shut down this newspaper.
We accept that a free press must also be a responsible press and not misconstrue freedom of speech as a licence to print anything we choose. But we also know that, after the Constitution and the institutions of government it creates, a free press has a major contribution to make to a democratic, equitable government and a society which cherishes fairness and honesty.
But to make that contribution we believe the press needs be relieved of the oppressive threat of libel proceedings, particularly when the performance of public officials is at issue. That is, in effect, already the judgment of the United States Supreme Court which has set a precedent already followed, in significant respects, by courts in other jurisdictions including the British House of Lords, the Supreme Court of India and the High Court of Australia.