Mail & Guardian reporter
The Cape High Court has dealt a severe blow to press freedom by ruling that the reputation of an institution outweighed a reporter’s right to freedom of expression.
The Freedom of Expression Institute (FXI) and the Mail & Guardian are considering appealing against the decision, which upheld the expulsion of a Peninsula Technikon journalism student.
The technikon expelled second-year student Max Hamata in 1998 after he wrote an article, published in the M&G, headlined “Sex for sale on campus”. Hamata had interviewed female students who confessed to being prostitutes to earn pocket money.
Last year the Peninsula Technikon expelled Hamata after a disciplinary hearing where he was refused the right to have legal representation.
The FXI assisted Hamata with his high court appeal on the grounds that Hamata’s constitutional right to freedom of expression had been infringed.
“We are extremely disappointed in the high court’s decision and believe we should appeal against it. We have been tracking this case from the outset and believe that an important principle is at stake here,” said FXI director Laura Pollecut.
The FXI and Hamata had asked the Cape High Court to set aside the expulsion on the grounds that Hamata had not been allowed to bring a legal adviser to the disciplinary hearing which expelled him, and that he was entitled to the constitutional right of freedom of expression.
When Hamata was refused legal representation, he withdrew from the proceedings, which made a finding after an in-camera hearing with no evidence from the student journalist.
The technikon’s rules allow for the expulsion of students for conduct “whether on the technikon premises or not … which brings discredit on the technikon in the eyes of reasonable persons”.
Sources Hamata had interviewed for the article testified at the disciplinary hearing that they were “misled” about the purpose of the interview, many of them believing the article was to be published for an internal publication and others believing he was completing an assignment for his journalism studies. Hamata and his legal adviser were not present to cross- examine them.
The Judge President of the Cape, Justice John Hlophe, and Justice Fritz Brand reviewed the testimony and found that, in the absence of a response from Hamata, this must be accepted as uncontroverted.
“At least for the purposes of deciding the application, it must thus be accepted, as was accepted by three disciplinary bodies of the technikon, that Hamata published very serious statements, which were potentially harmful and prejudicial to the technikon, well-knowing that many of these statements were substantially untrue.”
They rejected an argument by Paul Farlam, who appeared for Hamata and the FXI, that the technikon’s disciplinary hearing did not take the student’s constitutional right to freedom of expression into account.
“We have no difficulty in finding, on the basis of uncontroverted facts before us, that the constitutional rights relied on by the applicants were in all the circumstances outweighed by the technikon’s right to protect its reputation,” the judges found.
Farlam had argued that the disciplinary hearing had erred in not allowing Hamata to bring a legal representative to its proceedings.
“We do not agree with the submission that the factual, legal and constitutional issues involved were unduly complex. In fact, Mr Farlam’s arguments in this court may well be an illustration of how a relatively simple enquiry can become ‘over- judicialised’. For these reasons the decisions … cannot be set aside on the basis that the committee refused Hamata’s request to be represented by his attorney.
“It cannot be required of an administrative tribunal to follow the procedure insisted upon in courts of law. We should not lose sight of the fact that one is dealing here with disciplinary hearings presided over largely by laymen. Therefore they cannot be expected to observe all the finer niceties that would have been observed by a court of law.”
The court did not hear evidence from Hamata, and the M&Gstands by and has never retracted the article