Judge Joos Hefer found on Wednesday that the Constitution did not grant immunity from testifying to every journalist in all circumstances.
”A journalist, like any other person, (is) obliged to testify but is entitled to refuse to answer any particular question against which there is a valid objection,” he said.
Hefer, who heads a commission of inquiry into spying allegations, was giving reasons for his earlier decision that journalist Ranjeni Munusamy must testify before the commission.
Munusamy was the main author of a newspaper report in which the allegations, against national director of public prosecutions Bulelani Ngcuka, first surfaced.
Last week, she refused to take the stand before Hefer. Calling on Constitutional rights to freedom of the press and the freedom to gather and impart information, she said testifying would reveal her confidential sources.
Hefer said on Wednesday he was sensitive to a journalist’s aversion to breaching undertakings of confidentiality. However, each case and every claim to confidentiality on this ground had to be decided on its own merits.
He stressed that he did not rule that Munusamy would have to reveal her confidential sources if she were to testify. According to last week’s ruling it would ultimately be for him to decide which questions she had to answer.
He allowed her to object to specific questions, ”so that an informed and considered ruling can be given before any question is answered”. The objections he envisaged could be on the grounds of confidentiality or on any other grounds.
Hefer added that he was not persuaded of any real threat to Munusamy’s personal safety against which she could not be safeguarded by appropriate rulings and measures. These could be undertaken during the course of her evidence.
He was responding to an affidavit Munusamy last week submitted to the commission, claiming there was a threat to her safety should she reveal confidential sources.
Hefer described the affidavit as ‘very cursory’.
He said infringement of Munusamy’s constitutional rights if she were compelled to testify, would depend largely on the nature of questions put to her. This would only become manifest once a particular question was known.
The judge dismissed Munusamy’s argument that all other avenues of inquiry must first be explored before calling her to testify.
He said he did not know of any local rule regulating the sequence of witnesses before a commission of inquiry. Such a restraint on the course of the commission proceedings would be neither necessary nor reasonable, he said.
Neither Munusamy nor her lawyer, John Campbell, attended Wednesday’s public hearing in the Supreme Court of Appeal building in Bloemfontein.
They earlier indicated that she would bring an appeal on Friday against Hefer’s ruling. It was not yet clear in which high court the application would be filed.
The appeal is expected to be heard early in November. – Sapa