In a case seen as critical for all journalists, the definition of media freedom was heavily disputed on Tuesday in day-long arguments in the Bloemfontein High Court.
Judge president JP Malherbe and Judge DJ Lombard were hearing an urgent application by journalist Ranjeni Munusamy to set aside an order forcing her to testify before the Hefer commission. Judge Joos Hefer said Munusamy had the right to object to certain questions.
Alternatively, Munusamy asked for a ruling that she be called to the stand only after all other avenues of investigation had been exhausted.
Advocate Gilbert Marcus, SC, supporting Munusamy’s application, contended that its outcome would impact on all journalists and their constitutional right not to disclose confidential sources.
Marcus was representing the SA National Editors’ Forum, the Freedom of Expression Institute and the South African chapter of the Media Institute of Southern Africa. These organisations have joined as ”friends of the court”.
Marcus said journalists did not enjoy blanket immunity from revealing their sources in an inquiry. However, if they were compelled to do so it must only be as a last resort.
The appropriate legal test would be to determine whether the information was highly material, relevant, crucial and unobtainable from other sources, Marcus argued.
Advocate John Campbell, for Munusamy, argued that media freedom consisted primarily of journalists’ constitutional protection against the disclosure of sources. This formed part of the basic right of freedom of expression. However, if journalists had to be forced to identify sources, the compulsion must be in such a way that this right was least infringed.
From this flowed the ”rule” that journalists should be called ”last and least”, meaning after all other possible sources had been tried without success.
Advocate Schalk Burger, for the commission, denied that media freedom was even an issue in the particular case.
Hefer’s ruling did not force Munusamy to disclose confidential sources. Therefore it did not threaten the constitutional right to freedom of expression in any way, Burger argued. He called her application premature, arguing that she could
appeal later if unsatisfied with Hefer’s ruling on her objection to a question.
In an apparent attack on Munusamy, Willem Van der Linde, SC, for Ngcuka, argued that ”press freedom does not require protection of people who come up with 15-year-old stories aimed at sowing division”.
Campbell called these contentions fundamentally flawed and completely wrong.
”What is an offensive story to one person, is valuable to another,” he said.
Malherbe reserved judgement, indicating that he would take into account the urgency of the application.
The Hefer commission’s next hearing is scheduled for November 12 in the Justicia building in Bloemfontein. – Sapa