The battle for media freedom took another knock last week when the Cape Town High Court denied journalist Gasant Abarder’s right to appeal against an order to testify in a civil defamation case.
Abarder had been subpoenaed to testify in a civil defamation dispute between two private litigants.
His lawyers argued that the evidence sought was observed as part of his duties, and that such evidence could be obtained from other sources.
The court found that in terms of section 83 of the Magistrate’s Court Act, a matter could only be appealed if it was the main focus of an action or an application.
Last February, Abarder of the Daily Voice and Aziz Hartley of the Cape Times were subpoenaed under section 51 of the Magistrate’s Court Act to testify in a defamation suit brought by chicken processing plant County Fair against Associated Trade Union of South Africa representative Grant Twigg.
Country Fair claims that on June 7 2005, Twigg made defamatory statements about the company’s role in the circumstances surrounding the death of employee, Virgenia Dallas, who died as a result of an asthma attack.
Her death led her fellow employees to raise concerns about working conditions at the plant.
Abarder reported statements made publicly by Twigg during a protest gathering attended by more than 100 people. County Fair alleges that Twigg made the statements fully aware that they would be published in the media.
Hartley and Abarder were subpoenaed “to testify in respect of all matters within their knowledge relating to the plaintiff’s civil claim”.
Whereas Hartley reluctantly gave evidence about statements made to him telephonically, Abarder refused to give evidence, on the grounds that the statements were made to a crowd of about 100 people, some of whom were County Fair’s employees and could easily be identified from the photograph that accompanied the newspaper report.
Abarder argued that testifying would jeopardise the relationship of trust with his sources.
He also referred to an agreement signed in 1998 between the former justice minister, Dullah Omar, and the South African National Editors Forum stating that journalists would only be subpoenaed in criminal cases as a last resort.
“Our main argument is that a jounalist should not be called as a convenient witness and be seen to take sides on a matter involving two parties, because it compromises his ability to gather information in the future,” said Abarder’s legal representative, Jacques Louw.
“If it gets to the point where I do testify, it will open up a lot of problems for journalists in the country,” said Abarder.
“If we are seen to be cooperating with corporations who bring defamation suits, then what kind of trust do we show to the public in our role as the fourth estate? It’s bad for freedom of expression and freedom of the press.”
Dario Milo, a partner at Webber Wentzel Bowens attorneys, said that in this case it was “a waste of time and resources” to subpoena a journalist. “If all you want the journalist to say is: ‘I wrote that article, and I atrributed the quotes correctly,’ then he shouldn’t be in court in the first place,” he said.
He added that the “last resort principle” has been applied in a very limited fashion in South Africa, generally only when a journalist’s life was threatened.