In 1981 Judge MT Steyn completed a report on the media. He found that the country was the subject of a total onslaught led by an ANC/South African Communist Party alliance and the media had played an important role, whether directly or indirectly, in the promotion of this campaign against the “legitimate institutions” of state. In the result Steyn recommended major legislation to curb the media and thus defend the “legitimate interests of the state”.
By the early 1980s the media had already been subjected to a plethora of restrictive legislation, making the task of the editor an onerous one, described at the time as walking blindfold through a legislative minefield.
In 1985 the effect of the Steyn report was finally felt as the government reinforced its legal stranglehold with a range of Emergency regulations that further squeezed the life out of freedom of the press. Even a brief examination of the new book about this very newspaper, 25 Years of the Mail & Guardian, reveals luminously the extent of the repressive controls exerted over the media and of censorship of the press.
It was to avoid a repeat of this history that the constitutional guarantee of freedom of expression was negotiated at Codesa and finally framed as Section 16 of the Constitution. Save for a carefully constructed restriction prohibiting hate speech, Section 16 promotes the free use and dissemination of speech, a complete antidote to National Party legislation and the Steyn Commission conspiracy theory.
In the 15 years since then, the courts have, save for a few backward steps such as the majority judgment in the Billy Masetlha case, been vigilant protectors of freedom of expression, including the capacity of the press to provide information and ideas to the public. In important cases the courts have compelled access to documents from the Ginwala Commission, the report of Deputy Chief Justice Dikgang Moseneke and Justice Sisi Kampepe on Zimbabwe and compelled the Judicial Service Commission to allow the press access to the JSC hearings regarding complaints against Western Cape Judge President John Hlophe.
As Judge Frans Malan said in the JSC case: “The media is the watchdog of society, keeping the public informed of matters of public interest to enable them to make informed choices about government and democracy.”
It now appears that the government does not fully share this judicial conception about the role of the media in a constitutional democracy such as ours. Within a few short weeks of showcasing our very best selves for the World Cup, the country is now faced with the hangover of serious press control.
As with the National Party, the controls are fashioned through specific laws. Again in the style of the Nats, the description of the legislation is almost the converse of the precise legislative intent — remember the Extension of Universities Act, which grossly restricted academic freedom and totally racialised tertiary education. Now we have the Protection of Information Bill, designed to protect no one other than the government from the citizen’s right to transparent, open and honest government — and President Jacob Zuma informs us that the proposed media appeals tribunal is intended to enhance free speech.
The government protests that it needs the kind of protection created by the Bill for official secrets and confidential information; this all governments require. It is a pity it did not follow powerful democratic precedent, even in countries such as the United States, which, unlike South Africa, do suffer serious external terrorist threats.
The Bill introduces a system of internal classification of documents that can be justified with an assertion that it is in the national interest — a concept so broadly defined as to make Steyn drool with envy. Almost any government document can be so classified. If the intent of the government was as benign as claimed, then a narrow definition of national interest and an express defence based on the public interest, against potential imprisonment of a journalist, should have been included.
As if that Bill were not troubling enough, the government next proposed the establishment of a media appeals tribunal to replace media self-regulation. Ostensibly this is to ensure a more accountable media, as if existing legislation and relevant common law as adjudicated by the courts cannot provide adequate sanctions for media misconduct.
The ANC, by way of Zuma, complains about an irresponsible and corrupt press. If he was so concerned about a corrupt press, why not launch a public inquiry into the serious allegations that ANC stalwart and now our man in Washington, Ebrahim Rasool, corrupted the press?
Besides, what is the primary source of press information about corruption in the ANC but warring factions within the party itself?
With the ANC’s secure majority in Parliament it is likely that both pieces of legislation will pass through the legislative stages, forcing the courts once again to prevent a serious undermining of our constitutional freedoms. In this way, politics will shift to the courts. The courtroom, rather than Parliament or civil society, will again be the site of struggle.
As the courts show fidelity to the Constitution, probably by finding the Bill and tribunal unconstitutional, we should also expect shrill anti-judicial discourse.
And so, two of the main pillars of our democracy — a free press and the courts — will be assailed at the same time. If this happens, our democracy will be weakened greatly because courts can hold the democratic line, alone and under attack, only for a limited time. Is the lack of official judicial reaction to the obviously contemptuous remark from the secretary general of the ANC Youth League, regarding a drunken judgment against the league, a harbinger of this?
That elements within the government are prepared so quickly to forget history is testimony either to a historical amnesia or to a desire to keep hidden even greater corruption than that of which citizens are aware through media reporting — or simply an appetite for unfettered power. Unless these measures are defeated, the true motive will remain unknown.