Bosasa looks to foreign law for case against M&G

Lawyers for the facilities management company Bosasa on Tuesday argued there is legal precedent for compelling reporters to reveal their sources and put forward examples from the United States and Australia to support this.

But Steven Budlender, acting for the Mail & Guardian, said that there was no foreign authority for the disclosure of sources. This was because two of the cases put forward by Bosasa’s lawyers took place in the US, where the laws concerning defamation are very different.

On Monday the M&G‘s counsel had argued that international legal precedent was in favour of protecting journalists’ sources and challenged Bosasa’s lawyers to prove otherwise.

Bosasa is suing the M&G and Adriaan Basson, an investigative reporter formerly employed by the newspaper, for defamation over an article published in 2009, which alleged that there was a corrupt relationship between it and the department of correctional services.

As part of pretrial proceedings aimed at acquiring further information with which to build its case, Bosasa is also appealing for an order from the court to compel the newspaper to reveal the identity of three sources who provided the newspaper with information.

Two of them provided Basson with confidential information from within the company, and a third source provided information to M&G journalist Glynnis Underhill, concerning a report by the Special Investigations Unit on allegations that Bosasa bribed officials in order to secure contracts.

If Bosasa’s application is granted, the paper could be compelled to reveal its sources. The South African National Editors Forum and the press freedom NGO Section 16 have said that this would have a “chilling effect” on the free flow of information to the public.

Foreign authority for disclosure
In the US, the public figure who is suing for defamation bears the onus for showing malice on the part of the media.
In this situation, the offended party would need to know who the sources for a story are.

But Budlender pointed out that in defamation cases in South Africa, media defendants are responsible for proving the truth or reasonableness of their claims. There is therefore no reason for the offended party to know the identity of the sources.

He also dismissed the third case cited by Bosasa’s lawyers, as it was drawn from Australia, which has no Bill of Rights and so no comparable legal defence.

“This is the sum total of what our learned friends managed to concoct from all over the world,” he said.

Internal code of ethics
One of the paper’s defences in the defamation case is that it used reliable information from reliable sources.

But Jeremy Gauntlett, counsel for Bosasa, argued that the M&G’s journalists had flouted the paper’s own editorial code of ethics by failing to ascertain whether the sources were reliable before they offered them anonymity.

He said the “elephant in the courtroom” was that they had obtained the information in contravention of the code and that this was a disciplinary offence within the company. “These employees should have been disciplined,” he said.

Section 1.3 of the M&G‘s editorial code of ethics states that “anonymity will only be granted if the source can persuade us that they have sound reasons for the request Once it has been granted, the newspaper will protect the identity of the source.”

Read our code of ethics here

According to Gauntlett, the reporters should first have been satisfied that there was a real reason to offer confidentiality before offering a “blanket guarantee” to protect the source’s identity.

He said the defence had not shown that the reporters had discussed the question of whether to offer the sources protection with their editors before accepting the information and that instead there had been a “rush to judgment” in offering anonymity.

“There seems to be a belief that the newspaper’s word is its bond and it binds the court too,” he said.

But M&G editor-in-chief Nic Dawes said this argument was a red herring. He said Gauntlett was giving the court a garbled account of the way that journalists apply ethical strictures to their work because he has no sound legal basis on which to base Bosasa’s demand that the M&G reveal its sources.

“Far from being in breach of those codes, Adriaan Basson and Glynnis Underhill both worked rigorously and ethically to produce their stories. I have no concern in that regard whatsoever,” he said.

Dawes said the identity of the sources was not relevant to the case.

“The information that we’re dealing with in this case is a very large set of documents, so there’s no question of someone having told us a story or made a set of allegations that may have been slanted in some way by their interests.

“The authenticity of the documents is completely uncontested so the question of the credibility or otherwise of the individuals who handed them over to us is not germane,” he said.

The case was heard in the South Gauteng High Court and presided over by Judge Moroa Tsoka. Judgement has been reserved.

Faranaaz Parker

Faranaaz Parker

Faranaaz Parker is a reporter for the Mail & Guardian. She writes on everything from pop science to public health, and believes South Africa needs carbon taxes and more raging feminists. When she isn't instagramming pictures of her toddler or obsessively checking her Twitter, she plays third-person shooters on Xbox Live. Read more from Faranaaz Parker

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