Bosasa loses source case appeal bid against M&G – with costs

The judgment by judge Moroa Tsoka handed down in April in the South Gauteng High Court, ruled the Mail & Guardian and its former reporter Adriaan Basson were fully within their rights in protecting the anonymity of sources in the process of carrying out the democratic function of the press – which includes revealing corruption.

Bosasa's application to appeal the matter in the Supreme Court of Appeal was dismissed with costs.

The M&G was trying to protect its sources in a story that alleged large-scale corruption and to fight a defamation case brought against it and Basson by Bosasa.

The case calls on the court to balance the right of discovery – which enables parties in a civil case to gather pertinent information – with the right to protect sources. It is the first case of this kind under the new Constitution.

Bosasa has been the recipient of a number of multimillion-rand tenders since 2006 and in 2009. The M&G published a series of stories, which alleged that it had gained exclusive access to tender documents before they were publically advertised.

The company is asking for an order to have the M&G remove an article from its website and for an apology from the newspaper. The article, written on May 22 2009 by investigative journalist Adriaan Basson, states that Bosasa was engaged in corrupt practices connected to the department of correctional services.

It is also asking for an order to compel the M&G to reveal its sources for a series of stories on the company.

As part of pretrial proceedings, Bosasa asked Basson and the M&G to hand over information it deemed pertinent to the case. This formed part of discovery procedures, whereby both parties asked for additional information with which to build their case.

But Bosasa was not satisfied with the information the M&G provided, which included sections that had been blacked out to protect the identity of its sources.

M&G editor-in-chief Nic Dawes said he was pleased by the decision. "The appeal court's decision not to entertain an appeal from Bosasa lends further weight to the important precedent set out by Judge Tsoka, which recognises that journalists' ability to protect the identity of confidential sources is crucial to the media freedom that is protected by our Constitution."

It is unclear at this stage if Bosasa will head to the Constitutional Court to appeal the appeal court's ruling.

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