On Thursday afternoon, the Constitutional Court dismissed Bosasa's application to appeal a judgment that allowed the Mail & Guardian to withhold the names of those who had whistle-blown irregular tender practices at the company.
The court unanimously dismissed the application with costs because it was “not in the interests of justice".
This is the second time Bosasa's application for leave to appeal has been turned down, with the Supreme Court of Appeal being the first to reject it in August last year. The legal wrangle began in 2009 when Bosasa took the M&G to court shortly after it published a series of stories alleging that the company had exclusive access to tender documents before they were publically advertised.
Bosasa, which has been awarded several multimillion-rand tenders in the past seven years, is suing the M&G for defamation.
As part of the pre-trial information exchange process, Bosasa requested that the M&G and former M&G investigative journalist, Adriaan Basson, hand over notebooks and unredacted versions of documentary evidence that were pertinent to the case.
Basson and the M&G refused, citing the need to protect the identities of their sources. The refusal to disclose was upheld by Judge Moroa Tsoka in April last year.
Tsoka ruled that the press needed to protect the anonymity of sources in order to carry out its democratic functions, including the role of exposing corruption. "It is essential that in carrying out this public duty for the public good, the identity of their sources should not be revealed," he said.
He added that this “critical” role of the media needed to be “fostered rather than denuded".
A legal precedent
Pamela Stein, representing the M&G, said that the decision by the Constitutional Court to refuse the appeal set a legal precedent. “What we have now very clearly for the first time, is a precedent in our law where, in the right kinds of cases, the courts will protect journalists' confidential sources.
“The M&G has once again set an important precedent not only for themselves, but for the freedom of the press by getting this principle established.”
Stein cautioned that the precedent would not provide a blanket protection of confidential sources, but rather that the court would intervene in compelling circumstances – particularly where sources disclose information that is in the public interest.
M&G editor-in-chief, Nic Dawes, welcomed the decision.
“I am extremely pleased that the Constitutional Court has affirmed the very important precedent created by Judge Tsoka's original ruling,” he said. “The ability to protect the identity of confidential sources is crucial to journalists' efforts to expose wrongdoing of all kinds.”