Risky precedent may allow the state to press-gang journalists

Future journalists facing a subpoena would not appreciate the Dina Pule case being used as a precedent to pressure them to comply. (Madelene Cronje)

Future journalists facing a subpoena would not appreciate the Dina Pule case being used as a precedent to pressure them to comply. (Madelene Cronje)

Perhaps the best known case arose from the vigilante killing of Western Cape gang boss Rashaad Staggie in 1996. A protest organised by the group People against Gangsterism and Drug Abuse outside his house in Salt River quickly turned violent. 

Before the eyes of journalists and police, he was shot, pulled from his car and burned to death. Some weeks later, police served subpoenas on journalists and Western Cape editors, calling for photographs, video, notes and transcripts.
A six-year wrangle unfolded, which saw police raiding offices of the BBC, SABC and other news organisations. 

Journalists consistently refused to co-operate, arguing that they could not become an extension of the police, who should do their own work. They argued it was dangerous - there were threats against the lives of journalists if they co-operated - but, more fundamentally, it infringed the important journalistic principle of independence. 

Cape Times photographer Benny Gool was charged with refusing to comply with a subpoena. 

In his defence, he argued: “By compelling me to testify … my credibility as an independent and impartial journalist will be undermined … I depend on people who I speak to, photograph and see during the course of my work knowing and believing me to be independent.” 

The state ultimately gave up and dropped the charges.

The argument is one that many non-journalists find hard to swallow. It may have been justified, even admirable, to refuse to give information to the apartheid police, but surely in a democratic society journalists have as much interest in preventing crime as any other citizen? 

And yet most journalists will argue that the need to be fully independent extends even to fighting crime, and there have been many other cases where this has led to conflict with the authorities. Negotiations between editors and prosecutors on the handling of subpoenas led to an agreement that it should be used only as a last resort, but there has been no further movement since then.

The point is that we play our social role by putting information in the public domain. It is then up to other agencies to take appropriate action. 

The principle of independence recognises that our credibility is harmed when we are seen to be furthering an agenda, whether by being embedded with a military force, getting too close to advertisers or taking a political side. 

The new press code gives greater recognition to the issue than previous versions: “The press shall not allow commercial, political, personal or other nonprofessional considerations to influence or slant reporting. 

Conflicts of interest must be avoided, as well as arrangements or practices that could lead audiences to doubt the press’s independence and professionalism.” (Full disclosure: I was on the committee that worked on this revision and argued for these provisions.)

Within months of the new code taking effect, the revamped office of the press ombudsman was faced with a test case, when Wisani Ngobeni, an official in the office of Communications Minister Dina Pule, complained that the Sunday Times had behaved improperly by handing documents to the Democratic Alliance (DA) in the parliamentary ethics committee. 

These arose from reports that accused her of various kinds of impropriety, particularly by benefiting her romantic partner. 

A series of findings were handed down by press ombud Johan Retief this past week, which cleared the paper on all counts.

In dealing with a set of news reports, two carefully worded findings looked closely at the evidence obtained by the paper and found it sufficient to justify publication.

The third dealt with the issue of passing documents to the DA. The initial complaint focused strongly on the accusation that the paper was acting in cahoots with the party. 

“The conduct of the Sunday Times suggests the interest of the newspaper and that of the Democratic Alliance, an opposition political party, are not independent of each other in the matter involving Minister Pule,” wrote Ngobeni.

The ombudsman accepted the newspaper’s argument that it was co-operating with the ethics committee, not the DA, and so could not be accused of party political collusion. 

That seems a reasonable finding, but it allows the larger question to remain unanswered, whether journalists should get involved in this way in an inquiry. 

The Sunday Times argued that it wanted to make sure the committee based its finding on full information. Well, that’s an argument that would apply in many situations. 

The issue of journalistic independence and its limits - and there are limits - has been extensively canvassed by journalists around the world. South Africa has a long list of precedents where co-operation with organs of state has been at issue, and this instance needs to be seen in that context. 

In fact, the Pule case seems not very different to a call from the police to hand over images of a vigilante killing. Although in that case there was the additional factor of potential danger to journalists, the fundamental need to be seen to be independent is the same. 

The media will need to discuss the issue: if there are other differences between the two situations, they need to be identified. Future journalists facing a subpoena would not appreciate the Pule case being used as a precedent to pressure them to comply. 

The Mail & Guardian’s ombud provides an independent view of the paper’s journalism. If you have any complaints you would like addressed, email [email protected]. You can also phone the paper on 011 250 7300 and leave a message. 

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