Jury still out on giving media access to Nkandla hearings

Media24, Times Media Group and the Mail & Guardian have filed a semi-urgent application in the high court in Pietermaritzburg, seeking access to the disciplinary hearings of all 11 employees of the department of public works, now facing charges for their role in approving the R246-million upgrades to President Jacob Zuma’s private home.

Papers were filed on February 17.

In September last year, Media24 made an application to one of the chairpersons for access to the disciplinary hearing of DJ Rindel, a project manager in public works’s KwaZulu-Natal office. Rindel supported the application, even though the department opposed it, and the chairperson granted Media24 access.

The three media houses have now applied to report on all the disciplinary proceedings instituted against 11 public works employees. Other employees have also consented to the media’s presence at their hearings.

The employees were identified in a Special Investigating Unit report as being responsible for some of the irregularities leading up to the overexpenditure.

Are the hearings legitimate?
The employees are alleged to have violated the department’s code of conduct relating to the approval of upgrades to Zuma’s private residence at Nkandla.

The media houses argue in their court papers that there is an enormous amount of public interest in this case, and that it has significant consequences for the country’s democracy.

They say the constitutional guarantees of open and democratic justice require that the public be informed of what transpires during the hearings.

The department has opposed the application on the grounds that the hearings are more akin to private arbitration. The department also says the safety of their employees will be at risk, and the hearings might not be fair to the employees if the media is present.

Beeld editor Adriaan Basson’s affidavit (on behalf of all applicants) states that the allegations “have prompted a divisive public debate within the political sphere and beyond … South Africans from all communities are anxious to know the truth about these events”.

Basson said it was “vital” that the disciplinary hearings are seen to be legitimate by the public.

“Allowing the South African public to follow the proceedings, via the appropriate media coverage, is fundamental to this credibility,” Basson said.

Breytenbach ruling
The issue at stake is whether freedom of the press as a right extends to the right of the media houses to report on these disciplinary hearings. Or, Basson says, “whether these officials may hide behind a thin shroud of ‘privacy’ to avoid having their hearings reported on”.

Four chairpersons, appointed to head some of the inquiries, have given their rulings on the issue of media access. One granted the media access, another refused access on the grounds that he lacked the authority to grant it and two refused access on the merits.

The rulings of five more disciplinary hearings remain outstanding.

The media houses argue that the issue of whether media access fell within the ambit of a chairperson’s discretion was addressed during the “Breytenbach” matter. 

Glynnis Breytenbach, a former top state prosecutor, was cleared of charges against her at a disciplinary hearing. At the time, the National Prosecuting Authority said the chairperson did not have the authority to rule on media freedom, but a court later ruled that it did.

In this case, the media houses want the high court to uphold the one ruling granting access; to review and set aside those rulings which denied the media access; and to direct the chairpersons who have not yet made their rulings on media access to do so within 10 days of the court order being handed down.

Sarah Evans
Sarah Evans

Sarah Evans interned at the Diamond Fields Advertiser in Kimberley for three years before completing an internship at the Mail & Guardian Centre for Investigative Journalism (amaBhungane). She went on to work as a Mail & Guardian news reporter with areas of interest including crime, law, governance and the nexus between business and politics. 

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