Media freedom’s bumpy ride on the seesaw of SA justice

The past few years have proved to be a mixed bag for media freedom. There have been advances on issues such as access to court hearings and also steps backwards, particularly regarding the media and defamation. 

Last year the courts mostly acquitted themselves well on media freedom issues, according to Dario Milo, a partner in Webber Wentzel’s dispute resolution practice, who said he was “confident that any threats to media freedom, which may emanate from the legislature or the executive, will be dealt with by the courts using the free speech principles developed over the years”.

The editor-in-chief at News24, Andrew Trench, is less certain that the media is being protected, however. He argued that there is cause for concern because of developments such as the regulations proposed and gazetted by the Film and Publications Board to control — and in effect censor — digital content, including that of media operations.

He also cited the “scandalous” jamming of cellphones in the National Assembly during the State of the Nation address, and the “almost routine interference” with journalists doing their work by police officers — despite standing orders to the contrary.

In addition, a decision by Judge Ashley Binns-Ward of the high court in Cape Town — which is now being challenged in the Supreme Court of Appeal — to remove access to legal papers over the South African Roads Agency’s (Sanral’s) Cape tolling plans “is deeply concerning”. 

Trench said Binns-Ward’s decision derailed the routine journalistic practice of accessing court papers, and “flies in the face of constitutional provisions for openness, transparency and freedom of information”.

“Thankfully there are indications that the judges who heard the appeal are not embracing Binns-Ward’s reasoning,” he said. “My hopes are high that this decision will be overturned.”

Neetu Chetty, who manages the law programme at Varsity College in Durban, noted that some judgments appear at odds with the Constitution. She pointed to a December judgment in which Sowetan journalist Cecil Motsepe was found, on appeal, not guilty of an intention to defame a magistrate, but the court held that the Constitution allows for the prosecution of journalists for defamation. This is seen as “retrogressive judgment” that reduces media freedom.  

But media freedom won the day when the high court in Pretoria ruled that proceedings in the trial of Oscar Pistorius could be broadcast. This “marked a landmark victory for the rights of the media to the freedom of expression”, Chetty said.

“Motsepe’s case presents the conundrum of the judiciary overturning a sentence for the conviction of criminal defamation, noting that he lacked intent to defame, yet in the same breath finding such a conviction constitutional.”

The Pistorius case, however,  “resulted in a trial by media, which in effect is contrary to the ethos, spirit and purport of the Constitution in section 35, which provides that all accused persons are considered innocent before proven guilty”.

Chetty said a real threat to press freedom is to be found in the Protection of State Information Bill, commonly referred to as the “secrecy Bill”, despite this fundamental right being protected in the Constitution.

A decision Trench sees as a positive development against the backdrop of the new Bill is the recent decision by the high court in Johannesburg to compel the minister of police to release the list of national key points. Trench described it as “a significant victory for freedom of information activists and the media”.

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