The case is the only criminal case currently being funded by the Media Defence Fund (MDF). The accused have been charged with crimen injuria and invasion of privacy after they bugged the hotel room of Staal Burger, an operative of the now-disbanded Civil Co-operation Bureau (CCB), a covert unit of the South African military.
The incident happened in August 1992 when the accused received information that Burger and a number of other known members of the CCB would be meeting in a room at the Breakers Hotel in Berea, Johannesburg. The fact that it was a clandestine meeting and all those who were supposed to be there were known members of the CCB led the Weekly Mail to suspect that so-called third force activities were going to be discussed and planned. Harber decided to bug the room in which Burger and company were due to meet in order to ascertain the truth behind these allegations of "third force" activities and to expose it if true. However, Harber's private investigator was caught out before any meeting took place and was therefore unable to record any conversation.
The defence have put forward a number of arguments, but the main argument is that under certain circumstances it is justified to breach an individual's right to privacy where there is an overwhelming public interest to do so.
At the time the incident took place, allegations were rife that the police and military were formenting the violence around the country. A year earlier, the problem of violence had reached such a bad level that the Goldstone Commission was instituted to look into the causes of violence. By that time too, the independent press had conducted a number of exposes on police and military involvement in violence. These included the confessions of former police captain Dirk Coetzee and the revelations that the military was, as far back as 1986, involved in training 200 Inkatha Freedom Party members in the Caprivi Strip in aspects of warfare. It was clear that the public was growing impatient with the mysterious spiral of violence in the country and were demanding explanations.
If the argument of the defence is upheld in this case it will have important ramifications for the media. Journalists seeking to expose covert or otherwise important issues, particularly relating to security matters, will have legal protection if it means they may have to invade an individual's privacy in search of their story. This in turn will foster an independent and outspoken press, an effect which the Freedom of Expression Institute (FXI) and the MDF believe is critical in an emerging democracy such as our own. The case has been in the courts for several years, and has been heard in both the Cape Town and Johannesburg Magistrate's Courts. Judgement will be handed down on April 1, 1996.