What became clear then was that civil society needed to make up for the absence of a strong and effective opposition in the Parliament. Hopefully, the law books will be on the side of civil society and already there is a trend to ensure that this will happen.
Parliament will soon debate the Open Democracy Bill (ODB), while the joint rules committee of the National Assembly and the Senate (the two houses that make up parliament) will be considering a proposed code of ethics for parliamentarians. In addition to this is the recent landmark court ruling by Judge Edward Cameron in a defamation suite brought against The Star newspaper by Bantu Holomisa, the Deputy Minister of Environmental Affairs. The court ruling places restrictions on public officials wishing to engage in defamation suits against the media. These three developments alone augur well for the establishment of a robust democracy in South Africa where the citizens are better aware of the action of Government, and Government can enjoy legitimacy based on its full accountability to the public.
The Open Democracy Bill (see last month’s Update for more information on this Bill) will be the one piece of legislation that will go a long a way towards ensuring government accountability. Apart from granting the citizen access to important information and affording the citizen protection against the misuse of personal information, the bill includes a “whistleblower” and an “open meetings” section.
The “whistleblower” section is specifically designed to protect civil servants who may be aware of corruption or any impropriety in a government body. However, the individual disclosing the information will bear the burden of proof, and the disclosure will have to be made in good faith in that the person reasonably believes that he or she will be disclosing evidence of serious maladministration or impropriety on the part of a government body. The bill offers protection for whistleblowers by prohibiting the dismissal, suspension, demotion, harassment, intimidation or unfavourable change of conditions of employment of such a person. The conduct of the Government when questions were raised about the Health Department’s granting of R14-million to playwright Mbongeni Ngema for an anti-Aids play illustrated the urgency of allowing the public the freedom to scrutinise the workings of the various government bodies. The scandal could hardly be used to paint every single government department with the same brush, it merely showed that while the ANC could legitimately claim the right to be the majority party in government, the reality was that government officials were human like everyone else and could easily make mistakes or errors in judgement.
At the height of the scandal, the ANC closed ranks behind Health Minister Dr Nkosazana Zuma giving her a blanket show of approval and support for her actions, while Zuma herself spent a week avoiding public scrutiny by dodging Parliament’s health committee. By the time she did appear before the committee, the ANC’s rock-solid support for the beleagued minister was clear despite growing public suspicion of some impropriety. This included the manner in which the tender was made, the alleged misappropriation of funds (the funding source - the European Union - indicated that it did not grant permission for funds to be allocated for this purpose) and the lack of consultation in the whole matter. The hearing by the committee did not constitute a serious examination of the issues, and journalists present at the hearing were spitefully refused documentation that was handed out at the start of the hearing, only receiving it at the end.
The Open Democracy Bill (ODB) will make it very difficult for government to act in such a high-handed and secretive manner. Using this case as an example, if the Bill had been enacted already, Aids workers and other interested members of the public would have had access to the Health Department’s files on funding, tendering and projects. Any impropriety could have beendetected earlier and nipped in the bud. In addition, the access to open meetings section in the Bill grants members of the public access to all ordinary meetings of a government body. In other words, members of the public could have been present at the meeting where it was decided to tender for an anti-Aids play and where the amount to be awarded was decided upon. This same clause in the ODB entitles the public to any documentation handed out at the meeting.
Obviously, the Bill must not be seen only in the context of exposing impropriety on the part of government. The Bill is an important mechanism for demystifying government and empowering the public to actively participate in the government and understand and influence decisions affecting them. Government’s accountability to the public will be a natural consequence of this process.
Members of government themselves are also taking steps to ensure their integrity. A special parliamentary committee, headed by Water Affairs Minister Kader Asmal, recently completed a report on a proposed code of ethics that would apply to all members of parliament (MPs). The code includes a recommendation that a central register be kept of the outside interests of all MPs and senators, where these interests may affect their work as public representatives. There is also a provision for the disclosure of gifts to the value of R350 or more and of shareholdings and company directorships these politicians may hold. The report is expected to be presented to Parliament’s Joint Rules Committee soon.
While all these matters are still waiting to be enacted, a court ruling last month by Judge Edwin Cameron has set a major precedent with regard to reporting on the activities of public officials. The case concerns a defamation action brought against the Star newspaper by Deputy Environmental Affairs Minister Bantu Holomisa. The ruling was handed down in the Witwatersrand Local Division on a preliminary point raised by the Star. Holomisa instituted the action in late 1994, fifteen months after the newspaper published an article claiming that he was involved in the infiltration into South Africa of a nine-man squad made up of members of the armed wing of the Pan Africanist Congress, Apla, and the now-defunct Transkei Defence Force. The article further alleged that this action was aimed at killing whites in northern Natal and included a plan to assassinate a top South African official in Transkei.
The implication of Cameron’s ruling, generally, is that in future a public figure may have to prove that the allegations in dispute were made “unreasonably”. In the past, if a newspaper was sued, the person who complained of defamation had very little to do beyond proving that the published material in fact referred to him or her, and that it was defamatory.
The ruling was made on a preliminary point raised by The Star in relation to Holomisa’s papers. Their argument, led by Johannesburg advocate Gilbert Marcus, was that the new constitutional guarantees of freedom of speech and expression changed the old order in which the right to dignity and reputation had been given a far higher value than the protection of speech rights. The defence questioned whether, in terms of the new constitution, a public official such as the general could claim damages for defamation on the same basis as ordinary litigants.
In deciding on the point, Judge Cameron found that a successful democracy depended upon “robust criticism of the exercise of power”. This in turn required “alert and critical citizens” as well as a strong and independent media to voice these criticisms.
He stated that because of the emphasis the constitution placed on free speech and expression in the context of free and fair political activity, some greater protection should be given to those who make false defamatory statements in this field. Judge Cameron concluded that a defamatory statement which related to “free and fair political activity”, as in this case, is constitutionally protected, even if false, unless the plaintiff (in this case Holomisa) shows that, in all the circumstances of its publication, it was made unreasonably.
In his ruling, Judge Cameron also made reference to the judgement in the case of Bogashi v National Media Ltd. and others. This judgement was handed down by Judge Eloff on February 7, 1996 also in the Witwatersrand Local Division.
The judgement concluded that section 15 of the Constitution (which entrenches the right to freedom of expression) should not be interpreted so as to alter the common law regarding the liability of the media in publishing defamatory statements.
It is clear that while the Cameron judgement contributes significantly towards freedom ofexpression in this country, it is in conflict with the Eloff judgment. However, it is possible that in the case of Young v Mail and Guardian (see article in this issue), which will be heard in the Transvaal Provincial Division, the court may choose to follow Cameron’s judgement, thus strengthening the force of that important decision.
The Holomisa v The Star case will go ahead if Holomisa decides to continue and amend his papers before the court to take into account the ruling made by Judge Cameron.