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After two attempts by the SABC to obtain court interdicts this week, the SABC’s legal head Mafika Sihlali has succeeded where his employer has failed. Today’s gag order by Pretoria High Court Judge Lettie Molopa is a sad indictment of the judiciary’s inconsistent commitment to press freedom and exemplifies how judicial distrust of media practices and anticipation of catastrophic results have combined to prevent coverage of a matter of great public concern.
The Mail and Guardian newspaper (M&G) was prevented from publishing the details of an explosive report into alleged corruption, abuse of power and intimidation at the SABC, in a week, during which, ironically the SABC was widely condemned for having fought for a year to suppress the screening of the innocuous Mbeki documentary. To the extent that the information was in some way potentially defamatory, the public interest in learning about corruption in the public broadcaster clearly outweighed any argument in favour of an interdict, given that a post-publication defamation action was open to Sihlali. The court failed to properly take note of the extraordinary nature of a prior restraint on media publications, which is virtually indefensible given the compelling subject matter of the censored article. That the M&G continues to publish such hard-hitting and controversial exposes is a testament to the courage and integrity of its investigative journalism. Since May 2005, six interdict applications have been launched in the Johannesburg High court against the M&G alone. Though a number of interdicts have ultimately been rejected, in two cases an interim interdict was initially granted. Academic writers have charted a recent trend in South African courts to restrict the ambit of free press rights often based on negative perceptions about the media’s trustworthiness. They argue that while not all these interdict applications have been successful, even unsuccessful, but frequent, interdict attempts hinder the efficient functioning of investigatory news organisations. The perception that the judiciary is responsive to interdict requests has led private actors, as well as governmental agencies, to increasingly rely on interdicts as part of ‘a discernable trend towards pre-publication censorship.’ the constant interdict pressure and high litigation costs contribute to a sense that the more involved and time-consuming enterprise of investigative reporting about matters of great public importance is especially risky. This latest case is strikingly similar to that of the much-criticised Oilgate gag order, in which the M&G was interdicted from publishing a article which was allegedly defamatory and privacy-infringing. Similarly, the court did not have regard to the legal presumption against prior restraints on media publications. Over the last few years pre-publication censorship has emerged as probably the single biggest threat to investigative journalism and media freedom in South Africa. However a number of recent judgements reflected growing judicial impatience with attempts to staunch the free flow of news. In the recent e-TV/Baby Jordan case, the SCA appeared to have taken a quantum leap forward in the protection of freedom of expression. The test adopted by Midi-TV makes clear that a real risk of substantial harm to the dignity of the applicant be demonstrated to justify restricting freedom of expression. Nor is it sufficient that there is no alternative means available. The critical third step is that the court must in engage in the exercise of considering whether the positive effects of the ban outweigh the negative effects of freedom of expression. The tide started to turn even before then when in 2006 Johannesburg High Court Judge Zukiswa Tshiqi dismissed with costs the SABC's application to have the M&G remove the Sisulu Report on the blacklisting of certain analysts and commentators by the SABC. “I don't believe that it is okay to suppress information or to hide information written in the report," the judge remarked. Judge Tshiqi said the content of the report was of extreme importance to the public as the SABC was a public broadcaster. Arguments by the SABC's lawyers that the report could cause harm to employees were not persuasive, she added. Judge Molopa’s decision in the present case, on substantially similar facts, arrived at a diametrically opposed conclusion, to the ultimate detriment of press freedom. One person has commented on this article. 1. MR
ANTHONY POSNER, Unregistered I am extremely concerned that Ferial Haffajee (editor of The M&G) is going to be arrested. Although I have not always seen "eye to eye" with her, I really don't think that she should have to end up in The Clink.
The FXI / PSC must do everything in their power to ensure that she remains at liberty. I suggest that you immediately issue an IFEX "action alert" on her behalf.
(The above comment is based on an SABC website news item which states that The M&G is an accomplice in the theft of an internal SABC report.)
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