LEGISLATION - The passing of the Military Discipline Supplementary Measures Act No 16 on May 28, has confirmed a ruling made in the Cape High Court in December. The High Court ruling gave the Freedom of Expression Institute and its co-litigants the "Mail and Guardian" a victory for transparency, freedom of expression and the right to a fair trial. The new legislation addresses the issues the litigants challenged in their original application and which the High Court ruled were unconstitutional. The amendments repeal section 78 (3) of the previous code which authorised a convening authority who was an executive officer to order in camera proceedings in addition to the power of the court martial itself to do so. FXI and the "Mail and Guardian" argued that this section infringed both institutions' rights to freedom of expression and access to information and the rights of the accused to the same as well as their right to a free and public trial. It was further argued that section 78 (3) conflicts with constitutional provisions governing the independence of the judiciary and that it expressly authorises the intrusion of the convening authority, a member of the executive branch of government, into the domain of the court martial and empowers the authority to make in camera orders.

Despite prior arguments to the contrary, the SANDF actually conceded before even arguing the matter in the court in December that section 78 (3) of the Military Discipline Code was unconstitutional and that the respondents (FXI and the Mail and Guardian) and the press in general have the right to appear at an ordinary court martial and that they therefore have locus standi. Notwithstanding these concessions, the court still had to rule on the issue of the constitutionality of the court martial as an institution and in particular the power and competence of the ordinary court martial to hear and determine charges against accused persons. The court's decision in this regard was also favourable with Justice Hlope ruling that courts martial as convened under the then code went far beyond what was reasonably necessary to achieve the object of military discipline. Although all that remained was for the Constitutional Court to confirm the High Court's ruling, the SANDF was not satisfied and decided to take the matter on appeal. However, at the last moment when the parties were about to argue the matter before the Constitutional Court, the SANDF signalled its willingness to settle given that the amendments to the code had made the matter moot.

It is clear that the amendments are as a result of FXI's application which served to highlight the unconstitutionality of the code and the desirability for change given the openness and transparency of the new dispensation. What with the Cape High Court ruling and the fact that large numbers of courts martial are in the pipeline, it was obviously in the interests of the smooth running of the military that these issues be addressed as a matter of urgency. On May 25, the Constitutional Court did not rule on the validity of the Cape High Court ruling, but chose instead to agree that the new legislation made the matter moot. The agreement also sees FXI and the "Mail and Guardian" receiving costs - something the Cape Court had awarded but which was in jeopardy given that the ruling was not confirmed by the Constitutional Court.

PUBLIC BROADCASTING - On May 30, the South African Broadcasting Corporation said that it will ask Parliament to consider enacting legislation to protect it from intimidation and unfair public criticism, especially from political parties. According to SABC chief executive of news Enoch Sithole, political parties were using the SABC as part of their campaigns during the run-up to June 2 elections and intimidating its staff. "I am worried that unless something is done, the editorial independence of the SABC would be compromised," Sithole said. Sithole said existing broadcast laws were insufficient to protect the SABC because they allowed politicians to criticise the corporation without having to prove the allegation. His announcement follows criticism from a number of opposition parties about its election coverage. On May 30, the Democratic Party leader Tony Leon said he had evidence which proved that the SABC had misrepresented and marginalised the DP in the corporation's coverage of the election campaign. DP said the party had obtained copies of policy documents showing that the SABC had deliberately sidelined the party in favour of the ANC and NNP. Sithole said that the corporation would respond to the DP's allegations once it had produced the evidence. According to Sithole, only two complaints against the SABC had been laid with the IBA and only one, involving the Federal Alliance had been upheld. Sithole indicated that SABC reporters had been intimidated and physically threatened during the election campaigns. A reporter was chased away from Nongoma in Kwazulu Natal, allegedly by IFP supporters.

PRESS FREEDOM - On May 23, President Mandela said there would be no threat to freedom of speech or the media's ability to criticise when Thabo Mbeki became president. Mandela told the ANC rally that there were people, especially media, who attacked the government and then claimed freedom of speech was being threatened when government replied. He said "In other words they are the only people who should enjoy freedom of speech. We have made it clear that as long as the ANC rules in this country there is no threat to the media". Mandela said the ANC regarded the media as extremely important because "they are a mirror through which we can see ourselves. Any democratic government which interfered with the freedom of the press would destroy itself ." He said Mbeki understood this principle very well.

PRESS FREEDOM - The Media Institute of Southern Africa on May 31 said two Zimbabwean journalists Mark Chavunduka and Ray Choto, whose medical reports confirmed that they had been tortured while in military detention earlier this year, have formally laid civil and criminal charges against the police and military.Chavunduka, the editor of the "Standard" newspaper, and Choto, the senior reporter, said in a report in their paper that they had filed complaints with police chief Augustine Chihuri and expected him to initiate a proper investigation. The pair are suing the army for unspecified damages for wrongful arrest and detention. They have also laid criminal charges over their assault and torture, while also pressing charges against the police detectives who handled their case for aiding and abetting their release from "lawful police custody to the illegal detention of the military authorities." In addition, Chavunduka has formally laid a contempt of court charge against the defence secretary, Job Whabira, "arising from his contemptuous remarks when being served with the order for my release ... and failing to immediately do all in his power to implement the order and procure my release." On being served with the court order in January demanding the release of Chavunduka, Whabira said: "The judge cannot direct us. We will move at our own pace. Any civilian who meddles in military matters is subject to military law." Chavunduka and Choto still face trial on charges of causing alarm and despondency by reporting an alleged coup plot against President Robert Mugabe. Their trial opens in August.

TRUTH COMMISSION - On May 25, former Vlakplaas commander and self confessed killer Eugene de Kock told the TRC amnesty committee that some of the former cabinet ministers knew about the type of operations his unit was involved in. De Kock said former state president de Klerk knew about an operation in Umtata in which eight youths were killed. He said there were also attacks in Botswana and Lesotho in which people were killed and he believed the cabinet ministers knew about the operations. He said the attack was conducted by Special Force members and happened soon after de Klerk was awarded the Nobel Peace Prize. He said the security forces had helped the previous cabinet ministers to keep their seats in Parliament. Meanwhile, the Cape High Court on May 25 postponed de Klerk's challenge to the TRC reports on his links to state-sponsored terrorism. De Klerk took legal action to block the TRC from publishing a section of its report on apartheid era human rights abuses before the report was handed over to President Mandela in October last year. De Klerk has denied any involvement in assassinations, torture and other abuses committed by the previous government's security forces, and has not applied to the commission for amnesty for any apartheid era crimes. The disputed sections of the report were blacked out when the document was handed to Mandela.