Appeal court clears journalist of contempt charge

High court's inherent powers wrongly used at inquest hearing

Johannes Martin Smith
v The State
High Court of Namibia
(Full Bench Appeal No. 12 of 1998)
17 May 1999

A FULL Bench of the High Court of Namibia, Mavis Gibson J presiding, with Pio Teek JP and Simpson Mtambanengwe J concurring, set aside the conviction for contempt of court and four month prison sentence imposed on veteran newspaperman Hannes Smith in 1998.

The conviction and sentence were set aside because of a legal technicality relating to the power of a superior court judge who presides at inquest proceedings to convict a person of the common law offence of contempt of court. The Full Bench however let an opportunity to rule on the protection of journalistic sources - one of the points argued by Smith's counsels in his defence at the hearing of the appeal - slip past, as it chose not to comment on these aspects of the matter before it.

Facts

Smith, the editor of the weekly newspaper The Windhoek Observer, was convicted and sentenced after he had failed to produce documents to the second judicial inquest on the 1989 murder of prominent SWAPO member Anton Lubowski. The conviction and sentence were handed down by Nic Hannah J, who presided at the inquest in February 1998. Smith's explanation was that the documents seemed to have been misplaced and could not be found at his offices and archives. He had initially protested having been called, "as a newspaperman", to testify at the inquest about information which he had reported had been given to him by unnamed persons. He later added that to reveal the names of the alleged assassins of Lubowski without having his information backed up by evidence was "one of the worst crimes a newspaperman can commit".

However, Smith later relented, writing the alleged assassins' names on a piece of paper, which was handed up to the presiding Judge. Hannah J still pressed on insisting that Smith also had to provide the inquest court with the documents which he had bought from his anonymous sources and which stated the alleged assassins' names - or else face being held in contempt of court.

Swapo leaders: murder of former colleague led to inquest.

Eventually, Smith said he was willing to testify fully on the contents of the documents, and further handed up the original notes he had made during his meeting with his sources in Johannesburg during January 1996. "It's not good enough," the Judge responded, before convicting Smith of contempt of court and sentencing him to four months' imprisonment. Smith was jailed the next day, becoming the first journalist to be imprisoned for a reason related to his profession since Namibia's independence in 1990. He was released six days later, pending his appeal.

Decision

When the appeal was heard on March 15 1999, Smith's counsel argued that Hannah J had taken a narrow technical view that the documents had to be produced, without taking into account factors mentioned in cases dealing with the protection of journalistic sources, namely Attorney-General v Mulholland [1963] (1) All ER CA at p772 I to 773 A, the 1991 Supreme Court of Canada decision in Attorney-General of Quebec v Canadian Broadcasting Corporation 7 C.R.R. at 244, and the European Court of Human Rights decision of 27 March 1996 in Goodwin v The United Kingdom.

In Mulholland it was held that while a journalist had no privilege entitling him to refuse to disclose a source, the interrogator had no absolute right to require such disclosure either. The question had to be relevant to be admissible at all, and secondly the answer thereto had to be necessary and serve a useful purpose in relation to the proceedings at hand. In the Canadian case it was held that a decision had to be made whether disclosure of a source would be in the interests of justice. In coming to such a decision, a court had to determine whether there was an alternative source from which such information could be obtained and whether all reasonable efforts to obtain the information from some other source had been exhausted.

In Goodwin v The United Kingdom, the European Court of Human Rights ruled that the protection of journalistic sources was one of the basic conditions for press freedom. Because of the importance of this protection in a democratic society and "the potentially chilling effect an order of disclosure has on the exercise of that (press) freedom", such disclosure could not be ordered "unless it is justified by an overriding requirement in the public interest". It was submitted that Hannah J had overlooked the relevant factor that Smith was a journalist.

Where journalists were concerned and in view of the Namibian Constitution's guarantee of freedom of speech, it was argued for Smith, persons presiding at an inquiry had to exercise a discretion whether to order the journalist to disclose a source, including any source document. When considering such a discretion the presiding officer had to consider factors such as the relevance of the source and the importance thereof to the matter at hand as in the three cases above.

In the appeal court's decision, no mention was made of any of these parts of the arguments. Instead the court merely ruled that when Hannah J. presided at the inquest hearing, he did not bestow on that lesser inquiry the inherent powers of the High Court - which would include the jurisdiction to convict for contempt of court at common law. Section 10(2) of the Inquest Act states that laws governing criminal trials apply mutatis mutandis to securing the attendance of witnesses at an inquest and to the production of documents.

But the court also held that the Inquest Act also incorporated a limited number of provisions of the South African Criminal Procedure Act (No. 51 of 1977), including s.189 (6) - which provides that no person would be bound to produce any document not specified in any subpoena served on him, unless he has such document with him in court. Smith had been subpoenaed to testify in court and had only been ordered verbally to produce the documents and not subpoenaed to do so. This having been the case, his conviction and sentence could not stand.

Werner Menges
The Namibian