|Current and past cases funded by the FXDF
1. Arenstein V Die Laevelder
2. Arenstein V Premier Of Mpumalanga
3. Bailey V Schadeberg
4. Conway V Neer
5. De Lille V Speaker Of The House Of Assembly
6. Duchen V Penguin Books & Others
7. Du Plessis & Others V De Klerk & Another (Pretoria News Case)
8. Fxi Intervention At Winnie Madikazela Mandela's Hearing At The Trc
9. Fxi Investigation Into The Media Under Apartheid
10. Fxi & Others V Magistrate, Regional Court Pretoria (Basson Case)
11. Fxi & Others V Minister Of Defence & Others
12. Hall V Welz & Others
13. Mcnally V Mail & Guardian
14. Moosa V Radio 786 - Complaint To Iba
15. Natal Newspapers V Pather
16. Neethling V Vrye Weekblad & Weekly Mail
17. Ramainoane V Attorney Of Lesotho
18. Rau V Leal
19. Skotnes V Sa Library: Legal Deposit Act
20. Spencer V Jason
21. State V Harber & Others (The Staal Burger Case)
22. State V Radio Tuks Journalists
23. Technikon Witwatersrand V Niemann & Booysen
24. Young V The Mail & Guardian
25. Zetler & Another V South Press Services & 3 Others
1. ARENSTEIN v DIE LAEVELDER
Freedom of expression issue: Freedom of the media
In this case, the Laevelder, the largest Mpumalanga based newspaper owned by Caxton, has accused Justin Arenstein from African Eye News Service of attempting to bribe an unidentified journalist with R4 000 in exchange for unspecified documentation relating to the Moldenhauer Commission into the issuing of drivers' licences. Arenstein denies the charge and has offered to throw open his financial records, bank accounts and related files for inspection.
The Laevelder is the same newspaper that has repeatedly criticised the AENS's work on uncovering the Eugene Nyati scandal, the Dolphin Group's attempts to monopolise provincial game reserves and Baleka Mbete-Kgotsile's licence, while praising the government's handling of the issues. In the most recent criticism, the Laevelder's editor accused AENS of pursuing the licence issue as "self promotion".
The Moldenhauer Commission vindicated Arenstein's report and ordered the immediate dismissal of MEC Steve Mabone, as well as the suspension and charging of his traffic director and head of department. It praised Arenstein's investigative work and asked the various officials to apologise to him for their accusations of racism and pursuing a reactionary agenda. The FXDF agreed that Arenstein use a portion of the R10 000 already allocated for the case against the Premier of Mpumalanga to consult lawyers and draft a letter of demand. The Laevelder has since refused to apologise, and summons for a defamation action against them was issued in December 1997.
Amount allocated: R10 000,00 (with case 2)
Amount paid out:
2. ARENSTEIN v PREMIER OF MPUMALANGA
Freedom of expression issue: Freedom of the media
Justin Arenstein is the bureau chief for African Eye News Service in Mpumalanga, an independent news agency with a reputation for investigative journalism. Among the stories it has broken are Eugene Nyati's' financial wizardry, Senator Patrick Mogale's child by an underage schoolgirl, and the "gifting" of farms worth hundreds of thousands of rands to National Parks Board chair Enos Mabuza. The Mpumalanga government has displayed a consistently hostile attitude towards Arenstein, attacking him on several occasions via press releases or in the provincial legislature as a racist reporter with a sinister agenda. On many occasions he was identified by name.
In the latest instance, Premier Phosa announced in the legislature during December 1996 that "a certain" journalist had been attempting to bribe government officials for sensitive internal documentation. Although refusing to name the journalist, Phosa listed the alleged theft of a draft report from the Auditor General's office ands subsequent articles based on this report as an example of such journalist's activities. Arenstein is the only journalist to have written articles based on such draft report dealing with possible steps against Eugene Nyati. The report was compiled by the AG and was handed out to the Standing Select Committee on Public Accounts during one if its sessions, which Arenstein attended. In an interview with SAPA on 17 December 1996, Phosa's spokesperson repeated the allegations made by Phosa and went on to say that the journalist had "racist tendencies" and concentrated on writing articles involving blacks who were guilty of corruption while ignoring whites who were guilty of similar offences. Arenstein has denied all the allegations against him.
The Defence Fund funded Mr Arenstein for preliminary legal advice and the drafting of a letter to Premier Phosa demanding that the allegations be retracted and a public apology issued. The letter was sent on 29 January 1997. To date, no response to the letter has been received from the Premier's office and summons has been issued for a defamation action against him in the Magistrate's Court.
Amount allocated:R10 000,00 (with case 2)
Amount paid out:R1 241,18
3. BAILEY v SCHADEBERG
Freedom of expression issue: Copyright law
This matter involved a copyright dispute involving some of the most historically important photographs in South Africa - those taken during the 1960's by the photographer Jurgen Schadeberg. Bailey, the proprietor of Drum Magazine, claimed that the copyright of certain photos vested in him on the basis that when Schadeberg took them, he was in Bailey's employ. The 1916 Copyright Act, which applies, provides that if a photograph was taken in the course and scope of a photographer's employment, the copyright would vest in the employer. Shortly after the matter was set down for trial, Bailey suddenly withdrew all his claims. The effect of this is that Schadeberg can use his photographs freely, and his assertion that he was not in Bailey's employ, and that the copyright of the disputed photos therefore rests with him are tantamount to having been admitted by Bailey. This would affect in practice the position of several other photographers vis a vis Bailey, among them award winning photographer, Peter Magubane, who was also in Bailey's employ. Schadeberg's costs will now have to be settled by Bailey, and we are waiting for them to be taxed. The Defence Fund has provided R40 000, half of the funding required for the matter, with Jurgen Schadeberg providing the rest.
Amount allocated:R40 000,00
Amount paid out:R40 000,00
4. CONWAY v NEER
Freedom of expression issue at stake: defamation by witnesses to the Truth and Reconciliation Commission
Mr Neer, the MEC for Safety and Security in the Eastern Cape, testified before the TRC that a certain security policeman, Conway, allegedly assaulted and tortured him. Conway then sued Neer for defamation. This was the first defamation case to arise from the TRC and would have set precedent. However, it was ultimately settled. The FXI has long warned that witnesses before the TRC are not adequately protected. The Defence Fund believes that witnesses should not be put to the expense of a court case in order to be protected.
Amount allocated:R10 500,00
Amount paid out: R10 500,00
5. DE LILLE v SPEAKER OF THE HOUSE OF ASSEMBLY
Freedom of expression issue: freedom of expression and the parliamentary privilege
This is a potentially precedent setting case which deals with four issues: parliamentary privilege, freedom of expression in the context of Parliament, the right of Parliament to regulate the conduct of its members and the powers and duties of the Speaker. The matter shall raise numerous legal and constitutional issues that rarely get dealt with in the courts, both here and abroad.
In this matter, PAC Member of Parliament Patricia de Lille is bringing an action against the Speaker of Parliament for Parliament's resolution, following certain remarks made by her in Parliament, to suspend her from Parliament for 15 days and to direct her to apologise in writing to certain members of the House. Ms de Lille wishes to have her suspension reviewed by the High Court before Parliament opens its first session in February, and so this matter has been placed on the roll to be heard in the Cape High Court on Thursday 29 January 1998. Papers have already been served on the Speaker.
Ms de Lille's case raises a number of precedent setting matters, including:
- The nature and limits of the privilege conferred on members of Parliament by section 58 of the Constitution;
- The applicability of the rights conferred by section 16, the clause on freedom of expression, to this matter;
- The extent of the right that Parliament has to regulate the conduct of its members as well as the procedures that should be followed by it;
- The powers and duties of the Speaker of the House of Assembly.
As Ms de Lille's lawyer points out, there is a dearth of authority on these matters, and the case is sure to set precedent. The applicants' strategy at this stage is to take the matter to the High Court of the Cape Provincial Division for review. In their papers, they have pointed out to the Court that because of the novel nature of the legal issues at stake, there may be some matters which will have to be referred to the Constitutional Court for decision, and have asked the Court to make such referrals. Should this occur, there would need to be some revisions to the budget requested in this application to make provision for argument in the Constitutional Court.
This is the first case in South Africa to explore the four legal issues set out above. By supporting the applicants, you will be contributing directly towards the testing of the parliamentary privilege and freedom of expression rights set out in Chapter 2 of the Bill of Rights. In addition, the internal regulation of Parliament's proceedings will be scrutinised by the court, and Parliament's own rules may have to be amended, depending on the outcome of the case. The outcome of the case could result in a more vigorous parliamentary democracy being established. The principle of freedom of expression in Parliament is one of the cornerstones of democracy. Minority parties should be allowed to raise issues that the ruling party may regard as unpopular without fear of reprisal. In the past, such questions have exposed numerous issues that the ruling party would have preferred not to debate. In our opinion it is vital that the nature and limits of the parliamentary privilege and freedom of expression be tested in the High Court, so that both can be given the widest possible interpretation. The facts of the case are such that it is highly likely that the applicants will be successful in the matter.
Amount allocated:R20 000,00
Amount paid out:-
6. DUCHEN v PENGUIN BOOKS & OTHERS
Freedom of expression issue: defamation- strict liability
Bernard Duchen has sued for defamation arising out of an comment made by Rabbi Ben Isaacson in a book edited by Immanuel Suttner and published by Penguin Books, that he was "an agent of the security forces". Neither Suttner nor Rabbi Isaacson have the funds to contest the action, and the FXDF has agreed to fund each of them up to close of pleadings. The legal issues at stake are the application of strict liability in defamation cases to the media, in this case Penguin Books and the printers, who are also being sued; the right of an editor to exercise freedom of expression in the editing of work, and the question of whether what was said is in fact defamatory of someone who was an admitted Nationalist Party member. In addition to seeking R250 000 in damages, Duchen is asking for an order that Penguin be interdicted from any further publication of the book.
Strict Liability: In SA Law, the media are held strictly liable for defamatory statements even if there was no intention to defame. Here, neither Penguin nor the printers had any intention to defame Duchen. Since the respondents are being sued jointly and severally, a finding on strict liability will affect both Suttner and Rabbi Isaacson.
Right of editorial independence: Suttner argues that the book was intended to be oral history. "The striving for authenticity meant I attempted to meddle as little as possible with what the interviewees put down on tape. I did not see my task as editor included censoring interviewees ... As I understand it, such an approach is normative when recording oral history." "In a large book of this nature ... thousands of people ... are mentioned. ... It would have taken years of research to investigate each and every name..."
Defamation: In a previous case in 1959, it was found that it did not constitute defamation to say someone was a security agent. Clearly the political climate has changed and the court in 1997 might come to a different view. However Duchen was an admitted NP member, and it is arguable that referring to such a person as a security agent would not constitute defamation, or if it did, the amount of damages that could be claimed would be reduced.
Censorship: Duchen seeks to prevent further publication of the book, and to have those copies already distributed, withdrawn from circulation. This amounts to censorship.
The FXDF has agreed to fund the Rabbi up to R4500 until close of pleadings, on the understanding that we cannot guarantee any further funding, and that he should start to look for assistance elsewhere. Suttner has been granted R5 000 up to close of pleadings, with the same caveat. We also request that should the matter go to trial, the respondents use one legal team. At the moment for strategic reasons, the FXDF agreed that it would be best for the respondents to make separate pleas. An exception to the plaintiff's particulars of claim on constitutional grounds has been served on the plaintiff and will be argued shortly.
Amount allocated:R9 500,00
Amount paid out:
7. DU PLESSIS & OTHERS v DE KLERK & ANOTHER (PRETORIA NEWS CASE)
Freedom of expression issue at stake: Interpretation of the freedom of expression clause in the Interim Constitution
In this matter, the FXI applied to the Constitutional Court to appear before it as an amicus curiae (a friend of the court). The issue before the Constitutional Court in which the FXI sought to appear as amicus curiae was whether the Constitution's guarantee of freedom of expression could be held to operate horizontally, between individuals, as in this case, or whether it only bound the state. If the court ruled in favour of horizontal application, the guarantee of freedom of expression would extend between individuals, broadening its application.
The purpose of amici curiae is to allow the court to hear evidence by parties who are not the applicants or respondents before the court, so that the Court has a broader idea of the interests involved in the case. The FXI would therefore be involved in a case like this because it would hope to influence the court's opinion on the relevant freedom of expression issues involved in the matter.
The matter concerned a defamation case brought against the Pretoria News, its editor and its publisher by Du Plessis and Wonder Air. They alleged that they had been defamed because of an article published in the Pretoria News alleging that they had, during the civil war in Angola, provided direct and indirect support to Unita, thus fuelling the war and earning large amounts of money. The issue before the Constitutional Court in which the FXI sought to appear as amicus curiae was whether the Constitution's guarantee of freedom of expression could be held to operate horizontally, between individuals, as in this case, or whether it only bound the state.
The FXI initially joined CALS in applying as amici curiae. However, this application was dismissed by the Court. The FXI then applied in its own capacity, citing the following as its interest in the matter: to see that the widest interpretation legally tenable is placed on section 15 (the freedom of expression clause in the interim Constitution), to endeavour to persuade the court that the common law regarding the onus on a defendant in a defamation matter, and especially the press and the media, to prove its defence is unconstitutional, and to try to persuade the court that the press and the media should enjoy a special privilege in this regard.
Unfortunately, the Court again rejected the FXI's application. The reason seemed to be that the Constitutional Court would not decide all or even most of the important issues in which the FXI had an interest in presenting argument to it, and that the Court focussed on other issues not germane to freedom of expression as such.
Amount allocated:R10 431,00
Amount paid out:R10 431,00
8. FXI INTERVENTION AT WINNIE MADIKAZELA MANDELA'S HEARING AT THE TRC
Freedom of expression issue: Access to information
The FXDF provided R2 234,12 towards the FXI's representations at the TRC on 26 September 1997 for the hearing of Ms Madikazela Mandela to be open. She subsequently had a preliminary in-camera hearing with the TRC. Her full hearing will be an open one.
Amount allocated:R2 2234,12,00
Amount paid out:R2 234,12
9. FXI INVESTIGATION INTO THE MEDIA UNDER APARTHEID
R30 000 of the Defence Fund's funds were spent on the FXI's Investigation into the Media Under Apartheid for the Special Hearing on the Media held by the Truth and Reconciliation Commission during 1997. This funding was used for research into the laws which prevented freedom of expression and access to information under apartheid.
Amount allocated:R30 000,00
Amount paid out:R30 000,00
10. FXI & OTHERS v MAGISTRATE, REGIONAL COURT PRETORIA (BASSON CASE)
Freedom of expression issue: access to information - open court hearings
Wouter Basson was a brigadier who headed the former SADF's Seventh Medical Battalion which allegedly supplied poisons to hit squad assassins, and allegedly the founder of the SADF's chemical and biological warfare programme. He was arrested in January 1997 when he was allegedly caught handing over 1000 tablets of Ecstasy. Soon after his arrest the police and the NIA raided his house and confiscated a large number of documents, which are presumed to relate to his activities in the SADF. The Magistrate in the bail hearing for Basson declared the hearing in camera on the basis that information Basson might divulge during the hearing could prejudice the safety of the state or persons he would name. The FXI, along with two newspapers, the Sunday Times and Business Day argued the public's constitutional right of access to information. As a consequence the Magistrate ruled that persuasive evidence for a closed hearing had not been produced and that the bail hearing would proceed in open court. However, the magistrate would not lift the embargo from the previous day's in camera record.
All the applicants then applied to the Supreme Court to review this refusal to lift the embargo.
It now appears that the newspapers involved in this case will be withdrawing from it. Beeld has already done so. This means that the FXI will remain as the only party to the action. Counsel from both sides met in judge's chambers to settle the question of what documentation is allowed to be seen by the applicants. Judge Hartzenberg ruled that all documents referred to in the record may be seen by the applicants. The SANDF, the Witwatersrand's Attorney General's office and the NIS then put in affidavits to indicate why these documents should not be allowed to be seen by the applicants. The FXI Executive Committee agreed at its meeting on 11 September 1997 that with regard to the interlocutory application, the FXI should try to settle with the other side, as suggested by our attorney. The terms would be that we would not seek to have access to all the documents mentioned in the bail application if they would release an uncensored version of the bail hearing to the public.
It seemed from preliminary discussions that the other parties will settle on these terms. The FXI's attorneys have since met with the other side, and settlement discussions are ongoing.
Amount allocated:R20 000,00
Amount paid out:R18 333,48
11. FXI & OTHERS v MINISTER OF DEFENCE & OTHERS
Freedom of expression issue: Access to information - open court hearings
Briefly put, in the case of Pfeiffer and Booysen, FXI and Mail & Guardian v The Minister of Defence & others, the FXI has been joined as an applicant in a matter dealing with access to court martial proceedings. Not only will the applicants argue that the Constitution guarantees the right to have one's case heard in open court, but the provisions of the Defence Act and the Protection of Information Act that entrench secrecy and deny access to information will be attacked. In addition, the case seeks to establish the locus standi of the FXI and the Mail & Guardian to appear as applicants in cases like this. As far as we know, this is the first case in South Africa to do this.
This matter is in fact two cases which have been joined together for the purposes of convenience in this application for funding being made to you. Strictly speaking, it involves the following two applications:
Staff Sergeant Herman Gordon Pfeiffer and Corporal Dawid Desmond Booysen v The President of the Ordinary Court Martial, Lieutenant Colonel Mardon NO, The Prosecuting Authority in the Ordinary Court Martial, Lieutenant Colonel Genis, NO and The Minister of Defence
The Freedom of Expression Institute and The Mail and Guardian Newspaper v The President of the Ordinary Court Martial, Lieutenant Colonel Mardon NO, The Prosecuting Authority in the Ordinary Court Martial, Lieutenant Colonel Genis, NO and The Minister of Defence.
Both matters have the same set of facts at their core. However, in each application, slight differences exist as to the issues at stake.
1. FACTUAL BACKGROUND
The FXI and the Mail & Guardian brought an application in December 1996 challenging the in-camera SANDF court martial hearing of Staff Sergeant Herman Pfeiffer and Corporal Dawid Booysen. They are charged with attempting to make photocopies of official documents, publicly questioning the competence of their commanding officer and leaking sensitive information. The hearing has foiled attempts by Military Intelligence (MI) to investigate allegations of arms smuggling by the Unit, Group 31, to which they were attached. The allegations included AK 47's disappearing after being handed over for storage and destruction, weapons being given to white commandos prior to the 1994 elections and the smuggling of weapons to Burundi. They also alleged that their commanding officer was racist and opposed to the integration of MK and APLA personnel into the SANDF.
In terms of the Defence Act of 1957, court martials are generally held in open court in the presence of the accused, but may be held in camera if this is in the "interest of good order or public morals or the administration of justice or for reasons of security." It appears that the two individuals have been charged because of their co-operation with MI. By having the matter heard in-camera, the SANDF seems to be trying to ensure that the allegations levelled at Group 31 are not investigated further.
On 4 December 1996 the court martial ruled that the hearing would remain in-camera, that the entire proceedings of the court martial would be classified as secret as would the record of the entire proceedings, and that the FXI and the Mail & Guardian lacked locus standi to make the application to have the hearing opened to the public, including the media. The court martial's decisions is now being taken to the Cape High Court for review by the applicants. It is set down to be heard on 23 June 1997 but will probably be postponed.
2. LEGAL ISSUES AT STAKE
The legal issues at stake differ slightly in each application. In both applications, the following will be requested of the High Court by the applicants:
- Reviewing, setting aside and correcting the court martial's 4 December 1996 order;
- Directing the court martial to open the proceedings to the public including members of the media, remove the classification of secrecy from the proceedings and from the record;
- That section 78 (3) of the Military Discipline Code is unconstitutional;
- Directing the court martial to make available to the public and the media the record and all documents referred to in the record;
- Declaring that all the evide pnce led in the court martial subsequent to 4 December 1996 is inadmissible (since no one from the public could hear it), or to refer the matter to the Constitutional Court for determination;
- Suspending the proceedings of the court martial pending its decision, or the Constitutional Court's decision.
- The first application of Pfeiffer and Booysen, the following additional orders are requested of the High Court:
- That sections 4 and 5 of the Protection of Information Act are unconstitutional;
- That section 118 of the Defence Act is unconstitutional;
- That the Military Intelligence Report at issue in the proceedings is not a classified document, or has not been validly and lawfully classified pursuant to a constitutionally valid law;
- If the High Court finds that the MI Report has been validly classified, then the applicants request that the Constitutional Court determine the constitutionality of the statute according to which it has been classified.
- The second application of the FXI and the Mail & Guardian seeks the following additional orders from the High Court:
- A declaration that the applicants have locus standi before the court martial with respect to requesting it to open the proceedings to the public and the media;
- A declaration that the Defence Act is unconstitutional to the extent that it does not allow the applicants locus standi before the court martial.
- 3. WHAT WILL BE GAINED FROM FIGHTING THE CASE?
This is the first case in South Africa to challenge the holding of court martials in-camera and our ability to do so flows directly from the new Constitution. By supporting the applicants, you will be contributing directly towards the testing of the rights to freedom of expression, access to information and access to open court proceedings detailed in Chapter 2 of the Bill of Rights. There are a number of possible victories for human rights. I will elaborate on each of these briefly. For further details, please read the notices of motion and founding affidavits for both applications.
- 3.1 CHALLENGE TO SECTION 78(3) OF THE MILITARY DISCIPLINARY CODE
- Whenever it appears to a convening authority or a Court Martial that, in the interest of good order or public morals or the administration of justice or for reasons of security, a trial ought not to be conducted or continued in open court, the convening authority or the Court Martial may at any time either before the commencement or during the course of the trial, order that persons other than the accused, his counsel and the necessary Court Officials, or that juveniles or other classes of persons shall not be permitted to be present at the trial.
- Terms like "good order", "public morals" and "security" are extremely broad and vague and confer on the Court Martial a wide discretion. This has been used in the past, and it appears to be the motive of those who have brought the court martial in this instance, to cover up events which should be brought to the attention of the public, in this case, the allegations that weapons are disappearing from SANDF stockpiles and that certain SANDF officers are racist or have sinister agendas. Our application, if successful, would have the effect of circumscribing this authority, if not having the entire section declared unconstitutional in the face of the Bill of Rights.
- Pfeiffer and Booysen allege that s78 (3) unjustifiably infringes the following rights set out in the Constitution:
- the right to a public trial before an ordinary court of law;
- the right to a fair trial;
- the right to freedom of speech and expression;
- the right of access to courts;
- the right to human dignity.
- In addition they allege that a court martial held in-camera is an act of censorship which infringes their right to freedom of expression.
- 3.2 CHALLENGE TO SECTION 118 OF THE DEFENCE ACT
- Section 118(1) prohibits the publication of any statements "calculated to prejudice or embarrass the Government in its foreign relations or to alarm or depress members of the public, except where publication ... has been authorised by the Minister or under his authority." Pfeiffer and Booysen's statements about arms smuggling and the racism of their commanding officer fell squarely within the ambit of this section and provide a clear example of why it should be scrapped.
- This is a notorious section which has been used in the past to suppress a spectrum of information which might have "embarrassed" the government, including the SADF's involvement in the Angolan war. Its terms are so vague and sweeping ("alarm", "depress") as to be undoubtedly unconstitutional. The FXI believes that a challenge to the constitutionality of this section is vital. It is the kind of overbroad legislation which can be used in a variety of circumstances to protect the interests of a government, in circumstances which do not merit such protection.
3.3 CHALLENGE TO SECTIONS 4 AND 5 OF THE PROTECTION OF INFORMATION ACT
- Sections 4 and 5 of the Protection of Information Act prohibits the disclosure, publication or retention of any information obtained in a "prohibited place", meaning "any work or defence belonging to or occupied or used by or on behalf of the Government." Pfeiffer and Booysen's attempts to photocopy documents relating to arms smuggling for Military Intelligence were criminal under these sections.
- The Protection of Information Act has been strongly criticised both in Parliament and by lawyers and academics because of the broad scope of its application and the vagueness of some of the phrases used therein. Section 4 casts a particularly wide net, basically prohibiting the acquisition, possession and disclosure of official information. The prohibition relates to documents and items "used, kept, made or obtained" in any prohibited place. Professor Anthony Mathews in his article "Disclose and be damned - the Law relating to Official Secrets" quotes the example of a ludicrous situation where a civil servant would technically be guilty of an contravention if he disclosed to a reporter the number of cups of tea consumed in his office.
- While there might be valid circumstances in which the disclosure of official information is prohibited, it is obvious that the Act as it stands is overbroad and should be challenged. The applications in this matter do so directly.
3.4 THE STATUS OF THE MILITARY INTELLIGENCE REPORT
- It appears that the court martial decided to declare the hearing in-camera because of the existence of a Military Intelligence (MI) Report to which the accused required access in order to conduct their defence. Pfeiffer and Booysen allege that in making the order, the President of the court martial
- heard no evidence that the MI Report was a classified document;
- did not and could not have known whether the document was in fact classified
- did not and could not have known whether if it was classified, it was validly classified and if so, pursuant to which statutory provision it was classified;
- heard no evidence as to the content of the MI Report;
- did not have access to the MI Report prior to making the order of 4 December 1996.
The applicants wish the High Court to rule on whether the MI Report was, should or could be classified. Having had sight of the document, the applicants believe that it should not be a classified document, as the material contained therein does not warrant such a classification. They will therefore challenge the constitutionality of any law in terms of which the document is purportedly classified.
It frequently happens that hearings are declared closed on the basis of classified documents, as happened in the case FXI and others v Regional Magistrate of Pretoria, in which the FXI and other media groups contested the Magistrate's closure of the bail application of Dr Wouter Basson. The hearing was held in camera on the basis that to have an open hearing would prejudice "state security". The Magistrate's decision was subsequently reversed. The FXI believes that it imperative to hold presiding officers accountable for their decisions in this regard. Using the catch phrase "state security" to justify closing a hearing to the public and the media is not acceptable and should wherever possible, be subjected to scrutiny, as in this case, where the President of the court martial did not even have access to the allegedly classified document which led him to declare the court martial closed.
3.5 LOCUS STANDI OF THE FXI AND MAIL & GUARDIAN
>The FXI and the Mail & Guardian believe they have locus standi in judicio to the proceedings of the court martial and to the proceedings of the High Court because they have a direct and substantial interest in the subject matter thereof.
The principle objects of the FXI include campaigning for and defending freedom of expression, opposing all forms of censorship and fighting for the right of access to information. Not only does it act in its own interests and in pursuance of its own constitutional objectives, but it also plays a fundamental and active role in representing individuals and the public interest with respect to matters of censorship, freedom of expression and access to information.
The Mail & Guardian is a member of the mass media, and as such has a right and a duty to inform the public with respect to matters of public interest and in particular, matters relating to free and fair political activity. Members of the media have a right and a duty to have access to judicial proceedings including the proceedings of the court martial and the records thereof.
The applicants seek a High Court order establishing their locus standi. This will set a precedent for other Non Governmental Organisations and media groups to act in the public interest by intervening or appearing in legal proceedings. This is an important principle to establish in South Africa, where until recently, such locus standi was not recognised. It is therefore imperative that the court martial's ruling that the FXI and the Mail & Guardian do not have locus standi, be overturned.
4. CURRENT STATUS
The facts of the case are such that it is highly likely that the applicants will be successful in the matter. The Cape High Court was due to hear the matter on 23 June 1997 but this date has been postponed on a number of occasions, for different reasons. The first involved the delay in obtaining the respondents' answering affidavits. At one point, the Ministry of Safety and Security sought to argue that there had been a misjoinder as it had not been joined as a party. It subsequently withdrew this argument, and the Ministry of Defence was given until 14 October 1997 to file its answering affidavit. This was done, and the applicants are now in the process of finalising their replying affidavits, although they have had some difficulty obtaining certain information from the State Attorney.
In the interim, the court martial hearing has been postponed until 3 March 1998, with the agreement of all the parties. The applicants' attorneys state that if they are able to finalise the relying affidavits before the end of January, they will enrol the matter to be heard in the Cape Town High Court during February 1998.
It appears that the SA National Defence Force is taking the matter extremely seriously, and is using its most senior legal officers to handle the case. The respondents have in their answering affidavits attached a very long affidavit from the Chief of the Defence Force, General Georg Meiring as well as a number of other documentation relevant to security and classification in the Defence Force. For this reason, the FXDF has agreed to contribute an additional R5 000 so that an expert can assist our lawyers in preparing the replying affidavits. He is Laurie Nathan, of the Centre for Conflict Resolution, who is intricately involved in discussion groups around the drafting and amending of legislation and regulation and we believe that his input will be of great assistance.
Amount allocated:R105 000,00
Amount paid out:R81 485,600
12. HALL v WELZ & OTHERS
Freedom of expression issue: Media freedom
noseWEEK magazine, edited by Martin Welz, one of the very few independent news publications in South Africa, was threatened with closure because of the legal costs it faced in a libel action instituted against it in the Cape Town Supreme Court. The action was brought by a US citizen who has sponsored right-wing politicians and ventures in South Africa, and who has links with the New Right in America.
In 1993 noseWEEK profiled Dr Robert Hall, a wealthy member of the American New Right who took up residence in South Africa in 1980, leaving large tax debts in the USA unpaid. His forays into politics in South Africa include funding right wing ventures and political figures, including former Nationalist Cabinet Minister Chris Heunis, and Clive Derby Lewis, President of the European neo-fascist organisation, Western Goals, who has since been jailed for life in South Africa for the assassination of leading black activist Chris Hani. noseWEEK revealed that Hall had not been truthful in statements made in his application for South African residence and with regard to currency transactions.
While living an opulent lifestyle, he has never paid tax in South Africa, having procured a curious special dispensation which apparently allowed him currency privileges normally denied to South African residents. Hall claimed R1,5 million (about US$ 350 000) in damages from noseWEEK. He also sued Cape Town's evening newspaper, The Argus, for its follow-up of the noseWEEK story.
1. The importance of defending noseWEEK
noseWEEK is an independent newspaper with a proud history of investigative journalism. The reason to support cases like the noseWEEK case is two-fold:
to protect the independent press from defamation suits which have as their ultimate objective the closing down of a critical voice;
to use the proceedings to change the law on defamation, particualrly as it relates to the media.
2. The law of defamation and the media
In South African law, the media is strictly liable for defamatory statements made by it. This means that once defamatory matter has been published, the onus falls on the media to prove that it is true and in the public interest. The media cannot use the defence that it did not publish maliciously or with an intention to defame. All defamatory publication is assumed to be malicious and untrue.
The burden lies on the media to defend itself, rather than on the accuser to prove his or her case. The effect of this is to discourage the media from making any controversial statements.
3. Potential for new law to be made in the noseWEEK case
The Defence Fund had hoped that the important judgment of newly appointed Judge Cameron in Holomisa v Argus Newspapers would be accepted by the Cape Supreme Court. In the Holomisa case, Judge Cameron ruled that in weighing up the interests of the individual not to be defamed against the interests of free speech and a vigorous participation by the press in public debate, the Constitution should be interpreted in favour of the latter. In effect, the ruling shifted the onus to the accuser to prove that the defamatory material was published unreasonably. The FXDF believes that Judge Cameron's approach is the correct one, and believes that its adoption by the Cape Supreme Court would have struck a significant blow for the media freedom.
4. Judgement in the case
Judgement was handed down by the Cape Provincial Division of the Supreme Court on 27 September 1996. The Court issued a scathing judgement against Dr Hall. Judge Conradie held that the defendants had proved that what they had said about the plaintiff was substantially true and in the public interest. The plaintiff's claims were therefore dismissed.
The Court found that the plaintiff, as he issued summons, knew that the allegations made against him by the first and second defendants in the noseWEEK article were true. He then set about making it as difficult as he reasonably could for the defendants to prove the truth of their statements.
Judge Conradie said, "I find it difficult to believe that the plaintiff embarked on this defamation action to protect his reputation. He sued not to salvage his reputation but to sustain a colossal fraud. It has been a long, costly and futile trial. It has engaged resources on a huge scale. It has placed a very severe and quiet unnecessary burden on all the defendants. There was never any real dispute on the facts. They were barely challenged. In most cases they could not have been, yet the plaintiff persisted in litigating with a psychopathic ruthlessness as to the outcome."
The Judge stated that the costs to the noseWEEK defendants has been ruinous. In the end, the plaintiff abandoned many of the allegations against the noseWEEK defendants, but not before the trial had been made much more expensive than it need have been.
The Court awarded costs against Hall. Nonetheless, these do not cover the full amount expended by noseWEEK. Also, it is likely that it will be two or more years before any money will be able to be recovered from him.
5. No new ruling on the law
It is unfortunate that the Court held that the law had not changed with regard to defamation and the media. At the outset of the trial, noseWEEK launched a major application to attempt to persuade the Court that the onus of proving truth in the public interest, after the decision of Holomisa v Argus Newspapers Ltd, no longer rested on them. The Court held that the law had not changed.
Despite this, the FXDF still believes it is essential to use whatever opportunities exist to challenge the law on this point.
6. Leave for appeal
Hall applied to the Court for leave to appeal against the judgment. This was refused, and he subsequently settled on 7 February 1997 with noseWEEK as to the costs awarded against him. R236 300,50 had been received from Dr Hall in settlement of costs. This was 81,147% of the total expenditure made by the FXDF and independent donors on whose behalf the FXDF administered funds (a total of R291 200,58). The FXDF felt it was better to settle, despite not being able to recover the full amount, because otherwise, we would have had no option but to pursue Dr Hall through the Courts, a time consuming and costly exercise.
Amount allocated:R119 051,91
Amount paid out:R119 051,91
13. McNALLY V MAIL & GUARDIAN
Freedom of expression issue at stake: Defamation - introduction of the New York Times v Sullivan principle into our law
In this case, the Attorney General of Kwa-Zulu Natal, Tim McNally, has sued the M & G for defamation, following their publication of a critical article on him. The M & G alleged that a critical analysis of his conduct as the senior public official in charge of prosecutions in Kwa-Zulu Natal shows that he has not done enough to arrest and charge the perpetrators of violence in the province. The ongoing violence within the province is, as you know, of central concern to the country as a whole. The M & G's defence will argue that a critical analysis of his conduct and the stimulation of public debate in this regard is of paramount importance and is to be expected of the South African press, and that McNally should therefore not be entitled to damages for defamation even if the allegations they made cannot be proved in court, unless he can show that the allegations were made with actual malice on the part of the M & G, which is clearly not the case.
The facts of this case are such that it is the ideal vehicle with which to introduce the Sullivan principle into South African law. The New York Times v Sullivan case in the United States held that the constitutional guarantee of freedom of speech precluded a public official from recovering damages for defamation unless s/he proved that the matter was published with actual malice. This principle enables the press to inform the public about matters which are of concern to them, but which cannot be proved in a court of law, frequently because witnesses are intimidated or go missing. Should the court allow the introduction into our law of the Sullivan principle, the effect will be to allow more in-depth probing and comment on public officials by the press, without fear of being sued for defamation.
The case is in the Defence Fund's view, on a par with the Neethling v Vrye Weekblad and Weekly Mail case in terms of its importance for media freedom. There are directly opposing judgements in the South African courts as to whether strict liability for defamation is appropriate. Judge Cameron of the Witwatersrand High Court in Holomisa v Argus Newspapers held that a defamatory statement which relates to "free and fair political activity" is constitutionally protected, even if false, unless the plaintiff shows that, in all the circumstances of its publication, it was unreasonably made. In Bogoshi v National Media Limited & Others, Judge Eloff, also of the Witwatersrand High Court, held that the Constitution should not be interpreted to alter the common law regarding the liability of the media in publishing defamatory statements. The Defence Fund, and the Mail & Guardian's counsel, anticipate that the McNally case will go all the way to the Appeal Court, where it is hoped that the decision of the AD in Neethling v Vrye Weekblad and Weekly Mail will be overturned.
Obviously the costs involved in funding this matter all the way to the Appeal Court will be enormous. It has been set down for trial in October 1998. We anticipate that about R200 000 will be required in the next two years to fight this case.
Amount allocated:R25 000,00
Amount paid out:R20 000,00
14. OOSA v RADIO 786 - COMPLAINT TO IBA
Freedom of expression issue: Building a culture of political and religious tolerance
Dr Ebrahim Moosa, a religious leader and academic at the University of Cape Town, co-ordinated a statement in November 1996, signed by about 60 religious leaders, which was supportive of the Cape Town based People Against Gangsterism And Drugs's (PAGAD) anti-crime agenda but critical of its violent methods. The community radio Radio 786, which is perceived in many quarters as the ideological mouthpiece of the Islamic Unity Convention, Qibla and PAGAD, then allegedly responded to the statement through its broadcasts in such a way as to place Dr Moosa in a bad light and to incite public opinion against him. As a result, he and his family had received abusive and threatening phone calls.
Dr Ebrahim Moosa approached the IBA's complaints committee because of the extremely critical broadcasts being made about him by Radio 786. His motives were to try and stop the station from maligning him and to get it to apologise for the harm to his reputation. He emphasised that he did not want the radio closed down, but sought to oblige the station to report truthfully and with due regard for ethical journalistic practices. The FXDF decided to fund Dr Moosa's legal costs incurred in making his complaint to the IBA so that the dispute could be effectively aired. The FXDF pointed out that it in no way supported the closure of Radio 786, but rather supported building a culture of freedom of expression, and tolerance for a multiplicity of voices and political and religious dissent. The IBA ruled that Radio 786 had contravened the IBA Code by failing to contact Dr Moosa prior to issuing a severely critical statement about him, and it therefore failed to satisfy the requirements of balanced reporting as required by the Code of Conduct. Radio 786 was ordered to desist from any further non-compliance with the Code.
Amount funded:R8 821,50
Amount paid out:R8 821,50
15. NATAL NEWSPAPERS v PATHER
Freedom of expression issue: Freedom of speech
Modelling agency boss, Suren Pather, opposed an interdict granted against him in the Durban High Court, which prevented him from publishing a critical letter about the Natal Newspapers annual fashion show held in Durban. It is ironic that the Natal Newspapers have sought to curtail Pather's freedom of expression in this way. The FXDF hoped that by opposing Natal Newspapers' actions vigorously, we would send a signal to them that getting an interdict to silence your opposition is not an acceptable action to take, particularly when you are part of the media. At the hearing of this matter in September 1997, the interdict preventing him from publishing a letter critical of Natal Newspapers was not made final, but costs were awarded against Mr Pather.
Amount allocated: R9 995,25
Amount paid out:R9 995,25
16. NEETHLING v VRYE WEEKBLAD & WEEKLY MAIL
Freedom of expression issue at stake: Defamation law
In this case, General Lothar Neethling of the SAP instituted an action for damages resulting from alleged defamation by the independent weeklies Weekly Mail and Vrye Weekblad. The newspaper alleged that South Africa's second most senior police officer had been involved in illegal police "death squad" activities, specifically in making poisons which were used against ANC members and other activists in the democratic movement.
The trial court found that General Neethling had been involved in illegal police activities and that he had perjured himself. The Supreme Court, in a remarkable judgement, went on to recognise a new category of defence in respect of defamation cases brought by public officials in an attempt to silence newspapers publishing national public interest stories. The court held that in certain exceptional circumstances of burning public interest, even though allegations made may not be able to be proved true, there might well be a duty upon an editor, where the allegations appear to be prima facie correct and capable of proof, to publish such allegations. It is on this basis, inter alia, that Justice Kriegler in the Witwatersrand Local Division, ruled in favour of Vrye Weekblad and dismissed General Neethling's claim for damages of R1.5 million.
General Neethling went on to appeal against this decision in the Appellate Division. The Defence Fund continued to fund the Vrye Weekblad's case because it believed that it was vitally important to preserve the judgement of the lower court, since it extended the ability of investigative journalists in this country to report upon matters of public interest. However, General Neethling was successful in his appeal, judgement being delivered on December 4, 1993. The judgement was roundly criticised by the entire English language press, because Justice Kriegler's reasoning in the court a quo was seen to have been impeccable. The basis of the Appellate Division's decision seems to have been a technical one rather than the substantive basis upon which Mr Justice Kriegler ruled.
To defend oneself against defamation, one needs to show that defamatory allegations published were true and in the public interest. In this case, Vrye Weekblad and Weekly Mail sought a ruling that in certain exceptional circumstances of burning public interest, such as this involving third force activities, even though allegations made may not be able to be proved true, there might well be a duty upon an editor, where the allegations appear to be correct on the face of it and capable of proof, to publish such allegations. There is a possibility that the case may be reopened if sufficient evidence emerges from the Wouter Basson trial. Basson was a brigadier who headed the former SADF's Seventh Medical Battalion which allegedly supplied poisons to hit squad assassins, and allegedly the founder of the SADF's chemical and biological warfare programme. It is likely that he would have knowledge of Neethling's involvement in the activities disputed in the trial.
Amount allocated:R100 000,00
Amount paid out:R100 000,00
17. RAMAINOANE v ATTORNEY OF LESOTHO
Freedom of expression issue: freedom of the media
In this matter, Candi Ramainoane, the editor of MoAfrika, a small, independent weekly newspaper in Lesotho, is involved in seven legal cases, in three of which he is the applicant and four the defendant. MoAfrika has been critical both of the current and previous governments of Lesotho, and is a popular newspaper, written in the local language Sesotho and widely distributed both in Lesotho and South Africa. Because of its critical stance, MoAfrika and its editor have come under strong and sustained attack by the Lesotho government. Recently, the government issued a directive that no state or parastatal advertising should be placed in MoAfrika, depriving the newspaper of a substantial source of income.
Mr Ramainoane applied to the court to have the directive annulled. This matter has yet to be heard. MoAfrika and Mr Ramainoane are also defendants in three matters of defamation instituted by four government ministers. In one of these cases an interdict was granted restraining Mr Ramainoane from publishing any allegedly defamatory articles about the ministers. He is now charged with contempt of court for allegedly disobeying the interdict. In bringing these actions the ministers were represented by the Attorney General of Lesotho, despite the fact that they were bringing them in their personal capacities. Mr Ramainoane challenged this in court, and in a judgement delivered on 25 August 1997, the court held that the ministers could not be so represented. However, this matter has since been taken on appeal by the ministers, who allegedly attempted to influence the Appeal Court of Lesotho to give the matter priority placement on its roll. The court resisted their attempts and the appeal will be heard in January 1998. One of the defamation actions against him was also dismissed in January 1998.
The FXDF's impression of Mr Ramainoane's situation is that it is dire. Not only does he face potential damages awards against him in the defamation matters, but he is also under threat of criminal sanction in the matter involving contempt of court. His beleaguered lawyer works under difficult circumstances, and is one of very few human rights lawyers in Lesotho. Mr Ramainoane has also been personally threatened and his plight has come to the attention of Amnesty International.
The legal issues at stake are very important. The use of the Attorney General by government ministers as their own personal lawyer is not uncommon in certain African states, including Zambia, and the judgement of the court of first instance is encouraging in that it lays out clearly that this is unacceptable. We would like to see this judgement confirmed at the Appeal Court. Mr Ramainoane needs also to be defended in the defamation cases, defamation actions being commonly used in Lesotho and other Southern African countries, including South Africa, to silence critics of the government. Since the Lesotho legal system is largely based on the South African system, the law of defamation as it relates to the media is particularly onerous. Under the common law, the right to reputation and a good name has, in general, held the upper hand over the right to freedom of speech and access to information. The media is held strictly liable for defamation. Once the publication of prima facie defamatory material is proved, the media is assumed to be guilty of defamation. The accuser need not prove his or her case. Several defences are open to the media, including that the material published was fair comment, or was true and in the public interest. Mr Ramainoane needs to be vigorously defended. We would like to raise funds to enable a lawyer from the South African public interest organisation the Legal Resources Centre to be able to travel to Lesotho to act as a consultant and advisor to Mr Ramainoane's lawyer, Mr Khauoe.
Amount allocated:R10 000,00
Amount paid out:R9 712,40
18. RAU v LEAL
Freedom of expression issue at stake: Censorship of the student press
Many tertiary institutions in South Africa have clauses in their regulations and codes of conduct which severely curb freedom of speech and expression. The right to freely express oneself is particularly important in an academic institution and for this reason, the outcome of a matter before an internal disciplinary tribunal at a leading university in South Africa is to be welcomed.
In this case, the Rand Afrikaans University (RAU) charged the editor of the official student newspaper, Mr Louis Leal, with contravening the RAU code of conduct by publishing material in the newspaper the university Council considered to be obscene. The two offending pieces read: "Die mens het nie 'n siel nie net 'n piel" (a person hasn't got a soul, just a prick) (taken from a section of students' quotes) and a sentence from a book review: "Soundbyte: 'Sny uit die stront, jong man, ons wil NAAI!'" (Soundbyte: 'Cut the crap, young man, we want to fuck!').
Mr Leal was charged with the following, as set out in the regulations and press code of the university:
- offending the Christian character of the university;
- offending the cultural values of the student community;
- offending the values and norms of the university community; and
- being guilty of crude sensationalism and violating good taste.
At the university disciplinary enquiry presided over by the Dean of the Law Faculty, Mr Leal was found guilty on all charges and sentenced to twenty hours of community service. During argument, Mr Leal's defence was based on the freedom of expression clause in the Interim Constitution, while the University based its argument on the Constitution's limitation clause. The limitation clause states that the rights entrenched in the Constitution may be limited provided that the limitation is reasonable, justifiable in an open and democratic society based on freedom and equality, and does not negate the essential content of the right in question. The result of the hearing indicates that the disciplinary committee interpreted the limitation clause very broadly, thereby seriously limiting the right to freedom of expression.
Mr Leal appealed to the appeal committee of the university Council, the highest decision making structure. The appeal committee did not make a ruling as to whether the university is bound by the Constitution of South Africa. It stated that the matter was "a complex question on which the Constitutional Court has not yet ruled". Its ruling was instead based on the legal principle that a legislative measure limiting rights will qualify as 'law' only if it is accessible, comprehensible and predictable: "If the relevant requirements of the regulations and the press code [of the university] are vague and uncertain, the requirements will be invalid, and it is then unnecessary to consider the constitutional questions."
The appeal committee ruled that the code of conduct which Mr Leal allegedly violated was so vague as to be unenforceable. In the ruling, the committee agreed with Mr Leal that the references to the "Christian and Afrikaans character of the university", the "cultural values of the student community", "the values and norms of the university community" and "good taste and / or crude sensationalism" were vague, and that it was not clear what the boundaries of these limitations on expression were. "A person in the position of the appellant, who must make decisions about what may be published, would not be able to determine with any degree of certainty from the regulations and the press code what was permitted and what was not."
The decision of the disciplinary committee was not upheld, and the appeal committee recommended that the regulations and press code be rewritten in clear and understandable terms to spell out what is required of the editor of the official student newspaper. "This should be done taking into account the requirements of the Constitution, in case it might be held that the university is bound by it." Nonetheless, the appeal committee did have the following to say about press freedom: "From this [decision] it should not be concluded that we condone the action of the appellant. Banalities cannot simply be published under the guise of press freedom."
The Defence Fund of the Freedom of Expression Institute funded Mr Leal's defence. The FXDF believes that censorship like this impacts on freedom of expression as well as academic freedom in institutions of higher learning, and has implications for society as a whole. Standards like "the Christian and Afrikaans character" of RAU are vague and do not foster a culture in which freedom of expression can flourish. Many tertiary institutions in South Africa have similar provisions in their internal disciplinary codes, which fall foul of the Constitution and should be challenged. The FXDF believes that in pursuing this matter to the fullest extent possible it sent an important and powerful message to institutions that continue to support this kind of censorship.
Amount allocated:R13 666,36
Amount paid out:R13 666,36
19. SKOTNES v SA LIBRARY: LEGAL DEPOSIT ACT
Freedom of expression issue at stake: Interpretation of the Legal Deposit Act - freedom of expression of artists
In this case, Pippa Skotnes, a practising artist and senior lecturer in the Fine Art Department at the University of Cape Town challenged a Cape Supreme Court decision ordering her to deposit with the South African Library a copy of a limited edition of books on San intellectual traditions. This book, called "Sound from the Thinking Strings", is made in the medium of "the artist's book", a fine art tradition which has been flourishing in Europe and America, but is relatively underdeveloped in South Africa. The books produced in this medium include text and images, none of which are reproduced (as is usual in books), but all of which are hand-crafted, original works of art. The SA Library claimed one copy of the book. Ms Skotnes challenged the Library's demand in the Magistrates Court, insisting that each book is unique and she therefore fell outside the terms of the Legal deposit Act. The Magistrate found in her favour in January 1994.
The Library appealed against the judgement in the Supreme Court, and won on 12 May 1995. The Cape Provincial Division's decision in SA Library v Skotnes indicates that in circumstances where only one copy of a publication exists, that copy would have to be handed to the SA Library in terms of the Legal Deposit Act. The judgement goes on to say that a reproduction of the publication would not be sufficient to satisfy the requirements of the Act.
The critical point in the Defence Fund 's opinion, is that the benefits of compulsory legal deposit need to be weighed up against the right to free creative expression. Print-making is a medium in which many hundreds of young artists are working, most notably those without access to expensive equipment and resources. It is an area in which fine work is produced in schools and community workshops. The result of the CPD's decision has been that serious art students have refused to work in this medium since all of them wish to exhibit their work and none wants to have to hand over what may be their only copy of work to the SA Library. It is arguable that the case prepares the ground for a witch hunt of all books or portfolios produced by artists, which may be seized by the Library, free of charge. Effectively, artists are being denied the right to function as artists, and have some control over their productions. Furthermore, most artists are not in a position to defend an action of this kind, and the Fund believes that if this appeal is not fought and won, the judgement will effectively end what could potentially be a vital form of artistic expression in South Africa.
The Appeal Court upheld the CPD's decision. The Legal Deposit Act has since been redrafted, and the FXI made a submission to the drafters that cases like this one should be clearly dealt with in the new Act. The Committee of Legal Deposit Libraries has since decided to exclude from the provisions of the new Act editions of less than 20 copies.
Amount allocated:R20 000,00
Amount paid out:R17 233,77
20. SPENCER v JASON
Freedom of expression issue at stake: law of privacy
The Cape Supreme Court issued a temporary interdict restraining photographer Fanie Jason from, among other things, photographing the Earl of Spencer without his consent, unless such photographing occurs while he is attending a "public function as a public figure". Two issues were at stake: The threat to the principle that a public figure can be photographed at any time in public; and the assertion that Lord Spencer, Princess Diana's brother, is not a public figure. Both did not bode well for freedom of the media. At the trial judges's order, the matter was ultimately settled and the principle that the media has the right to photograph public figures in public places was agreed by the Earl. The settlement was made an order of Court.
Status of the case:Settled
Amount allocated:R23 104,93
Amount paid out:R23 104,93
21. STATE v HARBER & OTHERS (THE STAAL BURGER CASE)
Freedom of expression issue at stake: The balance between privacy and the right of freedom of expression
In this important case, the editor of the Weekly Mail (now the Mail & Guardian) was charged with and later found guilty of crimen injuria for having bugged CCB operative Staal Burger's office. The defence in this case sought to establish 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. Had the Magistrate so ruled, the effect would have been to make it legally permissible in certain exceptional cases, especially those related to violence and third force activities, to breach a person's right to privacy in order to obtain information relating to those activities. This would in turn have very important ramifications for members of the press seeking to expose covert or otherwise important issues, particularly those relating to security matters, as it would give them legal protection in similar circumstances. This would foster an independent and outspoken press, an effect which the FXI believes is critical in an emerging democracy such as our own. The Magistrate's decision has been taken on appeal and the judgement of the Witwatersrand High Court is expected soon.
Amount allocated:R70 000,00
Amount paid out:R70 000,00
22. STATE v RADIO TUKS JOURNALISTS
Freedom of expression issue: freedom of the media
In 1996, the University of Pretoria experienced student dissent about its choice of a new Chancellor. The university obtained an interdict banning certain actions on campus. In contravention on the order, a press conference was organised which three Radio Tuks journalists attended in their capacity as student journalists. The SA Police arrested all those present at the press conference including these three journalists, who it seems, will be charged with contempt of court. The Defence Fund funded their defence because it believes that journalists have a right and a duty to receive and impart information both on "legal" and "illegal" activities. Charges were later withdrawn.
Amount funded:R10 000,00
Amount paid out:R8 157,64
23. TECHNIKON WITWATERSRAND v NIEMANN & BOOYSEN
Freedom of expression issues: Access to information, freedom of the media
Funding was requested for an arbitration hearing before the CCMA, in which Mr Booysen and Mr Niemann were appealing against their dismissal by the Technikon Witwatersrand. Both were members of the Staff Association at the TWR, which had been instrumental in getting the Satchwell investigation into alleged mismanagement and corruption at the TWR. The Satchwell report has never been released by the TWR. Both claim that their dismissals were engineered because of their support for the investigation.
In addition, the student newspaper, TWR Times, which was active in reporting on incidents of maladministration has allegedly had its funding partially withdrawn, with the effect that it is unable to produce any more editions.
The FXDF agreed that it would not support the applications to the CCMA, because we felt we would be opening the floodgates should we support the applicants here.
We were interested in seeing the Satchwell Report released and to this end, supported an approach by the applicants to the Public Protector. We agreed that the correspondence in which the TWR refuses to release to the Staff Association or the public the Satchwell report must be obtained. Should the appeal to the Public Protector not ensure the release of the report, and if a close examination of the correspondence indicates that the TWR has no legal reason not to release the report, the FXDF will provide the funds for an application to the High Court for an order that the report be released. In addition, R1 000 would be granted to TWR Times, to enable it to take legal advice on steps to be taken to regain its funding. However, it appears that the SRC has genuinely run out of funds and that no adverse inference could be drawn from its actions.
Amount allocated:R1 000,00
Amount paid out:
24. YOUNG v THE MAIL & GUARDIAN
Freedom of expression issue at stake: Defamation - strengthening of Cameron J's important judgement in Holomisa v Argus Newspapers
The case seeks to establish the New York Times v Sullivan principle in our law, a principle which has already been partly enunciated in the Witwatersrand Local Division by Mr Justice Cameron in the Holomisa judgement. This principle prohibits a pubic official from recovering damages for a defamatory falsehood relating to his or her official conduct unless s/he proves that the statement was made with 'actual malice', that is, with knowledge that it was false, or with reckless disregard of whether it was false or not. This would enable journalists to report on a far broader range of activities of public officials, especially in cases where it would be difficult to establish the truth of allegations in court due to the intimidation or disappearance of witnesses.
The Mail & Guardian is being sued by Mr and Mrs Young, whose actions for defamation were joined in July 1995. They are suing M & G for a total of R575 000. The action arises from an article that appeared in the Weekly Mail (as it was then called) in the issue of 23 - 29 July 1993, under the heading "Love me Tender ... DET keeps it all in the family". At this time Mrs Young was employed by the Department of Education and Training (DET) where she assumed overall responsibility for a programme called "STP". Mr Young, it is alleged in the article, was the business partner of a certain Niewoudt, who previously was employed by DET and whose company was awarded contracts to manufacture goods for the STP programme.
The FXDF agreed to fund an opinion by media lawyer Advocate Gilbert Marcus to establish whether the case could found the important New York Times v Sullivan principle, which states that the US Constitution guarantees of freedom of speech prohibit a pubic official from recovering damages for a defamatory falsehood relating to his or her official conduct unless s/he proves that the statement was made with 'actual malice', that is, with knowledge that it was false, or with reckless disregard of whether it was false or not. Since the Mail's allegations in this case appeared to be prima facie defamatory, it appeared that this case might be able to establish the New York Times v Sullivan defence in our law. This would enable journalists to report on a far broader range of activities of public officials, especially in cases where it would be difficult to establish the truth of allegations in court due to the intimidation or disappearance of witnesses.
Mr Justice Cameron's recent judgement in the case Holomisa v Argus Newspapers that a defamatory statement which relates to "free and fair political activity" is constitutionally protected, even if false, unless the plaintiff shows that, in all the circumstances of its publication, it was unreasonably made makes the Young case more important than ever. The Cameron judgement significantly contributes to freedom of expression in this country. However, it is very vulnerable at this stage because of the conflicting judgement of Judge Eloff in Bogoshi v National Media Ltd in which he held that the Constitution should not be interpreted to alter the common law regarding the liability of the media in publishing defamatory statements. The Young case provides the opportunity to revisit the Cameron judgement. It might even be possible to seek to establish through this case that strict liability of the media in defamation cases is per se in conflict with the Constitution. This matter was ultimately settled, due to a lack of funding to continue to support it and poor prospects for success.
Amount allocated:R42 907,00
Amount paid out:R42 907,00
25. ZETLER & ANOTHER v SOUTH PRESS SERVICES & 3 OTHERS
Freedom of expression issue at stake: Defamation - Defence of the editor of a community newspaper in reporting plight of farmworkers
Media coverage of the conditions under which farm workers are employed is scarce, despite the fact that there are many instances of brutal treatment of these vulnerable workers. South was a courageous independent, grass-roots newspaper which was committed to reporting on matters like this, and in this case, appeared to have a strong defence to the defamation claim. The story was well researched and sourced. The FXDF therefore felt that it should support South's editor, and in so doing, throw its weight behind media reporting of traditionally under-reported subjects.
In this matter, the Zetler brothers, both farmers from the Western Cape, instituted an action against the owners of South Newspaper (a community based newspaper no longer in existence), Rafiq Rohan, who was the editor of South, and a journalist at the newspaper. The FXDF had an application from Mr Rohan for assistance.
During March 1994, South published a story entitled "Pregnant Woman Accuses Farmer of Brutal Assault", alleging that both Zetler brothers had assaulted employees on their farm. The story was based on interviews conducted with the employees and their lawyers. Lawyers for Human Rights in Stellenbosch had also confirmed that they had received complaints about the Zetler brothers assaulting their employees. The Zetler brothers are suing for R500 000 for defamation.
The FXDF felt that the case was an important one to support. Media coverage of the conditions under which farm workers are employed is scarce, despite the fact that there are many instances of brutal treatment of these vulnerable workers. South was a courageous independent, grass-roots newspaper which was committed to reporting on matters like this, and in this case, appeared to have a strong defence to the defamation claim. The story was well researched and sourced. The FXDF therefore felt that it should support South's editor, and in so doing, throw its weight behind media reporting which examines traditionally under-reported areas. The FXDF allocated R10 000 to be used up to close of pleadings. However, after more than a year in which
No activity for this case was indicated by the lawyers, the FXDF decided that the amount allocated to it should be placed back into the Fund, and that should it be required it would have to be applied for afresh.
Amount paid out:-