here appears to be general confusion as regards the legal obligation of journalists when they learn of corrupt activity whether during the course and scope of performing their duties as journalists or not.
This confusion came into sharp focus this past week following news of the release of a book by a journalist, Pieter-Louis Myburgh, in which he allegedly (I have not yet read the book) chronicles alleged corrupt activity by a senior politician who is a member of the ruling party.
Some observers have suggested that the journalist should report his allegations to the police instead of smearing the politician and then seeking refuge behind the veil of the confidentiality of sources and, generally, his right to freedom of the press and other media as enshrined in s 16 of the South African Constitution. Others have even gone as far as to suggest that the journalist has a legal obligation to report his allegations to the police.
A well-known media personality has tweeted:
“I am just gobsmacked at number of people who truly believe journalists should ‘go to the police’. NOWHERE in the world do journalists do that. It is completely outside the ethics of journalism. Lawyers, doctors also restricted. Journalists expose rot, police must do the rest.”
But is this a valid observation in law? Does it matter that journalists do not “go to the police” anywhere in the world? Is that even factually true? Does this observation raise a question of “ethics of journalism” or a question of law? Is the role of a journalist simply to “expose rot” and then leave the police to “do the rest” without troubling the journalist for evidence?
It is surprising that these questions should still arise in 2019 South Africa because the country’s Constitutional Court seems to have put them to bed as long ago as in April 1996. On current law in South Africa it would seem that a journalist who has information about corrupt activity can be required by a court to answer specific questions regarding that activity in a court of law and even at a Commission of Inquiry, unless to do so would infringe upon his or her constitutional right or freedom unjustifiably. But whether compulsion would infringe upon any such right or freedom depends on the nature of each question, and that can become clear only when the specific question is put. It would seem that a journalist does not, in South African law, have the right to refuse to answer questions simply on the basis that the subject matter to which the questions relate forms part of a story that he or she wrote or is researching or covering.
Nel v Le Roux 1996 (3) SA 562 (CC) was concerned with a constitutional challenge to s 205 of the Criminal Procedure Act, 51 of 1977 (“the CPA”). That section says a court may require any person who may provide material or relevant information about the alleged commission of any offence to appear before it to be examined by the prosecutor. If the person so required provides information to the satisfaction of the prosecutor, he or she would be under no further obligation to appear. The person would also not be obliged to testify or to answer any particular question put, or to produce any book, paper or document, if he or she has “a just excuse” for refusing or failing so to answer or to produce.
In challenging the constitutionality of s 205 of the CPA, the applicant in that case refused to answer questions on the ground that he might expose himself to the civil forfeiture provisions of the Exchange Control Regulations. The court disagreed because s 189(1) of the CPA provided a way out for the applicant. The court said, unanimously:
“If the answer to any question put to an examinee at an examination under s 205 of the Criminal Procedure Act would infringe or threaten to infringe any of the examinee’s chap 3 rights, this would constitute a ‘just excuse’ for purposes of s 189(1) for refusing to answer the question unless the s 189(1) compulsion to answer the particular question would, in the circumstances, constitute a limitation on such right which is justified under s 33(1) of the Constitution. In determining the applicability of s 33(1), regard must be had not only to the right asserted but also to the State’s interest in securing information necessary for the prosecution of crimes. We are not alone in adopting a procedure such as that embodied in s 205. Other open and democratic societies based on freedom and equality do the same. In the United States it is accepted that the investigative authority of the grand jury rests largely on ‘the longstanding principle that “the public has a right to every man’s evidence”. (my emphasis)
The constitutional challenge had been brought under the 1993 interim Constitution, hence reference to s 33(1) which is now substantially s 36(1) in the 1996 Constitution.
For this “public . . . right to every man’s evidence” proposition, the court cited a 1972 judgment of the Supreme Court of the United States.
So, the observation made by the media personality in her tweet about journalists “NOWHERE in the world” being compellable witnesses in respect of alleged criminal activity that they may have discovered would seem not to be in line with the legal position in South Africa.
Also, it would seem that the compellability of a journalist witness is not a matter of “ethics of journalism” but rather a matter of law in South Africa.
And the role of a journalist, whether in relation to a story or not, would seem not to end with “exposing the rot” and leaving the rest to the police as a disinterested observer. It rather seems to extend to the journalist being expected in law to perform his or her duty as a responsible citizen.
The journalist’s right to “freedom of the press and other media” is not absolute. It must be balanced with the State’s interest in securing information that is necessary for the prosecution of crimes. That has been the legal and constitutional position in South Africa, as confirmed unanimously by ten jurists of the Constitutional Court, since April 1996. The public has a right to every man’s evidence, including journalists.
There thus seems to be no question that a journalist may validly be required by a court to provide material and relevant information about alleged corrupt activity. The journalist cannot validly refuse, in South African law, to answer questions put to him or her, or to produce documents required of him or her, in connection with such alleged corrupt activity, unless he or she can provide a “just excuse” in relation to each question or document or piece of information.
Invoking “freedom of the press and other media” as a general defence would seem not to cut it. The journalist would have to explain why provision of the evidence or document required would unjustifiably infringe upon his or her right to “freedom of the press and other media”. In South African law there seems to be no general absolution of journalists from answering questions about their story in a court or Commission of Inquiry setting. Freedom of the press and other media does not provide license to a journalist to spread untested (or false) narratives about people, and then hide behind the sanctity of sources and press freedom.
Since the Constitutional Court decision in Nel v Le Roux in 1996 on the constitutionality of s 205 of the CPA, Parliament has introduced another piece of legislation that compels persons in positions of authority – and who know or ought reasonably to have known or suspected that any other person has committed, among other offences, theft, fraud, forgery, extortion or other corrupt activity involving at least R100 000 – to report such crimes to the police on pain of a criminal conviction and gaol time of up to 10 years. That legislation is known as the Prevention and Combating of Corrupt Activities Act, 12 of 2004 (“PRECCA”).
Many people – not least journalists and other media personalities – in South Africa seem to believe that PRECCA does not apply to journalists because journalists do not “hold a position of authority”, and are somehow immune, courtesy of the right to freedom of the press and other media, to the civic responsibility in the fight against crime. This seems to be a mistaken view in law.
Section 34(4) of PRECCA sets out in clear and unambiguous terms what Parliament means by persons who “hold a position of authority”. They include
“any other person who is responsible for the overall management and control of the business of an employer”
“any partner in a partnership”
Now, these are very wide categories and to my knowledge their constitutionality has not yet been successfully challenged. So, they remain binding law.
So, it would seem that a partner in a law firm is legally required to report corrupt activity involving at least R100 000 to the police. So is a doctor in a partnership medical practice. Therefore, the media personality referred to earlier would seem to have been unaware of this provision when comparing journalists to lawyers and doctors as a category of persons who, in her view, are “restricted” in what they can do about crime in South Africa.
A news editor, it seems to me, is responsible for the overall management and control of the news business of a media company. He or she is thereby the person who “holds a position of authority” in the newsroom of the media company, the employer. The editor’s responsibilities generally include deciding which stories will be covered, which reporter will be assigned to which story, checking the accuracy and fairness of the news story or report, writing headlines. Somewhere along that value chain, the news editor must get to know about material information that underlies the story or headline that he or she may decide to cover. If the news editor is to do his or her job properly and satisfy himself or herself of the accuracy of the story and its fairness, one would expect that the editor must, of necessity, know enough about the story in order to be able to perform that function. If it involves corrupt activity, he or she must know the who, the what, the where, the when, the how, the how much, the how many and, ultimately, what inferences to be drawn in order to arrive at the why.
That, one would expect, places the news editor, a journalist, in the PRECCA cross-hairs as a person who holds a position of authority in the newsroom of a media house, and therefore has a legal obligation to report corrupt activities involving at least R100 000 to the police. Not so a reporter doing the leg work. The reporter’s legal obligation can be sourced in s 205 of the CPA.
In January 2004, and in his Report into Allegations of Spying Against the National Director of Public Prosecutions (“the Hefer Commission”) Justice Joos Hefer, a retired Judge of the Supreme Court of Appeal, re-affirmed the legal position as articulated by a unanimous Constitutional Court Bench some 8 years previously. He said, with specific reference to a journalist’s duty to give evidence or provide information gathered in the course of performing her duties as a journalist:
“My view was that the constitutionally guaranteed freedom of expression (including the freedom of the press and other media and the freedom to gather and disseminate information) does not entail that every journalist is in all cases entitled to refuse to testify in a court of law or a commission of inquiry or to disclose relevant information gathered in the course of his or her profession. Unless other reasons exist which justify a refusal to testify . . . a journalist, like any other person, is obliged to testify and is only entitled to refuse to answer specific questions against which there is a valid objection. Admittedly, unless it is justifiable under section 33(1) of the Constitution, a witness cannot be compelled to answer a question if the compulsion would infringe any of his or her constitutional rights or freedoms. . . But whether the compulsion would indeed constitute such an infringement depends largely on the nature of the question; and this will only become manifest once the question is asked. This view, I may say, is not popular with the media. . . But it was eventually not questioned when my decision went on review.”
Popular or not with the media, this seems to be the legal and constitutional position in South Africa today. The journalist concerned pursued review of Justice Hefer’s decision to require her to give evidence at that Commission of Inquiry. Her review application failed. She filed an application for leave to appeal and her lawyers threatened to go all the way to the Constitutional Court. Justice Hefer ultimately decided that it was not necessary to call her as a witness and, in any event, found her story to be false.
With journalists and media personalities in South Africa proclaiming their blanket immunity from giving evidence about stories they have covered and written, and involving alleged criminal conduct by third parties, perhaps the time has come that the legal position both under s 205 of the CPA and s 34 of PRECCA be tested constitutionally one way or the other specifically in relation to journalists.
One view is that the law seems clear: journalists are compellable witnesses like any other competent witness to give evidence on alleged corrupt activities in a court of law or in a Commission of Inquiry. And the standard for refusing cannot be that the journalist’s right to freedom of the press and other media would be infringed if compelled to testify. The standard is rather whether that infringement is justifiable on the facts of each case.
That infringement may or may not involve disclosure of the identity of a source. The trial court will make that assessment on a case by case basis. In one case the court may find it unjustifiable for the identity of a source to be revealed. In another, it may find it justifiable. And in yet another case, the identity of a source may not be in issue at all.
Another view is that compelling journalists to testify in relation to the stories they have covered or written, or to report alleged corrupt activities that they may have uncovered in the course of performing their journalistic duties, would pose a threat to freedom of the press and other media as enshrined in s 16 of the 1996 South Africa Constitution.
Much of the media push-back against compellability of journalists to give evidence in relation to their stories seems anchored in the fear of revealing the identity of their sources. But on what justifiable basis can a journalist refuse to honour a s 205 subpoena on that ground, when the information required bears no relation to the source’s identity? But even if the identity of a source were required in one case, why should that be the basis for wholesale refusal by journalists ever to honour any s 205 subpoena without even knowing what questions will be put to them?
So, would journalist Pieter-Louis Myburgh be a compellable witness in a criminal case against the senior politician he allegedly implicates in corrupt activity in his book? The current legal position seems to suggest so under s 205 of the CPA. Section 189 would provide him with a possible defence but that defence will have to be tested in open court on the facts and in respect of each separate and self-standing question that the prosecution may put to him, or in respect of each self-standing document that the prosecution may require from him. What he cannot do, it seems, is refuse to appear at all on the blanket defence of “freedom of the press and other media”.
Is journalist Pieter-Louis Myburgh under legal obligation – on pain of criminal conviction and a 3 to 10 year term of imprisonment – to report the corrupt activity he allegedly writes about in his book to the police under s 34 of PRECCA? It may be argued that this would depend on the position he holds in the newsroom. If it is a position of authority as contemplated in s 34(4)(i) of PRECCA, then he may be under obligation to report the matter if it involves at least R100 000. If not, then not.