- The Media Institute of Southern Africa (MISA) today celebrated an important "victory" for press freedom in South Africa. A Pretoria court had ruled that sources and others had no right to demand a preview copy of articles before these were published, as this would be "restraining the media."
On 13 November Judge Essop Patel delivered a ruling that, according to MISA researcher Zoe Titus, "will give some relief to media operations and journalists who are harassed by sources and others threatening litigation to obtain copies of news articles before they are published."
Judge Patel ruled in the Pretoria High Court this month that it would be an unnecessary burden for newspapers to hand over copies of articles and reports for public preview.
In a case involving the South African daily 'Mail and Guardian' and Positioning Corporate Underwriters and Insurance Consultants (PCUIC), Justice Patel found that if he allowed an application for an interdict for PCUIC to preview an unpublished story he would create precedent for a "pattern of repeatedly restraining the media."
- In other words, Ms Titus concludes, "granting of previews could constitute unnecessary restraint of media freedom by allowing prior censorship." In a press release issued today, the Windhoek-based institute celebrated the ruling as a "victory," adding that a preview litigation would have been "a gag order".
- The key thing is that the media always face demands from people for previews, commented Mondli Makhanya, editor of the 'Mail and Guardian'. "It has now been established that there is no automatic right," he added.
The 'Mail and Guardian' was reporting on the relationship between the Public Works MEC of Mpumalanga Province, Steve Mabona, and Director of Positioning Corporate Underwriters and Insurance Consultants (PCUIC), Walter Senoko.
The article concerned, an allegation of how rand 1 million (approximately euro 150,000) had flowed into Mr Mabona's account within days of his Ministry of Public Works paying rand 6.6 million (approximately euro 1 million) to PCUIC as part of an underwriting agreement.
Lawyers for PCUIC tried to interdict publication of the 'Mail and Guardian' story on 27 October by claiming the paper had irregularly come to possess the documents on which the story was based. In court, the 'Mail and Guardian' responded that the documents had been obtained from court files during a separate legal matter between PCUIC and construction company, DZ Civils. PCUIC lost that first High Court battle.
Justice Ebhard Bertelsmann ruled that even if the information obtained by the 'Mail and Guardian' was "tainted", that there was nothing in law that prevented a newspaper from publishing an article based on such information. Moreover the matter was one of public interest as it involved allegations of the abuse of public funds.
A week later, the 'Mail and Guardian' was back in court. The paper approached PSUIC's Mr Senoko for a follow-up story revealing his close relationship with MEC Steve Mabona. Mr Senoko refused to answer questions and PCUIC went to court to gag the story and access a draft of the article. PCUIC later dropped the latter demand.
Justice Van der Bijl ruled that Mr Senoko had not been given sufficient time to respond as the 'Mail and Guardian' faxed him hours before the title's Thursday deadline. The judge interdicted the publication of the article for a week to allow Mr Senoko the right to reply. The 'Mail and Guardian' thus had lost the case.
The next week, 'Mail and Guardian' wrote to PCUIC's lawyers requesting answers to the questions that the paper had asked of their client. Instead, the paper received a letter from Mr Senoko's attorneys, demanding the draft article again and threatened to seek a gag order if they did not get it.
In court, Justice Patel now ruled that the interdicts for drafts of journalists' stories before they are published constitute a subversion of the right to freedom of expression and are unconstitutional. He said PCUIC was essentially trying to interfere with the newspaper's right to report on matters of public interest. Justice Patel dismissed PCUIC's case with costs on 13 November.
'Mail and Guardian' editor, Mr Makhanya, said PCUIC's lawyers had initially threatened to use South Africa's Promotion of Access to Information Act to get access to the story draft but later changed their tune.
The use of the Access to Information Act to obtain previews of stories from journalists is untested and will be decided in a case between businessman, George Hadjidakis and the 'Cape Argus' newspaper before Cape Town's High Court on 26 November, Ms Titus informs.
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