(FXI/IFEX) – The following is a 3 May 2000 FXI report on the current freedom of expression situation in South Africa: WORLD PRESS FREEDOM DAY MAY 3 2000 INTRODUCTION The Freedom of Expression Institute would once again like to use the occasion of the ninth anniversary of World Press Freedom Day to reflect on the […]
(FXI/IFEX) – The following is a 3 May 2000 FXI report on the current freedom of expression situation in South Africa:
WORLD PRESS FREEDOM DAY MAY 3 2000
INTRODUCTION
The Freedom of Expression Institute would once again like to use the occasion of the ninth anniversary of World Press Freedom Day to reflect on the state of freedom of expression in South Africa. May 3 marks the drawing up of the Windhoek Declaration on promoting an Independent and Pluralistic African Media in 1991, which was done by African and international journalists. All governments in the Southern African region endorsed the declaration and during the 48th session of the United National General Assembly, it was agreed that May 3 become an international day to commemorate press freedom. The following are some of the matters we have identified during the past year.
MEDIA FREEDOM
Human Rights Commission
The South African Human Rights Commission’s investigation into racism in the media was by far the most controversial press freedom issue over the past year. Announced late in 1998, the investigation was a response to complaints lodged by the Black Lawyers Association and Black Accountants of South Africa. FXI was not adverse to the objectives of the investigation which were to: generate debate and dialogue about racism among South Africans about the nature, meaning and incidence of racism..; help the media to understand how its treatment of race is viewed by the public so that editors can sharpen their capacity to be responsive to the needs of their readers; and to engage all South Africans in seeking common solutions to the problem of racism and to construct a society free of racism. However, from the outset we did express our concern regarding what the impact could be on freedom of expression should the Commission decide to use its extensive powers of search, seizure, and subpoena.
The negative reaction which accompanied the announcement of the investigation subsided during most of 1999 while the researchers commissioned by the Commission undertook a critical examination of the “products of the media”. In November 1999 SAHRC produced an interim report which consisted of the research commissioned. Although not in accord with all its contents, FXI thought it was a good starting point for discussion. However, the reaction in the press was extremely negative.
In the preface the report states “Through this process, this Report intends to further the dialogue on racism in the media, more specifically, but also, the national conversation on the racial biases that continue to plague our communities, more generally. In doing this, it seeks to engage civil society and to challenge it to critique these insights and respond.” Yet in terms of a letter sent by the Commission to many media institutions named in the interim report, there was a suggestion that the allegations or accusations had some legal founding, intimating that they had been “implicated” (the letter does not say in what but the assumption is in racism).
FXI therefore brought the above to the attention of the Commission in its submission made in February 2000. FXI also expressed its concern that the letter took the investigation into the realm of a legal inquiry with all the possible legal ramifications for those whose “products” used as research subjects or referred to in the submissions.
Needless to say these institutions were taken aback by the letters which the Commission asserted were merely invitations to respond to the report or to attend the hearings. While some institutions were still grappling with how best to react, the Commission took the extraordinary step of using its powers to subpoena these same media institutions. This led to a stand-off between the Commission and the media which fortunately was resolved and the subpoenas were withdrawn.
When he announced that the subpoenas had been withdrawn, SAHRC Chair Dr Pityana provided assurance that no-one would be forced to appear at the hearing and that those appearing at the hearing would be asked to share insights into the operations of the media in South Africa, how racism is reflected therein and to make recommendations on the role the media can play in the construction of a society free of racism. Their opinions on the exercise of freedom of expression and the press in the construction of a new South Africa would also be sought.
The hearings were not without their controversy with schisms which had been simmering between black and white journalists emerging both before and during the hearing. The information provided at the hearing certainly suggested that South Africa has a long way to go before racism can be eradicated in the media.
Government and press relations
Late last year, the Defence Minister Mosiuoa Lekota paid an unexpected visit to the offices of Die Volksblad newspaper. The Minister, accompanied by uniformed members of the SA National Defence Force’s top brass, confronted the editor, Jonathan Crowther. The Minister protested against reports in the newspaper on the killing of black and white soldiers at the Tempe military base. This action was not unlike the intimidation practised by the National Party government during the apartheid years.
FXI felt that it seemed especially reprehensible for a government minister of a democratically elected government to act in that way. The Minister’s action could be construed as threatening press freedom in a democratic society. Lekota also made some remarks in Parliament that journalists were increasingly abusing their freedom by publishing false information that was costing people’s lives. FXI contended that if the Minister felt that there had been such abuse, then he could have used the services of the Press Ombudsman to address the problem in a manner that protects press freedom, while adhering to ethical standards.
Another incident during the Commonwealth Heads of Government meeting in South Africa occurred. At the time, FXI learnt that the press liaison desk had been instructed not to release to the press corp press releases from outside the meeting – particularly if they emanated from the non-governmental sector which was running a parallel workshop to the Commonwealth Heads of Government meeting – if they incriminated a member state. This was confirmed by the SA Department of Foreign Affairs but after protest it seemed this policy was abandoned.
Community and press relations
FXI was also deeply disturbed by the fact that the international news agency Reuters suspended its television operation in Cape Town office in October, after an escalation in threatening telephone calls. The calls were from anonymous sources, and have not been linked to any particular story covered by the television staff. Of particular concern was that the closure sent a message to the sources and the society at large that anonymous threats pay off. In other words, people who are offended by the activities of particular journalists can force them to stop reporting by making such threats.
The disruption of Reuters activities was a significant setback for freedom of expression in the Western Cape, which was already a very difficult environment for journalists to operate in given the levels of violence. FXI noted at the time that journalists were between a rock and a hard place in the province, attracting threats if reports fall foul of anonymous individuals and risking pressure from the authorities to reveal sources or hand over information that may help in investigations of ongoing violence.
Public Broadcasting
Meanwhile, the SA Broadcasting Corporation was confronted by the Public Protector and ordered to hand over unedited tapes recording the statements made by Mpumalanga Premier Ndaweni Mahlangu during a press conference. The Public Protector was investigating the statement made by Premier Mahlangu condoning politicians lying to the public. He wanted the SABC which had broadcast the statement, to provide the tapes as evidence. FXI declared that the need for protection of sources was widely recognised and it was considered a pre-requisite for the free flow of information.
Included in what generally falls into the category of sources is all material, the disclosure of which would either inhibit a flow of information or endanger personal security. This includes, but is not limited to, the identity of confidential sources, material which would reveal the identity of sources or the disclosure of which may attract retaliation. FXI therefore agreed that the Public Protector was entitled only to that information which had been broadcast and was in the public domain.
In a debacle surrounding the public broadcaster, an internal inquiry was instituted by the SA Broadcasting Corporation to investigate whether its management was compromising editorial independence or not. This followed requests by FXI and several organisations for an independent probe after the axing of Max du Preeze as producer of Special Assignment, which sparked allegations that the corporation did not tolerate dissenting views in its news department. The SABC was later accused of performing a “full-scale whitewash” following the finding that there was no evidence to support allegations of infringement of editorial independence. FXI believed that the investigation was not proper because the SABC made it impossible for journalists to come forward with evidence.
Defamation cases
Last year, insolvency practitioner Oliver Powell sought two interdicts against Business Times in connection with an investigation into his relationship with the Master’s Office and his role in a number of controversial liquidations which had been questioned by creditors. He lost his first bid to gag the newspaper but was granted a temporary interdict against an article. The second part of the interdict was recently postponed on whether the newspaper should be subjected to a final interdict. Still involved in legal action to suppress a media report, Powell also interdicted the Office for Serious Economic Offences from discussing its investigation into alleged corruption in the Master’s Office.
In one of the rulings in favour of press, the Johannesburg High Court dismissed an application for an urgent interdict brought by two former Civil Co-operations Bureau agents to prevent the book Dangerous Deceits from being distributed or sold. The two claimed that the book contained defamatory passages which implicated them in an alleged conspiracy to kidnap and kill an ex-head of Tollgate Julian Askin, about five years ago.
Last year, former State President FW de Klerk had in papers filed in the Pretoria High Court denied that his published autobiography defamed a former Defence Force General Christiaan Thirion. De Klerk argued that even if he did, the autobiography had been published in the public interest because it was relevant to an accurate account of an important period in the recent South African history. Thirion claimed that de Klerk’s book contained defamatory innuendos which implied among others, that he had probably been involved in murder and other serious criminal activities.
In another incident, the Cape Times was faced with a defamation claim for publishing on its front page a prominent photograph of a man being detained by the police from questioning at Cape Town International Airport, in connection with the blast at the restaurant in 1998. Walleed Suliman claimed that the report and photograph of himself, handcuffed and under arrest, conveyed to readers that he had been arrested for the bomb attack and was being investigated for causing the explosion. He was detained at the airport as he, his wife and cousin were about to board a flight to Egypt on holiday.
Recently, Mail & Guardian editor Phillip van Niekerk and The Star journalist Lizeka Mda filed defamation suits against the ANC over allegedly defamatory statements made during the SA Human Rights Commission hearings into racism in the media. ANC executive member Minister Jeff Radebe accused Van Niekerk of writing an article critical of President Mbeki, but published it in the Mail & Guardian under Mda’s byline two years ago. Van Niekerk and Mda denied the claim and demanded a retraction and an apology but the ANC stood by its submission.
FREEDOM OF EXPRESSION, ASSOCIATION AND ASSEMBLY
Artistic freedom
In the past year FXI was also concerned with the trend of actors being harassed or attacked as a result of their roles in productions. The constitutional right to freedom of expression includes the freedom of artistic creativity and access to information, thereby guaranteeing a diversity of views, whether positive or negative. Those within the arts therefore need to be encouraged to be innovative and original and not stifled by the actions of a limited number of individuals with questionable motives. The incidents, however, suggest that these individuals were unable to separate out reality from fiction and that there was a need for greater education on freedom of expression issues of this nature.
Party politics and freedom of expression
A Soweto councillor and ANC chairperson of the Northern sub-region Trevor Ngwane, was suspended from three prominent positions he held as a result of his published article, opposing the Greater Johannesburg Metropolitan Council’s Igoli 2002 plan – backed by his party. The plan involved the commercialisation and privatisation of the GJMC’s services and was opposed by several trade unions, political and community organisations. He expressed concern regarding the lack of consultation about Igoli 2002.
Ngwane, as a public representative, has a duty to raise debates about matters affecting the constituency that put him in office. In acting against him in the way they did, the GJMC were violating not only his right to freedom of expression, but his democratic obligation to raise the grievances of his constituents.
Demonstrations
It seems incredible that in our new democracy demonstrators could be detained and kept incarcerated for three days for a peaceful demonstration. The South African Roadies Association members were arrested whilst expressing their dissatisfaction against Big Concerts, one of the companies in the entertainment industry. Big Concert recently filed a defamation suit against SARA, claiming that the organisation defamed both it and its managing director by accusing it of racism. Despite the defamation suit, SARA members continued to demonstrate.
Late last year a group of 28 Mpumalanga women and four children were arrested for stripping naked whilst marching along the main road of Buffelspruit. They were protesting against a local chief who they said allowed two cattle farmers to graze their animals on land that the women bought eight years ago on which to grow maize. The marchers were charged with public indecency and protesting without authority. They were arrested and released on bail each after the community rallied to their support.
FXI has also learnt that a group of protesters were arrested outside Macdonald’s restaurant in Cape Town.
On the other hand, the Congress of South African Students late last year, took to the streets in protest against the decision by the SA Democratic Teachers Union to stay away from schools. In an illegal march, Cosas members went on a rampage, destroying goods and stealing from street vendors. A police officer who tried to protect a hawker and his goods, fired rubber bullets and a stun grenade at marchers when they attacked him. Although FXI believes that the right to demonstrate is not being those who engage in violent demonstrations in a criminal manner, should be brought to book.
This also indicates that there is a need to make citizens aware of their rights and to advance the concept of peaceful demonstration.
ACCESS TO INFORMATION
Government at last has passed legislation that provides for greater openness and transparency in administration and allows citizens greater access to information. The passing of the Promotion of Access to Information Act and the Administrative Justice Act will give ordinary members of the public access to information, facilitating meaningful participation in local, provincial and national governance. A real victory with regard to the information Act was the inclusion of a section devoted to access to privately held information.
Late last year, there was a move by the Chairpersons’ Committee of the Mpumalanga Provincial legislature to bar the public from tabling written questions during the portfolio committee sessions. All questions were to be sent to the offices of the relevant MEC. It is essential for the legislature to be as transparent as possible, as they are direct representatives of the people and therefore should be accountable to them. That is, a channel should be open for the public to ask questions of both the legislature and the executive. FXI felt that to allow questions to be asked of the MEC, and not the committees, inverted the transparency and accountability regime outlined in the constitution.
FXI was distressed to read that Penta Publications had succeeded in silencing former employees regarding their divulging any business or financial information about the company. The employees had made threats that they would divulge information that could hurt the company if they did not get their way at the Commission for Conciliation, Mediation and Arbitration, following what they believed was a destructive dismissal.
CENSORSHIP
Several bans on advertisements were recorded in the past year. One that aroused objections from different sectors of the public was on changing perceptions and attitudes towards rape. The Advertising Standards Authority decided that the advertisement be removed from the air because there was a complaint from a group of men that it created a negative perception among viewers that men were complacent about rape. FXI posed the question: Do we really need to ban speech just because it offends certain members of our society? Advertising copy designed to make the audience sufficiently uncomfortable to sit up and re-think an issue, cannot be construed as language designed to incite harm. The Appeal Committee of ASA later assessed the ruling, following an appeal from Rape Crisis and Trauma Centre, and unanimously upheld the appeal and the order of the Advertising Standards Committee to amend the advertisement, was set aside.
A Nando’s advertisement was also withdrawn following a hearing into whether it contravened the ASA’s decency codes. The advertisement, showing a guide dog dragging an old blind lady into a pole, sparked demonstrations by blind people. ASA argued that the issue was not how many people approved or disapproved of the advert, but whether the “reasonable man” would be offended.
City Council repeatedly censoring posters
During the year the Pretoria City Council’s banned a poster which it believed was unsuitable for distribution. FXI felt that the officials who had taken the action had taken it upon themselves to impose their morality on the residents of Pretoria. In terms of the Constitution the only material which may be censored, and even then this is not automatic, is that which constitutes propaganda for war; incitement of violence; and advocacy of hatred based on race ethnicity, gender or religion, and that constitutes incitement to cause harm.
The content of the poster had none of these and therefore for the Council to decide that it might not be put up in the city, appeared to be unconstitutional. Just recently the Pretoria City Council again took it upon itself to censor a poster submitted to it.
In another gag, the leader of the Freedom Front Constand Viljoen tried to have posters removed on which his face appeared on the body of a black woman with her breasts exposed. The poster promoted a play at the Karoo Arts Festival. He tried to get a court interdict against the producer of the poster.
MEDIA DIVERSITY
Although South Africa has made progress towards achieving a diverse and representative media, there is still a lot to be done. Large areas of the country have limited access to existing media. Given the difficulties involved, many organisations, including FXI and especially the community media sector, have called for the establishment of a statutory Media Development Agency to promote media diversity. While the MDA has been seen as a subsidy scheme drawing funds from several sources, including government, it would also undertake development activities to build capacity in community and independent media. The establishment of the MDA was propound by COMTASK, a group set up by the then-Deputy President Thabo Mbeki to investigate the state of government communications in the country. The process of establishing the Agency is now far advanced. Consultative meetings were held through out the country, to make sure that voices of all provinces were heard on what role the Agency should play.
BROADCASTING
The broadcasting industry in South Africa saw tremendous expansion and growth since 1994. However, there are a number of community radio stations which because of the IBA’s inability to process their licence applications are being forced to fold. Considerable capital has been sunk into some of these stations but without licences to assist them in seeking revenue to keep them afloat they are bound to have to close. Arguments are being made that a solution to this problem must be found otherwise the IBA may well be in contravention of its Act.
Other stations lost their licences for alternative reasons. Radio Adullam, a Christian community radio station, was closed down because the IBA turned down its application to a permanent licence. The IBA did not give the station the reasons why it had turned down its application, but said it would do that at a later stage. Association of Christian Broadcasters in Southern Africa chairperson Reverend Martin Frishe said: “The government should assist community broadcasting instead of discouraging it.”
Mpumalanga’s environment radio station, Radio Safari was also closed down following the IBA’s refusal to renew the station’s licence after five years on air. The IBA argued that the station did not follow some of the regulations which were agreed upon with the IBA when it was granted a licence.
Meanwhile, the Afrikaans community radio station, Radio Pretoria, won a temporary reprieve to keep on broadcasting to centres throughout the country, pending an application to review a decision by the IBA that it could not relay its signal to any outlying areas. Radio Pretoria had obtained temporary licence for itself and 12 relay stations, but the IBA ruled that their signal would no longer be relayed.
The transformation of the broadcasting sector in SA continued late last year when the government indicated that it would sell former homeland’s Radio Ciskei and Capital Radio. According to the Department of Communications, the sale which had the approval of the IBA would bring the number of SABC radio stations privatised over the past few years to eight.
Introducing a revised code of conduct, IBA Chairperson Mandla Langa highlighted viewing time devoted to adult programming. The IBA requested broadcasters to draw up their own in-house guidelines and exercise their own judgement regarding offensive language, sex and violence. This can be difficult to implement since different people perceived what constituted acceptable levels of violence or sex differently.
