(FXI/IFEX) – The following is an FXI press statement: FXI condemns issuing of subpoenas to ex-Sowetan journalists to testify in fraud trial The FXI condemns the decision on the part of the state to subpoena ex-Sowetan newspaper journalists Willie Bokala and Saint Molakeng as reprehensible and a blow to media freedom. The journalists have been […]
(FXI/IFEX) – The following is an FXI press statement:
FXI condemns issuing of subpoenas to ex-Sowetan journalists to testify in fraud trial
The FXI condemns the decision on the part of the state to subpoena ex-Sowetan newspaper journalists Willie Bokala and Saint Molakeng as reprehensible and a blow to media freedom. The journalists have been subpoenaed to testify in the fraud trial of reflexologist Hilda Khoza. Molakeng interviewed Khoza about her assertions in 2001 for an article published in the Sowetan in 2001. Bokala was the Sowetan’s assignments editor at the time. The article concerns assertions by Khoza at the time that Nkosi Johnson, who was dying of AIDS, was not critically ill, but was in fact merely suffering from constipation. Johnson died the next day.
As far as the FXI is concerned, journalists are under an ethical obligation not to compromise their sources of information, which includes on-the-record sources, as such sources may well have given journalists off-the-record information for the purposes of deep background. Also, there may be additional interview material and shared information that was not published that the journalists have in their possession. All such information, as far as the FXI is concerned, should be covered under journalistic privilege, and should not be revealed in court. To do so will undermine the media’s constitutionally protected role.
The subpoenas place the journalists in an extremely precarious position, as their co-operation with the state may fuel a perception on the part of the public that journalists are acting as agents of the police, assisting them in undertaking their investigations. This perception will destroy the ability of journalists to report on what is going on, as their interviews with sources may be seen as extensions of the evidence-gathering process.
In fact, if Bokala and Molakeng testify, their professional reputations will probably be destroyed. Sources will be reluctant to speak to them again as they are not guaranteed that the information they give to the journalists will be used for the sole purpose of creating stories. Such a situation will create intolerable working conditions for these journalists. Therefore the FXI believes that the journalists have a just excuse not to testify. Section 189 of the Criminal Procedures Act recognises that there may be circumstances where people may have a just excuse not to testify, and Bokala and Molakeng can demonstrate such a just excuse.
They are not the only ones who stand to be affected; in fact, all journalists are affected by such cases, as public perception about the role of journalism is formed by how particular journalists respond in such situations. Also, while it could be argued that the subpoenaing of journalists to give evidence advances the interests of justice in the short term, such subpoenas will work against the interests of justice in the long term. If sources for stories dry up, then journalists will be unable to play their watchdog role to expose malfeasance and other social ills. Such cases will not come to public attention, and the state will be unable to prosecute such cases.
Forcing journalists to reveal confidential source discussions would also place a burden on the time and resources available to media organisations by bogging down reporters and editors in dealing with subpoenas and lengthy court appearances. This, in turn, will affect the ability of news organisations to carry out their prime function of gathering and disseminating news efficiently. This is particularly the case for small, independent media organisations that have minimal resources.
Such subpoenas amount to an intrusion into the editorial process of the media, and the prospect of receiving subpoenas may inhibit the media from newsgathering or disseminating news. Rather than risk being subpoenaed to reveal confidential source discussions, a journalist or newspaper may decide not to publish information. Forced source disclosure may, in certain circumstances, also threaten the safety and well being of journalists and their sources. For these reasons, the FXI believes that journalists should not be compelled to reveal their sources: a stance that is supported by journalistic codes of ethics the world over.
This is not the first time that the state has attempted to use journalists to make their criminal cases for them. In 2001, the state attempted to subpoena photojournalist Benny Gool to testify about the murder of Hard Livings gang member Rashaad Staggie. Many people were present at the murder of Staggie, including a large contingent of police, who apparently did not record the murder themselves. As in the Gool case, these subpoenas smack of investigative laziness, as there are undoubtedly other witnesses that can be subpoenaed. If there are 370 charges pending against Hilda Khoza, then there must be other witnesses, and it is not at all clear from the available information that Bokala and Molakeng are considered to be witnesses of last resort.
