(FXI/IFEX) – The following is a 6 November 2006 FXI media statement: FXI supports journalist Gasant Abarder’s right not to testify in “Country Fair” defamation case The Freedom of Expression Institute (FXI) applauds The Daily Voice’s News Editor, Gasant Abarder, for his ethical stand in not testifying in the civil defamation case involving “Country Fair” […]
(FXI/IFEX) – The following is a 6 November 2006 FXI media statement:
FXI supports journalist Gasant Abarder’s right not to testify in “Country Fair” defamation case
The Freedom of Expression Institute (FXI) applauds The Daily Voice’s News Editor, Gasant Abarder, for his ethical stand in not testifying in the civil defamation case involving “Country Fair” poultry chain. Abarder refused to testify about a public meeting he reported on, where Grant Twigg of the Associated Trade Union of South Africa is alleged to have made defamatory statements about the circumstances in which one of “Country Fair”‘s employees died after having an asthma attack. On Friday, 3 November, the Court confirmed a magistrate’s order compelling Abarder to testify.
The FXI is disturbed to note that both Courts do not recognise that Abarder has a “just excuse” not to testify. The “just excuse” is that journalists such as Abarder can refuse to testify lawfully so as not create the impression that they are extensions of the evidence-gathering process in court proceedings: this is precisely what Abardar will become if he is compelled to testify.
Journalists have one role only, namely to gather information for the purposes of news-making. To confuse this role with the gathering of evidence for court cases will lead to understandable confusion in the minds of the public about the role of journalists. In future, people attending and addressing public meetings may think that journalists who are covering these meetings are there for reasons other than journalistic ones. Such people may become reluctant to make statements in front of journalists in future, which in turn will have a chilling effect on freedom of expression in these contexts. Journalists may also find it more difficult to fulfill their newsgathering role in such situations, and may even be harassed at such meetings or barred from attending them as they may be compelled to become the eyes and ears of the authorities.
Furthermore, it is not the role of journalists to help litigants prove defamation cases, merely to report statements in the public interest, even if they are defamatory. The right of journalists to report unhindered is more important than the ability of one litigant to win a defamation case, and in this case the freedom of expression must take precedence over the right to dignity and reputation of “Country Fair”. If it does not, then all journalists may be affected.
“Country Fair” has subpoenaed Abarder to testify about the alleged defamatory statements at the meeting, where over 100 other people were also present. This means that Abarder is not a witness of last resort. Arguably, there may be cases where it is in the interests of justice for journalist to be compelled to testify, but these must be in exceptional cases where no other witness is available. It should also be noted that Abarder was tipped off about the meeting by a confidential source. Conceivably, Abarder’s testimony may stray into questions concerning the identity of his source, which would compromise the trust placed in him by this source. In the process, the ability of journalists to maintain the confidence of confidential sources may be compromised.
A similar case arose in 1993, when Beeld reporter Andries Cornelissen was sentenced to one year’s imprisonment for refusing to answer questions when he was subpoenaed to testify that Peter Mokaba had chanted “Kill the Boer, Kill the Farmer” at a rally at Wits University, in spite of the fact many people were present at the rally. This sentence was overturned on appeal, partly on the basis that Cornelissen had a just excuse not to testify as he was not a witness of last resort. So there is a basis in South African law for journalists to refuse to testify lawfully, when it can be shown that they are not witnesses of last resort.
The FXI is also concerned that this case is but the latest in a creeping trend where the right of journalists to protect their sources of information is compromised. In this regard, we refer to “sources” as all journalistic material used for the purposes of news-making. If this trend continues, then the media’s constitutionally-protected role will be compromised.
For instance, the Mail and Guardian and its internet service provider, M-Web, have been pressured to reveal the newspaper’s sources in the controversial “Oilgate” matter. Also, two ex-Sowetan journalists, Willie Bokala and Saint Molakeng, were subpoenaed to testify in the fraud trial of Hilda Khoza, which could have involved testimony about the interview that Khoza gave to Molakeng. It would appear that it has become simply too easy to compel journalists to testify, to compensate for investigative laziness on the part of litigants and the state: a truly disturbing trend that must be checked.
