(MISA/IFEX) – On 13 November 2003, Judge Essop Patel delivered a ruling that should 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, MISA said. Judge Patel ruled in the Pretoria High Court that it would be […]
(MISA/IFEX) – On 13 November 2003, Judge Essop Patel delivered a ruling that should 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, MISA said.
Judge Patel ruled in the Pretoria High Court 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 “Mail and Guardian” newspaper 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Consultants (PCUIC), Justice Patel found that if he allowed an application for an interdict for PCUIC to preview an unpublished story, he would create a precedent for a “pattern of repeatedly restraining the media.” In other words, granting of previews could constitute unnecessary restraint of media freedom by allowing prior censorship.
“The key thing is that the media always face demands from people for previews. It has now been established that there is no automatic right,” said “Mail and Guardian” editor Mondli Makhanya.
The “Mail and Guardian” was reporting on the relationship between Mpumalanga Minister for Public Works Steve Mabona and PCUIC Director Walter Senoko.
The article concerned an allegation that ZAR1 million (approx. US$155,800) had been transferred to Mabona’s account within days of the Ministry of Public Works paying ZAR6.6 million (approx. US$1,028,000) to PCUIC as part of an underwriting agreement.
Lawyers for PCUIC tried to ban publication of the “Mail and Guardian” story on 27 October, claiming the paper had “irregularly come to possess the documents” on which the story was based. The “Mail and Guardian” responded in court that the documents had been obtained from court files during a separate legal matter involving PCUIC and DZ Civils, a construction company. PCUIC had earlier lost that initial High Court battle.
Justice Ebhard Bertelsmann had ruled that even if the information obtained by the “Mail and Guardian” was “tainted,” 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.
The “Mail and Guardian” then approached Senoko for a follow-up story on his close relationship with Minister Mabona. Senoko refused to answer questions and PCUIC went to court to ban publication of the story and access a draft of the article. PCUIC later dropped the latter demand.
Justice Van der Bijl had ruled that Senoko was not given sufficient time to respond, as the “Mail and Guardian” had faxed him only hours before the paper’s Thursday deadline. The judge banned publication of the article for one week to allow Senoko a right to reply. The “Mail and Guardian” lost the case.
The “Mail and Guardian” then 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 Senoko’s attorneys demanding the draft article again and threatened to seek a gag order if they did not receive it.
In court, Justice Patel 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 “Mail and Guardian”‘s right to report on matters of public interest. On 13 November, Justice Patel dismissed PCUIC’s case with costs.
