(FXI/IFEX) – The following is a 14 September 2001 FXI press statement: The Freedom of Expression Institute condemns the state’s subpoena of the two journalists Jaspreet Kindra, of the Mail and Guardian, and Sam Sole, freelance journalist, in Natal, to confirm in court the accuracy and authenticity of copies of published information. Sole and Kindra […]
(FXI/IFEX) – The following is a 14 September 2001 FXI press statement:
The Freedom of Expression Institute condemns the state’s subpoena of the two journalists Jaspreet Kindra, of the Mail and Guardian, and Sam Sole, freelance journalist, in Natal, to confirm in court the accuracy and authenticity of copies of published information.
Sole and Kindra are being subpoenaed to testify against former TRC [Truth and Reconciliation Commission] investigator magistrate Ashwin Singh. The journalists published stories last year in the Sunday Tribune and the Natal Witness, respectively, in which Singh claimed that local head of the Scorpion unit Chris MacAdams was being vindictive towards him.
In the case of Singh, the state intends to punish him for giving information to the press, and to achieve this, the government is calling journalists who received the information to testify against the person who gave them the information.
The duty of journalists is to gather information and publish it, and for him or her to betray the person who provides them with information is basically shooting themselves in the foot. It may mean that no one will ever trust them with information, and that has serious implications on their profession as journalists and also on the free flow of information. The relationship between a whistle blower and journalists is very important for the free flow of information and the proper function of journalists.
If Kindra and Sole are forced to testify in this case, the public or anyone wishing to come forward with information of public interest may not do so because they will regard them as an extension of the police force. This will have an impact on their ability to gather news and consequently their performance and reputation as journalists. And since journalism as a profession depends on performance, this may eventually threaten their job security.
Both Kindra and Sole are reputable senior investigative journalists whose image is crucial to their sources, and a court appearance to testify against a whistle blower, under whatever circumstances, will have serious consequences for their careers.
As the Freedom of Expression Institute, we also note with great concern the state’s tendency to attempt to set precedents, when journalists are subpoenaed, to confirm in court the accuracy and authenticity of the copies published or broadcast. It appears as though the state does not believe what is published or broadcast by the media.
Given the fact that there are many stories published every day with legal implications, are we then moving towards a situation where journalists are in court every day to confirm the accuracy and authenticity of the copies published or broadcast?
We feel that the duty of journalists is to publish or broadcast material that is of public interest, to inform the public, and not to provide a body of evidence for state prosecutors.
While section 189 of the Act makes provisions for “just excuse”, the law makes it clear that journalists’ plea that professional ethics prevent them from disclosing their sources in respect of any alleged offence is not a just excuse. And in earlier cases, the court has interpreted just excuse as being a “legal excuse”. By this they meant that a just excuse is one where one could raise some form of legal privilege recognised in terms of the law already, e.g. self incriminating, the right of spouses not to give evidence against one another, and that of the legal practitioner.
However, in the leading case of Attorney General Transvaal v Kader, the words “just excuse” were interpreted as having a wider connotation than excuses arising from rules of privilege and admissibility. The court accepted the appellant’s excuse for not testifying on the grounds that he feared he would be unable to withstand the stress of the court proceedings, and that he would be mentally scarred for life, as well as be ostracised by his community.
The Freedom of Expression Institute argues that there are serious implications for journalists to confirm in court the accuracy and authenticity of copies of information published or broadcast.
Given the potential consequences on Kindra and Sole’s careers, and the whole idea of free flow of information and journalism as a profession, we feel that the court should consider journalism ethics as a “just excuse”.
