IFEX - News from the international freedom of expression community
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ALERT UPDATE - SOUTH AFRICA

26 November 2003

Judge rules that handing over copies of articles for public preview
represents "unnecessary burden" for newspapers

SOURCE: Media Institute of Southern Africa (MISA), Windhoek

**Updates IFEX alert of 14 November 2003**

(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preview an unpublished story, he would create a precedent for a "pattern of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.

BACKGROUND:
Makhanya said PCUIC's lawyers had initially threatened to use South Africa's
Promotion of Access to Information Act (PAIA) to get access to the story
draft but later decided against it.

The use of the PAIA to obtain previews of stories from journalists is
untested and will be decided on 26 November in a Cape High Court case
between businessman George Hadjidakis and the "Cape Argus" newspaper (see
IFEX alert of 18 November 2003).

For further information, contact Zoe Titus or Kaitira Kandjii, Regional
Information Coordinator, MISA, Street Address: 21 Johann Albrecht Street,
Mailing Address; Private Bag 13386 Windhoek, Namibia, tel: +264 61 232975,
fax: +264 61 248016, e-mail: [email protected] or [email protected],
Internet: http://www.misa.org/

The information contained in this alert update is the sole responsibility of
MISA. In citing this material for broadcast or publication, please credit
MISA.
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