MISA Communiqué (Censorship, South Africa)

May 28, 2005

Media organisations express shock at High Court censorship of Mail &
Guardian

* Following is a joint statement by the Media Institute of Southern Africa
(MISA-South Africa chapter and the Media Monitoring Project (MMP)

The Media Institute of Southern Africa (MISA)-South Africa and the MMP are
deeply shocked by the judgment in the Johannesburg High Court banning
publication by the Mail & Guardian of further details of the "Oilgate"
scandal. The scandal involves oil company Imvume, state oil company
PetroSA, and the questionable gift of R11-million of taxpayers' money to the
2004 election fund of the African National Congress plus a further irregular
payment of R11-million of taxpayers' money to make good the shortfall
created by the payment to the ANC. The two organisations regard the issue as
a matter of great public interest because of the improper use of taxpayers'
money and the judgment which has enabled legal censorship to be imposed on
the newspaper.

The organisations believe that the judgment is constitutionally questionable
because it elevates a primary constitutional right, the right to privacy,
above that of another primary constitutional right, that of press freedom.
Both rights enjoy equal value under the constitution but the judge has
chosen to afford a greater value to privacy. In any event, the right to
privacy in this instance is questionable. Courts have ruled that public
figures, given their roles, responsibilities, and public accountability,
have less claims to privacy than private individuals. Indeed, there are
suggestions that public figures forfeit their claim to privacy. It is
common media practice for media to publish material where there is an
overwhelming public interest.

The press code states, "In both news and comment, the press shall exercise
exceptional care and consideration in matters involving the private lives of
individuals, bearing in mind that any right to privacy may be overridden by
a legitimate public interest". The same principle is again stated in the
SABC's editorial policies.

In this instance where a state company and a private company were using
taxpayers' money, dealing in state property and bolstering the fortunes of a
public political party, it is contended that Imvume's claim to privacy is
minimal, yet the court has elevated it above that of clear public interest
and press freedom.

The judge's strictures on the Mail and Guardian because of its refusal to
reveal its confidential sources takes no account of the key journalistic
ethic of maintaining the confidentiality of sources which is subscribed to
by all journalists, newspapers and broadcasters and by media regulatory
bodies. It is well-known that journalists are prepared to go to jail for
refusing to reveal confidential sources.

MISA and the MMP also believe that the criticism that the newspaper had not
given Imvume sufficient time to comment on the article it submitted to the
company was unjustified in the light of modern journalistic and commercial
practice, especially as Imvume had already been the subject of newspaper
articles and was aware of the inquiries being made.

MISA and the MMP express their deep concern that this judgment may open the
way for others seeking to prevent newspapers from publishing articles about
their questionable or irregular conduct by enabling them to seek to obtain
legal censorship of the media.

One of the fundamental services that media in a democratic society fulfill
is that of a public watchdog. It would seem that not only has the ruling
muzzled this essential function, but it has set an extraordinarily dangerous
precedent.

Enquiries:

Raymond Louw, Deputy Chair
MISA SA
Tel: 011 646 8790
Mobile: 082 446 5155

William Bird, Director - MMP
Tel: 011 788 1278
Mobile: 082 887 1370

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MISA Communiqué (Mail & Guardian gagged)
May 28, 2005
Media freedom has 'suffered major blow'

Source: Mail & Guardian and South African Press Agency (Sapa)

Media watchdogs have reacted with shock to the gagging order placed on the
Mail & Guardian newspaper by the Johannesburg High Court on Thursday night.

"We are deeply shocked by the judgement," said the South African chapter of
the Media Institute of Southern Africa and the Media Monitoring Project in a
joint statement on Friday.

"This issue is of great public interest because of the improper use of
taxpayers' money and the judgment which has enabled legal censorship to be
imposed on the newspaper."

The watchdogs said the judgement is constitutionally questionable because it
elevated a primary constitutional right, the right to privacy, above that of
another primary constitutional right, that of press freedom.

"Both rights enjoy equal value under the Constitution, but the judge has
chosen to afford a greater value to privacy," they said. "The right to
privacy in this instance is questionable. Courts have ruled that public
figures, given their roles, responsibilities and public accountability, have
less claim to privacy than private individuals."

According to the organisations, the Press Code states that "in both news and
comment, the press shall exercise exceptional care and consideration in
matters involving the private lives of individuals, bearing in mind that any
right to privacy may be overridden by a legitimate public interest".

The organisations said: "The judge's strictures on the M&G because of its
refusal to reveal its confidential sources take no account of the key
journalistic ethic of maintaining the confidentiality of sources.

"It is well-known that journalists are prepared to go to jail for refusing
to reveal confidential sources," they said.

Others who responded critically to the judgement included the Democratic
Alliance, the Freedom of Expression Institute, the South African National
Editors' Forum, the Inkatha Freedom Party Youth Brigade and the M&G's
founding editor, Anton Harber.

'Major blow'

Freedom of the media has suffered a major blow with the M&G being banned
from printing their story, Harber and the DA's Helen Zille said on Friday.

Harber said: "The pre-publication censorship takes us back 15 years and is a
very serious setback for media freedom.

"One understands people are entitled to their rights of privacy, but the
story seems so important that I find it extraordinary that the courts should
stop it coming out," he said.

Zille agreed, and said that the public have a right to know how their taxes
are being spent.

She said most revelations in the public interest come to light because of
leaks and whistle-blowing, and not through official sources.

"It is crucial to the freedom of the press and the public's access to
information that revelations of alleged fraud and theft of taxpayers' money
are exposed."

The DA does not agree that a company's "right to privacy" overrides this
imperative.

"If the allegations are false, Imvume should take appropriate action against
the M&G to protect its good name; if they are true, the public's right to
know is, in our view, overriding," she said.

In most democratic countries, an allegation of this magnitude, if proved to
be true, would bring down the government, Zille said.

'Gagged'

On Friday, the M&G hit the streets with the word "Gagged" in large red
letters across its front page. Its latest revelations on the "Oilgate"
scandal -- printed on page two -- were totally blacked out.

The story the M&G planned to publish was a sequel to last week's "Oilgate"
exposé, which revealed that Imvume Management, an oil company closely linked
to the African National Congress, siphoned money from the parastatal PetroSA
to the ANC before last year's election. The upshot was that PetroSA
eventually used public money to duplicate payment, this time to Swiss-based
oil supplier Glencore.

The story has already had major fallout, with opposition parties calling for
a commission of inquiry and referring our disclosures to Parliament's
minerals and energy committee for investigation.

This week's story would have provided further information about high-profile
individuals who benefited from the Imvume deal, which we believe is
unequivocally in the public interest.

The gag order is the first time since the late 1980s that it has been
muzzled.

On Thursday night, the Johannesburg High Court granted an interdict to stop
the paper from running the report.

The newspaper's entire print run of 45 000 had to be recalled and the costs
associated with this are still being calculated.

Judge Vas Soni found Imvume's constitutional right to privacy and the
dignity of the company would be irreversibly damaged, and that the newspaper
should have given Imvume more time to respond to the contents of the
article.

The article was not of overwhelming public interest and was potentially
defamatory, the judge said.

"The media cannot elevate itself to be above the law. I'm not satisfied that
the respondents [the M&G] acted as responsibly as the Constitution requires
them to. Their conduct should be condemned."

ANC spokesperson Smuts Ngonyama said the party does not usually pass any
judgement against judges, and "in this case, would prefer not to comment".

The South African National Editors' Forum said there is no doubt that a
report of taxpayers' money going, even indirectly, to any political party is
in the public interest.

"The granting of pre-publication restrictions constitutes a serious
infringement of freedom of expression and would be justified only on the
basis of compelling grounds being argued," said the forum in a statement.

The Inkatha Freedom Party Youth Brigade called the interdict "the greatest
assault on freedom since 1994".

'We differ fundamentally'

On Friday, the M&G wrote in editorial comment on the matter: "The M&G is
considering its legal options. We will also go on trying to tell South
Africans what we believe they need, and have a right, to know.

"While the judge ruled that the M&G 'had not acted as responsibly as the
Constitution demands', we differ fundamentally and believe that we have
acted in the interests of a robust free press and within the Constitution's
stated right of freedom of expression.

"To quote Judge Soni: 'In a democracy as young as ours, it is essential
there is vigorous and robust debate about clean government.'"

In a twist, the reason for the police being present at the Media24 printers,
who print the weekly newspaper, as the hearing was held on Thursday night is
unclear.

Andre Smith, printing works manager at the printers in City Deep, confirmed
police presence at the building, but said they were there because of an
accident that took place on a railway metres away.

Malcolm Midgley, spokesperson for the Johannesburg emergency services, said
they have no record of an accident in that area on Thursday night.

Police spokesperson Superintendent Chris Wilken said the police will not get
involved in the gagging order as it is a government issue and not one for
the police. He said he will investigate further.

- Ends
……………………………………………………..

Zoé Titus
Regional Programme Specialist: Media Freedom Monitoring
MISA Regional Secretariat
21 Johann Albrecht Street
Private Bag 13386
Windhoek, Namibia
Telephone +264 61 232975
Fax: +264 61 248016
E-mail:[email protected]
Website: www.misa.org