Joint statement by SA Chapter of the Media Institute of Southern Africa and the Media Monitoring Project (MMP) of SA on High Court censorship of Mail & Guardian:

Misa-SA 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.

MISA and the MMP are also deeply concerned about the effects of this ruling on “whistleblowers.” The judge’s strictures on the Mail & Guardian because of its refusal to reveal its confidential sources can have a chilling effect on the conduct of whistleblowers in future. The judge’s criticism, too, takes no account of the key journalist ethic of maintaining the confidentiality of sources, which is subscribed to by all journalists, newspapers, 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 would like to 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 fulfil 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.

Johannesburg May 27 2005

Raymond Louw Deputy Chair MISA SA Tel: 011 646 8790
William Bird Director MMP Tel: 011 788 1278 or 082 887 1370
Tusi Fokane Director MISA-SA Tel: 011 339 6767 082 446 5155