Chapter 2 of AfriMAP's 2010 Public Broadcasting in Africa (SA County Report)  presents a summary the media legislation and regulation in South Africa. The Report is prepared by Libby Lloyd, Prof Jane Duncan, Jeanette Minnie and Hendrik Bussiek. 

2 Media legislation and regulation

1 International, continental and regional standards

2 The Constitution of South Africa

3 General media laws and regulations

4 Other laws that impact on media and freedom of expression

5 Case law and judgements

6 Conclusions and recommendations

1.  International, continental and regional standards

South Africa is party to a number of international and regional protocols relating to freedom of expression. 

South Africa’s founding documents and its laws, however, in many respects more strongly protect freedom of expression than provisions in such international agreements. Where a law might be lacking, the Constitution specifies that international law will be considered in making any determinations. The Constitutional Court has used these provisions widely and cited international laws and interpretations of principles in motivating its judgements. 

1.1 United Nations 

South Africa was one of the founding members of the United Nations (UN). The following instruments of the UN are relevant to freedom of expression:

• The United Nations Universal Declaration of Human Rights  (adopted in 1948)

The Universal Declaration is not a treaty that is ratified by states and thus legally binding. However, scholars now regard it as either having itself become international customary law or as a reflection of such law. In either case the inclusion of freedom of expression in the declaration implies that even states that have ratified none of the relevant treaties are bound to respect freedom of expression as a human right. 

Article 19 of the Declaration deals with the right to freedom of expression: 

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

• International Covenant on Civil and Political Rights (enacted by the United Nations in 1976)

The International Covenant on Civil and Political Rights (CCPR) is a treaty that elaborates on many of the rights outlined in the Declaration South Africa formally ratified the CCPR on 10 March 1999. The Covenant’s Article 19 declares:

1. Everyone shall have the right to hold opinions without interference;

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

• The Windhoek Declaration on Promoting an Independent and Pluralistic African Press (adopted by the general assembly of the UN Educational, Scientific and Cultural Organisation - UNESCO - in 1991) 

UNESCO’s Windhoek Declaration, like other non-treaty documents, has moral authority by representing a broad consensus of the international community on the detailed interpretation of the Universal Declaration and other relevant standards as they relate to the press in Africa.  

The Windhoek Declaration states:

(We) declare that

1. Consistent with article 19 of the Universal Declaration of Human Rights, the establishment, maintenance and fostering of an independent, pluralistic and free press is essential to the development and maintenance of democracy in a nation, and for economic development. 

2. By an independent press, we mean a press independent from governmental, political or economic control or from control of materials and infrastructure essential for the production and dissemination of newspapers, magazines and periodicals. 

3. By a pluralistic press, we mean the end of monopolies of any kind and the existence of the greatest possible number of newspapers, magazines and periodicals reflecting the widest possible range of opinion within the community. 

1.2 African Union

South Africa is also a member of the African Union (AU), whose Constitutive Act states that is objectives include the promotion of “democratic principles and institutions, popular participation and good governance” (Article 3(g)).   

The most important human rights standard adopted by the AU, or its predecessor, the Organisation of African Unity (OAU), is: 

• The African Charter on Human and Peoples' Rights (adopted 27 June 1981)

South Africa acceded to the Charter in January 1996 and is thus bound by its provisions. Its Article 9 on freedom of expression states:

• Every individual shall have the right to receive information. 

• Every individual shall have the right to express and disseminate his opinions within the law.

The African Commission on Human and Peoples’ Rights (ACHPR) is the body established under the Charter to monitor and promote compliance with its terms.

• Declaration of Principles on Freedom of Expression in Africa 

In 2002, the African Commission adopted this Declaration to provide a detailed interpretation for member states of the AU of the rights to freedom of expression outlined in the African Charter, stating in its Article I:

Freedom of expression and information, including the right to seek, receive and impart information and ideas, either orally, in writing or in print, in the form of art, or through any other form of communication, including across frontiers, is a fundamental and inalienable human right and an indispensable component of democracy.

Everyone shall have an equal opportunity to exercise the right to freedom of expression and to access information without discrimination.

It goes on to say in Article II:

No one shall be subject to arbitrary interference with his or her freedom of expression; and

Any restrictions on freedom of expression shall be provided by law, serve a legitimate interest and be necessary in a democratic society.

The Declaration details how such freedom of expression should be realised.  Of particular relevance to this study is the statement regarding public broadcasting (Article VI):

State and government controlled broadcasters should be transformed into public service broadcasters, accountable to the public through the legislature rather than the government, in accordance with the following principles:

• public broadcasters should be governed by a board which is protected against interference, particularly of a political or economic nature;

• the editorial independence of public service broadcasters should be guaranteed;

• public broadcasters should be adequately funded in a manner that protects them from arbitrary interference with their budgets;

• public broadcasters should strive to ensure that their transmission system covers the whole territory of the country; and

• the public service ambit of public broadcasters should be clearly defined and include an obligation to ensure that the public receive adequate, politically balanced information, particularly during election periods.

The document also states that freedom of expression “places an obligation on the authorities to take positive measures to promote diversity” (Article II), that community and private broadcasting should be encouraged (Article V) and that broadcasting and telecommunications regulatory authorities should be independent and “adequately protected against interference, particularly of a political or economic nature” (Article VII). The Declaration furthermore provides for freedom of access to information and states that “the right to information shall be guaranteed by law” (Article IV).

• African Charter on Democracy, Elections and Governance (2007)

This Charter highlights the importance of access to information in a democracy. It states: 

(State parties shall) (p)romote the establishment of the necessary conditions to foster citizen participation, transparency, access to information, freedom of the press and accountability in the management of public affairs. (Article 2(10))

State parties shall ... ensure fair and equitable access by contesting parties to state controlled media during elections. (Article 17 (3)) 

By mid-2008, South Africa (like most countries on the continent) had not yet signed or ratified the Charter. For that reason, it does not have the force of law in South Africa (though the country’s own laws provide for equitable treatment to all parties by broadcasters during election periods). 

1.3. Southern African Development Community (SADC)

South Africa is a member of the Southern African Development Community (SADC). The treaty establishing SADC provides that member states shall operate in accordance with principles that include respect for human rights, democracy, and the rule of law (Article 4(c)). In addition, the regional structure has adopted several protocols related to media and/or communications.

• SADC Protocol on Culture, Information and Sport (adopted in 2000)

South Africa ratified this Protocol in 2005 and has thus formally agreed to its provisions. This Protocol focuses on harmonising policies on culture, information and sport by SADC member states. Article 17 outlines the following key objectives, amongst others:

Co-operation and collaboration in the promotion, establishment and growth of independent media, as well as free flow of information

Development and promotion of local culture by increasing local content in the media

Taking positive measures to narrow the information gap between the rural and urban areas by increasing the coverage of the mass media

Encouragement of the use of indigenous languages in the mass media as vehicles of promoting local, national and regional inter-communication

Ensuring the media are adequately sensitised on gender issues so as to promote gender equality and equity in information dissemination.

Article 18 focuses on information policies, including committing member states to “create (a) political and economic environment conducive to the growth of pluralistic media”. 

Article 20 enjoins member states to take “necessary measures to ensure the freedom and independence of the media”, with “independence of the media” being defined as “editorial independence, whereby editorial Policy and decisions are made by the media without interference”.

• SADC Declaration on Information and Communication Technology (2001)

This Declaration focuses on telecommunications structures and promotes the creation of a three-tier system in each country with: 

Government responsible for a conducive national policy framework, independent regulators responsible for licensing, and a multiplicity of providers in a competitive environment responsible for providing services. (Article 2(a)(i))

Although the Declaration does not have the same legal force as a protocol, all countries that are party to it (including South Africa) have made a commitment in adopting it to abide by its provisions.

1.4 Other documents 

• African Charter on Broadcasting (2001)

This Charter was adopted by media practitioners and international media and other human rights organisations at a UNESCO conference to celebrate ten years of the Windhoek Declaration. Although it has not been endorsed by any inter-state structures, it represents a consensus of leading African and other international experts on freedom of expression and the media. 

The Charter specifies, amongst other things, that there should be a three-tier system of broadcasting (public, private and community), demands that “(a)ll state and government controlled broadcasters should be transformed into public service broadcasters”, and states that regulatory frameworks should be based on “respect for freedom of expression, diversity and the free flow of information and ideas”.

2. The Constitution of South Africa

South Africa has a Bill of Rights contained in Chapter Two of the Constitution.

Section 16 deals with freedom of expression:

Everyone has the right to freedom of expression, which includes –

♣ freedom of the press and other media;

♣ freedom to receive or impart information or ideas;

♣ freedom of artistic creativity; and

♣ academic freedom and freedom of scientific research.

The right (outlined above) does not extend to – 

♣ propaganda for war

♣ incitement of imminent violence; or

♣ advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Section 36 sets out the limitation of rights. It states:

(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including – 

• the nature of the right;

• the importance of the purpose of the limitation;

• the relation between the limitation and its purpose, and

• less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

Freedom of expression is not listed as one of the non-derogable rights of the Constitution. It has to be balanced against other rights (such as equality, privacy and human dignity) on a case-by-case basis. 

The Constitutional Court is the final judicial arbiter of constitutional issues – though other courts may hear matters relating to this prior to the issue being brought before it. In addition, the South African Human Rights Commission, established by the Constitution as an independent institution (see Chapter 1), is charged with protecting and promoting constitutional rights. 

Section 39 of the Bill of Rights deals with interpretation. It stipulates that:

(1) When interpreting the Bill of Rights, a court, tribunal or forum –

a. must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;

b. must consider international law; and

c. may consider foreign law.

(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

South Africa’s Bill of Rights is often lauded around the world, and in some ways goes further than many of the international, continental and/or regional provisions. The Bill of Rights provides specifically for freedom of the media, and the limitations of that freedom are clearly outlined. For example, exceptions to freedom of expression require proof of incitement to imminent violence. 

South African media and civil society organisations generally guard their rights to freedom of expression fiercely – and there are ongoing debates in many fora about the subtleties of applying this right in relation to other rights.

A 2008 African Media Barometer report on freedom of expression in South Africa noted the following:

The South African media enjoy considerable freedom of expression. This is evidenced by the frequency with which the media criticize the government, the ruling political party, the police and many other public institutions and services.  Investigative reporting is prominent and widely respected.  …

On the down side, defamation cases are increasing with (ANC President) Jacob Zuma taking the lead as complainant … While intimidation of journalists by provincial governments is decreasing, there are still incidents of media practitioners getting angry phone calls from officials. The situation is worse at local level where especially community media are from time to time threatened by … councillors. In many cases, allegations of corruption are not investigated for fear of reprisals. Generally, there seems to be a lack of tolerance of criticism amongst politicians.      

South African media publish a significant amount of advertising from the government, and there are cases where government officials have threatened to withdraw their custom from publications they regard as being excessively critical.  Commercial interests tend to exert even more pressure: To a large extent commercial enterprises escape the critical attention of the mass media fearful of annoying the big advertising spenders.

3. General media laws and regulations

South Africa does not have a national press/media law. The Imprint Act (no 43 of 1993) requires only that the name and address of the printer appear on any printed matter intended for public sale or distribution. Thus, media and journalists are not subject to special regulations but, as any other citizen, have to comply with general laws.  

3.1 Regulation

Broadcasting and print media are regulated differently in South Africa.

Print

Print media regulate themselves through the Press Council/Press Ombudsman established and funded by the Newspaper Association of South Africa (which represents the major newspaper groups). The self-regulatory mechanisms were reviewed in 2007, and the structures expanded to include members of the public both on the Council itself and on structures to adjudicate complaints.  

Essentially the Press Council (made up of six representatives of media organisations and another six public representatives) approves of the Press Code and appoints a Press Ombudsman and members of an Appeal Panel (which is currently headed by an ex judge and also includes an equal number of representatives from the press and from the public). 

All newspapers and magazines that subscribe to the jurisdiction of the Press Council are required to include in every publication the organisation’s logo and details of how to complain about any reports.

Complaints from the public are first considered by the Ombudsman (currently ex editor Joe Thloloe), and attempts are made to mediate between the complainant and the publication. If a hearing needs to be called, the ombudsman presides, together with a member of the public and a representative from the media.  Any decision can be appealed against to the Appeal Panel. 

The Press Council can order a publication found to be in breach of the code to publish an apology and/or correct the story, as well as print the ruling of the Ombudsman or Appeals Panel. 

The Press Council has since its restructuring in 2007 focused on creating awareness amongst the public of its role and ensuring that journalists know and observe the code. At the launch of a booklet outlining the code in December 2007, Ombudsman Joe Thloloe stated that in the 18 months between January 2006 and July 2007, his office had dealt with 268 cases. 

The Council’s web site lists rulings for seven cases decided on between May and July 2008. Three of these complaints were dismissed, and newspapers were required to print prominent apologies in the other four instances. 

Broadcasting

Broadcasters have the option of either adhering to a code developed by the regulator (the Independent Communications Authority of South Africa) and adjudicated by the Complaints and Compliance Committee (CCC) of ICASA, or of abiding by their own code administered by the Broadcasting Complaints Commission of South Africa (BCCSA).

The two regulatory structures are dealt with in detail in Chapter 5 of this survey. 

New policies – tighter regulation for press?

The ruling party has questioned the principle of self-regulation of the press.  At its 52^nd National Conference in December 2007, the ANC resolved to investigate the establishment of a Media Appeals Tribunal (MAT):  

With particular reference to the print media, the ANC notes that the current form of self regulation … is not adequate to sufficiently protect the rights of the individual citizens, community and society as a whole.

Paragraph 126 of the resolution states that the MAT would “strengthen, complement and support the current self-regulatory institutions … in the public interest”.

The resolution does not expand on why existing laws and rights do not sufficiently protect individuals, though in other sections it raises concerns over media concentration, limited black economic empowerment in the press and what it terms an “ideological offensive, largely driven by the opposition and fractions (sic) in the mainstream media, whose key objective is the promotion of market fundamentalism ….” (par 88 and 89). 

The ANC promises in the document to consult the media and other stakeholders during the investigation and says that “Parliament will be charged with this mandate to establish this MAT, in order to guarantee the principles independence, transparency, accountability and fairness” (par 128).

The resolution outlines the following objectives for this inquiry:

The investigation should consider the desirability that such a MAT be a statutory institution, established through an open, public and transparent process, and be made accountable to Parliament. The investigation should further consider the mandate of the Tribunal and its powers to adjudicate over matters or complaints expressed by citizens against print media, in terms of decisions and rulings made by the existing self-regulatory institutions, in the same way as it happens in the case of broadcasting through the Complaints and Compliance Committee of ICASA … The investigation should further consider remedial measures which will safeguard and promote the human rights of all South Africans ... (par 130 and 131).

Although the resolution seems to assume a precedent of oversight set by the Complaints and Compliance Committee of the broadcasting regulator ICASA, it is unclear what is being referred to. The Electronic Communications Act, No 36 of 2005 (the EC Act), makes no provision for the review of decisions made by any self-regulatory body – though such body and its code and disciplinary mechanisms need to be “approved” by the regulator.  In fact, the relevant clauses of the EC Act seem rather to endorse the principle of self-regulation.  

The ANC’s resolution has resulted in disquiet amongst the media. Franz Kruger, the ombud for the Mail & Guardian, wrote in January 2008:

The party can’t have it both ways: media freedom is incompatible with a statutory body that has authority over what journalists write. If an organ of state can sit in judgement over the media, they are no longer free. A tribunal would not ‘complement and support’ self-regulation; it would kill the principle.  

The Press Ombudsman’s office has recently been restructured ... There may be arguments for further reforms: ideas mooted include introducing the power to fine, and allowing the Press Ombudsman to take steps proactively, without a formal complaint being laid.  

Self-regulation of the media is an important mechanism for protecting freedom of the media and must be guarded. This is recognised by the African Commission on Human and Peoples’ Rights in its Declaration of Principles on Freedom of Expression in Africa  – which states that “effective self-regulation is the best system for promoting high standards in the media”. 

In order to protect independent regulation, media organisations themselves need to ensure that self-regulatory structures are (and are perceived to be) effective at promoting ethics – and not just mechanisms to protect those they represent from criticism. Readers and viewers (important stakeholders) must be aware of such structures and endorse them so that politicians cannot easily sway popular opinion against the media to promote their own interests.

Given this, Kruger’s suggestions regarding the strengthening of the self-regulatory structures by giving the press ombudsman more teeth and enabling him/her to be more proactive need to be seriously considered.

It would seem, though, that the ANC has reviewed the wisdom of setting up the MAT, after the chorus of criticism about its proposal. In March 2009, an ANC spokesperson stated that ‘now is not the time and place for tribunals’, and that the ANC had engaged with the Press Ombudsman’s office and reached agreement that the office would be strengthened.

3.2 Legislation promoting media diversity

Media Development and Diversity Agency Act (MDDA Act)   

The MDDA Act was promulgated in 2002 and a Board appointed in January 2003. The Agency is a public-private partnership – funded jointly by government and big media players, both broadcast and print.  

The Act states that the Agency’s objective is “to help create an enabling environment for media development and diversity … (and) redress exclusion and marginalisation of historically disadvantaged communities and persons from access to the media”. The Agency is mandated to:

• encourage ownership and control of, and access to, media by historically disadvantaged communities, historically diminished indigenous language and cultural groups;

• encourage the channelling of resources to community and small commercial media;

• encourage human resource development and capacity building in the media industry, especially amongst historically disadvantaged groups;

• encourage research regarding media development and diversity.

The Agency has nine board members – six appointed by the President on the recommendation of Parliament after a public nomination process, and the other three selected by the funders (one representing broadcasting, one print and the other government). 

Since its formation, the MDDA has awarded grants of R77 million in total (=US$ 10.5 million [January 2010]) to over 239 projects. 

Funding agreements with print and broadcasting partners end in 2009 (they each currently contribute R1m a year). The MDDA receives funding from Caxton, Independent Newspapers, Avusa, Kagiso broadcasting, Media 24, Midi Television, Electronic Media Network, Primedia Broadcasting and the SABC. In the financial year 2008/2009, broadcasters contributed a total of R10 471 600, and the print media a total of R4 800 000. In terms of the Electronic Communications Act, broadcasting partners must contribute up to 0.2% of turnover to a universal service agency (see chapter 5) but can write this off against contributions made to the MDDA. MDDA is trying to persuade broadcasters to rather contribute to the Agency. 

The MDDA’s support for community broadcasting is outlined in Chapter 3 of this report.

Competition legislation

Competition law was reformed in 1998 with the introduction of a new Competition Act. The Act provides for various prohibitions on anti-competitive conduct, restrictive practices (such as predatory pricing and price fixing) and ‘abuses’ by ‘dominant’ firms. Certain mergers and acquisitions need prior approval. 

The competition authorities (Competition Commission and Competition Tribunal) have dealt with a range of applications for mergers in the media industry. Several complaints regarding uncompetitive practice have also been lodged but dismissed. 

It is not clear whether or not the competition authorities have ever been formally requested to investigate fair competition in the media as a whole. In research commissioned by the Open Society Foundation for South Africa (OSF-SA) into the MDDA in 2006, the Competition Commission is reported as being interested in working with the MDDA to get information on ownership and control and industry pricing issues.

4. Other laws that impact on media and freedom of expression

Although the Constitution guarantees freedom of expression and information, and new legislation such as that governing the right to access to information promotes this, there are several apartheid era laws still on the statute books, which could (if utilised) impede the media and journalists. Given the Bill of Rights, however, any cases brought under such laws would have to take into account the Constitution in interpreting such legislation. 

4.1 Access to information

The right to access to information is guaranteed in the Constitution in  Section 32(1):

Everyone has the right of access to – 

a) any information held by the state; and

b) any information that is held by another person and that is required for the exercise or protection of any rights”

This right has been translated into legislation – the Promotion of Access to Information Act 2002 (PAIA). As can be seen from the constitutional clause, unlike the majority of countries that have access to information laws, South Africa has stipulated that both public and private organisations are bound by this legislation. In the case of private institutions and individuals, a person requesting access to information has to show that this is necessary to exercise or protect other rights.  

The legislation states that a person can apply for access to information, and, if refused, can appeal such decision internally before approaching the High Court.

South African NGO the Open Democracy Advice Centre (ODAC) has stated that the law is “exemplary, and has been called ‘the gold standard’ for such legislation”. However, ODAC highlighted in its submission to the African Peer Review Mechanism (APRM) that implementation is lagging – due in part, they state, to lack of rules for the use of the Act and an “urgent need for an adjudication system allowing a more rapid, accessible and inexpensive resolution to contested decisions”. They suggest that a freedom of information ombud be appointed to deal with delays caused by internal appeals and the courts.  

In its submission, the Centre refers to a study it conducted in 2003 monitoring progress of 100 applications for access to information. “Of these requests,” they say, “only 23% resulted in disclosure of the desired information, while just over half of the requests received no response from the relevant public body.”

4.2 Defamation

Defamation is largely a civil rather than criminal matter in South Africa and legislation is designed to protect a person’s reputation.  Defamation is linked to the constitutional right to dignity (Article 10 of the Bill of Rights). 

Given the right to freedom of expression set out in the Constitution, the common law definition of defamation has evolved through a range of judgements since 1994. This is dealt with more substantially under section 5 below where landmark judgements are discussed.

The permissible defences against a claim of defamation are:

• privilege (e.g. the statements published were made by witnesses in court and reported, or by lawyers in a court or by legislators)

• that the statement was true and its publication was in the public interest

• the statement was a fair comment in the public interest

• the absence of intention to defame (mistake, jest etc)

• the publication was reasonable (i.e. the publisher had good reason to believe the statements were true and had taken steps to verify them and the person ‘defamed’ was given a chance to respond).

Defamation claims are traditionally used post publication to sue a newspaper, but have been cited in applications to interdict newspapers from publishing. 

4.3 Privacy

Section 14 of the Constitution states that “everyone has the right to privacy”.  The rights to privacy and to freedom of expression are weighed up on a case-by-case basis. The courts have generally recognised that the public interest in public officials may be higher than that in other individuals. 

4.4 Protection of sources

Section 205 of the Criminal Procedures Act No 51 of 1977 empowers the courts to imprison any person who refuses to give information relating to a criminal investigation. This has been used to try to pressurise journalists to reveal their sources (despite protests). Section 189(1) allows anyone to refuse to give information if they have a “just cause”.

A record of understanding was signed between the South African National Editors’ Forum (SANEF) and the Ministers of Justice and Safety and Security in 1999 following a media outcry over a photographer being subpoenaed in terms of the Act after witnessing the murder of an alleged gang leader.  The agreement pointed out the “need to balance the interests of the maintenance of law and order and the administration of justice on the one hand with the right of freedom of expression and specifically freedom of the press and other media. The parties agreed to investigate the amending of Section 205…”

There has been no subsequent amendment to the relevant section, however, and this provision in South African law remains one of the most contentious for South African journalists.

4.5 Access to courts

Other sections of the Criminal Procedures Act have also been identified by media organisations as potentially inhibiting the rights of freedom of expression and access to information.   This includes section 153, which allows a judge or magistrate to hold a hearing behind closed doors and order that no information about the case may be published (if it is in the interests of a fair trial). The Constitution however specifies that courts should decide issues in a fair public hearing (Article 34) and a case can only be held in camera with good reasons (i.e. in the interests of a fair trial).

Other laws protect children – and thus a child under the age of 18 (if an accused, or a witness) may not be identified in the media.  

4.6 Internal security laws

The Defence Act, No 42 of 2002, gives the State President the power to make regulations censoring information when a State of National Defence has been declared (Section 91(2)(h)). Section 89 of the Act specifies that a State of National Defence can be declared if South Africa is, amongst other things, threatened by war or is being invaded, or under armed or cyber attack. 

Section 82 of the Act enables the Minister of Defence to make regulations outlining the classification of information, areas or facilities, whilst Section 83 states that such information may only be made public after 20 years have lapsed “since the year the record came into existence”. The Act emphasises however that this is subject to the Promotion of Access to Information Act (PAIA) (see above).

The Defence Act states that anyone responsible for publishing information which has been classified in terms of the Act, may be imprisoned for up to five years. Again this is made subject to the PAIA.

The Protection of Information Act, No 84 of 1982, replaced the Official Secrets Act, No 16 of 1956. This legislation gives the President the power to declare an area a “prohibited area” (including military areas and places where ammunition is kept). Journalists are restricted from entering prohibited areas, and the Act prohibits the disclosure or receipt of official secrets such as codes, or passwords or documents. 

4.7 Equality 

The Promotion of Equality and Prevention of Unfair Discrimination Act (2000) introduces measures which extend the hate speech limitation clauses in the Constitution to include harmful and hurtful speech. 

Section 10 of the Act prohibits not only speech which is advocating hatred and constitutes incitement to cause harm (as stipulated in the Bill of Rights), but also bars publication of material that “could reasonably be construed to demonstrate a clear intention to … be hurtful, be harmful … promote or propagate hatred”.

Specialised Equality Courts (headed by a magistrate) are being established around the country in terms of the law, and it is difficult to assess whether such clauses have been used against media as cases are not consistently reported.

The South African Human Rights Commission (SAHRC) has however in a draft document on freedom of expression suggested that the identified clauses are contrary to the constitution:

There is a view that holds that the test for admissible freedom of expression should be that of ‘hurt’ or ‘hurtfulness’ in line with the proposal found in the Equality Act. It holds that if a person feels hurt as a result of utterances, those utterances should be disallowed. It is submitted that a test based on hurt, besides not according with the Constitutional provisions, may be far too subjective to make it justiciable. It would, however, have application and could be taken into account as an aspect to be weighed up during the limitation process in the Bill of Rights.

5. Case law and judgements

There have been few specific tests of the right to freedom of expression before the Constitutional Court since 1994 – particularly as relates to the media.  The Constitutional Court though has in several of its judgements highlighted the importance of the right to freedom of the media and freedom of expression. For example, in a case dealing with defamation law (which will be discussed in detail in subsequent sub-chapters), the Court found the following:

The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society … The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their responsibility … The media thus rely on freedom of expression and must foster it … Furthermore the media are important agents in ensuring that government is open, responsive and accountable … The manner in which the media carry out their constitutional mandate will have a significant impact on the development of our democratic society. If the media are scrupulous and reliable … they will invigorate and strengthen our fledgling democracy. If they vacillate … the constitutional goals will be imperilled.

5.1 Dignity and reputation versus freedom of expression

Whilst high courts have set major precedents in law endorsing the principle of freedom of expression in defamation cases by public figures, several interdicts against publishing houses have been temporarily won in the lower courts (in contradiction sometimes of precedents).  This has highlighted a divergence of views in the judiciary regarding the weight to be given to the different rights in the Constitution – and has led to calls for high-level discussions between media organisations and the judiciary.  

Pre-publication gagging 

In a number of instances over recent years individuals and organisations have lodged urgent interdicts in a bid to stop newspapers from publishing information. The Mail & Guardian newspaper seems to have borne the brunt of these – and between May 2006 and July 2007 six interdicts were lodged against the paper in the Johannesburg High Court. Only two of these interdicts, according to the Freedom of Expression Institute (FXI), were temporarily successful, but the organisation has pointed out that even the threat of a gagging order could have a chilling effect on freedom of expression:

The constant interdict pressure and high litigation costs contribute to a sense that the more involved and time-consuming enterprise of investigative reporting about matters of great public importance is especially risky.   

A few examples of interdicts sought in recent years are outlined below:

• February 2006: The Jamiat-ul Ulama won an interdict against a range of Sunday newspapers to prevent them from publishing a controversial Danish cartoon depicting the Prophet Mohammed.

• November 2006: The National Directorate of Public Prosecutions (NDPP) lodged an application to prevent the Mail & Guardian from publishing articles on the relationship between the National Commissioner of Police, and a person accused of murdering a prominent businessman. The Johannesburg High Court dismissed the application with costs. 

• May 2007: The Minister of Transport applied for an interdict to stop Beeld newspaper from revealing potential security problems with a new computer based traffic information system sourced from a leaked auditor general report. The case was dismissed with costs. 

• July 2007: Then SABC legal head, Mafika Sihlali, lodged an interdict against the Mail & Guardian newspaper to block publication of allegations against him outlined in an internal audit report. Sihlali initially won a temporary interdict, but failed to lodge papers or appear at the final court hearing two weeks later. The final application was dismissed with costs. The judge stated that the “public has the right to know what is happening in institutions where the taxpayer’s money is spent”.

• February 2008: Singer Jurie Els succeeded in obtaining an urgent interdict against Media24, to prevent publication of an article implicating him in child molestation (he was later cleared of all charges). The publishers expressed surprise at the interdict, in view of an earlier Supreme Court of Appeal (SCA) ruling, which – in their interpretation - made it extremely difficult for an interim interdict to succeed as complainants had access to the post-publication remedy of suing for defamation. 

The case on which the SCA ruled in May 2007 arose after the Directorate of Public Prosecutions (DPP) lodged an urgent interdict against Midi TV (e.tv) in 2005 to stop the channel from broadcasting a documentary about a murder case still being considered by the courts. The Cape Town High Court initially granted the interdict, and although after viewing the documentary the DPP dropped its objections, e.tv proceeded with an appeal in order to set case law in such instances.

The appeal court decided that the interdict should not have been granted as it interfered with freedom of expression and the Directorate had not shown that there was a real risk that substantial prejudice would result if the broadcast went ahead – setting a new benchmark and placing the onus on any plaintiff to prove the risk of substantial prejudice. 

Two media lawyers, Dario Milo and Pamela Stein from Webber, Wentzel, Bowen, writing about this judgement said:

The Supreme Court of Appeal’s decision is, in our view, one of the most significant decisions in favour of press freedom … (W)here attempts are made to interdict the media from publishing defamatory articles, but it has yet to be established that the defamation is unlawful …, an anticipatory ban on publication will seldom be necessary … In other words, if the newspaper asserts that it will argue truth or reasonableness or fair comment …, courts should adopt the principle, “publish and be damned”, rather than ordering that the article be interdicted.

Defamation

Prior to the adoption of the Constitution and a landmark ruling in terms of the principles of freedom of expression contained therein in 1998, newspapers and broadcasters were hampered by what is known as the “absolute liability rule” in defamation cases. This meant that the media were regarded as absolutely liable for any defamation unless they could prove the story was both true and in the public interest. This however changed with what is called the “Bogoshi judgement” (National Media Ltd and others vs Bogoshi). 

The Supreme Court of Appeal in this case ruled that a newspaper only has to show that it took “reasonable precautions” to establish the accuracy of the report and that the report “is in the public interest”, to defend itself against a defamation claim.  In considering the reasonableness of the publication a court, it was ruled, should take into account “the nature, extent and tone of the allegations” and “greater latitude” will usually be allowed “in respect of political discussion”.

This developed common law significantly and has allowed for new defences to defamation suits.

In 2002, the publishers of the Sunday World, which was being sued for defamation, asked for the Constitutional Court to further develop case law. 

In Khumalo and others vs Holomisa, the newspaper argued that common law violated the right to freedom of expression as it did not require a plaintiff to prove that a report was false. 

Judge Kate O’Regan for the Constitutional Court dismissed this, emphasising that the right to freedom of expression, whilst a fundamental right, is “not a paramount value” and must be considered in the context of other rights such as equality, dignity and freedom.  She said that the Bogoshi judgement had recognised that it might be difficult for a range of reasons for a newspaper to prove the truth of any allegations. Plaintiffs, she found, were similarly challenged and therefore should not have to prove the falsity of statements.  

5.2 Privacy versus freedom of expression

Section 14 of the Constitution states that every person has the right to privacy. 

The courts have made several judgements relating to the rights of privacy and freedom of expression. In 2007, the Sunday Times published allegations, based on medical records, that then Minister of Health Manto Tshabalala-Msimang had drunk excessive amounts of alcohol during a hospital visit.  The Minister (together with the hospital where she was admitted) challenged the matter in court. 

Although the judge awarded costs to the Minister, and ordered that the records be returned as they are highly confidential, the judgement itself raised interesting issues regarding press freedom.

The judge dismissed both an application to restrain the newspaper from publishing any further stories based on information obtained from the records and a request that the Sunday Times destroy any records apart from the medical record. 

Judge Jajbhay ruled:

Freedom of the press does not mean that the press is free to ruin a reputation or break a confidence, or to pollute the cause of justice or to do anything that is unlawful. However freedom of the press does mean that there should be no censorship. No unreasonable restraint should be placed on the press as to what they should publish.

… the information, although unlawfully obtained, went beyond being simply interesting to the public, there was in fact a pressing need for the public to be informed about the information contained in the medical records … (T)he publication of the …  information was capable of contributing to a debate in our democratic society relating to a politician in the exercise of her functions …

The judge emphasised that the privacy rights of the Minister are “diluted” as the newspaper had asserted that the information in the medical records could be verified by reliable sources (including medical staff and other hospital patients).

5.3 Hate speech

The Human Rights Commission, which is not a court of law but is charged with investigating and finding appropriate remedies for breaches of constitutional rights, has looked at a number of cases of what was perceived as hate speech and public apologies have been demanded (and made) by those responsible. Occasionally the Commission also been requested to adjudicate such complaints against the media. In April 2008, for example, it decided not to pursue complaints about a column in the Sunday Times, alleged to have been racist, after both the columnist and the newspaper apologised for causing offence. The Commission stated that the apologies removed the need for further investigation.

6. Conclusions and recommendations

There is media freedom in South Africa, but …

That essentially sums up the position in the country. As Professor Guy Berger from Rhodes University wrote in his study on media legislation, “South African media operate with substantial impunity in a free environment … however, there is a certain amount of harassment.”

The concern is that the number of ‘buts’ might rise – though this would not happen silently given the vocal and vibrant media and civil society sector in South Africa. 

The overall legal framework guarantees the right of all South Africans to freedom of expression.  The Constitution promotes this right (in line with international and regional protocols), and the Constitutional Court has shown sensitivity in its balancing of freedom of expression against other individual rights. The Constitution has been used to develop common law and interpret apartheid-era laws that unfortunately remain on the statute books. In addition, the President has referred laws back to the legislature over concerns that they might violate the Bill of Rights – further emphasising the weight of the Constitution.

Some courts have made insightful judgements when balancing the different rights in the Constitution against freedom of expression (and certainly are not swayed by political expediency as evidenced by the ruling in the case outlined above dealing with the Sunday Times’ story on the Minister of Health). 

However, this is not necessarily the norm and there are apparently divergent views in the judiciary on the value of freedom of expression versus other rights (as indicated by seemingly conflicting judgements identified above and the granting of gagging orders by some lower courts). Whilst the media can successfully challenge these (and have done so), the threat of costly and time-consuming court processes undoubtedly has a chilling effect on their work and their willingness to tackle controversial subjects.

Freedom of the media and information is potentially hampered by a number of other factors: There is a tendency among public figures (including some politicians) to respond to opportunities to use their right of reply with an interdict to attempt to stop publication. There is also a seeming lack of awareness about the implications of the Bill of Rights and the law amongst officials such as police and security guards who, according to a range of reports, have barred journalists from certain areas at their own discretion. 

On a more general level: The fact that a huge number of South Africans have only limited access to a diverse range of information and opinion in the language of their choice (see Chapter 1) also serves to diminish their chance of exercising one of their important constitutional rights.  

The debate about the balancing of freedom of expression against other rights has been intensifying – with both the ruling party and its new president, Jacob Zuma, being amongst those that are highly critical of the media. However, since assuming office, Zuma’s administration has been at pains to adopt a more conciliatory tone in relation to the media. At the same time, though, it has introduced some pieces of legislation such as the Film and Publications Amendment Bill, the Protection of Personal Information Bill and the Protection from Harassment Bill which, if passed, could hamper the work of investigative journalists. While the Film and Publication Amendment Act is an improvement on the initial draft, it still requires newspapers not registered with the Press Ombudsman, as well as non-media related publishers, to submit their work for pre-publication classification and possible censorship. With respect to the Protection from Harassment Bill, the South African National Editor's Forum has voiced its objections, arguing that the bill may hamper the newsgathering role of journalists because the definition of harassment is so wide that it could include the conduct of journalists seeking information about people in the news. 

Recommendations

How can the hard-fought for legal rights to freedom of expression be entrenched and advanced?  These are some of the suggestions (in no order of priority) that flow from what has been outlined in this chapter:

• It is essential that there are ongoing awareness campaigns about the importance of freedom of expression and the value of robust debate. The media and human rights organisations need to themselves initiate and be part of such campaigns in order to increase understanding amongst all South Africans that freedom of expression is critical for all citizens - and is not only the purview of the media itself.  

• Campaigns for the review of all apartheid-era laws should be intensified.

• At the same time, the media and civil society need to continue to scrutinise proposed new laws and/or amendments to existing laws and engage with the legislative process to ensure that proposed provisions do not negatively impact on freedom of expression. 

• Discussion and debate between the judiciary and editors needs to continue to assist in limiting conflicting judgements.

• The review mechanisms in the Promotion of Access to Information Act need to be strengthened to allow for efficient and effective implementation – in line with suggestions from the Open Democracy Advice Centre outlined above.

• More funding for the MDDA is essential. At the same time, the MDDA Act should be strengthened to allow the Agency to address limits to media diversity generally – and not only focus on non-profit and small commercial media organisations (thus barring it from assisting new bigger players to enter the market). 

• The Competition Commission should be formally requested to investigate allegations of unfair competition in the press sector. The MDDA and the Competition Commission should work together closely to increase awareness of competition law and to promote and increase media diversity. 

• The press, together with all stakeholders, needs to review its self-regulatory structures and codes to, for example, consider equipping such structures with powers to impose fines for violations of the code. Consideration should also be given to involving the public and other stakeholders in contributing to the Code of Standards. This could ward off potential threats to independent regulation of the press as it would ensure that the public feels involved in determining media ethics. The Press Council should also intensify public awareness campaigns to ensure readers and audiences know about the Code and mechanisms for lodging complaints.

• In order to promote black economic empowerment in the press, the print media industry should urgently consider drafting its own media charter in terms of the sectoral Broad-based Black Economic Empowerment Charter, following the example of the broadcasting, advertising and the IT industry.