There are no reported cases of a public interest defence having been successfully raised and upheld under the Protection of Information Act 84 of 1982 or its predecessor. This is according to Brigit Rubinstein, Director in the Dispute Resolution practice at Cliffe Dekker Hofmeyr business law firm.

“During the apartheid era, there were one or two cases where journalists or activists attempted to raise a “public interest” type defence to criminal charges instituted under prevailing security and information legislation. They did this by attempting to extend the criminal law notion of “private defence” (where a person’s allegedly criminal conduct is deemed lawful because they were acting in defence of themselves or a third party) to instances where information was accessed or released in the public interest.

“These cases were ultimately determined on other grounds but the defences were certainly not dismissed outright – in one case the then Chief Justice, Corbett CJ held as follows: “the defense had sufficient substance to merit…serious consideration…”

“Notwithstanding the very oppressive information and secrecy regime under the apartheid Government, the Courts still occasionally emphasized the importance of media freedom. In one case where a journalist was detained under the Public Security Act for refusing to disclose his source, the Court held in his favour and stated the following:

“The right of members of the public to criticize, even in scathing terms, the action of a Government …is one of the cornerstones of democracy.”

“Of course, these sorts of rulings were the exception,” Rubinstein adds.

For more information:
Brigit Rubinstein, Director, Dispute Resolution practice, Cliffe Dekker Hofmeyr,
Tel: +27 (0)21 481 6308 or email: brigit.rubinstein@dlacdh.com

Andrea Collocott, Head: Marketing, Cliffe Dekker Hofmeyr,
Tel: +27 (0)11 562 1281 or email: andrea.collocott@dlacdh.com

Angela Graham, Tel: 073 505 9012 yeahwrite@worldonline.co.za

Notes:
Cliffe Dekker Hofmeyr is one of the largest commercial law firms in South Africa with some 115 directors/partners and 250 qualified lawyers located at offices in Johannesburg and Cape Town.

Cliffe Dekker Hofmeyr lawyers specialise in services covering the complete spectrum of business legal needs in 11 core areas of practice. The firm also has dedicated sector-led teams consisting of lawyers with experience in a wide range of industries and the public sector.

Cliffe Dekker Hofmeyr is the South African member firm of DLA Piper Group, an alliance of legal practices, which includes firms with offices around the globe that are affiliated to members of the DLA Piper Practice but are not themselves members of it.

Cliffe Dekker Hofmeyr's Africa practice, in conjunction with DLA Piper Africa Group, is unrivalled in terms of pan-African legal services and geographical coverage.

DLA Piper is an international legal practice with over 3,500 lawyers located in 30 countries and 69 offices throughout Asia, Europe, the Middle East and the US.

For further information, please visit www.cliffedekkerhofmeyr.com