South Africa’s judicial branch has been favourable towards media freedom, if previous judgments from recent court cases involving the media are anything to go by; however, there is reason to be concerned about South Africa’s legislative branch in this regard, says law firm Webber Wentzel partner Dario Milo.

Important judicial outcomes relating to media freedom have been made in various cases, such as Media 24 and Others v National Prosecuting Authority (NPA) and Others, the Mail & Guardian (M&G) v the President and Others and M&G and Others v Judicial Service Commission (JSC), Milo explains.

In the case of Media 24 and Others v NPA and Others, media house Media 24, print media house Independent Newspapers, the South African National Editors’ Forum and television station e.tv brought an application seeking authorisation for the public and media to attend the Eugene Terre’Blanche murder trial.

The NPA was initially against opening the trial to the public and media, as one of the accused is a minor, whose identity needs to be protected. The judge ruled that 14 journalists and four members of the Terre’Blanche family could attend the proceedings in a closed-circuit television room.

Milo believes that the outcome of this case reflects a good balance between media freedom and the rights of a minor.

Meanwhile, in the case of the M&G v the President and Others, the M&G made an appeal for access to information to a report commissioned by former President Thabo Mbeki, by Deputy Chief Justice Dikgang Moseneke and Justice Sisi Khampepe who were sent to Zimbabwe to investigate constitutional and legal challenges in the build-up to the 2002 elections.

The case reached the Supreme Court of Appeal last year, where it was found that there was no evidential basis for the refusal of the report to the public. The President then appealed to the Constitutional Court and judgment been reserved.

Further, in the case of the M&G and Others v JSC, the M&G, media houses Independent Newspapers and Avusa made an urgent application for an order reviewing, setting aside and substituting the decision taken by the JSC to conduct a preliminary investigation into the complaint against Cape Judge President John Hlope behind closed doors.

The court determined that the media’s right of access to the formal enquiry was emphasised by the judgement of Judge Nigel Willis.

Milo notes that an important reference was made in a previous case to South African Broadcasting Corporation v National Director of Public Prosecutions and Others, in which the court held that it was not the rights of the national broadcaster that were the central issue but the rights of the public to be informed and educated.

It continued that the need for public information and awareness flows from the nature of our democracy. Public participation on a continuous basis provides vitality to a democracy.

A vibrant and independent media encourages citizens to be actively involved in public affairs, to identify themselves with public institutions and to derive the benefits that flow from living in a con- stitutional democracy.

Access to information and the facilitation of learning and understanding are essential for meaningful involvement of ordinary citizens in public life.

However, Milo is concerned that the right of South African citizens to be informed on issues concerning public affairs is being threatened by legislation, such as the Protection of Information Bill and the proposed Media Appeals Tribunal.

The Protection of Information Bill will allow State institutions to classify inform-ation to keep it out of the public domain. This, Milo says, will limit media freedom, where the consequences of publishing classified information could involve a five-to ten-year jail sentence.

“Further, this will limit whistle blowers of any kind, whether it be a trade union, community leader, religious leader or concerned citizen, which has the potential to chill public discourse,” Milo notes.

The proposed Media Appeals Tribunal also limits press freedom as it calls for a statutory media appeals tribunal to adjudicate complaints by citizens about the media, which would remove the independence of the media.

Milo believes that further threats to media freedom include abuse by some police officials, who use intimidation to deter journalists from taking pictures or reporting on certain issues.

“There have been some cases where photographers have been arrested, as well as the high-profile arrest of investigative journalist Mzilikazi wa Afrika. Many journalists believe they are being unlawfully monitored by rogue forces,” Milo explains.

“Also, many public officials have a negative perception of the media and there is a reluctance to engage with the media; however, a symbiotic relationship needs to be established for the benefit of all parties concerned,” Milo concludes.