South Africa’s Protection of Information Bill

NOTE: - This post was first published in October 2010. It has been fully vindicated on account of what has now occurred as regards the Public Protector and journalist Ferial Haffagee.

There are understandably serious concerns about the Protection of Information Bill Government is seeking to introduce. When a government seeks to interfere with media freedom it is nearly always for bad reasons; very bad reasons.

However, with respect, there is an unarguable point in one respect.

Having been involved in law for over 40 years, including as an advocate and as a judge, I have not the slightest doubt that this aspect needs urgent changing/tweaking.

At present the media can, and does, publish defamatory articles/reports about a citizen without having first afforded the citizen any opportunity to deal with the allegation(s). When the report later turns out to wholly or partly untrue, it is too late. The damage has been irretrievably done. An apology, even an award of monetary damages, does not retrieve/redress the damage done.

This must be changed to bring things in line with the common law.

You see it is a fundamental rule of such law, substantive and procedural, that no Court can condemn a person, including making adverse finds about the person, without having first ensured that the person has had full opportunity to both face his/her accuser and deal with the accusations.

Now if the courts cannot do it why should the media be allowed to? It is a no brainer.

In my book, “The Other –without fear, favour or prejudice” (available on-line) I give a classic example of the problem in relating a case in which I acted for the late minister Edson Jonasi Zvobgo in Zimbabwe.

I also refer to an instance where City Press and Elias Maluleke purposefully published a scurrilous article about my wife and I, implying that we were criminals who had obtained residence in South Africa illegally.  When we produced written proof of the falsity both declined to retract or even apologize. Right there our good name and reputation, built up over 50 years, was contemptuously put in jeopardy.

In our case, the false publication was in furtherance of a nefarious agenda, as a prelude to forcing me out of the Road Accident Fund on account of the fact that my interests were to reform the system to primarily benefit road crash victims and not the plethora of “service providers”.

The same thing appears to have occurred recently as regards Geraldine Pillay, a great athlete and wonderful human being. Here again, innocuous facts were dredged, tailored and slanted to do damage in furtherance of an ulterior agenda, i.e., to prevent her election to the Athletics Board.

Now (June 2011) we have this scourge unfolding again as regards the Public Protector (Advocate Thuli Madonsela) who, like us, first hears of seriously damaging allegations impugning her personal and functional integrity when these are head lined in the Star newspaper. The paper published a headline article crafted to give readers the impression that she was about to be arrested for corruption. To date, it has provided not a shred of evidence that the police had made a decision to arrest her and/or that they had a basis for doing so.

Eric Miyeni

Yet again (July 2011) we now have and article penned by senior journalist Eric Miyeni City Press reading –

"Haffajee does it for white masters. 

JULIUS Malema must never answer a Ferial Haffajee. Who the devil is she anyway if not a black snake in the grass, deployed by white capital to sow discord among blacks?

In the 80s she'd probably have had a burning tyre around her neck. We know where she comes from. She was groomed by The Mail & Guardian, the same newspaper that produces the Jacob Dlaminis of this world, black people who say it was nice to live in the townships under apartheid.

And today we must believe that Haffajee's utter hatred of ANC politicians is based on journalistic integrity. Quadruple crap. I am more inclined to think that people like Haffajee, who edits City Press, are most likely to be the kind that wakes up in the morning, sees their black faces in the mirror only to feel a wave of self-hatred rising up to nauseate them."

The above article is highly injurious to Ferial Haffagee on any number of counts, unlawful and puts her at personal risk. In the context of South African politics, where people have very recently been “necklaced” in the Eastern Cape. The article could not be more damaging.

In law injury is injury; whether to the person or the personality. Injury to a person is criminalized. Injury to personality should, at least be, prohibited.

The law must be changed so as to ensure that no report about a person that may impugn his/her name and/or reputation may be published unless the same test that binds the courts has been satisfied. In addition, the person’s response must enjoy equal exposure as the report itself.

The indicated format is perfectly simple. Before the media can publish information that is defamatory it must run the information past the affected person and then publish his/her response with the same prominence that the damaging report is given.

Failure should, inter alia, incur summary judgment in punitive monetary damages in favour of the victim. This model is quite easy to draft.

“After the fact” remedies, like “strengthening the Ombudsman’s office’ is not the answer. Prevention must be the objective.

The change is indicated on a human rights test. It is jurisprudentially unarguable. It is as simple as that.