The Mail&Guardian (M&G) is in court this week to protect its sources in a story that alleged large-scale corruption and to fight a defamation case brought against it and a former employee by facilities management company Bosasa.
The case calls on the court to balance the right of discovery — which enables parties in a civil case to gather pertinent information — with the right to protect sources. It is the first case of this kind under the new constitution.
Bosasa has been the recipient of a number of multi-million rand tenders since 2006 and in 2009, the M&G published a series of stories, which alleged it had gained exclusive access to tender documents before they were publically advertised.
The company is asking for an order to have the M&G remove an article from its website and for an apology from the newspaper.
The article, written on May 22 2009 by investigative journalist Adriaan Basson, states Bosasa was engaged in a corrupt practice connected to the department of correctional services.
It is also asking for an order to compel the M&G to reveal its sources for a series of stories on the company.
As part of pre-trial proceedings, Bosasa asked Basson and the M&G to hand over information it deemed pertinent to the case. This forms part of discovery procedures, whereby both parties ask for additional information with which to build their case.
However, Bosasa was not satisfied with the information the M&G provided, which included sections that had been blacked out to protect the identity of its sources.
Bosasa is asking that the M&G turn over notes and recordings of interviews with sources, source documentation, unpublished drafts of stories relating to Bosasa, and internal emails between Basson, colleagues who assisted with the stories and their editors.
The newspaper has declined to provide some of the information sought, including unredacted versions of some documents, some notes from interviews with sources, and internal communications.
In its heads of argument, Bosasa said confidential sources can be used to promote hidden agendas, disseminate propaganda or disguise lazy reporting.
Jeremy Gauntlett, acting for Bosasa, said the media is asking for “Press exceptionalism” and that it could not simply flash its media card and claim an absolute privilege to protect the identity of its sources.
“None of us have an absolute right to information nor do the respondents (M&G and Basson) have absolute right to immunity of disclosure of information they’ve chosen to rely upon,” he said.
But Wim Trengove, acting for the M&G and Basson, said forcing journalists to reveal their sources would have a chilling effect on uncovering corruption. He said journalists internationally regard offers to protect a source’s identity as “sacrosanct”, not only as a matter of honour, but also because protecting of sources is so important to their trade.
“Valuable resources of information that come from high places would be very significantly diminished if journalists were not able to give sources the same assurances that policemen and detectives give their informants, that their identity will be protected,” said Trengove.
The harm caused would be to the public interest and would outweigh any commercial interest Bosasa may have in this case, he said.
The freedom of expression NGO Section 16 and the South African National Editors’ Forum (Sanef) have applied to be admitted to the proceedings as amicus curiae or friends of the court.
“Media should not be compelled.”
Kate Hofmeyr, representing Section 16 and Sanef, said the media should not be compelled to give up its sources at such an early stage as there was no guarantee that the case will proceed to trial.
“We all know what happens in the preparation to trial. There’s a prospect of settlement. There’s also a prospect of aspects of the matter being withdrawn. Those we don’t know with any certainty,” she said, adding that compelling the media to give up its sources would have a material, negative and chilling impact on the freeflow of information to the public.
M&G editor-in-chief Nic Dawes said the newspaper’s ability to protect the identity of confidential sources is crucial to its ability to expose corruption and other serious wrongdoing.
“That makes this case a particularly important test of the constitutional protections afforded the Press,” he said.
He added: “Bosasa’s attempt to discover who our sources are has nothing to do with their rights and everything to do with their efforts to staunch the flow of damaging news about the way they do business.”