Sanef comments on M&G judgement

This follows, what it describes as a 'ground-breaking (court) judgment for media freedom', that provides journalists with a substantial legal safeguard for the protection of their confidential sources of information. In the South Gauteng High Court, Tsoka declared that if freedom of the press is fundamental to democracy, "it is essential that in carrying out this public duty for the public good, the identity of their sources should not be revealed."

"This essential and critical role of the media, which is more pronounced in our nascent democracy, founded on openness, where corruption has become cancerous, needs to be fostered rather than denuded,'' said Tsoka.

Sanef believes this judgment, which echoes a ruling by the Grand Chamber of the European Court of Human Rights on the protection of journalistic confidential sources in 2010 will enable investigative reporters to be more effective in uncovering corruption, abuse of power and malpractice in both the public and private sectors, as they will now be able to protect their confidential sources of information with greater confidence.

Bosasa vs M&G

The judgment related to a defamation action brought by facilities management company Bosasa against the Mail and Guardian and its investigative reporter Adrian Basson after it published an article in 2009 which described "the corrupt relationship between Bosasa and the department of correctional services'' that resulted in the company winning a number of multimillion-rand tenders from the department.

After the Mail and Guardian had refused to supply the names of the informants it relied on in compiling the article, Bosasa went to court to demand that the names be revealed, claiming confidential sources could be used to promote hidden agendas, disseminate propaganda or disguise lazy reporting.

It is said to be significant that the judge rejected the arguments of Bosasa's lawyer, Jeremy Gauntlet, that the media could not ask for "press exceptionalism" and claim absolute privilege to protect the identity of its sources. Gauntlett added, "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."

The rejection of the views adds weight to the finding that journalists' confidential sources must be protected. Tsoka added that in this case the identity of the sources was irrelevant and that Bosasa should deal with the correctness of the claims in the article and not the sources' identity.

Requirement of the Press Code

It is essential that journalists protect the identity of sources - it is a requirement of the Press Code and if they did not do so, investigative reporting would be seriously inhibited if not stifled. This judgment will reportedly remove the fears over this issue that have always dogged journalists who have before them the example of the many journalists who have been jailed for defending that principle.

According to media lawyer Dario Milo, "Tsoka has ensured that journalists who in good faith and for good cause promise not to reveal the identity of their sources will receive the court's assistance in keeping that promise."