McBride defamation judgment is a step backward for press freedom

March 2, 2010

Harvey Tyson, a former editor of The Star, memorably remarked that editing a newspaper during the dark days of the emergency legislation was like “walking blindfold through a minefield”. The job may be slightly easier these days, but the Supreme Court of Appeal’s judgment in Robert McBride’s defamation case against the Citizen illustrates that some of those landmines are still out there. News media had better tread carefully.

McBride, the former Ekurhuleni police chief, won R150 000 in damages, plus most of his legal costs, from the Citizen for calling him a murderer, a criminal and unfit to be appointed as police chief. The ruling sets off alarm bells for several reasons. For one, it is one of the largest-ever damages awards for defamation in South Africa, and together with legal costs would prove crippling to many a news organisation (if not for the Citizen). It is sure to have a chilling effect on future news reporting and commentary. Secondly, in rejecting the Citizen’s appeal against a High Court ruling, the SCA in effect ruled that it is defamatory to refer negatively to the past actions of someone who has been granted amnesty for those actions by the Truth and Reconciliation Commission. That could make it very difficult to report and comment on the activities of people who were involved in human rights abuses during apartheid, and received amnesty.

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No Mr President, it is not unconstitutional to criticise your culture

February 23, 2010

President Zuma has called for a national discussion about our “moral code” as a nation because, he says, it is unconstitutional to judge others by the standards of one’s own culture.

“Each one of us must be respected,” Zuma said, according to News24.com. “That’s what our Constitution says. No matter how you feel, some of us have very strong feelings about some of the things, but we respect the Constitution, no matter how we feel… It is about redefinition of ourselves. Who are we? What are our values?

“For, there is no standard that is agreed. The Constitution says there are diversities. It recognises this. And that we should respect cultures of others.

“No-one has a right, therefore, to use his or her own to judge others. It’s unconstitutional if you do so.”

In one sense, I agree with the president. There is a tendency among some South African and foreign observers to judge African behaviour by Western standards, and to belittle some apsects of African culture. We should respect cultural differences. But when Mr Zuma argues that it is unconstutional per se to criticise the cultural practices of others, he is wrong (and I suspect the fact that his own so-called cultural practices have come in for severe criticism has something to do with his this).

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Improving journalists’ understanding of international criminal justice

February 22, 2010

Should former President Thabo Mbeki be charged with genocide for denying HIV-Aids sufferers access to anti-retroviral drugs?

When Young Communist League leader Buti Manamela made such a call in November last year, it led to weeks of debate in the media, much if it, unfortunately, ill-informed. If journalists understood the law relating to genocide, and the international criminal justice process involved, we would have been spared an ultimately distracting debate: the real question is around accountability for political actions, but that got lost in the emotive war-of-words ignited by the term “genocide”.

Any journalist who looked at the definition of the crime of genocide, as stated in the Rome Statute, which established the International Criminal Court, would have realised immediately that Mbeki’s HIV-Aids policies could not constitute genocide, however much we want to hold him (and his cabinet colleagues) accountable (see below). But how many South African journalists had heard of the Rome Statute, let alone bothered to look it up?

A group of journalists, academics and activists met in Salzburg last week to draft a model curriculum for reporting on international criminal justice issues. The project, supported by the Salzburg Global Seminar, the Open Society Initiative and the International Center for Media and the Public Agenda at the University of Maryland, is aimed at giving journalism students a better understanding of international criminal law, and to help them identify stories and analyze events.

The fruits of their labours – a draft curriculum outline – is available on the group’s website, together with other useful resources. The curriculum is flexible – it can be adapted and fleshed out for different countries and levels of study. Participant academics will devise detailed syllabi and teaching resources, which may be shared on the website and, perhaps, a follow-up meeting later this year.

Genocide, by the way, is defined in the Rome Statute, Article 6, as:

“…any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the group;
c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d) Imposing measures intended to prevent births within the group;
e) Forcibly transferring children of the group to another group.”


Why President Zuma’s love child is a public issue

February 2, 2010

President Jacob Zuma, married to four wives, has an adulterous affair (not his first), out of which a child is born. Is this a “personal matter”, as the the ANC and the presidency insist, or is it a matter of public interest on which the media have a right – indeed, a duty – to report?

Our common law recognises the public interest as a justification for invasion of privacy, but the concept is notoriously difficult to define.  A distinction is often made between the public interest and that which merely titillates the interest of the public: the public interest is NOT the same as “that which interests the public”. A public interest implies that the public can derive some meaningful benefit from the information published. As a famous jurist stated in an oft-quoted judgment: “Whenever a matter is such as to affect people at large so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them and others; then it is a matter of public interest.”

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E-tv manufactured, not reported, the news in World Cup crime story

January 19, 2010

Back in the apartheid era, it was not uncommon for journalists to be subpoenaed to reveal the identity of confidential sources. This was usually done at the behest of the security police, who wanted to get their hands on the identities and whereabouts of political activists. Several journalists, to their eternal credit, served time in jail for refusing to comply with a dreaded “Section 205” subpoena. Since 1994, however, “Section 205” subpoenas against journalists – so called because they are served in terms of Section 205 of the Criminal Procedure Act – have become rare. It came as a surprise, therefore, when two e-tv journalists were subpoenaed this week to reveal the identity of two thugs they had interviewed for a programme on crime and the Soccer World Cup.

According to Business Day, reporter Mpho Lakaje’s story, aired last Friday, featured interviews with two criminals. One said he would rob tourists during the World Cup. Another said he would shoot his way out of a standoff with police if he felt his life was in danger. Lakaje and news editor Ben Said have been subpoenaed to appear in court next week unless they voluntarily surrender the identity and contact details of the interviewees, original footage, and details regarding the firearms featured in the story.

Legally, e-tv doesn’t have a leg to stand on. Section 205 gives a judge or magistrate, upon the request of the prosecuting authority, the power to order any person who may have Read the rest of this entry »


Fewer people are dying in South Africa. Why is that not front page news?

November 16, 2009

The media are missing the real story behind South Africa’s death statistics.

The Sunday Times reported yesterday that the Health Ministry was rechecking its figures after announcing that South Africa suffered a death toll last year of 756 000, a third more than the previous year. The sudden increase in deaths was, predictably, attributed to Aids.

Academics and scientists have since questioned the figure, saying such surge in deaths – equivalent to the destruction wreaked by the atomic bomb in Hiroshima – was highly unlikely. Someone, it seems, may have transposed the 5 and the 7. Kudos to the Sunday Times for exposing the error.

But buried deep inside the Sunday Times’ story are figures which, to my mind, represent a much more important story: South Africa’s death rate is actually declining. According to Read the rest of this entry »


The rand defies gravity

November 9, 2009

After weakening briefly in the wake of the mid-term budget speech, the rand as back to R7.44 per dollar, a rate at which our economy is going to find it very difficult to stage a strong recovery. Lower interest rates made no difference. Relaxing exchange controls didn’t bring about the expected rand-weakening capital outflows. Not even a raft of idiotic policy pronoucements by the likes of Julius Malema, coupled with turf battles between the left and right over who controls economic policy, have dented the currency. What to do now?

Short of firing Pravin Gorhan, making Malema minister of finance, and nationalising the mines and banks, the only answer is: more decisive intervention in the foreign exchange markets by the Reserve Bank. Buy, buy, buy dollars.