It is fitting that last week, as South Africans were poised to celebrate Freedom Day, the day of the country’s first democratic elections, South Gauteng High Court handed down a judgment which has profound implications for media freedom.  For the first time in South African constitutional democracy, in an interlocutory application for further discovery and particulars in a defamation case, Bosasa v Mail & Guardian ([2012] ZAGPJHC 71) a court has unequivocally endorsed the importance to the media of protecting the confidentiality of their sources.

It is surprising that it has taken the South African courts this long to pronounce directly upon the issue.  After all, there is a plethora of international media law jurisprudence which accepts source protection as a fundamental principle of media freedom.  For example, in the seminal decision of the European Court of Human Rights, Goodwin v UK, the court held that

protection of journalistic sources is one of the basic conditions for press freedom … Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest.

But since the South African Constitution came into force, our courts have not been directly confronted with the issue of source protection.  The issue was not directly before the court in Munusamy v Hefer in 2003, where then journalist Ranjeni Munusamy was called to give evidence before the Hefer Commission of enquiry into whether the former national director of public prosecutions, Bulelani Ngcuka, was a spy for the apartheid regime.  The High Court rejected Munusamy’s claim that her right to press freedom meant that she could only be called to give evidence as a last resort, after all other witnesses had been called.

And in 2009, in SABC v Avusa, where Judge Nigel Willis rejected the application by the SABC for the return of a copy of an internal audit report obtained by The Sunday Times from a confidential source, the judge, while commenting favourably on the importance of source protection to media freedom, specifically refrained from setting a precedent in this regard.

So Bosasa v Mail & Guardian is indeed ground-breaking.  The factual context is a defamation claim by the company Bosasa against the Mail & Guardian and its former journalist, Adriaan Basson, concerning reportage about the relationship between Bosasa and the Department of Correctional Services.  The merits of the claim have yet to be decided, but in the pre-– trial process, Mail & Guardian filed documents and submitted information with the identity of its confidential sources for the articles redacted.  Bosasa then brought an application to compel the delivery of the unredacted documents and information, which would have required the newspaper to reveal the identity of their sources.

Bosasa argued that it was entitled to full discovery under the rules of court (which is an aspect of its right to a fair trial), while the Mail & Guardian contended that it has a valid objection to revealing the identity of its sources.  This depended on whether the newspaper had a constitutional right to protect its sources.

The heart of Judge Tsoka’s judgment is to be found in this powerful passage, which will be quoted extensively in cases to come:

It is apparent that journalists, subject to certain limitations, are not expected to reveal the identity of their sources. If indeed freedom of the press is fundamental and [a] sine qua non for democracy, it is essential that in carrying out this public duty for the public good, the identity of their sources should not be revealed, particularly, when the information so revealed, would not have been publicly known.  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“. [38]

One point which Judge Tsoka makes plain is that journalists are not entitled to a blanket journalistic privilege entitling them to always refuse to reveal their sources.  Nor did the Mail & Guardian contend for such a blanket rule, which would be clearly indefensible under our Constitution.  Each case will be decided on its own facts.  On the facts of the Bosasa case, the judge made mention of the fact that it was a government department that awarded the tender in question to Bosasa, and that

in dealing with the public, the department is expected to act openly. … The sources in the employment of [Bosasa], believing that the department acted in breach of that obligation, supplied the [newspaper] with the information on which the article is based.  … This, in my view, is a laudable civic duty expected of every citizen in a democratic society founded on openness and fairness“.

The media could not have asked for a more resounding vindication of their right to protect confidential sources.  This long overdue recognition, however, should not absolve journalists of the importance of motivating their decisions to grant confidentiality to a source. But having granted such confidentiality in good faith and in the context of reportage of public interest, journalists can now expect courts to come to their assistance where demands are made, in either civil or criminal cases, for their sources to be revealed.

Pamela Stein and Dario Milo. Stein and Milo are partners at Webber Wentzel attorneys and are writing A Practical Guide to Media Law.  Follow Dario Milo on twitter @dariomilo.

This piece was originally published in the “Mail and Guardian” and is reproduced with permission and thanks