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Speeches |
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SPEECH DELIVERED BY MR A SOMAN, ON BEHALF OF THE SECRETARY FOR SAFETY AND SECURITY, MR
AZHAR CACHALIA, AT THE FREEDOM OF EXPRESSION INSTITUTE CONFERENCE, AT JOHANNESBURG, ON THE
6TH MARCH 1998
TOPIC : THE PROTECTION OF CONFIDENTIAL SOURCES OF INFORMATION WITH SPECIFIC REFERENCE TO SECTION 205 OF THE CRIMINAL PROCEDURE ACT
It is indeed a privilege and an honour to speak to you today at your important conference on the topic relating to the protection of confidential sources of information with specific reference to section 205 of the Criminal Procedure Act which is also referred to as the "reveal your sources" clause. I hope that my address to you will reflect the changing face of SA and will contribute positively to the debate surrounding this legal provision and that a workable solution could be mapped out between the press and the police.
For the purposes of this discussion, I think it would be appropriate for me to begin by referring to the subpoenas that were issued in August 1996 by a Cape Town Magistrate in terms of section 205 of the Criminal Procedure Act, and which required the journalists of three Cape Town newspapers, the local offices of the SABC and SAPA to provide information regarding activities carried out by members of People Against Gangsterism and Drugs ("PAGAD"). Broadly, the subpoenas required the journalists to give information which related to their knowledge about alleged offences of sedition, murder, attempted murder and public violence committed by members of PAGAD.
Not surprisingly, since the subpoenas were issued against members of the media, and the media itself, considerable anger and controversy was generated. Journalists were quick to point out that section 205 proceedings had been used in most cases by the apartheid regime against the news media to obtain information relating to political trials and related matters. Whether this was the intention of the journalists or not, the impression was created in the public mind that for the authorities to compel journalists to provide information for court proceedings was a draconian practice without international precedent. This is not the case.
Indeed, the comments made by Lord Denning, a prominent English judge in the case of AG vs Mulholland seems apposite here. In this judgement, he is reported to have said that
"It seems to me that journalists put the matter much too high. Let me not be mistaken. The judge will respect the confidences which each member of these honorable professions receives in the course of it, and will not direct him to answer unless, not only is it relevant, but also it is proper and, indeed, a necessary question in the course of justice to be put and answered."
In dealing with the vexed issue of section 205, the proper approach should, at the very least, be to balance the conflicting interests of journalists and those of the administration of justice.
As you may well know, section 205 is generally used to compel a person who refuses to make a statement to the police to furnish the required information under oath and to answer any questions put to him unless he/she has a "just excuse" for his refusal.
The important provision of section 189 of the Act is made applicable to section 205 proceedings. This section makes provision for a just excuse for a refusal or failure to answer any question or to produce any document that has been requested.
The crucial concept that emerges from an examination of section 205 read with section 189 is that of the "just excuse". In earlier cases, the courts had interpreted a just excuse as being a "legal excuse". By this they meant that a just excuse is one where one could raise some form of legal privilege recognised in terms of the law already, eg. self-incrimination, the right of spouses not to give evidence against one another, and that of the legal practitioner.
However in the leading case of Attorney-General, Transvaal v Kader, 1991 (4) SA 727 (A), the words "just excuse" were interpreted as having a wider connotation than excuses arising from rules of privilege, admissibility and compellability. The court accepted the appellant’s excuse for not testifying on the grounds that he feared he would be unable to withstand the stress of the court proceedings and that he would be mentally scarred for life, as well as be ostracised by his community. Although the court did not define which circumstances could base a just excuse, the term "humanly intolerable" was coined to denote such circumstances.
What is clear in our law is that the journalists’ plea that professional ethics prevent them from disclosing their sources in respect of any alleged offence is not a just excuse. (See State v Pogrund, 1961 (3) SA 868 (T). Whilst this decision was made in a case with political connotations at the height of the apartheid era, the principle has been more recently confirmed in the case of S v Cornelissen; Cornellissen v Zeelie NO en Andere, 1994 (2) SACR 41 (W) where the court confirmed that journalists possessed no legal privilege to refuse to give evidence relating to information obtained during the course of their work. This was the celebrated case where a journalist had attended a meeting at which Peter Mokaba had made a speech as a result of which police commenced an investigation as to whether he ought to be prosecuted in terms of the Internal Security Act because of his utterances. A journalist with The Beeld newspaper was approached to give evidence concerning events which he had reported in his newspaper and was subsequently subpoenaed in terms of section 205 following upon his refusal. Evidence had been given on behalf of the journalist that newspapers were dependent on their reporters having a relationship of trust with the public and maintaining such relationship in order to ensure proper news gathering on a continuous basis and that an impression amongst members of the public that the reporter was acting as an informer for the police, or was associated with the police, would lead to adverse consequences. What makes this case significant, is that the journalist was not relying on confidential sources of information but in fact had attended a public meeting and had similar information to any other person who had attended the meeting. In effect, although the court did not say as much, the police had ample other witnesses it could produce to give evidence if they had bothered to find them and considerations of justice did not require them to compel the journalist to make their case for them.
In Nel v Le Roux NO and Others the Constitutional Court tested the constitutionality of section 205 against the interim Constitution. The question was not raised in the context of journalistic privilege but the decision of the court remains appropriate. The applicant had received a subpoena in terms of section 205 requiring him to appear before a magistrate for examination in connection with information relating to offences for which another person associated with the applicant had been charged. Prior to the examination commencing, the applicant raised the constitutionality of section 205. The constitutional court found that the provision of section 205 were not inconsistent with the Constitution. Referring to the US decision of Branszburg v Hayes, the court noted that other open and democratic societies based on freedom and equality also employed procedures such as those in section 205.
The court stated that the magistrate ought to have proceeded in the following manner:
If the magistrate found that in answering the questions the applicant’s Chapter 3 fundamental rights would have been infringed then he should have held that this constituted a "just excuse" and the applicant need not answer. However, where the applicant’s Chapter 3 rights were infringed but the infringement was justified in terms of section 33(1) of the constitution, the applicant did not have a "just excuse" and would be compelled to answer.
If the magistrate concluded that there was no infringement of the Chapter 3 rights and no other "just excuse" for refusing to answer, then he should have compelled the applicant to answer.
The implication of the decision in Nel is that the ambit of "just excuse" has been extended to include a constitutional "just excuse" ie. where answering questions would infringe the Chapter 3 rights of the individual and the infringement is not justified in terms of section 33(1) of the Constitution, the applicant has a "just excuse".
It is certainly arguable, although we have no authority in South Africa as yet on this point, that the notion of the freedom of the press and other media and the express reference in the final Bill of Rights to the freedom to receive and impart information and ideas, may give rise to an albeit qualified journalistic privilege. If our courts recognise that freedom of the press includes freedom to gather news in an unimpeded manner, journalistic privilege may be accorded greater protection than it has enjoyed previously in our law. It could certainly be argued by journalists, faced with a section 205 subpoena, that such process inhibits their freedom to receive information because informants would have no confidence that information given confidentially would not land up in the hands of the authorities. Given the existence of the limitation clause however, courts might still adopt a balancing act each time they are faced with a claim for journalistic privilege, on the facts of each matter rather than recognise that the privilege exists.
The journalists’ claim for privilege is a different claim to that made on behalf of lawyers or even priests. It is important to understand the distinction in order to appreciate whether claims for the privilege should be recognised. What journalists certainly regard as sacrosanct is the protection of confidential sources of information. The Code of Conduct of the Constitution of the South African Society of Journalists requires its members to do precisely that, as does the Declaration of Principles on the Conduct of Journalists, published by the International Federation of Journalists.
What is the basis of this privilege? Whilst the privilege afforded to lawyers is generally regarded as necessary in order to ensure that persons obtain legal advice without fear of adverse consequences if they truthfully and frankly confide in their legal advisers, the privilege for journalists is slightly different. The principle is that one recognises that the news gathering process is one of public importance in itself, and that the integrity of this process must be protected. This protection can only be realised, the argument goes, if journalists can obtain information from a source or subject to a duty of confidentiality with the comfort that the state cannot compel this information to be disclosed. If journalists are seen to be an informal arm of the state, the integrity of the news gathering process will be impugned and so the credibility of an important institution in our society will be under threat.
If that is the true basis of the claim for journalistic privilege, then it cannot be claimed in respect of all information which a journalist may have and which the authorities seek. Thus, where information has been obtained by the journalist in a manner in which any other members of the public may have obtained it and in the absence of any context of confidentiality, no claim for privilege can be maintained. Secondly where the claim in not bona fide, because either the journalist himself is involved in the offence in some way, or the intention was never to obtain the information for a bona fide journalistic purpose, the privilege cannot be respected either.
Additionally, where the information has already been made public by the journalist, and all that the state requires is for the journalist to confirm that information in some form or another or to supply the original material which was published, to satisfy the technical requirements of the rules of evidence, the claim for protection of the integrity of the news gathering process cannot be maintained, unless it can be shown that by gathering such information the authority would be able to identify indirectly confidential information or a confidential source. In relation to this last point, however, it should be borne in mind that many journalists do not readily concede the point that the mere fact that the evidence is already in the public terrain entitles the authorities to use them as a witness. They believe that the use of the journalist as a witness, even in this situation, can undermine the credibility of the witness in the public eye. They claim in particular that if a journalist is performing his duties in a public situation, members of the public may well see the journalist as an informal arm of the police and this may threaten the activity of the journalist. They point out that in South Africa this is no idle threat given the previous approach of the police to journalists. Whilst these claims may have some merit, the interests of the administration of justice would appear to be more compelling than the claims for journalistic privilege in this instance. There may be situations where the authorities are able to obtain the real evidence published by a journalist independently of the journalist, since it is already in the public terrain. This might threaten the position of a journalist regardless of the fact that no link between the journalist and the police existed. Indeed, for many people involved in criminal activity, the mere presence of the journalist, since their job is to make information public, is a threat, regardless of whether that person is seen to be in any way useful to the police. Journalistic sensitivities in relation to published material cannot override considerations of the interests of justice.
Nevertheless, I would argue that in view of the journalistic sensitivities, the police should adopt a very cautious approach and avoid being seen to be going on a witch-hunt to obtain all the journalist’s information, and threaten his/her confidentiality.
It is with these sensitivities in mind, that I consider it necessary to recommend draft guidelines with regard to section 205 subpoenas.
Journalists should be treated as a special category of witness and who should be approached with some caution. Regrettably, no golden thread emerges through any of the practice of the other jurisdictions, nor indeed in our own and unlike some of the other systems, we do not have a "privilege law" or a "journalist shield law". We must therefore consider our legal position firstly in terms of the common law and secondly the impact, if any, that the Constitution will have on that position.
Against this background the following points appear to emerge:
Our common law does not recognise a legal privilege which can be claimed by journalists;
Our common law, however, has on occasion been interpreted to recognise the special circumstances of journalists when interpreting what is meant as a just excuse for the purpose of the provisions of section 205.
We have yet to experience the manner in which the new constitution will impact on the situation and it should be cautioned that the Nel case should not be regarded as the Constitutional Court giving carte blanche to the use of section 205.
The problem insofar as section 205 is concerned is not the police’s problem alone. Indeed as far as the wording of the section is concerned, it is the public prosecutor or the Attorney-General who require the presence of the witness. In practice of course we know that the subpoena is usually issued at the instance of an investigating officer. Nevertheless even if the police were to develop their own practice guidelines, public prosecutors and the Attorney-General remain entirely free to proceed in terms of the Act as they wish. For this reason the adoption of a joint approach with the Department of Justice is recommended, although even adoption by that Department does not necessarily preclude Attorney-Generals from exercising their own discretion as they deem appropriate.
Guidelines for the issues of section 205 subpoenas and search warrants in relation to the media
In recognising that a section 205 subpoena should be applied as a last resort and only if all other methods have failed and in the spirit of constitutionalism, the Secretariat for Safety and Security and the Minister for Safety and Security instructed the National Commissioner of the South African Police Service to issue guidelines and instructions relating to the application of section 205 to its members. This was done after the subpoenas were issued in 1996 at the time when Rashaad Staggie was killed in Cape Town. The instructions required that, before a public prosecutor or the Attorney-General is approached to apply for a section 205 order, the investigating officer shall satisfy himself or herself that –
he or she has sufficient information concerning the identify and whereabouts of the person concerned to enable the serving of such an order on him or her;
he or she has reasonable ground to believe that the said person has information at his or her disposal concerning the alleged commission of an offence;
he or she has reasonable grounds to believe that the said information is needed for the successful conclusion of the investigation into the alleged offence and any criminal prosecution that may flow therefrom;
the person concerned has refused to disclose the said information; and
the said information cannot reasonably possibly be obtained from another source, which would obviate the need to request the Attorney-general to apply for a section 205 order.
The above-mentioned instructions requires an investigating officer to apply his or her mind to the issue before him or her and to explore all other possible sources from which the information may possibly obtained, before resorting to a request for a section 205 order. Where it is reasonably possible to obtain the information elsewhere, it should of course be so obtained without resorting to such a request. If there are other sources from which the information can be obtained, but there are sound reasons why these sources should not be utilised, this fact must be brought to the attention of the Attorney-general to enable him or her to take an informed decision as to whether or not he or she should proceed with such an application despite this fact.
Apart from the general instructions relating to requests for section 205 orders, such a request may not be made with regard to a journalist or other member of the media, unless the office of the National Commissioner has been informed of the intended request and the National Commissioner has approved that such a request be proceeded with. The office of the National Commissioner must of course be informed of all the steps that were taken to explore other sources of information and of the reaction of the specific journalists or other member of the media when requested to disclose the information, to enable it to make an informed decision as to whether the request should be proceeded with.
It is in the interest of a free and open democracy that the news media is seen to be independent and not as an extension of the investigative arm of the police and that the safety of journalists should not be placed in jeopardy. Therefore the request for a section 205 order in respect of a journalist or another member of the media should always be handled with the greatest degree of circumspection.
Although section 205 provides the state with a powerful tool to enable it to conduct proper investigations, it requires that the state exercise restraint in implementing it to prevent it form being abused.
In conclusion, I trust that what I have said and proposed will be seriously debated at this conference and workable and practical solutions could be arrived at for a amicable working relationship between my Department and the media in general. The office of the Secretariat for Safety and Security will be happy to facilitate a meeting between the media and the Department of Safety and Security to work out the finer details of the guidelines and instructions and I extend an invitation to your organisation in this regard.