South African source kept confidential: Bosasa Operation Pty Ltd v Basson & Anor [2012] ZAGPJHC 71

Joburg High Court

In this age of the Leveson Inquiry and Rupert Murdoch being cross-examined about why there may be dozens of people arrested in his newspaper empire for crimes like phone hacking the telephone lines of people who lost family members in Iraq, it is good to see that once in a while, the basic idealistic virtues of journalists can still exist.

The location last week was the Johannesburg High Court. The issue was the confidentiality of a journalists’ source. The result was an emphatic win for the media.

What happened was this: from 22 May 2009, Adrian Basson, a journalist, wrote a number of articles for the Mail & Guardian in South Africa, exposing a corrupt relationship between the plaintiff, a company, and the Department of Correctional Services.

On 20 July 2009, the plaintiff issued proceedings against the newspaper and the journalist, who asserted a number of defences:

  • That the corrupt relationship was so well-known inSouth Africathat the plaintiff’s reputation was not injured. In that respect, from 9 July 2008 to 29 January 2010, 33 articles had been written about it, with 18 of those in different newspapers;
  • That suing the defendants was arbitrary, not bona fide and an abuse of process. Apparently M&G was small and lacked resources;
  • The articles were true or alternatively fair comment on matters of public interest;
  • The articles were covered by qualified privilege, being a fair and accurate report of a special report that was placed before parliament.

After pleadings closed, the plaintiff sought discovery of the names of the

Adriaan Basson, journalist

defendants’ sources, which had been redacted. The plaintiff claimed that by redacting the names of the sources, the plaintiff’s rights to a fair trial were infringed. The defendants refused and asserted that to reveal their sources would infringe their right to freedom of the press, contained in section 16 of the Constitution and the journalist had given undertakings to the sources that their identities would not be revealed.

Section 16 of the Constitution states:

16. Freedom of expression

(1)   Everyone has the right to freedom of expression, which includes

(a)   freedom of the press and other media;

(b)   freedom to receive or impart information or ideas;”…

Quoting from Lord Denning in British Steel Corporation v Granada Television Ltd [1981] AC 1096 at 1129:

“If they [newspapers] were compelled to disclose their source, they would soon be bereft of information which they ought to have. Their sources would dry up. Wrongdoing would not be disclosed. Charlatans would not be exposed. Unfairness would go unremedied. Misdeeds in the corridors of power – in companies or government departments – would never be known.”

 The judge walked through a number of South African authorities speaking of the freedom of the press, the freedom of speech and the value of keeping sources confidential. Justice Tsoka then considered the status of journalists’ sources in other jurisdictions: England, Belgium, Luxembourg, Canada, Holland, USA and even Australia.

The conclusion was essentially this, at [38]:

 “Having regard to the authorities cited above, 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 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.”

 Tsoka J concluded that the identity of the sources was irrelevant to the defamation claim. The defendants were not entitled to know who they were. While the journalists were not entitled to a blanket privilege, in this case, the plaintiff was a company that tendered for a government contract and was expected to comply with the terms of the Constitution. Whether it won the tender fairly was a matter the public was entitled to know about.

Finally, the sources were acting in the public interest in revealing information and the plaintiff’s right to a fair trial was not infringed. The plaintiff’s application was dismissed with costs. A victory for the journalist, and a victory for free speech.