Journalists' right to protect sources upheld

Should a journalist be forced to reveal confidential sources in a defamation case?

This was the vexed question that came before the Constitutional Court earlier this year, when Bosasa Operation sued Mail & Guardian and former M&G journalist Adriaan Basson for a series of stories alleging a corrupt relationship with the Department of Correctional Services resulting in Bosasa winning several multi-million rand tenders over a period of seven years.

The case has morphed from one of simple defamation to one where Bosasa asked the court to demand M&G reveal its sources for the story. The Supreme Court of Appeal (SCA) had earlier rejected Bosasa's efforts to force M&G to reveal its sources. It then brought the matter to the Constitutional Court, which earlier this year echoed the SCA's decision and decided in favour of Basson and M&G.

The Constitutional Court's decision was a victory for press freedom in SA as well as a legal precedent, according to Pamela Stein, representing the M&G. “What we have now very clearly for the first time, is a precedent in our law where, in the right kinds of cases, the courts will protect journalists' confidential sources. The M&G has once again set an important precedent not only for themselves, but for the freedom of the press by getting this principle established.”

Defamation is defined in the Law of South Africa dictionary as a statement that "has the effect of injuring a plaintiff's reputation. A plaintiff's reputation is injured if the statement tends to lower the plaintiff in the estimation of right-thinking members of society." In some countries, the truth or falsity of the allegations have no bearing on the matter. However, it must be shown to have caused harm. The usual defences against defamation charges are the fairness and accuracy of the story, and public interest. Hence, public figures reported to have engaged in tender fraud would constitute public interest, since public money is involved.  

Basson and M&G argued in their defence that there was no injury to Bosasa as the story had been covered more than 30 times in several publications as far back as 2008, and was therefore well and truly in the public domain. They further denied defamation, pleading "truth and public benefit, ...fair comment on a matter of great public interest, ...reasonable publication in that the article was published in good faith, a matter of great public interest and that the information in the article was based on reliable information received by Mr Basson and M&G from reliable sources," according to the judgment issued by Judge Tsoka.

In its pre-trial preparations, Bosasa called upon the defendants to disclose details of all the documents in their possession which were relevant to the issues before the court. "The defendants filed their discovery affidavit setting out the necessary details but the company, believing that there were other relevant documents, called for additional discovery," according to a commentary on the case by attorneys Garlicke Bousfield. "The defendants then disclosed the further documents in which they had edited out the names of the defendants’ sources for the story about the tender. The company contended that the defendants had no valid objection which entitled them to refuse to furnish this information and applied to court to compel the disclosure of the missing names."

The defendants opposed the application, arguing that the names were not relevant to the issue of defamation, that to reveal them would limit their constitutional right to freedom of expression and that they had promised their sources that they would not reveal their names. Judge Tsoka agreed. After referring to a number of both local and foreign judgments, he held that subject to certain limitations (none of which applied) journalists are not required to reveal the identity of their sources. The court also decided that the names of the sources was not relevant to the issue of defamation. It dismissed the company’s application.

Case: Bosasa Operations (Pty) Ltd v. Basson and Another 2013 (2) SA 570 (GSJ).