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[2009] ZAGPJHC 80
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South African Broadcasting Corporation v Avusa Limited and Another (none) [2009] ZAGPJHC 80; 2010 (1) SA 280 (GSJ) (14 October 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
REPORTABLE
In
the matter between:
SOUTH
AFRICAN BROADCASTING CORPORATION
Applicant
and
AVUSA
LIMITED
First Respondent
ROWAN
PHILP
Second Respondent
THE
FREEDOM OF EXPRESSION INSTITUTE
Amicus
Curiae
JUDGMENT
WILLIS
J:
[1]
For the sake of convenience, I shall refer to the applicant as “the
SABC”. The SABC seeks an order compelling the
first respondent
to deliver to the SABC, a copy of an internal SABC report which the
Sunday
Times
obtained from a confidential source. The
Sunday
Times
is
a newspaper, having a national circulation, which is owned and
published by the first respondent. The second respondent is a
journalist employed by the first respondent. The second respondent
wrote an article which was published in the
Sunday
Times
on 22 March 2009. This article has given rise to the present
application.
[2]
The SABC report has been referred to by the SABC’s counsel as
“the draft preliminary report”. In the interests
of
brevity, I shall refer to this report simply as the “report”.
In the alternative, the SABC has sought an order against
the second
respondent requiring him to deliver this report. The report itself
has not been produced to the court.
[3]
The following facts are either common cause or undisputed:
In
about June 2005 the SABC’s Group Internal Audit learnt of
accusations of irregularities committed by one of its employees,
the head of its International Programme Acquisition Division, a
certain Ms Matilda Gaboo.
Further
accusations were made against Ms Gaboo thereafter.
During
May 2006 the SABC mandated its Head of Internal Audit, to
investigate the accusations. The Head of Internal Audit an
extensive investigation
was conducted in the course of which numerous individuals were
interviewed;
The
investigation resulted in the report which comprised of some 183
pages with certain annexures;
The
date of the report was 2 September 2008;
The
report contained allegations and conclusions which could be of a
defamatory nature not only against Ms Gaboo, but against
other
persons as well;
According
to the SABC, the report was of a preliminary nature, particularly
since at that stage all the information necessary
for a full and
proper report had not been obtained;
A
limited number of copies of the report were made and distributed to
certain specific persons only who were required to maintain
confidentiality in respect thereof and the report was placed before
the applicant’s board of directors during September
2008 on
the strict understanding that confidentiality would be maintained
in regard thereto;
The
SABC authorized no one to give that report to the first respondent
or any of its employees and in particular to the second
respondent.
The
SABC instructed its attorneys Cliffe Dekker Hofmeyr as well as
Comperio Forensics, “to pursue further the enquiries
foreshadowed by the report and to provide a legal opinion on same”.
A
person employed by the SABC (referred to by counsel from the
parties as a “source”) gave a copy of the report
to the
chief reporter of the
Sunday
Times
,
the second respondent.
The source did
so under an agreement of strict confidentiality.
The
second respondent agreed that he would not disclose the source’s
identity and would not reveal any information which
could lead to
the source’s identification.
The
second respondent also agreed that he would not show the copy of
the report to anybody except his editor.
The
Sunday
Times
satisfied themselves of the credibility of the source and also
obtained extensive outside collaboration of the information
in the
report.
The
Sunday
Times
remains in possession of the report which has been deposited with
its attorneys for safe-keeping.
[4]
Although the content of the article published in the
Sunday
Times
is, ultimately, not relevant to the determination of the issue, it
may nevertheless be useful to record some of the irregularities
it
revealed. The reason is that this indicates that the
Sunday
Times
did not indulge in mere salacious gossip of interest merely to the
prurient: the article did not deal with what “is interesting
to
the public” rather than “what it is in the public
interest to make known”.
1
The following appears from the article:
Ms Gaboo had
been the head of the SABC’s International Programme
Acquisition Division for three years until she resigned
in May
2008.
There had been
“mass corruption and gross mismanagement” during her
three-year tenure at the SABC.
Irregular and
wasteful expenditure of some R38,7m had been uncovered by September
2008. Since then a second audit by attorneys
Cliffe Dekker Hofmeyr
and Comperio Forensics, put the figure at R49m. The attorneys
warned, however, that the amount “could
increase
substantially” because only 38 out of 165 of Ms Gaboo’s
deals had been analysed.
The audits
revealed how Ms Gaboo,
awarded R22m in
deals to a programme supplier Mr Bux, a man who, according to the
audit reports, claimed to be the father of her
six year old
daughter;
paid Mr Bux
R652 800 for a wild life series for which he had just paid
R81 600;
paid a UK
supplier Mr Deitch more than R500 000 for consulting services
and then gave him a contract for US$915 000
to supply 58
programmes while he worked in her office, of which the SABC only
broadcast 12 programmes, wasting US$657 000
on the deal; and
purchased 173
titles, representing thousands of episodes, which were never shown
and whose licences had expired.
An SABC Board
member said that “What makes it worse, is that the board has
been calling for action on this since 2007,
and has simply been
ignored.”
[5]
The contents of the report received wide publicity, not only in the
Sunday
Times
but also in other media. There were articles relating to the report
published in the print and electronic media including
Business
Day
,
The
Times
,
The
Sowetan
,
Mail
& Guardian
,
Swazi
Times
,
Moneyweb
,
the DA website,
Avcom
,
journalism.co.za
,
Thought
Leader
,
Africa
News Online
,
Filmmaker
South Africa
,
Kagablog
,
I-luv-SA
website,
24.com
blogs
,
fdsconsultants.co.za
and TVSA.co.za
.
It appears that the coverage of the report by the other media, was
not confined to the information revealed in the
Sunday
Times
article. The inference seems obvious: the report was not “leaked”
to the
Sunday
Times
alone.
[6]
It may be useful to record certain developments after publication of
the article in the
Sunday
Times
:
again to indicate that the subject matter of the report is one of
substantial public interest. In September 2009, the Auditor-General
published a report on an investigation of the SABC at the request of
parliament’s Portfolio Committee on Communications.
2
The Auditor-General deals in his report with the SABC’s own
report and with the subsequent investigation by attorneys Cliffe
Dekker Hofmeyr and Comperio Forensics. The Auditor-General describes
the following highlights of SABC’s report:
The
report revealed double payments to suppliers, overpayments to
suppliers, material paid for but not received, agreements
renegotiated and titles acquired more than once from the same
supplier during the same licence period, as a result of which
the
SABC incurred fruitless, wasteful and irregular expenditure of
R46,8m.
The major
findings of the report are summarised as follows:
Three
consulting firms were appointed during the period September 2005
to March 2007 to draft policies and procedures for
the Content
Enterprise Division. As at 2 September 2008, this Division still
did not have approved policies and procedures
governing the
activities within the Division.
.
The SABC paid for content, but never received the broadcast
material.
.
The SABC paid for material but never broadcast the content, or did
not broadcast the material in terms of the contract.
.
The SABC acquired the same titles under different contracts from
the same for the same licensing period.
.
The SABC paid more for content when acquired for a second run than
the first run.
.
Fruitless and wasteful expenditure of R38m was incurred.
[7]
The Auditor-General says that the internal report made the following
recommendations:
7.1.
The SABC board/management must commence with the recovery of
overpayments and/or double payments.
7.2.
The approval of policies and procedures governing activities within
the Content Enterprise Division should be fast-tracked.
7.3
Record keeping within the SABC needs to be addressed.
7.4.
Policies and procedures should be implemented and implementation
should be monitored by the governance cluster.
7.5.
The results of the investigation should be used to determine accuracy
and completeness of data loaded on the “SAP system”.
[8]
According to the Auditor-General, the SABC’s Audit and Finance
Committee has since the internal report, adopted various
plans of
action to deal with the irregularities it exposed. There is nothing
in the papers before the court indicating what progress,
if any, has
been made towards implementation of any of these plans. The
Auditor-General also reports that the SABC’s attorneys
Cliffe
Dekker Hofmeyr and Comperio Forensics continued their investigation
but on 15 June 2009 the Acting Head of Internal Audit
instructed them
to “pause all activities with regard to this investigation”
because “the SABC board members resigned
and ... there was no
clear mandate for the services to be rendered by the legal firm”.
Cliffe Dekker Hofmeyr did a final
handover to the SABC on 26 August
2009 which included a summary of their findings. It revealed that
the amount of fruitless
and wasteful expenditure had reached R111,7m.
[9]
In the SABC’s founding affidavit, it says that it “favours
proper and open disclosure of the information gathered
concerning the
conduct of its employees” but that disclosure should only be
made “at a stage when the applicant can
be reasonably satisfied
that the information and conclusions drawn as a result thereof are
full, fair and reasonable.” The
SABC is silent as to when it
is likely to be so satisfied – this against the background of
the accusations first coming to
light in June 2005, more than four
years ago.
[10]
The
circumstances in which the second respondent came to obtain the
report are not set out in the answering affidavits of the respondent
other than that the second respondent avers that he agreed with his
“source” not to disclose the source’s identity
or
to reveal any information which could lead to the source’s
identification.
[11]
The respondents have expressed their concern that the delivery of the
Sunday
Times
’
copy of the report could lead to the uncovering of the source (the
document could contain encryption specifically designed
for this
purpose) and has averred that this is the real reason for the SABC
bringing the application. Interestingly, the SABC,
in its replying
affidavit, deals with this issue cryptically: it does not deny that
it will be able, as a result of obtaining the
document, to uncover
the source; it also does not deny any such intention and does not
proffer any assurances in this regard.
[12]
The SABC has itself emphasised that it:
does
not seek any interdict against the respondents in respect of
material obtained from the report;
does not seek
relief relevant to the publication that has already taken place;
acknowledges
that it favours proper and open disclosure of information gathered
concerning the conduct of its employees.
As
mentioned above, the SABC qualifies its stance in regard to
disclosure, however, by stating that such disclosure should only
be
made at a stage when the SABC “can be reasonably satisfied that
the information and conclusions drawn as a result thereof
are full,
fair and reasonable”.
[13]
The basis upon which the SABC seeks the relief claimed in its
application is a “right to confidentiality” which,
it
submits, is intimately bound upon with its right to privacy, a right
which it further submits vests in juristic persons no less
than
individual human beings.
3
[14]
Upon a perusal of the SABC’s papers, it would seem that it
seeks a
rei
vindicatio
in
circumstances where there is no
res
.
I accept and respect the fact that there are those who experience
considerable discomfort when Latin is used in court judgments.
The
difficulty is not only that much of our common law derives from Roman
law (which was written in Latin) but also that Latin
is a language of
extraordinary precision, nuance and depth. Law requires precisely
these qualities when it comes to conceptualization.
Those of us who
have a reasonable acquaintance with Latin resort to it from time to
time not necessarily out of an unwholesome
attachment to things
antediluvian, but because we find ourselves bereft when it comes to
trying to express ourselves in, for example,
the more familiar
English – a language not without its own richness of
expression. I shall attempt to convey the earlier
sentence which
contains Latin expressions into English. It is as follows: “The
applicant seeks to rely upon a remedy for
the recovery of a thing
when, in fact, there is no such thing.” The clumsiness of
the translation does, perhaps, illustrate
my point about occasional
forays into Latin being excusable.
[15]
During the course of argument, Mr
Van
Blerk
,
who together with Mr
Mooki
,
appeared for the SABC, expressly disavowed any reliance on the
rei
vindicatio
for
relief. In my view, he did so wisely, In
Waste-Tech
(Pty) Ltd v Wade Refuse (Pty) Ltd
4
Serrurier
AJ delivered a comprehensive and, in my respectful view, most learned
review of South African, American, Australian and
English law and
concluded that “It thus appears that information or knowledge,
of whatever value and however confidential,
is not recognized as
property either in South Africa or in the English law systems.”
5
In
Prinsloo
v RCP Media Ltd t/a Rapport
6
Van Der Westhuizen J (then a puisne judge in the Transvaal
Provincial Division) found an argument for the return of copies of
photographic material based on the common law remedy of the
rei
vindication
to
have been “not convincing”.
7
[16]
Mr
Van
Blerk
placed
strong reliance on the following extract from the speech of Lord
Griffiths in
Lion
Laboratories v Evans
8
:
There
is a public interest of a high order in preserving confidentiality
within an organisation. Employees must be entitled to
discuss
problems freely, raise their doubts and express their disagreements
without the fear that they may be used to discredit
the company and
perhaps imperil the existence of the company and the livelihood of
all those who work for it. And I am old-fashioned
enough to think
that loyalty is a virtue that it is in the public interest to
encourage rather than to destroy by tempting disloyal
employees to
sell confidential documents to the press, which I am sure would be
the result of allowing the press to publish confidential
documents
under cover of a shadowy defence of public interest.
[17]
Mr
Van
Blerk
,
not without enthusiasm, pointed out that the approach of Lord
Griffiths in regard to confidentiality has been accepted by what
was
then the highest court in our land in
Financial
Mail (Pty) Ltd v Sage Holdings Ltd.
9
Mr
Van
Blerk
quoted the following extract from the judgment of Corbett JA, as he
then was:
With respect, I
would enthusiastically endorse this viewpoint. In my view there is a
public interest in preserving confidentiality
in regard to private
affairs and in discouraging the leaking of private and confidential
information, unlawfully obtained to the
media and others.
[18]
My respect is compounded. With very great respect for Lord Griffiths
and our former Chief Justice, I too am old-fashioned enough
to
endorse their views in general terms. My endorsement arises not from
some curmudgeonly hankering for a mythical “code
of honour”.
Wherever human beings act collectively, they will, from time to time,
have to make complex and difficult decisions.
Effective decision
making is rendered very much more likely if a range of views is
freely expressed. Nevertheless, few, if any,
virtues can be
absolute. Confidentiality is certainly no “sacred virtue”
and I accept, as Mr
Trengove
,
who together with Ms
Hofmeyr
,
appears for the respondents, contended, that confidentiality may,
from time to time, have to yield to higher interests. Notwithstanding
the fact that confidentiality is not necessarily a paramount
interest, my difficulty, in any event, is this: the respondents have
not breached a duty of confidentiality owed to the SABC. The
respondents owe it none, although SABC’s employees and
office-bearers
may well have such an obligation. The respondents have
not acted wrongfully or unlawfully. The
Sunday
Times
’
possession
of a copy of the report is not wrongful or unlawful. In
NM
v Smith
(
Freedom
of Expression Institute as Amicus Curiae
)
10
it was held that even where a litigant wishes to rely on the common
law of the
actio
injuriarum
for
an invasion of privacy, the element of wrongfulness must also be
established. I do not see how the delivery by the
Sunday
Times
of a copy of the report, at this stage, can protect the SABC’s
interest in confidentiality. Even if one accepts that the
SABC has a
right to privacy in respect of the document, I cannot see how,
consequent upon
the
events recorded above, the delivery of the copy of the report will,
in any event, affect this privacy: the horse has bolted.
That, it
seems to me, is the end of the matter.
[19]
Mr
Van
Blerk
has fairly conceded that had it been that the SABC was seeking to
interdict the respondents from further publication of the material
in
the report, the issue that would arise would be a balancing of the
right of the applicant to its privacy against the right of
freedom of
speech and expression on the part of the respondents. He went on to
submit that as the SABC seeks no such relief prohibiting
further
publication arising from the report that it is accordingly not
necessary “to determine the extent to which, if at
all, the
respondents should not have published the material that they have or
have not published”.
[20]
It should be noted, for the sake of completeness, that the SABC
claims no copyright in the report.
It also makes no claim of unlawful competition by the respondents.
[21]
Mr
Trengove
,
counsel for the respondents, presented very full argument on the fact
that the SABC
is
a public company,
11
that the State is its only shareholder,
12
that it is a public broadcaster which provides public and commercial
broadcasting services to the public and in the public interest,
13
and that it is funded by public money comprising its own revenue,
compulsory licence fees and government grants.
14
Mr
Trengove
submitted that b
ecause
the SABC performs public functions in terms of the Broadcasting Act,
it is an “organ of state” as defined in
s 239(b)(ii)
of the Constitution. He submitted that the SABC is thus bound by the
Constitution including the following provisions:
Section 1(d) in
terms of which the founding values of the Constitution include
“accountability, responsiveness and openness”.
Section
195(2)(b) read with s 195(1) which provide inter alia that all
organs of state must adhere to the following values:
A
high standard of professional ethics must be promoted and
maintained.
15
Efficient,
economic and effective use of resources must be promoted.
16
Transparency
must be fostered by providing the public with timely, accessible
and accurate information.
17
[22]
Counsel for the respondents alluded to the fact that the Broadcasting
Act regulates broadcasting services generally and the
SABC as public
broadcaster in particular:
In
terms of section 13(4)(b), the members of its board must
collectively be “persons who are committed to fairness,
freedom of expression, the right of the public to be informed, and
openness and accountability of the part of those held in
public
office”.
Section 6(8)(d)
obliges the SABC to develop a Code of Practice that ensures that
its services and personnel comply with “the
rights of all
South Africans to receive and impart information and ideas”.
The SABC must
exercise strict control over its finances:
Section 18
obliges it to draw up proper financial regulations concerning the
manner in which its financial affairs must be
managed. The
Minister of Communications must approve the regulations after
consultation with the Minister of Finance.
In
terms of subsections 24(1) and (2), it must keep proper account of
all moneys received or expended by it and of all its
assets,
liabilities and financial transactions. It must prepare annual
financial statements which show its revenues and
expenditure and
its assets and liabilities “in appropriate detail.”
Its
annual financial statements must be audited in terms of
section 25. The auditor must in terms of section 25(5),
- disallow any
payment made without proper authority according to law and report the
disallowance to the SABC’s board;
- charge against
the person who made or authorised the payment in question, so much of
the payment as is not condoned by the board,
and
- charge the
deficiency against the person responsible for it.
In
terms of section 25(6), any amount so charged by the auditor,
must be paid by the person against whom it has been
charged to the
SABC within 14 days.
[23]
The SABC’s annual financial statements and audit report must be
submitted to the Minister of Communications who must
table it in
Parliament in terms of section 28.
[24]
Mr
Trengove
furthermore alluded to the fact that the SABC is also subject to
regulation in terms of the Public Finance Management Act. It
is a
“Major Public Entity” listed in schedule 2 and is thus
subject to the requirements of chapter 6 of that Act.
18
Its board is its “accounting authority” responsible for
its compliance with the Public Finance Management Act.
19
Its duties under this Act include the following:
In terms of
s 50(1), the SABC’s board must,
“
(a) exercise
the duty of utmost care to ensure reasonable protection of the assets
and records of (the SABC);
(b) act with
fidelity, honesty, integrity and the best interests of the (SABC) in
managing the financial affairs of the (SABC);
(c) on request,
disclose to the (Minister of Communications) or (Parliament), all
material facts, including those reasonably discoverable,
which in any
way may influence the decisions or actions of (the Minister of
Communications or Parliament); and
(d) seek, within
the sphere of influence of (the board), to prevent any prejudice to
the financial interests of the state.”
Section 83(1)
provides that the SABC’s board commits an act of financial
misconduct if it wilfully or negligently,
fails to comply
with the requirements of s 51 mentioned above or
makes or permits
an irregular expenditure or a fruitless and wasteful expenditure.
In
terms of section 57, every other official of the SABC,
“
(a) must
ensure that the system of financial management and internal control
established for (the SABC) is carried out within the
area of
responsibility of that official;
(b) is responsible
for the effective, efficient, economical and transparent use of
financial and other resources within that official’s
area of
responsibility;
(c) must take
effective and appropriate steps to prevent, within that official’s
area of responsibility, any irregular expenditure
and fruitless and
wasteful expenditure and any under-collection of revenue due.”
Section
55(1) obliges the SABC to keep full and proper records of its
financial affairs and prepare annual financial statements
which
must be audited. In terms of section 55(2)(b), the annual
financial statements and report must include particulars
of,
“
(i) any
material losses through criminal conduct and any irregular
expenditure and fruitless and wasteful expenditure that occurred
during the financial year;
(ii) any criminal
or disciplinary steps taken as a consequence of such losses or
irregular expenditure or fruitless and wasteful
expenditure;
(iii) any losses
recovered or written off.”
The SABC must
submit its annual financial statements and report to,
National
Treasury;
20
the
Minister of Communications;
21
the
Auditor-General,
22
and
the
Director-General for Communications for tabling in Parliament by the
Minister.
23
[25]
I understand counsel for the respondents to have made the
submissions in paragraphs [21] to [24] above to make the point that
any right which the SABC may have to privacy in regard to the report
was trumped by the public interest in the disclosure of its
contents.
Counsel for the SABC did not dispute the submissions of the
respondents in regard to the SABC’s public accountability
and
its duty to manage its resources properly. Indeed, it would have been
surprising if they had done so. It must in fairness to
Mr
Van
Blerk
be recorded that he was scrupulous to emphasise that the SABC
accepted its responsibilities to the public.
[26]
In the
Prinsloo
case
Van Der Westhuizen J said that:
I
am of the view that the possession of such images
24
by someone who is not authorized by the original author or those
depicted on them could in principle amount to an ongoing violation
or
at least a continuing threat of violation of one’s privacy.
25
I
do not know much about pornography but I should imagine that the
experience of viewing pornography is qualitatively different
from
reading about financial irregularities. Conversely, but similarly, I
should imagine that the sense of indignity is qualitatively
different
if one knows that others are viewing one
in
flagrante delicto
(in
the very sexual act) in contradistinction to knowing that others are
reading about one’s alleged financial irregularities.
Mr
Van
Blerk
seemingly conflated “confidentiality” with “privacy”.
Although there are similarities between the two,
I am not sure that
they are the same. As was said by Langa DP, as he then was, in the
unanimous judgment of the Constitutional
Court in
Investigating
Directorate: SEO v Hyundai Motor Distributors
:
26
Juristic
persons are not the bearers of human dignity. There privacy rights
can never be as intense as those of human beings. However,
this does
not mean that juristic persons are not protected by the right to
privacy.
The
right to privacy is closely linked to the right to dignity;
confidentiality more to the effective functioning of organizations.
Mr
Trengove
submitted that it is not clear that organs of state such as the SABC
generally enjoy privacy protection at all. It is a good point.
In
this regard it is instructive to go back to an old case,
Die
Spoorbond and Another v South African Railways; Van Heerden and
Others v South African Railways
27
in which Watermeyer CJ delivering the majority judgment, with which
Schreiner JA agreed but added additional observations, said:
On
the other hand the Crown’s main function is that of Government
and its reputation or good name is not a frail thing connected
with
or attached to the actions of individuals who temporarily direct or
manage some particular one of the many activities in which
the
Government engages, such as the railways or the Post Office; it is
not something which can suffer injury by reason of the publication
in
the Union of defamatory statements as to the manner in which one of
its activities is carried on. Its reputation is a far more
robust and
universal thing which seems to me to be invulnerable to attacks of
this nature.
In
other words, if there is any truth in the aphorism that “Cowboys
don’t cry” is true, it applied with even greater
vigour
to the Crown and this at a time when “the Crown” received
considerable deference. It should be borne in mind
that this judgment
was delivered at a time when there was effectively only one omnibus
“organ of State” – the
Crown.
In
Church
of Scientology v Reader’s Digest Association
28
Van
Den Heever J said:
The
words of Watermeyer CJ in
Die
Spoorbond and Another v South African Railways; Van Heerden and
Others v South African Railways
1946 AD 999
at 1009 may,
mutatis
mutandis
be applied
to the non-trading associations that most readily come to mind, such
as churches and other concerns rendering service
of some kind or
another to the public or sections of the public.
As
far as I am aware, this passage has not been criticized in any
judgment of our courts. Reputation and privacy are closely linked
and
it seems to me that much the same could have been said about privacy.
Besides what can be “private” about public
affairs such
as the conduct of the business of a public broadcaster?
I
accept that in the
Investigating
Directorate: SEO v Hyundai Motor Distributors
case, Langa DP went on to say:
Exclusion of
juristic persons (from a right to privacy) would lead to possibly
grave violations of privacy in our society, with
serious implications
for the conduct of affairs. The State might, for instance have free
licence to search and seize material from
any non-profit organization
or corporate entity at will. This would obviously lead to grave
disruptions and would undermine the
very fabric of our democratic
state.
Three
observations need to be made: (i) Langa DP was referring to juristic
persons generally rather than the specific
genus
(type
or kind) of “organs of State”; (ii) if the State wishes
to search and seize from its own organs, this will, except
in rare
instances, be unlikely to be offensive to the public, public policy
or the courts and (iii) the circumstances in which
a court may wish
to prevent search and seizure in organs of State would almost
certainly derive from a desire to protect information
from being lost
or destroyed rather than the protection of that organ of State’s
right to privacy. It seems to me that the
Sunday
Times
’
possession of a copy of the report does not infringe the SABC’s
right to privacy because there is no such right to
be infringed. Even
if I am wrong that the SABC has no right to privacy, then as I have
said in paragraph [18] above,
I cannot see how, consequent upon events recorded above, the delivery
of the copy of the report will, in any event, affect this
privacy
because the horse has bolted: there can be no restoration of privacy
by the delivery of the copy of the report. In this
regard the
document is fundamentally different from the pornographic material
which was considered in the
Prinsloo
case. If I am correct that “privacy” and
“confidentiality” are not coextensive, then I would also
repeat
another of my conclusions in paragraph [18] above:
confidentiality was lost when the copy of the report was handed over
to the
Sunday
Times
and handing it back again will not restore the confidentiality which
has been lost.
[27]
Mr
Trengove
addressed me on the importance of freedom of expression and the
freedom of the media. Of course, these freedoms are of huge
importance
in a democratic society. Nevertheless, I do not see how
the
Sunday
Times
’
possession or loss of possession of the document
per
se
(in
and of itself) affects either freedom. Without intending any
discourtesy to counsel for the respondents, I shall therefore not
summarise their arguments on these issues in this judgment. Rather
more complex is the question of the protection of the identity
of the
Sunday
Times
’
source of the information. As I have observed in paragraph [11]
above, the respondents have expressed their concern that
the delivery
of the
Sunday
Times
’
copy of the report could lead to the uncovering of the source. As I
have also observed, the SABC, in its replying affidavit,
deals with
this issue cryptically: it does not deny that it will be able, as a
result of obtaining the document, to uncover the
source; it also does
not deny any such intention and does not proffer any assurances in
this regard. Mr
Trengove
relied
on what was said about bare or ambiguous denials where a disputing
party must necessarily possess knowledge of the facts
and be able to
provide an answer (or countervailing evidence) in the case of
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
29
to submit that their was a real risk that the delivery of the
document would uncover the identity of the source and that this was
in fact the real reason for the application because no other cogent
explanation existed for why it was brought. I do not think
that I can
go so far as to find that this is indeed the real reason for the
application but I accept that there is reason to suspect
that it may
be so.
[28]
Mr
Trengove
accepted that our law sometimes allows the victim of a delict who
cannot identify the perpetrator, to compel a third party who
knows
who the perpetrator is, to disclose his or her identity.
30
Mr
Trengove
submitted, however, that t
his
rule does not avail
the
SABC by reason of the following:
- it
is limited to “the type of case where an order is sought for
the disclosure of the name of a principal where it is intended
to sue
that principal”
31
and
- it only
entitles the victim to disclosure of the name of the perpetrator and
does not entitle him or her to demand the evidence
necessary to prove
who the perpetrator is.
[29]
It should be noted that the SABC disavows any reliance on such a
cause of action. It says in reply that it “does not
claim
return of the report on the ground that it requires it to be able to
identify the person or persons responsible for furnishing
the report
to the respondents”.
[30]
The court accepts that one of the most valuable assets of a
journalist is his or her source. Sources enable journalists to
provide accurate and reliable information. Sources are often in
possession of sensitive facts which they would be unwilling to
disclose without a guarantee that their identities will not be
revealed. The protection of journalists’ sources is therefore
fundamental to the protection of press freedom.
32
As Lord Denning has observed:
[I]f
[newspapers] were compelled to disclose their sources, they would
soon be bereft of information which they ought to have. Their
sources
would dry up. Wrongdoing would not be disclosed. Charlatans could not
be exposed. Unfairness would go unremedied. Misdeeds
in the corridors
of power, in companies or in government departments would never be
known.
33
[31]
The court also accepts that journalists in open and democratic
societies throughout the world, recognise the importance of
preserving the confidentiality of their sources and that they
consider it to be their duty to protect their sources’
confidentiality.
The
Sunday
Times
gives examples of a variety of media codes of conduct which recognise
this duty in its answering affidavit. These codes include
the SABC’s
Editorial Code of Ethics which provides that “We shall not
disclose confidential sources of information”.
34
[32]
The duty to preserve the confidentiality of sources is recognised in
South African law. Almost a hundred years ago, it was
held in
Spies v Vorster
,
35
that an editor should not be compelled to disclose the identity of
the author of an anonymous letter because it was contrary to
the
public interest to compel him to do so:
If
an editor were bound to disclose the name of his correspondent there
would be an end of the confidential relationship between
the
correspondent and the newspaper which has existed for generations, to
the advantage of the public, and many an abuse would
go unremedied
and many a grievance unredressed because those who knew, for reasons
good or bad, were unwilling or unable to allow
their name to be
published. However much it may be abused, as it often is, to air
personal grievances and to injure, there can
be no doubt that many
anonymous communications have been the means of effecting valuable
and wide-reaching reforms. A decision
in favour of the applicant if
applied in other cases might lead to very serious consequences and do
much to restrain freedom of
communication and breed suspicion and
distrust. Its application to other causes of action might destroy
that freedom of communication
which is so essential to comfort and
well-being.
36
[33]
In
S
v Cornelissen
37
it was recognised that, although a journalist did not enjoy any
privilege against compelled testimony, he nonetheless had a just
excuse for not testifying in a criminal trial where the police had
not attempted to interview any other witnesses who could be
called to
give the same evidence without impinging upon the public interest in
preserving the independence of journalists.
[34]
In the
Prinsloo
case Van Der Westhuizen J acknowledged that:
it
is a well-known and important consideration on the part of the media
not to disclose information made available to it or their
sources of
information. Without going into the detail of areas or situations
where this principle may be subject to debate, I accept
that it is an
important element of the integrity of a free press.
38
[35]
The European Court of Human Rights has held that a violation of the
protection of confidential sources, is an unlawful interference
with
the fundamental right to freedom of expression. It said in the case
of
Goodwin
v
United Kingdom
that
Protection
of journalistic sources is one of the basic conditions for press
freedom, as is reflected in the laws and the professional
codes of
conduct in a number of Contracting States and is affirmed in several
international instruments on journalistic freedoms.
Without such
protection, sources may be deterred from assisting the press in
informing the public on matters of public interest.
As a result the
vital public watchdog role of the press may be undermined and the
ability of the press to provide accurate and
reliable information may
be adversely affected. Having regard to the importance of the
protection of journalistic sources for press
freedom in a democratic
society and the potentially chilling effect an order of source
disclosure has on the exercise of that freedom,
such a measure cannot
be compatible with Article 10 of the Convention unless it is
justified by an overriding requirement in the
public interest.”
39
[36]
In England journalists are protected from revealing their sources by
section 10 of the Contempt of Court Act, 1981 which provides
that no
person is obliged to disclose a source of information unless such
disclosure is ‘necessary in the interests of justice
... or for
the prevention of disorder or crime’. In applying this
section, the English courts have held as follows:
In
X v Morgan Grampian
Publishers Ltd & Others
,
40
the House of Lords held that the question for the court is whether
the interests of justice in supplying the name of the source
to the
applicant ‘are of such preponderating importance in the
individual case that the ban on disclosure imposed by the
opening
words of the section really needs to be overridden.
[37]
In
Saunders
v Punch Ltd
,
41
the plaintiff applied under section 10 of the Contempt of Court Act
for disclosure of the magazine’s source in respect of
confidential material relating to communications between the
plaintiff and his solicitors that had been published in an article.
The court refused to order disclosure even though there had been a
breach of legal professional privilege because first, there
was also
a public interest in the protection of journalistic sources;
42
secondly, there was no evidence that the confidential information was
still in circulation;
43
and thirdly, the court was not satisfied that it was necessary in the
interests of justice.
44
[38]
In
Sir
Elton John v Express Newspapers
,
45
the Court of Appeal refused to compel a journalist to disclose the
identity of the source who had given him a copy of a draft opinion
which had been stolen from counsel’s chambers and published in
breach of Elton John’s legal professional privilege.
[39]
In
Ashworth
Hospital Authority v MGN Ltd
,
46
the House of Lords adopted the principles of the European Court in
Goodwin and emphasised the importance of the right to freedom
of
expression in a democratic society. Lord Woolf stated that “any
disclosure of journalists’ sources does have a chilling
effect
on freedom of the press”
47
and ‘the fact that information which should be placed in the
public domain is frequently made available to the press by
individuals who would lack the courage to provide the information if
they thought there was a risk of their identity being disclosed.
The
fact that journalists’ sources can be reasonably confident that
their identity will not be disclosed makes a significant
contribution
to the ability of the press to perform their role in society of
making information available to the public’.
48
[40]
The court accepts counsel for the respondents’ submissions that
numerous other foreign jurisdictions also recognise the
importance of
protecting journalists’ sources.
49
[41]
At the end of the hearing, one could not escape the impression that
the respondents were hoping that this was a case in which
some
ground-breaking precedent on the protection of journalists’
sources would be set. Of course, I accept, in general terms,
the
importance of protecting journalists’ sources. Nevertheless,
one of the “golden rules” for judges is “If
you can
decide a case without deciding a controversial point, then don’t
decide the controversial point”. It would
only become necessary
to decide whether or not to expose the source to the risk of being
uncovered, if it appears that a balancing
act has to be undertaken
between this and a competing interest which vests in the SABC. In my
view the SABC has failed to establish
any right or interest justified
in law in receiving the delivery of the copy of the report.
[
42]
To summarise: The SABC has no proprietary right to delivery of a copy
of the report; the respondents owe the SABC no obligation
to do so in
terms any contractual relationship with the SABC; the respondents
have committed no delict against the SABC; the respondents
have not
violated any right to privacy or confidentiality of the SABC; there
has been no copyright violation by the respondents;
their has been no
unlawful competition by the respondents; there is no statutory right
upon which the applicant stakes its claim,
other than broad and, in
my view, mistaken, reliance upon the Constitution. There appears to
be no legal peg upon which the SABC
can hang the relief which it
seeks. Among lawyers there is a maxim, cast once again in the
redoubtable Latin,
ubi
ius, ibi remedium
(where
there is a right there is a remedy). The converse seems to be true as
well: in the absence of a right, there is no remedy.
50
In
Dalrymple
and Others v Colonial Treasurer
51
Innes
J, as he then was, said:
But
the far more difficult question remains, Are the applicants vested
with a right; is there any right resident in them, in respect
of
which they are entitled, by reason of the breach of the statute, to
claim the protection of an interdict? The general rule in
our law is
that no man can sue in respect of a wrongful act unless it
constitutes a breach of a duty owed by him by the wrong-doer,
or
unless it causes him some damage in law. This principle runs through
the whole of our jurisprudence.
[43]
I should mention that counsel for the parties made passing reference
to the case of
Tshabalala-Msimang
and Another v Makhanya and Others
52
which
has a certain superficial resemblance to this case in certain
respects. In that case my brother Jajbhay J ordered the respondents
to return certain health records to the second applicant. In doing
so, however, he relied on the provision of the
National Health Act,
No.61 of 2003
.
53
Counsel for the parties agreed that this case was not legally
relevant to the one now before me.
[44]
I shall now deal with the question of the admission of the Freedom of
Expression Institute (“the FXI”) as
amicus
curiae.
The SABC opposed the admission of the FXI as an
amicus
.
The respondents agreed to abide the decision of the court. At the
commencement of the hearing, in order not to protract the hearing
needlessly, I provisionally agreed to admit the FXI as an
amicus
but
indicated that I would neither hear the FXI’s counsel or read
his prepared heads of argument before I had fully considered
the
question of the FXI’s admission as
amicus
and
made a final determination on the issue
.
Mr Van Blerk
relied
on
Fose
v Minister of Safety and Security
54
and
In re Certain Amicus Curiae Applications: Minister of Health and
Others v Treatment Action Campaign and Others
55
to
submit that, in the absence of the consent of the parties, it is not
sufficient that the applicant for such admission must have
an
interest in the matter but, in addition, must be able to show that it
will raise new contentions which may be useful to the
court
.
Mr
Van
Blerk
submitted that the FXI would not “bring anything new to the
party” and, accordingly should not be admitted.
Rule 16A
of the
High Court rules which relates to admissions of
amici
curiae
in matters in which a “constitutional issue” has been
raised, requires applicants for admissions as
amici
curiae
to set out reasons for believing that their submissions “are
different from those of other parties”. On the other hand,
in
Minister
of Justice v Ntuli
56
the Constitutional Court decided that even though there was nothing
to indicate that the argument for the Human Rights Commission
would
differ from that of another party, it should nevertheless be admitted
as an
amicus
as it had a interest in the matter. The FXI is certainly no
interfering busybody in this case. It obviously has an interest in
the matter, in the sense recognized by the Consiutional Court in such
matters (and the SABC did not seem to consider it otherwise).
The
FXI’s submissions will not protract proceedings in any
significant way. It has been commended previously by the
Constitutional
Court for its submissions as an
amicus
.
57
It seems to me that the possibility that an aspirant
amicus
may or may not raise new or different matter is a factor to be
considered but the absence of novelty is not necessarily, and in
itself, destructive of the application. Although the FXI has raised
nothing which the respondents have not done (other than to
submit
that I should apply my mind to the test in
Setlogelo
v Setlogelo
58
for mandatory interdicts, which, with due respect, I consider to be
hardly novel), it seems to me to be a proper exercise of a
judicial
discretion to admit it as
amicus
.
A relaxed but not a slack approach towards
amici
seems appropriate in these types of cases. It is useful to the court
to know what the stance of a respected body like the FXI is
in a
matter such as this.
[45]
Not only the applicant but also the repondents employed two counsel.
The employment of two counsel has been warranted in view
of the wider
implications of this matter. There is no reason why costs should not
follow the result. The costs order will in no
way impact upon the
admission of the
amicus
curiae
.
[46]
The following is the order of the court:
(i) The
application is dismissed with costs which costs are to include the
costs of two counsel;
(ii)
The admission of the
amicus
curiae
is
to have no bearing on the order as to costs and the
amicus
is neither awarded any costs nor is to pay any portion of any party’s
costs.
DATED
AT JOHANNESBURG THIS 14th DAY OF OCTOBER, 2009.
N.P.
WILLIS
JUDGE
OF THE HIGH COURT
Counsel
for the Applicant:
P.J.
Van Blerk
SC (with him, O. Mooki)
Counsel
for the Respondents: W.H. Trengove SC (with him, K. Hofmeyr)
Counsel
for the
Amicus
Curiae
:
A Gotz
Attorneys for the
Applicant: Chuene Inc
Attorneys for the
Respondents: Webber Wentzel
Date of hearing: 7
October, 2009
Date
of judgment: 14 October, 2009
1
See
Financial Mail
(Pty) Ltd v SAGE Holdings Ltd
[1993] ZASCA 3
;
1993
(2) SA 451
(a) at 464C
2
Respondent’s supplementary affidavit p 243
para 3; EHG 1 p 246 - 252
3
The SABC relied on the
Financial Mail
case
supra
at 463B; 465B-C and
Investigating
Directorate Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC) especially at 556F-558F.
4
1993
(1) SA 833
(w) at 841F-845C
5
At
845B
6
2003
(4) SA 456
(T) at
7
At
464E
8
[1984] 2 All ER 417
at 433c-e
9
[1993] ZASCA 3
;
1993 (2) SA 451
(A) at 464C-H
10
[2007] ZACC 6
;
2007
(5) SA 250
(CC) at para
[55]
11
Section 8A(1) of the Broadcasting Act
12
Section 8A(1) of the Broadcasting Act
13
Chapter IV of the Broadcasting Act and ss 9 to 11 in particular
14
Sections 10(2) and 27(1)(a)(i) of the Broadcasting Act
15
Section 195(1)(a)
16
Section 195(1)(b)
17
Section 195(1)(g)
18
Section 46 of the Public Finance Management Act
19
Sections 49(1) and (2)(a) of the same Act
20
Section 55(1)(c)(ii)
21
Section 55(1)(d)
22
Section 55(1)(d)
23
Section 55(3) read with s 65(1)
24
i.e.
photographic images of persons engaged in sexual acts
25
At
456H
26
[2000] ZACC 12
;
2001
(1) SA 545
(CC) at para
[18]
. See also:
Magajane
v Chairperson, Northwest Gambling Board
[2006] ZACC 8
;
2006
(5) SA 250
(CC at paras [42 to [50];
Thint
v NDPP
2009
(1) SA 1
(CC) at para [77]
27
1946
AD 999
28
1980
(4) SA 313
(C)
29
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) at para
[13]
30
Roamer Watch Co SA v
African Textile Distributors
1980 (2) SA 254
(W) 282A to E;
Cerebos
Food Corp v Diverse Foods SA
1984 (4) SA 149
(T) 166I to 167I;
Krygkor
Pensioenfonds v Smith
[1993] ZASCA 47
;
1993 (3) SA 459
(A) 469E to I;
A
v R Kinder-en Kindersorgvereniging
1996 (1) SA 649
(T) 655A to 656H
31
Cerebos Food Corp v
Diverse Foods SA
1984 (4) SA 149
(T) 166I to 167A;
A
v R Kinder-en Kindersorgvereniging
1996 (1) SA 649
(T) 656G to H
32
Pinto
‘How sacred is the rule against the disclosure of journalists’
sources?’
Entertainment
Law Review
(2003) 170.
33
British
Steel Corporation v Granada Television Ltd
[1981]
A.C. 1096
at 1129.
34
SABC’s Editorial Code of Ethics SS5
35
[1929] LKCA 61
;
(1910) 31 NLR 205
36
P 216
37
1994 (2) SACR 41
(W)
38
At 475 A – B
.
39
Goodwin v United
Kingdom
[1996] ECHR 16
;
(1996) 22
EHRR 123
para 39. See also
de
Haes and Gijsels v Belgium
[1997] ECHR 7
;
(1998) 25 E.H.R.R. 1
;
Roemen
and Schmidt v Luxenbourg
[2003] ECHR 102
and
Ernst
and Others v Belgium
(2004) 39 E.H.R.R. 35
40
(1991) 1 AC 1
(HL)
41
(1998) 1 WLR 986
(Ch.D)
42
at
999
43
at 1001
44
at 1002
45
[2000] EWCA Civ 135
;
[2000] 3 All ER 257
(CA)
46
[2002] 1 W.L.R. 2033
47
at
2050.
48
A
t
2050.
49
See,
for a general survey of comparative jurisdictions: Banisar
“Silencing Sources: An International Survey of Protections
and
Threats to Journalists’ Sources
”
prepared for Privacy International accessible at:
www.privacyinternational.org/foi/
silencingsources
.pdf
accessed on 29.09.2009
by counsel for the respondents.
50
A
useful discussion on the issue can be found in “
Locus
Standi in Judicio or Ubi Ius Ibi Remedium
”
by Andrew Beck,
1983 SALJ 278
51
1910
TS 372
at 379
52
[2007] ZAGPHC 161
;
2008
(6) SA 102
(W)
53
See
para[32]
54
[1997] ZACC 6
;
1997
(3) SA 786
(CC) at para
[10}
55
2002
(5) SA 713
(CC) at para [3]
56
[1997] ZACC 7
;
1997
(3) SA 772
(CC)
57
See
the
NM
v Smith
case (
supra
)
at para [6}
58
1914
AD 221
at 227