Authors:
J Serfontein & EM Serfontein
NORTH-WEST UNIVERSITY
FREEDOM OF THE PRESS: A SINE QUO NON FOR
DEMOCRACY IN SOUTH AFRICA
STUDENTS
LAW REVIEW
EDITION 1
2013
http://www.nwu.ac.za/webfm_send/88527
J Serfontein & EM Serfontein
2013(1) NWUSR / NWUSLR
Freedom of the press: A sine quo non for democracy in South Africa
J Serfontein* and EM Serfontein**
1 Introduction
Freedom of the press, together with the broader issue of the democratisation of
communication, have become principal concerns to all who have an interest in
building a democratic society. 1 This is due to the fact that an independent and
responsible press is crucial in fulfilling other fundamental rights 2 such as the right of
access to information (section 32) and the freedom to express diverse opinions
(section 16) as core elements of a democracy.
However, obtaining and maintaining a free, democratic and independent press in
South Africa is however an enormous task through uneven terrain given this
country’s history. 3 The strict limitations placed on the media before the first
democratic elections in 1994, continue to have an unconstructive influence on the
manner in which the press is allowed to play its role and to exercise its constitutional
rights and freedoms guaranteed by the Bill of Rights. To overcome this is no easy
task as getting to grips with and giving practical effect to the broader concepts of
democracy and constitutionality in this country are still extremely fragile. 4
The Constitution of the Republic of South Africa 5 (hereafter the Constitution) was
adopted in 1996 to lay the foundations for a democratic and open society in which
government is based on the will of the people. The right to freedom of the press, 6 as
an essential mechanism for ensuring that government is responsive, efficient and
effective when exercising their public functions, was also guaranteed. 7
Given the prominence of the press as often the only medium through which the
public can obtain information on government activities, the right to freedom of the
*
**
1
2
3
4
5
6
7
J Serfontein is a LLM-student and the North-West University’s Potchefstroom campus.
Dr EM Serfontein is a Senior Lecturer: Law at the North-West University’s Vaal Triangle campus.
M’Bayo, Nwokeafor and Onwumechili 1995 African Media Review 33.
Birkinshaw 2010 Government Information Quarterly 314.
Lange 1999 “Activities” 77.
Fabricus “The Media in Southern Africa” 81.
Act 108 of 1996: Preamble.
S 16(1)(a).
Heald “Transparency as an instrumental value” 64.
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press is recognised as a prerequisite for democratic deliberation and accountability. 8
To justify their independence and obtain the respect of the public, the press
conversely carries the responsibility to always aim at benefiting the country as a
whole through correct, objective and balanced reporting. 9
Since no right is absolute, cognisance must be taken of section 36 of the
Constitution in terms of which fundamental rights can justly be limited. As a result,
any attempt to limit or regulate the right to freedom of the press (censorship) must be
justified in terms of section 36. Limitations are accordingly subjected to the principle
of proportionality and with respect to the legitimate aims pursued and to their
necessity in a democratic society. 10 In this regard, Barendt 11 indicates that
government has to construct strong arguments to justify any restriction placed on this
freedom.
2 Aim of this article
The aim of this article is to explore the fundamental right to freedom of expression
and outline its importance to the optimal development of democracy in South Africa.
The importance of the relationship 12 between the State and the press is examined to
emphasise the vulnerability of fundamental rights despite its protection by the
Constitution. In this regard, the authors agree with Simbi 13 who emphasises that it is
one thing to guarantee fundamental rights and a democratic society by way of
legislation, but another to develop and give practical effect to such rights.
8
9
10
11
12
13
Piotrowski Government transparency in the path of administrative reform 107-108.
Schlicht “Opening remarks” 9.
Akdeniz 2010 Computer Law and Security Review 263; See also s 36 in which the relevant
factors that need to be taken into account when limiting fundamental rights, are set out.
Barendt Freedom of speech 1.
Government is regarded as the most decisive source in formulating policy pertaining to the
media. Government regulates the media and cretes a normative framework within which the
media funstions. The type of political dispensation prevailing in a country influences the manner
in which values, equality and order is upheld. Political power thus has a tremendous effect on the
nature of the media, and in particular, on the right to freedom of the press, limitations placed on
the manner in which the media must function; Oosthuizen Media Ethics in the South African
context 83.
Simbi “Investigative Journalism” 67.
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The right to freedom of expression, which includes the rights to freedom of the press
and access to information, is discussed in order to highlight the role of the press in
protecting and giving effect to these rights.
3 Concept clarification
The concept of freedom of the press encapsulates two core components, 14 namely
the absence of governmental or non-governmental restraint on the press, 15 and the
presence of conditions for enabling the dissemination and voicing of diverse ideas
and opinions to and from the public. 16 As such, freedom of the press represents and
stands for press independence as a direct consequence of a sound democratic
society. 17
Democracy, as a concept, encompasses key elements, such as the basic right to
vote, freedom of political activity and political autonomy. 18 Democracy is based on
two dimensions namely, public contestation (political competition) and the right of
voters to participate in decision-making processes that influence them. As such,
democracy entails the participation of the majority of people in information
acquisition and distribution. 19 In conjunction, Berger 20 refers to democracy as the
decision-making power by majority principle, exercised by way of a process based
on
the
equal
rights
of
participants.
Similarly,
Lange 21
emphasises
the
encouragement of multiparty democracy by assisting a plurality of political forces,
ensuring free and fair elections and encouraging society to play an active part in the
political and social lives of their communities. Community involvement is important
as it allows society to directly contribute to the strengthening of pluralistic structures
and the realisation of political and social participation.
14
15
16
17
18
19
20
21
Nam 2012 Government Information Quarterly 525.
Barendt (n 9) 35: the media should be immune against state regulation.
McQuail McQuail's mass communication theory 284.
Lowenstein “Press freedom as a political indicator” 134.
Bollen and Grandjean 1981 American Sociological Review 658.
Chowdhury 2004 Economics Letters 98; M’Bayo, Nwokeafor and Onwumechili (n 1) 33.
Berger 2002 International Journal for Communication Studies 22.
Lange (n 2) 78.
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4 The relationship between the State and the press
The amount of press freedom that prevails in a country is determined by the type of
political government (democratic or authoritarian), and the level of national
economy. 22 Darch and Underwood 23 explain that the impact of any legislation
providing for freedom of expression is highly idiographic, as it depends upon the
history, social and political contexts of a country. Cognisance must, therefore, be
consistently taken of the extent to which the relationship between government and
the press can adversely affect the realisation of press freedom. 24 The reason being
that freedom of the press is grounded on the principle that a press, free from
governmental control, regulation and suppression 25 (limiting the activities of the
press 26) is paramount to a political system based on democracy. As a result, Fung et
al 27 regard freedom of the press as an important tool in giving effect to the interplay
between three role-players, namely government, the public and the press who
release or receive information. The press, therefore, plays an intermediary role
between a government and its inhabitants. 28
To fulfil their role of keeping the public informed, the press must be allowed to freely
access public records and state information. 29 An independent and free press, in
turn, is essential to realise the public’s right of access to information. 30
Albeit the importance of a free press, M’Bayo et al 31 refer to various instances where
political leaders globally generate fear among their journalists, making it difficult, if
not impossible, for them to function effectively. Reporters Without Borders, 32
conducted research on the safety of journalists in exercising their right to freedom of
the press in 50 different countries. The results indicate that South Africa is rated 44th
22
23
24
25
26
27
28
29
30
31
32
Nam (n 14) 521.
Darch and Underwood Freedom of information in the developing world 7.
Youm 2008 George Washington Law Review 1018.
Barendt (n 9) 1.
M’Bayo, Nwokeafor and Onwumechili (n 1) 39.
Fung et al Full disclosure 72.
Nam (n 14) 521.
Youm (n 24) 1020.
Worthy 2010 Governance 572; Relly and Sabharwal 2009 Government Information Quarterly
157; Coronel 2001 “Fighting for the right to know” 10.
M’Bayo, Nwokeafor and Onwumechili (n 1) 44.
Reporters Without Borders <www.rsf.org>
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with regard to journalist safety. This could be due to the fact that many political
leaders, especially in African countries, still struggle with the concept of an
independent, free and critical press. 33
Since the press is regarded as the main public gatekeeper 34 or watchdog 35 over
government activities and democracy, political leaders use various ways beyond
representative processes of political economy to restrict the right to freedom of the
press. Censorship continues to cause global concern, 36
while self-censorship is
regarded a dangerous problem among the press as is often resorted to on nonprofessional grounds. 37
5
The role of the press: a legislative framework
Whilst accentuating the formal acknowledgment of the role played by the press
within a democratic dispensation, Wasserman, 38 Jamieson 39 and de Beer, 40 regard
the Constitution as the most important instrument in outlining the functions of the
press with the mandate to give effect to the principles of democracy in practice. 41
The Bill of Rights in the Constitution protects the press both directly and indirectly. 42
Direct protection is provided by guaranteeing the rights to freedom of expression 43
and to information 44 to everyone. Indirect protection is provided through various
undertakings. The right to privacy, 45 for example, demands that journalists’
communications must be respected while also shielding them from their belongings
being searched 46 or confiscated. 47 The right to thought, religion and opinion 48
afforded to everyone also protects the press when reporting public issues. The right
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
Lange (n 2) 79.
Simbi (n 12) 65.
Lange (n 2) 78.
Nam (n 14) 529.
Youm (n 24) 1022.
Wasserman 2010 Communicatio 241.
Jamieson “The media and Ethics” 56.
Wasserman and De Beer 2005 Critical Arts 37.
Thormählen Date Unknown http://academic.sun.ac.za/journalism/politici/en/hul/waghonde.
Swanepoel 2006 Ecquid Novi 11.
S 16.
S 32.
S 14.
S 14(a) and (b) of the Constitution.
S 14(c) of the Constitution.
S 15.
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to freedom of association 49 allows journalists to freely establish and join press
houses, while sections 58 and 71 of the Constitution affords press personnel access
to Parliament. 50
Moreover, the press is protected against unlawful, unreasonable and procedurally
unfair administrative actions. 51 By providing for the responsible and transparent
administration of public issues 52 through taking cognisance of the needs of society,
the Constitution encourages public participation in policy making. 53 Optimal public
participation leads to permitting the public access to correct information which, in
turn empowers the press to make information available timeously. With specific
reference to broadcasting, section 193 of the Constitution provides for the
establishment of an independent authority through legislation to justly regulate and
ensure broadcasting in public interest, thus excluding direct state control. The value
hereof lays in the premise that a press, free from government control, 54 is essential
to a political system based on the will of the people for the people. 55
6
The underlying principles of press freedom: the rights to freedom of
expression and access to information
The rights to freedom of expression and access to information, guaranteed in
sections 16 and 32 of the Constitution and regarded as the underlying principles of
freedom of the press, 56 merit detailed scrutiny.
6.1
Right to freedom of expression
Section 16 of the Constitution guarantees the right of freedom of expression, which
includes freedom of the press. The inclusion of freedom of the press in this section
alludes to the important contribution of the press in achieving and maintaining an
49
50
51
52
53
54
55
56
S 18.
South African Broadcasting Corporation Ltd v National Director of Public Prosecutions and
Others 2007 2 BCLR 167 (CC).
S 33.
S 195(1)(f)-(g).
S 195(1)(e) of the Constitution: Participation promotes transparent decision-making processes
and thus enables individuals to protect their interests. The State must, accordingly, function in
such a manner that it does not infringe the rights and freedoms of individuals entrenched in the
Bill of Rights; Snyman and Du Plessis 2002 Koers 393.
Nam (n 14) 522: a press free from corrupt incumbent politicians silencing them.
Youm (n 24) 1022.
Swanepoel 2006 Ecquid Novi 11.
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open and democratic society. 57 Jeffreys 58 explains that the right to freedom of
expression enables the press to execute its social functions, namely to keep the
public informed, to educate and, especially, to provide insight. Furthermore, the right
to freedom of expression permits the press to report on issues that are essential in
ensuring an open, transparent, accountable and responsive government. 59
As stressed by the High Court in Holomisa v Argus Newspaper Limited, 60 such a
government is crucial seeing that the success of South Africa’s constitutional
undertaking is dependent upon the vital execution of public power being open to
constant critique. Openness and transparency has the potential of improving the
quality of government 61 and, as shown in S v Mamabolo, 62 of eliminating any form of
authoritarian government.
Moreover, the right to freedom of expression, as noted in Kauesa v Minister of Home
Affairs, 63 facilitates peaceful transformation within a society. As such, a free and
responsible press can be regarded as being an engine of change. 64 While
recognising that transformation necessitates critical citizens, the High Court, 65 along
with Visser, 66 emphasise the existence of a strong and independent press to keep
the public informed and to voice their critique.
By promoting the free flow of information and ideas 67 and, correspondingly upholding
the public interest, 68 the press also gives effect to the right of the public to be
informed about issues in which they have an interest. 69 This in turn, will ensure
future citizens who can form and voice individual opinions 70 and, thus, democratic
57
58
59
60
61
62
63
64
65
66
67
68
69
70
Currie and de Waal The Bill of Rights Handbook 364.
Jeffreys 2008 Global Media Journal – African Edition 117.
Stevenson 2007 Obiter 617-618; Birkinshaw (n 5) 320.
1996 2 SA 588 (W) par 608-609.
Dworkin as quoted by Currie and De Waal (n 56) 360-362; Stevenson 2007 Obiter 621.
2001 3 SA 409 (KH) par 37.
1995 11 BCLR 1540 (NmS) par 1554C; Currie and De Waal (n 56) 361.
M’Bayo, Nwokeafor and Onwumechili (n 1) 49.
Holomisa v Argus Newspaper Limited 1996 2 SA 588 (W) par 608-609.
Visser 2011 SAJHR 339.
Balule 2008 XLI CILSA 404.
Price 2003 Media and Arts Law Review 278.
See also Observer & Guardian v United Kingdom 1991 14 EHRR 153 par 59; R v Secretary of
State for the Home Department, ex parte Simms 1993 3 WLR 328 par 337; National Media Ltd
and Others v Bogoshi 1998 4 SA 1196 par 1209.
Visser (n 67) 340.
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participation 71 in contrast to an autocratic government dictating citizens 72 and
restricting press freedom. 73 The fundamental right of individuals to information
therefore supports the press in informing the public about governmental activities in
public interest. 74 It is consequently a key role of the press to promote greater
participation of the community in facilitating the realisation of democracy. The press
should, accordingly, instigate the process of creating an atmosphere in which the
public is encouraged to rally their energy and resources to the fullest extent in the
interest of a participatory democracy. 75
Given the paramount importance of optimal public participation in a democracy,
various authors 76 regard the right to freedom of expression as central (the
bloodline) 77 to democracy and human development. In South African Broadcasting
Corporation Ltd v National Director of Public Prosecutions 78 the High Court even
refers to public participation as the heart of democracy.
Conversely, the press needs to enjoy legal protection to successfully perform their
functions, to which the press is bound, 79 and concomitantly to guarantee
accountable political bodies and public government. Legal protection is needed when
the press, inter alia, investigates public issues and unfolds government secrets.
According to Strauss, 80 such protection, within the sphere of public opinion must, be
granted to the extent that the public opinion – of which press freedom is a part – can
grow optimally. In Laugh it Off Promotions CC v SAB International (Finance) BV t/a
71
72
73
74
75
76
77
78
79
80
Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 123.
De Mesquita and Downs 2005 Foreign Affairs 84.
Nam (n 14) 523.
Nam (n 14) 523.
M’Bayo, Nwokeafor and Onwumechili (n 1) 49.
Visser (n 67) 331; De Oliveira 2010 Intellectual Property Management 9; Motala “Freedom of
Expression” 153; Hoctor 2005 Obiter 461; South African National Defence Union v Minister of
Defence 1999 4 SA 469 (CH) par 7; S v Mamabolo 2001 3 SA 409 (CH) par 29-31; Laugh it Off
Promotions CC v SAB International (Finance) BV t/a Sabmark International 2006 1 SA 144 (KH)
par 45-46; SABC v National Director of Public Prosecutions 2007 1 SA 523 (CH) par 23-24;
Islamic Unity Convention v Independent Broadcasting Authority 2002 4 SA 294 (CH) par 26-28;
Munumese & Others 1995 1 SA 551 (ZS); Government of the Republic of South Africa v The
Sunday Times Newspaper 1995 2 BCLR 182 (T); NM v Smith 2007 5 SA 250 (CH) par 145.
Balule (n 69) 404; Arko-Cobbah 2008 IFLA Journal 181.
2007 2 BCLR 167 (CH).
Khumalo v Holomisa 2002 5 SA 401 (CH) par. 22; Currie and De Waal (n 56) 364.
Strauss 2009 Tydskrif vir Geesteswetenskappe 21.
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Sabmark International 81 Moseneke J found that such protection is indeed granted
through section 16 of the Constitution in so far as it is not being excluded by
subsection 16(2). Nam 82 indicates that the right of access to state information
(enhancing press freedom) also serves as a specific expression for legal protection
of the right to know about government workings and as a policy tool for better
governance.
Furthermore, cognisance must be taken of the fact that subsections 16(1)(a) 83 and
(b) 84 offer two dimensions to freedom of expression, which according to Pretorius are
essential for giving effect to the right to freedom of expression. Freedom of the press
includes the freedom to partake in any activity with regard to publishing information
without being withheld by government. In addition, freedom to receive or impart
information guarantees the forming and disseminating 85 of opinions and diverse
views by way of the printed media without being subjected to official censorship. This
entails that the individual’s right of access to information cannot exist if governmental
censorship and secrecy prevail. 86 In this regard, De Klerk 87 explains that any
negative government impediment would, theoretically speaking, be unlawful.
The following five aims of the right to freedom of expression can be highlighted: 88 (i)
it not only assists self-realisation 89 but also the improvement of future generations; 90
(ii) it facilitates the search for the truth; 91 (iii) strengthens the capacity of individual
participation to decision-making processes, 92 (iv) promotes social development 93
81
82
83
84
85
86
87
88
89
90
91
92
2006 1 SA 144 (CH) par 7.
Nam (n 14) 521.
Freedom of the press and other media.
Freedom to receive or impart information or ideas.
Visser (n 67) 339.
Hartigan Herald-Sun 26 June 2007.
De Klerk Joernalistieke privilegie 100.
As referred to in Fantasy Enterprises CC v Minister of Home Affairs 1998 NR 96 (HC) 100C101A; In re Munhumeso 1995 1 SA 551 (ZS) 557E; Chavunduka v Minister of Home Affairs 2000
1 ZLR 552 (S) 558D-E.
NM v Smith 2007 5 SA 250 (KH) par 145; Dworkin quoted by Currie and De Waal (n 56) 360362; Procunier v Martinez 416 US 396 (1974); Hoctor (n 78) 462.
M’Bayo, Nwokeafor and Onwumechili (n 1) 33.
Mubangizi The protection of human rights in South Africa 87; Defence Union v Minister of
Defence 1999 4 SA 469 (KH) par 7; Banana v Attorney-General 1999 1 BCLR 27 (ZS) par 31F
and Phillips v Director of Public Prosecutions (Witwatersrand Local Division) 2003 3 SA 345 (KH)
par 23.
Khumalo v Holomisa 2002 5 SA 401 (KH) par 21.
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and,
(v) by
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elevating state accountability,
limits
corruption,
tyranny
and
incompetence 94 and ensures efficient governance. 95
Although authors such as De Oliveira 96 and Visser 97 opine that the right to freedom
of expression encompasses the right of access to information, the latter deserves
separate discussion.
6.2
Right of access to information
Information in possession of the State was wrapped up in a cloud of secrecy during
the period of parliamentary sovereignty in South Africa as no legislation made
provision for the right of access to information held by the State. 98 While state power
within an apartheid dispensation was carried out in an arbitrary manner – without
providing any reason or explanation - a democratic dispensation requires that it must
be done responsively and that state actions and decisions must be reasonably
explained to those affected by it. 99 Since the absence of access to information
inhibits 100 public participation, a prerequisite for democracy, both the 1993 and 1996
Constitutions guarantees the right of access to information. 101
Section 32 102 of the Constitution stipulates that everyone has the right of access to
both private and public information held by the State or any State organ. This
includes information held on any level of government in so far as such information is
needed for giving effect to and protect fundamental rights. 103 As such, individuals
have an unqualified and enforceable right against the State 104 of access to all
93
94
95
96
97
98
99
100
101
102
103
104
NM v Smith (n 90) par 145.
Government of the Republic of South Africa v Sunday Times Newspaper 1995 2 BCLR 182 (T)
par 188-189.
M’Bayo, Nwokeafor and Onwumechili (n 1) 52.
De Oliveira (n 78) 7.
Visser (n 67) 331.
Devenish A commentary on the South African Constitution 80; Mubangazi The Protection of
human rights in South Africa 130.
Roberts Die reg op toegang tot inligting in publieke administrasie 37.
Arko-Cobbah (n 79) 180.
Merrett 1992 Innovation 4.
The embedding of the right of access to information held by the State in section 23 of the Interim
Constitution was the beginning of South Africa’s freedom of information regime; Klaaren “The
Right of Access to Information at Age Ten” 118.
Dimba 2009 South African Crime Quarterly 21.
Roberts (n 100) 36.
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information in which they may have a personal or public interest. This entails that
individuals must be allowed access to all information used by the State to make
decisions which might influence them in either a personal or public capacity. 105
In explaining what public interest includes, Jamieson 106 refers to the protecting of
public health and safety, preventing the public from being misled, identifying or
revealing hypocrisy, falsehoods or double standards on the part of public officials,
exposing harmful anti-social conduct as well as crimes or serious transgressions.
In giving effect to their subsection 32(2)-obligations, namely that national legislation
must be enacted to give effect to the right of access to information the State
promulgated the Promotion of Access to Information Act (PAIA). 107 Seeing that the
overarching aim of PAIA is to give practical effect to section 32 of the Constitution, 108
it possesses special constitutional status. 109 To attain its goal, PAIA provides the
necessary mechanisms and procedures 110 according to which the constitutional right
of freedom to information is protected and enforced 111 and defines the nature, extent
and limitations of this right. 112
PAIA, however, does not grant protection to individuals alone, but also to the media
and accordingly allows the media to claim the right of access to information held by
the State in order to successfully execute their functions. In view hereof, sections 10,
14 and 15 of this Act facilitate the media and individuals’ search for information held
by governmental institutions. PAIA is regarded by Roberts 113 as the most important
instrument in practically effectuating the ideal of transparent administrative actions.
Due to the latter, the right of access to information is an important instrument in
guarding against an authoritarian government and therefore to contribute to the ideal
105
106
107
107
108
109
110
111
112
113
Currie and De Waal (n 56) 684; Roberts (n 100) 87; Klue 2009 TAXtalk 7.
Jamieson (n 53) 55-57.
Klaaren (n 103) 109.
Dimba (n 104) 22.
Currie and de Waal (n 56) 687.
Britz and Ackermann Information, Ethics and the Law 22.
SA Metal & Machinery Co (Pty) Ltd v Transnet Ltd 2003 1 SA 335 par 7: As referred to by s 39(2)
of the Constitution.
Klue (n 107) 7.
Roberts (n 100) 100; Currie and de Waal (n 56) 701.
Roberts (n 100) 94.
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of an open and democratic society in which state power is exercised reasonably and
with the necessary consideration of all alternatives. 114
The right of access to information fulfils mainly two functions within a democracy:
Firstly, it allows citizens to make informed decisions with regard to their democratic
rights and, secondly, ensures that State authority is practised in a legitimate and
non-arbitrary manner.
115
With regard to the first mentioned function, the public has
access to all information which may be useful and practically relevant to create
informed opinions. 116 Information, as such, has an instrumental value since it
enables society to make choices that effect their daily lives, form opinions regarding
important issues and to express them and also to optimally participate in socioeconomic and cultural activities. 117 In this regard, Chowdhury 118 emphasises that the
publics’ state of knowledge is directly linked to the degree of press freedom. In
providing the public with information, the press serves as a forum through which
individuals are offered different choice alternatives, which are important determinants
of a person’s freedom. 119 In doing so, the press assists individuals to take control of
their destiny in an enlightened manner. 120 Subsequently, Alexander 121refers to the
right of access to information as being a moral and legal right.
Information (a perishable commodity) 122 to which access is granted includes the total
sum of information in possession of the State: (i) legislation and other publications
compiled by the State; (ii) information generated or obtained by government in order
to satisfy public needs; (iii) information obtained through research projects directly or
indirectly backed and financed by government; (iv) information created by
government based on personal information provided by individuals and (v)
114
115
116
117
118
119
120
121
122
Currie and de Waal (n 56) 684.
Snyman and du Plessis (n 50) 389.
Arko-Cobbah (n 79) 181; Arko-Cobbah 2010 IFLA Journal 7.
Britz and Lor 2010 Innovation 17.
Chowdhury (n 19) 93-94.
Gekker and Van Hees 2006 Journal of Economic Theory 249.
Schlicht (n 10) 10.
Alexander “Freedom of expression” 340.
Akdeniz (n 8) 265.
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encompasses any information on any aspect regarding the workings of the public
sector. 123
In confirmation, Nomthandazo 124 adds that individuals’ right of access to information
provides them with access to certain public and private documents, which directly
attribute to the ideal of an open and responsible democracy. Citizens may therefore
demand access to private- and state documents that directly contribute to a
democratic society 125 and to debates and issues during which policy is formulated
and decisions regarding public power/authority are made. 126 In this regard, Ruth 127
shows that official information is a natural source which must be used exclusively for
public purposes and is therefore the property of the public.
The right to access of information and, concomitantly, freedom of the press is thus,
without a doubt, core components of democracy. 128 Moreover, both these rights
directly correlate with sustainable human development in that it promotes a higher
standard of living for those within a democratic state. 129 As stated by Lange, 130 this is
also in line with the main objective of the Constitution, namely to pave the way
towards democracy and prosperity for its entire community. As such, freedom of the
press has an essential role to play in social development and change. 131
We now turn to the second function of the right of access to information, namely to
ensure that state authority is exercised in a legitimate and non-arbitrary manner. In
this sense, the right of access to information is regarded as a sine quo non for a
democratic state which strives to attain the constitutional values of transparency,
responsiveness,
123
124
125
126
127
128
129
130
131
132
openness
and
participation
in
the
sphere
of
effective 132
Roberts (n 100) 32.
Nomthandazo 2003 Stellenbosch Law Review 273.
Arko-Cobbah (n 79) 181; Arko-Cobbah (n 120) 7.
Currie and De Waal (n 56) 684; Richter 2005 Law, Democracy and Development 219.
Richter (n 131) 220.
Simbi (n12) 67.
Amathila “Politics and the Media in Southern Africa” 11; M’Bayo, Nwokeafor and Onwumechili (n
1) 49.
Lange (n 2) 77.
Simbi (n 12) 68.
Ex parte Chairperson of the Constitutional Assembly: in re Certification of the Republic of South
Africa 1996 4 SA 744 (CH) par 85; Arko-Cobbah (n 79) 188; Leftwich 2008 The Politics of
Development 372.
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government. 133 The latter is especially relevant with regard to the manner in which
government and public officials function within a democratic state. 134 The reason
being that access to transparent public administration is needed to hold officials
accountable and to enforce or protect individual rights and interests. 135
The essence of the right of access to information held by the State cannot be
overemphasised. Firstly, this right leads to democratic 136 participation, 137 thus
empowering the public to participate in decision making processes 138 and to
investigate decisions taken by government. 139 Secondly, the right of access to
information pilots the process of combating corruption amongst state officials. This
right enables individuals to indirectly control the manner in which government
functions are executed, 140 seeing that they may hold government accountable for its
actions 141 and may consequently ensure that government acts responsibly 142 and
fairly. 143
A close relationship exists between freedom of the press and combating corruption
as freedom of the press (an effective mechanism for external control) 144 serves as a
linchpin in monitoring the aptitudes of a civil society. 145 It is equally important for
international investors endeavouring to invest in countries with sound and honest
government officials. Therefore, freedom of the press not only contributes to political
stability, 146 but also to its economic growth. 147 Moreover, the presence of press
freedom brings governmental activities to the public via the press while the public in
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
Arko-Cobbah (n 79) 180; Snyman and du Plessis (n 50) 389.
Klue (n 107) 7; Arko-Cobbah (n 120) 7.
Roberts (n 100) 2.
Richter (n 131) 219.
South African Broadcasting Corporation Ltd v National Director of Public Prosecutions 2007 2
BCLR 167 (CH).
Currie and de Waal (n 56) 691; Snyman and du Plessis (n 50) 396.
Ex parte Chairperson of the Constitutional Assembly: in re Certification of the Republic of South
Africa 1996 4 SA 744 (CH) par 85.
Devenish A commentary on the South African Constitution 80; Mubangazi (n 92) 130.
Nomthandazo (n 130) 275; Limpitlaw 2011 www.kas.de/medien-afrika/en/publications/23503.
Gunther and Mughan “The media in democratic and non-democratic regimes” 24.
Klue (n 107) 7.
Dimba (n 104) 26; Arko-Cobbah (n 79) 184.
Chowdhury (n 19) 97.
Ahrend “Press freedom, human capital and corruption”; Shen and Williamson 2005 International
Journal of Comparative Sociology 330.
Amathila “Politics and the Media in Southern Africa” 11.
M’Bayo, Nwokeafor and Onwumechili (n 1) 52.
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a democracy consecutively punishes corrupt politicians by ousting them from public
offices. 148 As a result, elected politicians react by acting responsibly. Democracy is
subsequently nourished by a dynamic, energetic and independent press who is free
to investigate and report corrupt practices. 149 The media therefore plays a very
important role in the development of democratic governance.
In order to enforce and give effect to individuals’ right of access to information, 150
dialogue across national and cultural boundaries 151 or the free flow of information 152
between government and individuals, as well as free debate 153 is essential.
Moreover, the free flow of information has the potential to give legitimacy to
government action and provide officials access to the knowledge and expertise of
individual members of society.
In this regard, Currie and de Waal 154 caution that government do not possess the
sole right on information in public interest. If government, without any justification, 155
refuses to openly discuss their actions or keep it secret, such action would disregard
the right of individuals of access to information and even hamper democracy as a
whole. 156
In order to keep the public informed, the importance of the rights and freedoms
(section 16(1)(a))specifically guaranteed to the press , namely to gain access to
information and to freely communicate such information to the public, can no longer
be doubted. 157 The momentousness of the right of access to information held by the
State, so-called official information, for democracy and other human rights must also
be highlighted. 158 Richter 159, for example, is of the opinion that the right of access to
148
149
150
151
152
153
154
155
156
157
158
159
Chowdhury 2004 Economics Letters 93-94.
Simbi (n 12) 66.
Snyman and du Plessis (n 50) 396.
Lange (n 2) 79.
Britz and Ackermann (n 113) 18.
Puddephatt in Richter (n 131) 219.
Currie and de Waal (n 56) 684.
S 36(1) of the Constitution: The right to freedom of access to information can only be limited in so
far as such limitation is reasonable and justifiable in an open and democratic society based on
dignity, equality and freedom.
Miscke 2010 Tydskrif vir Geesteswetenskappe 576.
Arko-Cobbah (n 79) 190; Limpitlaw (n 151); Visser (n 67) 331.
Nomthandazo (n 130) 275; Richter (n 131) 220.
Richter (n 131) 219.
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information constitutes the oxygen of democracy as it gives effect to other
fundamental rights and freedoms. Britz and Lor 160 believe that the successful
implementation and protection of all other civil, political, cultural, economic and social
rights are worthless and even impossible 161 without the right of access to
information.
In summary, the right of access to information is essential to (i) ensure open and
accountable government actions, (ii) give effect to the right of freedom of expression
and democratic participation, (iii) ensure that the truth is made known, and (iv)
balance between stability and change is maintained. 162
6.3
The responsibilities of the media in protecting and giving effect to these
rights
Whilst placing emphasis on the role of the media in providing voters with the
information necessary to enable them to cast well informed votes, Plaisance 163
cautions the media to show a willingness to be very critical regarding their own
profession. Press houses should remain free from political influences and allow for
more expression of critical or controversial points of view, if it wants to fulfil its
meaningful role towards sustainable human development. 164
The press needs to be more than critical observers; it is required to be agendasetters in promoting democracy. 165 Since democratic principles may still be foreign to
both the government and its people, the press needs to be both more informative
and educative. This, in turn, puts new challenges on professional, accountable,
transparent and responsible journalism. 166 For the latter the media needs selfreflection (self-regulation) in order not to inhibit freedom of the press (ability to freely
communicate) internally. Moreover, it must, show evidence of detailed and objective
investigation into press-government relations. This is essentially important as the
media often creates perceptions among the community which may be even more
160
161
162
163
164
165
166
Britz and Lor (n 122) 17.
Schlicht (n 10) 10.
Emerson 1963 Yale Law Journal 880.
Plaisance 2000 Journal of Mass Media Ethics 257.
M’Bayo, Nwokeafor and Onwumechili (n 1) 50.
Schlicht (n 10) 10.
M’Bayo, Nwokeafor and Onwumechili (n 1) 1.
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important than reality. The creation of the perception of an honest and hard-working
government through the media can be an important contribution to the establishment
of a positive image of government. 167
In adding to the above and underscoring the vital role of the media in a free and
democratic South Africa, the fact that the media is responsible to its audience for
providing fair, unbiased and objective information, must be emphasised. 168
Maintaining a high standard of professional ethics is crucial as the press must be
motivated by what is in the interest of the public since the public’s right to know must
remain at the heart of any reporting. By outlining important ethical considerations
that need to be taken note of, the following important factors are provided: 169
accuracy, the right to reply, 170 confidentiality of sources, 171 privacy, integrity, 172
comment and facts (right to express opinions, no matter how unpopular or
controversial they may be), avoidance of any form of discrimination and
misinterpretation, sensitivity, the right of children as a vulnerable group of people,
and photographs being a true and accurate representation of events and no financial
rewards.
In gathering information for public dissemination, the press needs to be wary of
always obtaining both sides of a story in pursuit of balanced reporting. 173 The latter
necessitates thorough background research as well as the checking and crosschecking of facts. Moreover, reporting facts must be guided by the principles of
openness, fairness and a commitment to accuracy and the truth (responsibly) in
order to establish good faith among its audience. 174 In the absence hereof,
Plaisance 175 warns that the community can easily become mistrustful of the media.
The press is therefore advised to move away from the perception that painting
167
168
169
170
171
172
173
174
175
Simbi (n 12) 67.
Jamieson (n 53) 56.
Jamieson (n 53) 56.
M’Bayo, Nwokeafor and Onwumechili (n 1) 49:There must be an element of feedback.
Plaisance (n 178): Unless the press can protect the sources of its information from retribution, its
capacity to research and report on matters against the will of government and other powerful
organisations is effectively weakened.
M’Bayo, Nwokeafor and Onwumechili (n 1) 49.
Simbi (n 12) 68.
Jamieson (n 53) 57.
Plaisance (n 178) 258.
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glooming pictures with dramatic headlines on every governmental activity is good
journalism. 176 Keeping the good faith of its audience and maintaining the trust and
respect of community are the key elements of any responsible press aiming at
uplifting the standard of living for all and increasing society prosperity. 177
In order to function effectively within a democracy and achieve social cohesion, the
press needs to be free, diversified and pluralistic. 178 The press should address a
community in its full cultural and ethnic diversity in order to allow for greater diversity
of opinion. 179 However, this in itself could be a formidable task in a country such as
South Africa, which is referred to as the rainbow nation. 180
7
Conclusion
It has become evident that freedom of the press is a basic ingredient, a key element
and cornerstone of a free and democratic South Africa as it gives effect to its
community’s right to know, enables them to make informed decisions and allows for
optimal participation and the establishment of an accountable government. As a
result, Simbi 181 shows that the survival of democracy rests on freedom of the press.
It has also been shown that freedom of the press should be respected by the media
in so far as it too has the duty to act accountably and responsively when ensuring
the free flow of information to the public. Accurate information must be disseminated
in order to enable a high level of long term participation, equality, and exchange
among the public in terms of issues in public interest.
However, since various societal factors influence the media and political leaders still
grabble with the idea of a free media and thus denying its coherence as a
democratic concept, the authors recognize that freedom of the press; inclusive of the
rights of freedom of expression and access to information; remains much debated.
The mere appreciation of freedom of the press as a fundamental right by the
176
177
178
179
180
181
Schlicht (n 10) 10.
M’Bayo, Nwokeafor and Onwumechili (n 1) 49.
Barendt (n 9) 35; Lange (n 2) 79.
Plaisance (n 178) 255.
Schlicht (n 10) 49.
Simbi (n 12) 67.
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Constitution is, accordingly, insufficient as giving effect thereto in practice is not a
given.
Whilst recognising that the freedom of the press is subject to regulation and
limitations, the authors, recommend that all proposed restrictions be thoroughly
scrutinized for justifiability in order to allow optimal practical recognition to the right to
freedom of the press in a democratic South Africa.
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Unknown
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