A lot of hot air about section 205

Minister of Police Nathi Mthetwa and members of the police force (including the Police Commissioner) are – not surprisingly – talking a lot of rubbish and making idle threats against journalists who happen to belong to an independent (as opposed to a pro-government) news organisation.

Sadly for them, but luckily for the rest of us, these threats will amount to nothing. The media fraternity who are up in arms over these moves by the Minister and the Police Commissioner should therefore also calm down and should not be so easily intimidated by the Minister and the Police Commissioner who do not have the law on their side. Journalists should laugh and ridicule our Minister and our Police Commissioner, should taunt them for the way in which they are trying to find a scapegoat for their own incompetence and then laugh at them again.

Really, one should not take this empty bluster as seriously as they do. The threats by the Minister and the Commissioner are no more than hot air (and one is not sure from which orifices the hot air is actually escaping).

I strongly suspect that in the end, nothing will happen to eNews editor Ben Said and reporter Mpho Lakaje, who were recently served with subpoenas under the Criminal Procedure Act’s section 205 for protecting the identities of the men in a video broadcast on ETV – despite the fact that the police are pressing ahead with investigations against them.

Said and Lakaje are scheduled to appear in court on Monday, unless they hand over unedited footage taken of two alleged criminals who threatened crime and violence during the World Cup and unless they provide the Police with the names and contact details of the men they interviewed, as well as information about the firearms displayed in the programme..

Mthetwa said yesterday: “We are of the view that a friend of a criminal is a criminal” while Police Commissioner Bheki Cele lashed out at e.tv for airing the footage and for protecting the identities of the “criminals”. “ETV is a crime kisser and have expressed themselves as such. My question to them is that would they have protected their sources if they threatened to kill, rob and rape their mothers?” said Cele.

Section 205 allows a judge or a magistrate to summons anyone “who is likely to give material or relevant information as to any alleged offence”. A person who refuses to appear or fails to give the required information can be sentenced to imprisonment if the magistrate or the judge is of the opinion that the furnishing of such information is necessary for the administration of justice or the maintenance of law and order.

The constitutionality of section 205 was attacked in the Constitutional Court in 1996 in the case of Nel v Le Roux NO and Others but, as the Justice Laurie Ackerman pointed out, this section was not unconstitutional because it was qualified by section 189(1) of the Criminal Procedure Act which states that a person summoned in terms of section 205 is not obliged to testify or to answer any particular question put or to produce any book, paper or document if has a “just excuse” for refusing or failing so to answer or to produce.

And what would a “just excuse” be?

There is considerable case law on this issue and one cannot discuss it all here, but suffice it to say that in the Nel case the Constitutional Court has stated that it would at the very least mean that any person summoned in terms of section 205 would have a just excuse not to answer questions if answering the questions would unjustifiable infringe on his or her rights.

Well, the last time I checked section 16(1)(a) of the Constitution states that “everyone has the right to freedom of expression, which includes freedom of the press and other media”. A journalist’s freedom to gather information and report it would be dramatically infringed if he or she could not keep the identity of their sources secret.

One could imagine situations in which a journalist would not have a “just excuse” not to provide the kind of information now demanded by the Minister because his or her freedom of expression would be limited by a larger obligation to protect society from calamity. For example, where a journalist obtains information about an imminent terrorist attack that will kill thousands of people, and there would be no other way for the police to prevent the terrorist attack, the journalist will not have a just excuse not to share the information and its source with the police.

But in this particular case, the journalists merely broadcast interviews with two alleged criminals who issued vague threats of future criminality.  This obviously embarrassed the Minister and the Commissioner, but their embarrassment cannot trump the right to freedom of expression which safeguards the rights of the journalists and if they refused to answer questions I cannot imagine a court imprisoning them because they have no just excuse for doing so.

Surely also, if the Police did its job, it would be able to apprehend the alleged criminals by properly investigating the case without infringing on the rights to media freedom.

Of course in this case the journalists would therefore have a “just excuse” for not answering the questions so the Minister is barking up the wrong tree if he thinks he is going to get anything out of them.

If the Minister and the Commissioner are angry they should rather focus on how the Police can better investigate a crime and build cases that would lead to the successful prosecution of criminals and should not shoot the messenger merely because the messenger has embarrassed them and has shown how useless they really are.

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