Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
5 October 2011

Can Parliament censor journalists?

This morning Anna Majavu – who ironically was blacklisted by the Democratic Alliance a few months ago for writing stories which painted that party in a bad light — reported in The Times newspaper that Parliament intended to censor a fellow journalist for quoting unnamed sources working in Parliament.

The story started when journalist Deon de Lange from Independent Newspapers wrote a story last week on the Protection of Information Bill quoting a confidential parliamentary source who was critical of the fact that the ANC had agreed to consult further on the Bill while the Bill was before Parliament. This was clearly a case where the ANC was conflating the party and the state and set a dangerous precedent. “It’s like the blind leading the blind and [the ANC] are confusing everybody,” the source told De Lange.

Parliament and the ANC slammed De Lange and the unnamed source in press releases issued last week and yesterday the secretary to Parliament, Zingile Dingani, wrote to De Lange’s editor invoking the alleged “Policy on Media Relations Management – 26 August 2009”. This is not a “policy” anyone has ever heard of before. Neither is it a “policy” that can be found on Parliament’s website. No journalist has ever heard of this “policy”. It is unclear whether this policy was invented over the past week or whether it was secretly developed and adopted two years ago without telling anyone. If it was secretly developed and adopted two years ago (by which body with what authority?), it remains unclear why this was not announced publicly.

Maybe Parliament knew that such a policy would not fly and that it would be criticised by all and sundry.

Mr Dingani has asked De Lange’s editor to explain why he should not invoke a clause from the alleged “policy” to revoke De Lange’s permit to work as a journalist in Parliament. The relevant section of the alleged “policy” reads as follows:

8.4.3 Journalists should not approach party support staff or employees of Parliament to seek information on parliamentary matters. All enquiries are to be made through the Media Relations office.

8.5.2 No employee may speak to the media in their capacity as an employee of parliament or give press releases or statements on behalf of parliament except employees assigned to do so.

8.6.1 An employee may only communicate with the media on parliamentary matters if he/she is authorised to do so by the secretary.

9 (c) the Manager: PCS is also responsible for ensuring that this policy is communicated to members of the media.

10. Breach of policy… b) Any breach of this policy by a member of the media may lead to accreditation being revoked and or the person being removed from the precinct of parliament.

This “policy” — if it exists — clearly infringes of the right to freedom of expression (which includes ­the freedom of the press and other media). However, this must be balanced against other provisions of the Constitution. Obviously Parliament would be permitted — if the correct procedures are followed and policies adopted in line with the Constitution – to regulate access to the Parliamentary precinct for security reasons. This is not what happened in this case.

Thus sections 59 and 72 of the Constitution states that the National Assembly and the National Council of Provinces must conduct its business in an open manner, and must hold its sittings, and those of its committees, in public. However, it also states that reasonable measures may be taken ­ to regulate public access, including access of the media, to the Assembly and the NCOP and its committees; and to provide for the searching of any person and,where appropriate, the refusal of entry to, or the removal of, any person.

Moreover sections 57 and 70 of the Constitution states that the National Assembly and the NCOP may determine and control its internal arrangements, proceedings and procedures; and may make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.

Arguably, rules adopted by either of the houses of Parliament to regulate the flow of information to journalists may be found to be valid if it only placed reasonable limits on the right to freedom of expression and of the media to achieve a pressing and legitimate goal. It would be reasonable if it was aimed at achieving a legitimate and important purpose and if this purpose outweighed the interest of the public to be kept informed about what was happening in Parliament. It would obviously not be easy to demonstrate that it was reasonable to limit the rights of journalists in the manner supposedly done by this “policy” as it will be assumed that journalists should have free reign to speak to whoever they wished and that a journalist could not be punished for doing his or her job. The alleged “policy” — for this reason alone — would probably not pass constitutional muster.

But there is a far bigger problem with the infringement on the freedom of the media in this case, namely that Parliament as an institution (as opposed to the National Assembly or the NCOP) has no constitutional or other legal authority to adopt rules that would limit the right to freedom of expression enshrined in the Bill of Rights.

Officials – as opposed to our elected representatives in one or both houses of the legislature — are not authorised to infringe on our rights under any circumstances. In the absence of legislation that specifically regulates and allows for the limitation of the access of journalists to Parliament in the manner supposedly proposed by the quoted “policy” and in the absence of specific rules adopted by members of the National Assembly, the NCOP or jointly by both, there is no legal authority for these rules and they are thus null and void.

Mr Dingani has just as much power to prohibit journalists from attending Parliament as I have the authority to order the President of the country to issue a visa for the Dalai Lama. If I was Mr De Lange and his editor I would just laugh at Mr Dingani and dare him to bar me from Parliament. He has no legal authority to do so as the rules on which he is purportedly relying has no legal force. Any attempt to bar a journalist from Parliament for not reporting what its officials want would thus be unlawful.

The larger issue is of course why Parliament and the ANC has so overreacted to this story in the way it has. Even worse than the DA did with Anna Majavu, Parliament and the ANC has overstepped the mark here. For some reason some officials of Parliament and leaders of the ANC (who are not always that easy to distinguish from one another) was outraged by the fact that an official of Parliament could actually criticise a decision of the majority party (a decision which seemingly undermines the very authority of Parliament).

Whether it was wise for the official to comment, is neither here nor there. It may be argued that the official (who is supposed to be loyal to Parliament and not the government of the day or the governing party) had a duty to speak out, but my argument does not hinge on this. What is relevant is that the ANC and the ANC aligned officials in Parliament have completely over-reacted to this of the record comment by a Parliamentary official.

 In any event, the threats issued by the secretary of Parliament will go nowhere as they cannot legally be executed.

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