Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
31 May 2007

Good news for press freedom

Some times the good guys do win. The Department of Transport lost their bid in the Pretoria High Court today to gag Beeld newspaper from publishing information obtained from a leaked management report by the Auditor General on a network audit of the old NaTIS system.

The AG report apparently highlights “maladministration and poor governance” that led to security gaps in the new eNaTIS system. The Auditor General report highlighted “weak passwords and password policies” and “access by users to powerful utility files and even blank passwords allowing anyone to access the system”.

Sias Reyneke, SC, on behalf of Beeld, argued that the Department of Transport had known about the security problems since February when the Auditor General’s report highlighted them – and probably longer – but nothing was done to fix them. “The press should not be blamed for blowing the whistle on the maladministration and poor governance,” he said.

In his judgment judge Dion Basson said that the public’s right to know about possible security problems with the new electronic traffic information system (eNaTIS) outweighed confidentiality concerns over the information. He dismissed the arguments of Minister Radebe’s counsel, Pat Ellis, SC, that by publishing the story Beeld would put confidential information on security gaps in the old NaTIS and the new eNaTIS into the public domain, which could then be misused.

This is great news for freedom of the press. There has been a trend for the government and other aggrieved parties to run to the court to try and stop newspapers from exposing corruption and maladministration. Often this is done after the newspaper – like Beeld in this case – did the right thing by first approaching the aggrieved party for comment.

The outcome in this case is not surprising because it seems to be based on the precedent setting judgment of the Supreme Court of Appeal in Midi Television v Director of Public Prosecutions. Justice Nugent, writing for the full bench, emphasized the importance of freedom of expression for our democracy and developed a very strict test to decide when the exercise of press freedom could be restricted to protect another right or interest.

Judge Nugent argued that a publication could only be gagged if the prejudice that the publication might cause is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then the court would not gag a paper unless it believes that the disadvantage of curtailing the free flow of information outweighs its advantage.

In making that evaluation the court will not only consider the interests of the newspaper but, more important, the interests of every individual in having access to information. The interest of the public to know would be even more important where the state is trying to stop the publication of embarrassing information and where they would not be able to show that the publication would infringe any of the other rights in the Constitution.

In the Beeld case it was clearly far more important for Joe Public to be informed about the disastrous implementation of the eNaTIS than for the Minister to be saved from acute embarrassment.

The Minister should, however, be taken for task for launching the court application in the first place. In a democracy it is our right as citizens to be informed by the media about both the good and the bad things a government does. By trying to stop us from learning the truth about the eNaTIS balls-up, the minister was attempting a cover-up. He should be ashamed.

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