As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
It is a rather inconvenient fact (inconvenient for some people, at least) that the notion of an open, transparent and accountable government runs like a golden thread throughout our Constitution. Rejecting the secretive and often lawless bureaucratic managarialism of the apartheid era, in which citizens were more often than not treated as disembodied entities to be ordered around, controlled and sometimes dispensed with (and not as human beings with an inherent human dignity), the Constitution – also in this regard – demands a fundamental break with our apartheid past.
Thus section 1 of the South African Constitution states that the Republic of South Africa is founded on the values, inter alia, of “[u]niversal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”.
These founding values are amplified in several sections of the Constitution to help create governance institutions that are truly open and transparent, that share information about their work, serve people, listen and respond to the concerns of voters, and do not shy away from scrutiny but invite it in order to improve the way in which they serve the public.
Thus section 55(2) of the Constitution states that the National Assembly must provide for mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it and to maintain oversight of the exercise of national executive authority, including the implementation of legislation; and any organ of state. Section 56 also states rather boldly that the National Assembly or any of its committees may summon any person (including any Minister or the President) to appear before it to give evidence on oath or affirmation, or to produce documents and may require any person or institution to report to it. When ministers claim that they have better things to do than account to Parliament or that information cannot be provided to Parliament for “national security” reasons, they are flouting the letter and the spirit of the Constitution.
Section 96(3) confirms this obligation to account by stating that ministers “are accountable individually to the President and to the National Assembly for the administration of their portfolios, and all members of the Cabinet are correspondingly accountable collectively for the performance of the functions of the national government and for its policies”. Section 195 of the Constitution extends these obligations to civil servants by stating that Public Administration must be accountable and that transparency must be fostered in the public service by providing the public with timely, accessible and accurate information.
To beef up this system of openness and accountability, section 32 of the Bill of Rights guarantees for everyone “the right of access to any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights”.
It is against this background that one should evaluate the legal wrangling between Independent Newspapers and the ANC regarding the so called “brown envelope scandal” report prepared by the now Deputy Minister of Justice. Recall that the scandal centres around the alleged attempts by former Premier Embrahim Rasool (now safely “deployed” as South Africa’s ambassador to the USA), to bribe journalists in order to get their co-operation in smearing his political enemies inside the ANC and to provide positive news coverage for his ANC-led administration in the Western Cape.
This saga should really give some ammunition to those ANC and SACP leaders who complain that members of the media, civil society groups and other powerful role players are not required to adhere to the same standards of openness and transparency and are not subject to the same forms of accountability as members of the government is. Who guards the guardians, they ask. But curiously, this scandal has not been mentioned at all when these kinds of arguments have been put forward.
(Of course, in extreme cases, the argument is put forward that the constitutionally imposed rules should not be applied to politicians at all because others are not held to the same rules. Like school children caught smoking behind the bicycle shed they say the equivalent of: “But the teachers also smoke.” As such an argument defies logic, I will leave it aside for the moment.)
Nevertheless, this saga does raise serious questions about the ways in which politicians or other powerful and rich individuals or groups could pervert the democratic process by bribing journalists, columnists or other opinion-makers.
Last week judge Bennie Griesel released an internal ANC report (after having a so called “judicial peep at it in terms of section 80 of the Promotion of Access to Information Act (PAIA)) along with a short judgment giving reasons for this. It is very surprising, to say the least, that Griesel J released the report, despite the fact that the ANC might have wanted to appeal his judgment.
It is true that section 82 of PAIA states that the court hearing an application for access to information may grant any order that is just and equitable including orders confirming, amending or setting aside the decision which is the subject of the application. However, section 80(2) of PAIA states that when taking a “judicial peek” a judge may not disclose to any person “including the parties to the proceedings concerned” the contents of the document he or she had a “judicial peek” at.
As I understand these provisions of PAIA, what should have happened is that the learned judge should have ordered the ANC to hand over the report to Independent Newspapers and the ANC would then have had the opportunity to decide whether it wished to appeal the decision or whether it would hand over the report as ordered.
In my opinion the judge committed a serious blunder and the ANC had every reason to complain – on legal grounds – about the premature release of the report. The problem is that the blunder cannot be corrected as the report now forms part of the judgment and can be read by anyone.
However, two further questions arise from this saga. First, the “interim report” noted that the facts uncovered by the investigators raised serious questions about possible impropriety which had to be investigated further. The investigators could not determine the exact nature of the relationship between the Premier and his government on the one hand and the journalists and the company they were involved in on the other hand.
These questions were apparently never further investigated, despite the recommendations of the investigators that it should. The question is: why not? Given the concern expressed by some ANC leaders about the alleged unaccountability of journalists and about the corruption of journalists by money or political interests, it is curious that the party never bothered to find out whether its own Premier had bribed at least two journalists.
Surely, if the ANC was truly concerned about the lack of openness and accountability of the media and if it was prepared to act on its principles, it would have completed this investigation and would have taken firm action against Rasool if it had found that he had indeed bribed some journalists and would have handed the matter over to the police for possible criminal prosecution of the journalists (and of Rasool).
Does this mean the purported concerns expressed about the unaccountability of journalists and civil society leaders only relate to a concern about journalists not reporting favourably on the ANC or concern about civil society leaders who expose ANC government corruption or maladministration? And why was the ANC so desperate to keep this report secret? Surely, if the party was really respectful of the rights of citizens to have access to information, it should have volunteered to make this report public? Somehow it never did and would, so it now says, have even spent even more money to appeal the Griesel judgment had the judge not blundered and made the report public. Why all this secrecy if the party had nothing to hide?
The second, far more complex, question is whether journalists are indeed sufficiently transparent and accountable. How do we know that journalists report honestly and fairly about issues and how do we know that they have not been corrupted by both public and private money and power? When a journalist or columnist say nice things about a political leader, is this because the journalist or columnist was given some shares in a company or given a bribe? If a reporter claims that a new model car is the best in its class, is this perhaps because the vehicle manufacturer has showered the journalists with freebies?
Clearly, journalists and columnists are not in exactly the same position as politicians. Politicians are elected, journalists and columnists are not. Politicians make decisions about how our money should be taxed and how the taxes should be spent, journalists and columnists do not. Politicians can ride the gravy train, journalists cannot. Some politicians have enormous power: they can give instructions to the police to shoot and kill people, they can order the invasion of Lesotho (and how did that one work out for you honourable Mangosutho Buthelezi?), they can legally instruct spies to spread lies about perceived enemies of the state. Journalists and columnists can do none of these things.
The argument that journalists, columnists and civil society leaders should therefore be held accountable in exactly the same way as politicians can therefore not be sustained. Claiming that they exercise more power than the President who can make life and death decisions about our future is, quite frankly, absurd and also obviously self-serving.
Yet, as the brown envelope saga demonstrates, journalists, columnists and civil society leaders do potentially wield considerable power, their words and deeds influence public perceptions and can influence how the electorate vote. And we know that they can all be corrupted. Should we really trust that the “market” will hold them accountable (yeah right!) or that internal ethics rules will ensure that they are never corrupted by those in the public and private sector with the most money and or power?
And if we do not trust them to regulate themselves, how do we ensure some transparency and accountability on the part of journalists, columnists and civil society leaders, without endorsing a system of political control by the very politicians from whom we all need serious protection?BACK TO TOP