On 26 April 2012 the South Gauteng High Court handed down
judgment in the matter of Bosasa Operations (Pty) Ltd v Adriaan
Basson and M&G Media Limited, in which Webber Wentzel
successfully represented the weekly newspaper Mail &
Bosasa Operations (Pty) Ltd (Bosasa) brought a defamation claim
against the Mail & Guardian in respect of an article written by
journalist Adriaan Basson (Basson) in May 2009. In the article
Basson alleged that a corrupt relationship existed between Bosasa
and the Department of Correctional Services.
As part of the pre-trial discovery process, Bosasa requested
certain documents upon which Basson had based the article. These
documents were provided, but specific information that may have
revealed the identity of the source(s) of the article was redacted.
Bosasa then applied to the South Gauteng High Court to compel the
Mail & Guardian to disclose this information on the
basis that journalists are not entitled to withhold such
information during a trial.
The court ruled in favour of the Mail & Guardian
and held that it did not have to disclose the identities of its
sources. In his judgment, Judge Tsoka ― for the first
time in South African law ― explicitly recognised that
the protection of sources is a key element of media freedom.
The court ruled that it is imperative that journalists be able
to keep their sources confidential in order for them to perform
their jobs properly, stating that:
"It is apparent that journalists, subject to certain
limitations, are not expected to reveal the identity of their
sources. If indeed freedom of the press is fundamental and [a] sine
qua non of democracy, it is essential that in carrying out this
public duty for the public good, the identity of their sources
should not be revealed, particularly, when the information so
revealed, would not be publicly known."
The case represents an important advancement in the law
pertaining to protection of sources. It is important to note that
it does not, however, create a blanket journalistic privilege
against disclosure of sources.
The precedent set by the case is limited to disclosure of
documents in the context of a defamation case. The court's
approach to the issue may differ when different facts are
presented, and the position regarding criminal matters - when a
journalist can be summoned to answer questions in terms of a
subpoena in terms of section 205 of the Criminal Procedure Act, No.
51 of 1977 - also remains unchanged.
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