With its interview of two alleged criminals, e.tv has created a battleground on which the parameters of Section 205 of the Criminal Procedures Act will be fought over, writes Franny Rabkin in Business Day. This provision, much used under apartheid, can be used to force anybody – including journalists – to provide information about crime. It is therefore generally seen by journalists as an infringement of media freedom, but the authorities have never quite accepted that argument.
TALK or else" is how veteran journalist Harvey Tyson describes section 205 of the Criminal Procedure Act in his book Editors Under Fire – on the media's fight against apartheid censorship.
The section allows the National Prosecuting Authority (NPA) to compel someone, where a crime has been committed, to reveal information or hand over documents related to the crime.
Refusing to do so can lead to imprisonment or a fine. It would also mean a criminal record.
Section 205 was frequently used against journalists during apartheid to get information about struggle activists.
Now the section, which had been gathering dust in the cupboard of seldom-used laws, has been pulled out and brushed off to use against e.tv journalist Mpho Lakaje.
Lakaje and his editor, Ben Said, got "Two-O-Fived" on Monday, just days after e.tv carried a broadcast of an interview with two "self-confessed criminals".
One of them, who chillingly cocked a gun during the interview, said he would rob tourists during the Soccer World Cup.
The other said he was prepared to shoot his way out of a standoff with the police. The identities of both were concealed.
The interview evoked strong reactions from the public and the government, which is trying to quell safety fears following the reaction to the attack on the Togo soccer team in Angola.
National police commissioner Bheki Cele at the weekend issued a statement saying the interviewed criminals had committed the crime of intimidation. The next day the subpoenas were served on e.tv.
It has since been reported that an unnamed man, who allegedly introduced Lakaje to the two criminals, committed suicide in Soweto yesterday. His death raises questions about the future of the subpoenas since e.tv says the deceased was their only link to the criminals.
Media law expert Dario Milo of Webber Wentzel attorneys says the case, should the police proceed, will be precedent-setting and would "test the limits" of the section.
The big difference between section 205 in Tyson's time and now is that SA now has a bill of rights.
Section 205 survived the new constitutional dispensation and was found, in principle, to be constitutional by the Constitutional Court in 1996.
In the case of Nel vs Le Roux, Judge Laurie Ackermann said what saved the section from constitutional invalidity was that, in terms of the act, the person could refuse to answer a question if he had a "just excuse".
Now that SA has a bill of rights, threat of an infringement of a right in the bill of rights would constitute a just excuse, Ackermann says.
He says it is up to the courts to determine case by case whether forcing someone to answer a question will unjustifiably infringe on his rights.
Milo says there are two approaches e.tv could adopt in response to the subpoenas.
The first is to rely on a record of understanding between the government and the South African National Editors Forum signed in 1999 which allows journalists to make representations to the NPA prior to being subpoenaed in terms of section 205. This process was not adopted in this case.
The second is to argue it is a "just excuse" not to reveal the identities of the sources as disclosure will undermine e.tv 's right to media freedom.
The argument would be that the interview was manifestly in the public interest and requiring journalists to reveal sources would have a "chilling effect" on the media doing its job.
But Milo says e.tv might have an "uphill battle" on its hands in this case because the state also has a legitimate interest in pursuing those threatening robbery and murder. The court's job would be to balance these competing interests, he says.
* This article first appeared in Business Day on 20 January 2009.