What happens when the journalist’s ethical obligation to protect the identity of an anonymous source of information clashes with the established legal principal that all relevant evidence needs to be placed before a court? It is common cause that the media is dependant on sources for information. If that were not the case, the media would merely relay obvious information on events already in the public domain. Some sources prefer to remain anonymous, be it for fear of retribution, fear for their own safety or that of their families or just plain shame. Whatever the case may be, the journalist remains under an ethical obligation not to disclose the identity of such a source of information. Although virtually all professional codes of ethics for journalists has some reference to journalists’ duty to protect the identity of their sources of information, at common law the South African journalist has no such privilege as is evinced by the judgment handed down by Hill J in S v Pogrund 1961 (3) SA 868 (TPD) who said that [s]uch principles … confer no privilege in law on any journalist. The most common justification given by supporters of a journalistic privilege is that sources would “dry up” should journalists be forced to disclose the identities of their sources of information. In the writer’s opinion, the question of a journalist’s right to protect the identity of an anonymous source of information or journalistic privilege falls squarely within the ambit of freedom of expression. Section 16 of the Constitution of the Republic of South Africa guarantees that everyone has the right to freedom of expression, which includes inter alia freedom of the press and other media and the freedom to receive or impart information or ideas. Any interference with the delicate relationship between journalist and source therefore will theoretically be a limitation on the rights guaranteed in section 16 of the Constitution. In recent times however since the inception of the new democratic dispensation South African courts have been more inclined to accept that journalists have, at least in principle, the right to protect their sources of information. This is unfortunately not enough as it is quite clear that the notion still exists to view the media as a primary source of evidence, rather than one of the cornerstones of democracy should a journalist be suspected of having information that could be relevant in a case before the court. This is clear from the recent Hefer Commission of Enquiry saga where a journalist was summonsed outright to testify as to her sources of information. South Africa is lagging behind other western legal systems where the journalist’s privilege is seen as a core element of press freedom. Protection for this principle has been formally introduced in foreign legislation. An amendment to the Criminal Procedure Act could be the answer, as could new legislation to protect the media from testifying regarding the identity of informants. Ultimately however, argument of the question before the Constitutional Court would be the ideal solution.
Dissertation (Magister Legum (Public Law))--University of Pretoria, 2007.