Celebrated media veteran and activist Raymond Louw says it is high time apartheid-era laws in conflict with South Africa’s Constitution are wiped from the statute books.
After more than 18 years of campaigning, the South African National Editors’ Forum (Sanef) has come a step closer to having a number of laws from the apartheid era reviewed so they can be amended or scrapped. These laws have aspects that journalists say conflict with Constitutional clauses on freedom of expression and the media.
One of these laws – the National Key Points Act of 1980 – has received a great deal of public attention of late by being quoted by government spokespeople as providing the legal reasons for keeping secret certain information held by the state. It is vehemently condemned by editors and journalists as an instrument of censorship.
This law has been used to prevent journalists from gaining information about a security wall built around Bryntirion, the ministerial residence complex in Pretoria. Journalists inquired about the cost of the wall, as well as its composition and purpose.
The Act states that the minister of Defence can declare a place a national key point if he believes it is so important that its loss, damage, disruption or immobilisation may prejudice or affect the safety of the republic. The legislation focuses on the disclosure of information about security measures at such a place or about an incident that took place there. Penalties under the Act range from imprisonment of three to 20 years and a fine of R10 000.
The Act was used to prevent Beeld newspaper some years ago from obtaining details of a disciplinary hearing against a senior legal officer at the South African Broadcasting Corporation and, more recently, to prevent the media from being given information about the massive R206-million ‘upgrading’ of President Jacob Zuma’s residential complex in rural Nkandla in KwaZulu-Natal.
The excuse was embroidered by the story that residences and former residences of South African presidents had been declared national key points. This happened in 2010 and was a bizarre statement given that no one was waging war against the government then, or now for that matter. It is even more remarkable when one considers that the former National Party government did not declare those residences national key points, even though it was at war with the Umkhonto we Sizwe armed wing of the African National Congress.
There are at least 10 such important laws that require urgent review. The campaign for this review began in the early 1990s when apartheid was crumbling and a new dispensation was in sight, one that held out hopes that restrictive laws would be scrapped. An extensive review of South Africa’s laws was instituted by the Freedom of Expression Institute and conducted by two lawyers at the University of the Witwatersrand’s Centre for Applied Legal Studies.
They drew up a memorandum listing the important laws of immediate concern that should be tackled first before attention be given to less irksome laws that, nevertheless, should be amended or scrapped. Wide-ranging legislative reform has been conducted, but the research showed that old laws that restrict access to information and freedom of the press continue to languish on the statute books.
Journalists raised their concerns with presidents Nelson Mandela, Thabo Mbeki and Deputy President Kgalema Motlanthe, as well as several ministers of justice, and many meetings were held with the law commissioners and officials of the departments of Justice and Communications.
In 2008, there was a surge of hope when the SA Law Commission announced that it was to embark on a major review of the 2 800 laws enacted since 1910 with a view to modernising and simplifying the statute book and removing those that are discriminatory or in conflict with the Constitution.
Editors hoped that the laws applying to the media would receive priority, basing that expectation on the fact that at least a decade earlier they had told the Law Commission of their concerns and presented it in a document called the ‘Wits Memorandum’. The commission said then that a review of the statutes administered by the departments of Transport, Public Works, International Relations and Cooperation, Arts and Culture, Human Settlements and the National Treasury had already started. But now, four years later, there is still no indication of what progress has been made – and not even a peep about media legislation.
Department of Justice officials, on the other hand, proposed some months ago that workshops where the legislation will be reviewed be conducted with individual government departments affected by the legislation as well as journalists and their lawyers.
At the recent 19 October Commemoration of Black Wednesday – the day in 1977 when
the Nationalist government banned publications and people, imprisoned journalists and others under detention without trial laws – journalists called again for the review of the Wits list of laws and for the government to deal with it as a major priority.
Sanef focused on an appeal made by Zuma a few weeks earlier at the annual general meeting of the Johannesburg Attorneys Association for the urgent repeal or substitution of what he called “old order legislation” relating to the admission of lawyers and advocates to the profession in the former “homelands”.
Sanef applauded Zuma for wanting to rid lawyers of apartheid-era legislation, but expressed disappointment that he did not broaden his call to embrace the laws about which they complained.
There was no audible response from Zuma, but journalists have been encouraged by Deputy President Kgalema Motlanthe, when, at a recent meeting he and several cabinet ministers had with a group of Sanef members, the view was expressed that greater urgency should be accorded to the journalists’ complaint.
The customary low-key formal statement after the meeting recorded that Sanef had called on the government to repeal or amend the apartheid-era laws and that the cabinet indicated that work in this regard had already started and both parties committed to expediting the process.
Actually, at the meeting steps were taken to speed up the holding of the workshops, an indication that at long last this issue may receive the attention it deserves.
But what are the journalists complaining about? The memorandum is critical of powers judicial officers have under various statutes to limit access to public trials and inquiries and turn them into secret hearings.
The memorandum gives cogent arguments in favour of journalists being allowed to protect their confidential sources. It urges that the Criminal Procedure Act should be amended to provide for journalists being able to plead that they have a “just excuse” for not being forced to identify a confidential source.
A series of national security laws give wide powers to the president and others under broadly phrased legislative provisions to maintain secrecy over information. The National Defence Act 44 of 1957 has Section 118(1) (b), a famously absurd provision that should be repealed. It states: “No person shall publish in any newspaper, magazine, book or pamphlet or by radio or any other means any statement, comment or rumour relating to any member of the South African Defence Force or any activity of the South African Defence Force or any force of a foreign country, calculated to prejudice or embarrass the government in its foreign relations or to alarm or depress members of the public, except where publication thereof has been authorised by the minister or under his authority.”
The lawyers point to security laws that make a substantial infringement on rights to information: the Armaments Development and Production Act 57 of 1968; the National Supplies Procurement Act 89 of 1970, which gives wide powers to the minister of Trade and Industry and Tourism; and the Petroleum Products Act 120 of 1977 which gives similar powers to the minister of Economic Affairs. Also listed is the Protection of Information Act 84 of 1982, which is being replaced by the
Protection of State Information Act, and the National Key Points Act, both referred to above.
Included in the list is one passed by the present government after 1994: the Promotion of Equality and Prevention of Unfair Discrimination Act, which aims to prohibit hate speech, but has the unintended consequences of unreasonably restricting freedom of expression.
Raymond Louw is chairman of the South African Chapter of the Media Institute of Southern Africa (Misa).
IMAGE: Nkandla, classified as a National Key Point.