With South Africa’s MPs voting on the Protection of State Information Bill today, without the inclusion of a public interest defence to protect civil society and the media, lawyer Brigit Rubenstein looks back to the apartheid years to see how the courts handled attempts by media then to use ‘in the public interest’ as a defence.
There are no reported cases of a public interest defence having been successfully raised and upheld under the Protection of Information Act 84 of 1982 or its predecessor,” says Rubinstein, a director in the Dispute Resolution practice at Cliffe Dekker Hofmeyr business law firm.
“During the apartheid era, there were one or two cases where journalists or activists attempted to raise a ‘public interest’ type defence to criminal charges instituted under prevailing security and information legislation.
“They did this by attempting to extend the criminal law notion of “private defence” (where a person’s allegedly criminal conduct is deemed lawful because they were acting in defence of themselves or a third party) to instances where information was accessed or released in the public interest.
“These cases were ultimately determined on other grounds but the defences were certainly not dismissed outright – in one case the then Chief Justice, Corbett CJ, held: “the defense had sufficient substance to merit…serious consideration…”
“Notwithstanding the very oppressive information and secrecy regime under the apartheid Government, the Courts still occasionally emphasised the importance of media freedom. In one case where a journalist was detained under the Public Security Act for refusing to disclose his source, the Court held in his favour and stated the following:
“The right of members of the public to criticise, even in scathing terms, the action of a Government …is one of the cornerstones of democracy.”
“Of course, these sorts of rulings were the exception,” Rubinstein adds.
