Professor Steven Friedman in an article in Business Day says that the media has it wrong about secrecy law’s victims and that the failure of the media to analyse the bill accurately may be the only reason it has received so much attention.
He basis this, primarily, on the following :
“Media coverage of the bill has been long on rhetoric and short on accuracy and thoroughness. Any of us who have not been living in a bubble know that it threatens to allow the government to classify information and to jail anyone who publishes that information. What few of us know — including, probably, many who write and comment on the bill — is that section 17 qualifies this.”
I humbly beg to differ :
The relief which the media will be seeking in order to declassify documents will be obtained from our courts.
In this regard Section 17 — in my humble opinion — becomes worthless.
Having filed many urgent applications as an attorney before our high courts I am aware of the amount of these that are rejected on the grounds that they lack urgency.
The courts will hear the applications but in the ordinary course, which can run to weeks.
In addition — and here’s where it gets really ugly — if there is a dispute of fact, which you can bet there will be in these cases, it will need to be referred for oral evidence which could land up taking months or even years.
So while the qualifications of Section 17 are being debated the story will become so old it won’t be worth the paper it’s written on.
Then the act gives a tricky little kick in the teeth : 46 “Protection of State information before courts”.
“Classified information that is placed before a court may not be disclosed to persons not authorised to receive such information unless a court, in the interests of justice, and upon considering issues of national security, national interest of the Republic as referred to in section 11 and any other law, orders full or limited disclosure, with or without conditions.”
If this is factored in then you have effectively blocked the media completely.
Because until a judge rules otherwise that information is classified.
Professor Friedman also fails to take into account the fact that while the media are playing this urgent application game they will also be at risk of the enormous criminal sanctions that flow from being in possession of these documents.
Who would risk their lives to go and test a classified document in court?
Section 17 doesn’t offer any consolation — rather it stands as a fop to show that the government are keen to ensure that the act is reasonable when in practical terms that section is worthless. Not only because the courts will be bogged down trying to define the intention of the act but because in time the legislature — now with a foothold — will close any gaps through further legislation.
To suggest that Section 17 offers the media any protection or a solution is to disregard the day-to-day problems the media will experience in trying to employ it in lifting the classifications of documents and the risks of becoming criminals that people will have to run in order to challenge them.
Professor De Vos has other reasons, which are set out in this blog.
If anyone gets involved in court procedures …….”So while the qualifications of Section 17 are being debated the story will become so old it won’t be worth the paper it’s written on.”
If Motata and McBride (and others) can keep their cases going for years, the press will have no hope in hell to get their points across within the “sell-by date” of the article.
If the bill passes, I advice any youngster to go for a law degree. Your bread will be buttered both sides.
Does it not seem wierd that at one hand the courts are considered unaffective in sorting out complaints against the media; but on the other end, they will prove affective when trying to sort out complaints against the goverment? I pray there are ANC MP’s who see this for what it is and rally against it.
Thanks Traps, that puts it into perspective; i.e. it’s practical context that I had not considered.
Isn’t Friedman an ANC member?
Anyway, this is the same professor that not 5 months ago lamented the banning of Juju’s song.
Link: http://www.businessday.co.za/articles/Content.aspx?id=105483
IMHO, the prof is inconsistent. Then he argued that the judgment “enabled Malema to escape accounting to society”. Yet now the prof is defending a law that could allow government to “escape accounting to society” whenever it chooses to.
I read through the bill twice a formed my own opinion long before reading anyone else’s. I reached the same conclusion as the media and many others. This bill should not be allowed to pass.
Friedman is bias!
steven friedman has sealed his position in government. we have been warned that ‘politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly, and applying the wrong remedies’, and if we forget that its not only us who are doomed, but the nation-state.
We need to free ourselves from intellectual prisons created for us by the current sciences. The present analysts are unable to grow above our racial and ethnic based political landscape, because the country has never experienced anything beyond these constructs, social and cultural, but always used for political reasons.
Now our politics is based on abstract notions like ‘freedom’,'non-racism’, ‘transformation’ and the uninitiated majority use these slogans to determine who to elect. Its bad enough that the ruling party exercise complete control of the mind of the ‘masses’, that already prizes instinct at the expense of the mind, its criminal for those they have learnt to trust, to mislead them, thus uniting them in their subservience.
@ Traps Good one.
Either Mr. Friedman is terminally naive with regard to the possibilities for abuse that have been deliberately built into the POI and the MAT or he has an agenda that echoes that of the ANC rather than the Constitution.
The Constitution provides the means for individuals and/or groups to initiate action before the courts if they believe they have been mis-represented in the press/media. President Zuma has availed himself of these protections on a number of occasions and, if memory serves, several such actions are still pending.
Democracy depends on the independence of the judiciary from government tampering or interference, the right of the people to know what government is doing in their name which requires transparency and accountability from government to the people, and freedom of expression for all individuals and for the press as an independent entity whose job is to monitor the performance of the government, political leaders, and all regulated businesses and industries (communications, safety and security, health and medicine, education, etc.) and to report on any and all irregularities or breaches of the Constitution or statues of the country.
The press is unavoidably in an adversarial relationship to the government (regardless of which party is power). The press is not there to provide ‘good PR’ for the country. That is the Government’s job. “Good PR” is the result of good (lawful, non-corrupt!) governance–not the other way around.
If the ANC want ‘good press’, do GOOD.
It’s scary to think that the media will need lawyers in the way the media bill demands they have to declassify information and legalise information they uncover.
Traps maybe you could write about what legal protections currently exist in South Africa for people that feel they are criminalised by the media as a way of explaining why any such bill is not needed. I know SA has defamation laws etc that are effective already for the spread of lies and disinformation. So this bill just seems Orwellian and highly reminiscent of Apartheid laws.
Lennon above says that he read through the bill twice. Is it online? Does anyone know where to find it. thanks
National interest is a code word for government interest. It is used to mislead the public and for consequent public acceptance of legislation which is not in the long term interests of the public.
@ Rory Short
Rory, it is worse than that.
“National interest” is a code word for RULING PARTY interest.
In the bad old days, when ruling party politicians talekd about something not being in the national interest, they actually meant that it is not in the national PARTY’s interest.
Plus ca change, plus c’est la meme chose!
Here’s a whacky conspiracy theory – the ANC seem to be adopting so many of the old Apartheid National party’s tactics and strategies could it be that the previous Nats now serving in the ANC are advising them?
Mike Francis – Sorry I never saw your comment until today.
I’ve just done a long tem on POIB.
try make that one soon.