Judgment reserved in M&G defamation case
Johannesburg - Judgment in a civil case of defamation brought by Bosasa Operations against the Mail & Guardian and a reporter was reserved by the South Gauteng High Court on Tuesday.
Judge Moroa Tsoka would consider the matter and decide whether to grant applications for discovery and further particulars.
If granted, the identities of two confidential sources who supplied documents to investigative reporter and former Mail & Guardian journalist Adriaan Basson could be revealed.
Bosasa Operations lodged a complaint of defamation against Basson and the newspaper after it published a story claiming the company had been awarded contracts to provide services to the correctional services department through corruption and bribery.
Bosasa, in its discovery application, had asked Basson to disclose his sources for the story, but he refused.
Jeremy Gauntlett, for Bosasa, said on Tuesday that Basson had violated the Mail & Guardian's internal code by running the story based on confidential sources. There was no evidence Basson had tried to avoid the use of unnamed sources, or that the sources were reliable before he promised them confidentiality.
However, Wim Trengove, for the newspaper and Basson, argued on Monday that Bosasa's applications should be dismissed. This was because disclosure of the sources' identities - or documents which could lead to this - would detract from the media's guiding principle of public interest. Sources would "dry up" and, as a result, the public would not be informed of corrupt dealings.
Gauntlett retorted on Tuesday: "M'lord, Mother Theresa is not before the court."
Both the Mail & Guardian and Bosasa were private enterprises and as such "no one should be rubbishing anyone else in this court".
Gauntlett also replied to Trengove's argument that the Mail & Guardian's article was only one "amid a sea of negative publicity".
He said other publications had used greater caution in reporting on the matter. The article in question had "stated bluntly" that Bosasa had a corrupt relationship with correctional services.
Journalists who promised never to reveal their sources should take the consequences of this in law.
Quoting from Lord Alfred Thompson Denning in Goriet vs Union of Postal Workers (1977), Gauntlett said: "Be you ever so high, you are under the law."
He said the other party's arguments on Monday were to the effect that "selflessly, day and night, they work for the public".
Such assertions, in conjunction with arguments based on constitutionally protected rights to freedom of press and expression, amounted to "simply flash[ing] the badge at the court".
Gauntlett said the "chilling effect" the newspaper and Basson had argued disclosure of confidential sources would have on the flow of information to the public was "no doubt chilling, when the newspaper has to pay damages".
On Monday, Trengove and Kate Hofmeyr, a friend of the court, argued that a court order forcing the disclosure of sources - particularly at pre-trial stage - would have a chilling effect on the media's ability to keep the public informed.
SA National Editors' Forum and advocacy group Section 16 appointed Hofmeyr as an amicus curiae.
"Irrespective of the particular circumstances of these particular sources in this particular case, disclosure would have a chilling impact on the flow of information to the public," said Hofmeyr.
Trengove argued that the media's function was to fulfil a "watchdog role" and "it is the purpose of this function to expose corruption, whether in the private sector or in government".
The confidentiality of sources should be compromised only where the public interest was better served by the revelation than the protection of sources. However, this had not been proven in this matter, he said.
"Investigative reporters, in particular, would be significantly less efficient if they could not rely on confidential sources," Trengove told the court.
As such, it was not for the media's own sake that confidentiality be maintained, but for the sake of the public interest.