On 26 April 2012 the South Gauteng High Court handed down judgment in the matter of Bosasa Operations (Pty) Ltd v Adriaan Basson and M&G Media Limited, in which Webber Wentzel successfully represented the weekly newspaper Mail & Guardian.
Bosasa Operations (Pty) Ltd (Bosasa) brought a defamation claim against the Mail & Guardian in respect of an article written by journalist Adriaan Basson (Basson) in May 2009. In the article Basson alleged that a corrupt relationship existed between Bosasa and the Department of Correctional Services.
As part of the pre-trial discovery process, Bosasa requested certain documents upon which Basson had based the article. These documents were provided, but specific information that may have revealed the identity of the source(s) of the article was redacted. Bosasa then applied to the South Gauteng High Court to compel the Mail & Guardian to disclose this information on the basis that journalists are not entitled to withhold such information during a trial.
The court ruled in favour of the Mail & Guardian and held that it did not have to disclose the identities of its sources. In his judgment, Judge Tsoka ― for the first time in South African law ― explicitly recognised that the protection of sources is a key element of media freedom.
The court ruled that it is imperative that journalists be able to keep their sources confidential in order for them to perform their jobs properly, stating that:
"It is apparent that journalists, subject to certain limitations, are not expected to reveal the identity of their sources. If indeed freedom of the press is fundamental and [a] sine qua non of democracy, it is essential that in carrying out this public duty for the public good, the identity of their sources should not be revealed, particularly, when the information so revealed, would not be publicly known."
The case represents an important advancement in the law pertaining to protection of sources. It is important to note that it does not, however, create a blanket journalistic privilege against disclosure of sources.
The precedent set by the case is limited to disclosure of documents in the context of a defamation case. The court's approach to the issue may differ when different facts are presented, and the position regarding criminal matters - when a journalist can be summoned to answer questions in terms of a subpoena in terms of section 205 of the Criminal Procedure Act, No. 51 of 1977 - also remains unchanged.
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