In their by now infamous judgement in the appeal of General Lothar Neethling vs Vrye Weekblad and the Weekly Mail, the judges of the Appeal Court in Bloemfontein held that our Common Law does not accord any specific role or privilege to the press in a democratic State. The judges were wrong: Wrong about the facts of the case and in their analysis of those facts (see nose6); wrong about the press; and wrong about the law.

The Appeal Court of the Republic of South Africa has an extraordinarily arrogant, patronising and undemocratic view of the South African public. It is not surprising, therefore, that the Court has the same view of the press, which the Court despises for giving the public what it “wants”.

The Court has no hesitation in declaring that the general public has no legitimate interest in information and allegations about the secret existence of police hit squads, set up to murder and illegally harass opponents of the government. The only interest ordinary citizens have in such matters, according to the judges, is as a means of satisfying their curiosity and lust for gossip.

In short, the Appeal Court found it was not in the public interest for police Captain Dirk Coetzee’s full account of the death squads to be made public. At most, says Judge Hoexter (with all his brothers’ concurrence), if the newspapers were really so concerned (and the court’s scepticism is obvious), they should have privately informed the Commissioner of Police, or otherwise the Minister of Law and Order, for them to investigate it.

The Court does not find it necessary to consider the probabilities of what the outcome of such a report – in 1984 or 1989 – to the police or a cabinet minister, such as, say, Louis le Grange or Abraham Vlok, was likely to be. The reason is obvious: The judges of the Appeal Court have always trusted the Commissioner of Police (and, of course his senior officers) and the members of the cabinet – whether in 1974, or in 1989, or in 1994. Practical considerations, and possibly personal predisposition, dictated that they should. They are, by definition, part of the same structure. There’s the rub and the difference: The experience of the majority of South Africans, myself included, leads us to believe that we would have been most unwise to place our trust in the hands of many senior police officers, and certainly in those of most members of the cabinet.

The court did not bother to assess the role of the press in a democratic society, or take expert evidence on how, in practice, the press functions. It did not come as a complete surprise, therefore, that, when it came to assessing the law, the judges’ finding was as primitive and superficial as it had been on the facts see nose6 and next page).

To be able to carry out and enforce blatantly unjust and immoral laws, all of them have participated in – or developed an insensitivity to – the progressive destruction of our Roman Dutch Common Law. Just how grotesque a proposition that is, becomes clear when one is reminded that our Common Law developed over two millennia, and was articulated by some of the greatest minds of Classical Rome and Renaissance Europe. The fundamental feature of our Common Law is its dedication to a rational search for justice, based on an understanding of civilised principle and liberal humanitarian values.

Deprived of fundamental moral principle, the practice of law must increasingly become a measure of the arrogance and opinionatedness of judge and lawmaker; entirely appropriate, of course, to the racist and authoritarian climate that has prevailed in our country for so long.

Judge Hoexter, author of the Appeal judgement in the Neethling case, in fact begins his analysis of the legal position with some references to classical Roman Law, and a restatement of it by Voet, the great Dutch jurist.

In terms of Common Law principle, the court was called upon to decide whether, in a particular case – this case – public policy justified the publication [of particular defamatory information] and therefore required that it be found to have been lawful.

Now, of course, to seek specific references to the press in the ancient Common Law authorities would be absurd. The Press did not exist in the time of classical Rome or of Renaissance Holland. Nor, in those times, did huge national states exist with a popular democratic form of government. In a sense they could not have, because the forms of mass communication necessary for a popular democracy to function did not exist.

In a democracy it is the people who ultimately make the decisions of government. In order to make rational, informed and just decisions, the people need information, and to debate and formulate opinions. In a large democratic state, that can only be achieved through mass communications media such as the press, radio, TV and an efficient telephone and postal service.

The media not only disseminate information, they must do so effectively, while it is relevant: Their business is to disseminate news, not history or Appeal Court judgements, passed four years after the events have taken place.

Mass media might not have existed in ancient Rome or 17th Century Holland, but the very basis of our Common Law is the insight that justice requires rational, informed decisions. One only needs to apply this insight to the requirements of a popular democracy, to arrive at the special and essential role of the media.

It is completely consistent with the principles of our Common Law, therefore, to, in a democracy, accord the press a special role – and to accord it those privileges necessary for it to perform its function.

And just as the Courts take account of accepted practice and professional experience and ethics in business, accountancy and medicine, so they should, rationally and justly, do so when it comes to judging the media.

The press is not the final judge of information. The press merely conveys or submits information or “evidence”, and offers alternative arguments regarding its truth and significance.

Readers and other, competing, media may challenge the accuracy of the information, tender different information or propose another interpretation. It is the readers out there, each with access to their own sources of information, who will judge, also by their own experience, how they wish to react. Subjecting information to the so called “sunshine test” of publication can be an important way of establishing the truth. More often than not, readers will decide to ignore the information as being irrelevant, wrong, or simply not to their taste.

Opinion polls reveal that most people retain a healthy scepticism of what they read in the press. Which does not mean they do not want or need newspapers with current information; simply that it is in the nature of human beings to question the reliability and relevance of every bit of information they receive, by judging the credibility of the source, testing the logic of the argument; and by comparing it with previously acquired knowledge.

The Founding Fathers of the United States of America came to understand the close inter-relationship between popular democracy and free access to information and a diversity of opinion, by much the same route. But, in the Neethling case, our Appeal Court saw fit to dismiss the law of the assertively democratic United States as somehow eccentric, and of no value as an aid to assessing the role and rights of the press in South Africa.

The American Republic was, of course, established in reaction to an English aristocratic oligarchy, which judges of the “old” South Africa would naturally have found much more amenable.

The Appeal Court judges also avoid the intellectual and moral responsibility – imposed by our Common Law – of having to rationally assess the nature of a popular democracy and the role of the press in it. Instead they prefer to quote extensively from foreign judgements on the press that have their origin in the courts of 19th Century England and its erstwhile empire – a legal system that is still more primitive and less democratic than our own Common Law, having traditionally served the interests of – and been dominated by – an entrenched privileged class. (Hence, also, the title of their Lordships.)

Even so, readers will agree, the Appeal Court’s implied claim – in 1993 – to shared values with the “English speaking world” comes across as somewhat forced and, maybe, just a little rich. n

Appeal Court
Appeal Judges
Chief Justice Michael Corbett
Vrye Weekblad
Weekly Mail
Media Law
Lothar Neethling
Police Hit Squad
South African
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