I got married because of a Section 205 subpoena …

These days I seem to get published more in Afrikaans than English. For Rapport, on Sunday, I wrote about my marriage … and Section 205 of the Criminal Procedure Act.

I got married because of Section 205 in the Criminal Procedure Act. Faced with a subpoena under this law back in 1984, I knew I could not answer questions the security police were putting to me as a journalist and was threatened with up to five years in prison.

The severity of the sentence would be based on the seriousness of the crime under investigation. In this case it was treason, as I was being asked to confirm that an activist had said in an interview that the townships had to be made “ungovernable”.

The lawyer advised my girlfriend to marry me if she wanted visiting rights.

As it turns out, the interviewee fled the country, the case was dropped and I was let off the hook. The 205 hook, that is. By then I was married.

Section 205 subpoenas were used that way under apartheid to try to extract information about activists from journalists, or just to make difficult the lives of reporters and discourage them from covering sensitive things.

With democracy, came the understanding common to most democracies that journalists had to be allowed to protect their sources. A memorandum was signed by Justice Minister Dullah Omar and the national editors’ body, Sanef, to the effect that this law would be changed and until then it would be used with circumspection and consultation.

That memorandum was ignored by the current Minister of Police, Nathi Mthethwa, when he issued Section 205 subpoenas against eTV reporters this week. He was angered by an eTV interview with two unidentified criminals which he said was gratuitously sensational, promoted unlawfulness and created a climate of fear and hysteria.

That’s a little over the top. Since not many people saw or paid attention to the eTV interview until the Minister raised the interest levels, it is hard to see things in such dramatic terms.

Nevertheless, there are questions to raise around the eTV interview. It is important for journalists to examine and expose criminality, and that may include interviewing scumbags. But it is also risky to give a platform and possibly romanticize these thugs.

In this case, eTV has argued that they were drawing attention to plans to disrupt the World Cup and providing some insight into the brazenness of our criminals. It is at least debatable whether eTV acted wisely in this. Certainly they must have known that the climate of opinion was against them in a public fed up with criminality.

Less debatable is whether the Minister is wise to subpoena journalists. He has set himself on the path of a long and messy legal proceeding which – if he persists – will go all the way to the Constitutional Court. It will tie up police, the courts and journalists for months of difficult and expensive wrangling. At best, police will get some names and addresses. At worst, journalists will go to prison, since eTV will have to stand by any undertaking not to reveal the identities of their interviewees.

The only people who will enjoy this are the real criminals, who will take advantage of the police being distracted.

Consider how the international world – already asking questions about our capacity to contain crime during the World Cup – will see this. You have a serious crime problem, and it is journalists you are putting into court and threatening to lock up? This does not make sense. This does not reassure us.

But, I hear you asking, why are journalists not obliged to inform the police about criminal activity like other citizens? Surely media freedom does not include freedom to withhold information from police and to allow threats to be made on national television?

The answer is that journalists best serve the fight against crime by examining, highlighting and exposing the issue, which often includes interviewing the worst kinds of criminals. Their newspaper and television reports provide police with some of their best intelligence, and if the authorities are wise they will let journalists get on with it and make use of the information that emerges through their reports.

Consider some other examples. When a service delivery protest turns violent, we want journalists find out who the protestors are, what motivates them, and why things are turning nasty. They cannot do this if they are required to turn over to the police anyone who admits to or threatens violence.

We also need to report on those who connect illegally to the electricity grid, and understand how and why they are doing it. Can we do this, unless we assure our interviewees that we will not name them, and stick by that promise?

Maybe we want to know more about police corruption, and one way to do the story is to interview cops about why they take bribes, how much they take and whether they fear being caught. Without anonymity, this story cannot be done.

This is why forcing journalists to name sources or interviewees is an attack on their capacity to work, and therefore an attack on our right to know. That is why we need to protect the space journalists have to do their work and avoid dragging them into court to provide information to police.

If the Minister believes eTV crossed a line with their reporting, he should take the matter up with the Broadcasting Complaints Commission or the regulator who controls their licence. But he should leave his officers to chase real criminals doing real crime.

*This first appeared in Rapport, 24 January 2010

2 thoughts on “I got married because of a Section 205 subpoena …

  1. Anton, while I agree that the subpoena was ill-advised and that journalists should honour confidentiality of sources, just one point for clarification: The memorandum of understanding between the Justice Minister and Sanef was not to the effect that “that this law would be changed and until then it would be used with circumspection and consultation”. It was an interim measure, pending discussion about the possibility of changing the law. Those discussions took place, but last year the Justice Department notified Sanef that the law would not be changed (and the Constitutional Court has also ruled in favour of Section 205). The continued vailidity of the memorandum is, therefore, unclear. My view is that a law change isn’t necessary, and that journalists should rely on a constitution-based “just excuse” justification (see http://tinyurl.com/yexq7gy
    , which can only be established by precedent – so the sooner a Section 205 case goes to court, the better!

  2. I really need someone to deeply expalain to me, what is section 205, what is it about or what is its purpose, i am doing an assignemnt on it…. ” the controversy betwewen the media fratenity and the aurthorities, about the section 205 of the criminal procedure.. Thank you.

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