By Dario Milo, partner, Webber Wentzel

The e.tv case brings into sharp focus an issue that journalists regard as sacrosanct: the protection of the confidentiality of their sources of information.

This is a principal that is of fundamental importance to media freedom. As the European Court reiterated in a case last December - where it upheld the right of a financial journalist not to return a leaked document that might have revealed the source of the leak - "protection of journalistic sources is one of the basic conditions for press freedom. Without such protection, sources may be deterred from assisting the press in informing the public of matters of public interest".

However, despite the potency of this protection, and as is the case with most constitutional rights, the protection must be overridden where there is a countervailing interest which is of greater importance on the facts.

Section 205 needs to be seen against that background. Read in conjunction with Section 189 of the Criminal Procedures Act, Section 205 entitles the court to require the attendance of any person who is likely to have material or relevant information about any alleged criminal offence, for examination by a prosecutor. If the person summoned refuses to give the information, he may be sent to jail for up to five years. The only way to avoid the sentence is to argue that there is a "just excuse" for the failure to comply.

Before the constitutional protection of freedom of expression, Section 205 was used by the apartheid regime to underpin its ruthless campaign of state censorship and repression of political expression. Despite this history, in 1996 the Constitutional Court upheld the constitutionality of the section in a non-media case, Nel vs Le Roux, saying the "just excuse" qualification saved the provision.

The court reasoned that it would be a just excuse to refuse to answer any question that would infringe or threaten to infringe upon a constitutional right.

At least this gives the media a peg on which to hang a media freedom argument; that in the circumstances it would unjustifiably infringe upon the right of media freedom for the journalist to reveal the identity of his or her source, and so the refusal to comply constitutes a just excuse.

But the section still troubles the media. In 1999 something of a breakthrough occurred when the then ministers of justice and safety and security, and the national director of public prosecutions entered into a "record of understanding" with the SA National Editors' Forum (Sanef). Pending the amendment of the Criminal Procedure Act, the agreed procedure is that when the prosecutors wish to compel the media to testify, the matter must be referred to the national director of public prosecutions for consideration.

In particular, the national director must afford the media the opportunity to make representations and may initiate a process of mediation and negotiation. Although this process remains in place, it appears not to have been followed in the e.tv case.

The e.tv case will require the courts to balance the equally compelling interest of media freedom and the protection of sources against the importance to the administration of justice: that crimes be prosecuted efficiently. If it is indeed the case that the sources have committed a crime, and that the police have no other means to trace them but to require e.tv to reveal its sources, then e.tv may well face an uphill battle in court.

Published in City Press, 24 January 2010.

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