Media attention has recently been focussed on proposals to exert greater control over it. The proposals include a “media tribunal” and the new Protection of Information bill. In contrast to this concern government agents have defended the proposals as necessary for state security and fairness . Chief spokesman Themba Maseko recently declared that "there is no intention or plan to muzzle the media in any shape or form”, However with attention directed on the explicit attempts to control the “fourth estate” media representative have seemingly been blind to more in insidious moves by the state.
These moves include using existing legislation to achieve the effects envisaged, for example, by the new Protection of Information bill. This bill seeks to criminalise journalists for being in possession of “sensitive” documents that may have been leaked to them. However the recent arrest of Sunday Times journalist Mzilikazi Wa Afrika for, it seems, being in possession of a “fraudulent letter of resignation” suggests that the SA Police Force is already treating the mere possession of sensitive documents as criminal. The initial charges against Afrika were “fraud” and “defeating the ends of justice”.
Although the charge of “defeating the ends of justice” was later dropped in favour of one of “utterance” the fact that this charge was used at all is of concern. “Defeating the ends of justice” is a somewhat vague charge relating to efforts to subvert the judicial process by intimidating witnesses or destroying evidence. If media coverage is anything to go by until recently those charged with the offence were invariably police staff. Examples include Jackie Selebi, the station commissioner who tampered with the drunk driving evidence against Tony Yengeni, former crime intelligence boss Mulangi Mphego and the then head of the Scorpions Gerrie Nel. By contrast it is difficult to find, prior to the appointment of Bheki Cele, reference to the charge being lodged against people outside of the criminal justice system.
In a dramatic departure from this tradition this law is increasingly being used against journalists. In the past two months at least two journalists have been arrested and brought to court for “defeating the ends of justice”. The most recent instance is that of Afrika. In the previous month english journalist Simon Wright faced the charge. The charges against Wright stem from his cloistering of soccer fan Pavlos Joseph in a hotel. During the world cup Josephs entered the English football teams' dressing room to reprimand them for their poor performance. Wright, in his enthusiasm for securing an exclusive interview, booked Josephs into a hotel under a false name. This gave rise to the accusation of him attempting thwart justice from prevailing in Josephs' case. In these instances the veracity the “defeating the ends of justice” charge was justified largely by the vagueness of the allegation. The severity of the charge was aggravated by SAPS intimating, in both instances, that the offences constituted part of a wider conspiracy. The alleged conspiracy, coupled to the vagueness of the charge, invited wild speculation as to what the actual misdeed was.
In court the merits of the “defeating the ends of justice” charges were illustrated by the rapidity with which they were dismissed. The dropping of this charge reflect, on the one hand, the historical difficulty in securing such a conviciton – as was demonstrated in the cases against Selebi , Nel and Mphego. On the other hand the message to journalists remains clear - the police are increasingly prepared to use this charge against them precisely because of the opportunities afforded by its vagueness.
The common theme in both these cases is that the journalists had recently embarrassed the SAPS. Afrika had just accused police head Beki Cele of signing a R500-million lease without observing the required procedures. Wright had pointed out the ease with which a fan could wander into a key area secured by the SAPS. Could it be that the arrests were to punish this behaviour rather than any overt criminal act?
In a short period “defeating the ends of justice” has come to be associated less with tampering with evidence or bribing witnesses and more with journalists publishing the true face of the police.
The extent to which the police hereby undermine the fourth estate is the extent to which they may not need the full measure of the Protection of Information bill. What their action does show is that, assurance that "there is no intention or plan to muzzle the media in any shape or form” aside, the state seeks to cow the media irrespective of whether or not the Protection of Information bill is passed in its current form. Those who view the proponents of the protection of information bill as naïve but well intentioned people operating a bit out of their depth should wake up. In this one regard the writing (on the wall) is getting clearer.
