Cape Town Metro Police officer barring a journalist from covering the eviction of refugees at the Central Methodist Mission on Greenmarket Square. Pic: Unknown
The South African National Editors’ Forum (SANEF) condemns the Cape Town metro police officer who pushed and harassed journalists barring them from doing their job on Sunday, 2 March, 2020.
According to freelance reporter Wesley Fester, who recorded the incident, Newzroom Afrika’s reporter Athi Mthongana was shoved and assaulted by a member of the City of Cape Town’s Law Enforcement Department assigned to remove the refugees living around the Central Methodist Mission on Greenmarket Square on Sunday afternoon. There were other journalists whose equipment was also damaged in the scuffle.
SANEF also noted that last week, on Budget day, Wednesday, February 26, 2020, a SAPS police officer forcefully stopped Parliamentary reporter and photographer Jan Gerber from recording and reporting an incident where the police prevented DA interim and official leader of the opposition John Steenhuisen from entering Parliament ahead of the budget speech.
Gerber, a News24 journalist, was busy taking a cell phone video of this interaction when one brigadier then confronted him, saying he should turn his phone off because he was not “authorised” to make a video of the discussion. On the video, the brigadier in question pushed his phone away to prevent the recording.
Cape Town Metro Police officer barring a journalist from covering the eviction of refugees at the Central Methodist Mission on Greenmarket Square. Pic: Unknown
According to the police’s standing order 156, no police official may prevent a member of the media “taking photographs or making visual recordings”.
SANEF calls for decisive action against the metro police officers and the members of the SAPS who are identifiable breaking the law. They should be subjected to internal disciplinary action and held to account in terms of why they sought to censor the media.
SANEF is worried that these incidents where police and metro police officers randomly prevent journalists from using the tools of their trade to record and report stories are increasing. They have done so recently even inside courtrooms without the decision or the order of the presiding magistrate.
We are looking into engaging officials responsible for metro policing around the country to make the police’s standing order 156 possibly applicable to metro officers as well.
SANEF once again calls on the Ministers of Police as well as the Justice and Correctional Services in the security cluster to ensure that all state organs especially members of the SAPS and metro police protect journalists and stop this gross violation of the Constitution.
The prevention of journalists from covering stories infringes on the right of freedom of expression enshrined in Section 16 of our Constitution. Section 16 states that everyone has the right to freedom of expression, which includes “freedom of the press and other media” and “freedom to receive or impart information or ideas”. Therefore, the protection and encouragement of the free press, freedom of speech and the free flow of information are cornerstones.
Note for Editors: The South African National Editors’ Forum (SANEF) is a non-profit organisation whose members are editors, senior journalists and journalism trainers from all areas of the South African media. We are committed to championing South Africa’s hard-won freedom of expression and promoting quality, ethics and diversity in the South African media. We promote excellence in journalism through fighting for media freedom, writing policy submissions, research, education and training programmes.
Guests attending the breakfast roundtable discussion on “The combating of harassment and abuse of journalists: Seeking new rules of engagement on September 28, 2019
SANEF held a Breakfast Roundtable on World News Day marked by the World Editors Forum on Saturday, September 28, 2019. The roundtable focused on combating online harassment and abuse of journalists: seeking new rules of engagement.
The guest speaker was Rana Ayyub, internationally acclaimed Indian journalist and writer. Also, in attendance, was Commissioner Lawrence Mute, Special Rapporteur for Freedom of Expression and Access to Information in Africa. Journalists and civil society organisations, including the Special Freedom Rapporteur for Freedom of Expression and Access to Information in Africa, Media Monitoring Africa, the Press Council of SA and the Freedom of Expression Institute, made valuable contributions.
Helene Eloff’s Master’s Degree Research titled: “South Africa’s Media Defamation Law in a Constitutional, Digital Age” deals with the digitisation of journalism and our legal responses.
She has dedicated this research to those South African journalists who fulfil their mandate legally and ethically. She hopes that the contents of her research will contribute towards the research pool in both journalism and law.
Her dissertation finds that South Africa’s media law is unfair in that it differentiates between media defendants and non-media defendants. “The effects of doing so cannot be justified in terms of Section 36 of the Constitution,” she argues.
The South African National Editors’ Forum (SANEF) notes and welcomes the public debate in the wake of our Equality Court application against the Economic Freedom Fighters (EFF) and its leader, Julius Malema. We believe that this discussion will strengthen and improve our national discourse on the importance of media freedom and freedom of expression, which we fundamentally stand for and promote.
Some of the commentary expressed has misinterpreted our case, which was brought under Section 10 of the Equality Act, and falsely accuses SANEF of undermining freedom of expression. This could not be further from the truth (our full set of court papers is available at https://sanef.org.za/sanef-vs-eff-court-papers-2/).
SANEF and five journalists are seeking relief against the EFF and Malema following a spate of abuse and harassment by people purporting to be EFF supporters against journalists who had been specifically named by Malema. At the heart of our case is the singling out of targeted individual journalists by Malema and the EFF leadership and the creation of an enabling environment for abuse and harassment to be levelled against them.
SANEF and the journalists approached the Equality Court on legal advice as we believe that the conduct of the EFF and their supporters constitute hate speech and harassment against the named journalists.
SANEF’s choice of lodging the complaint in the Equality Court and using the Equality Act
SANEF approached the Equality Court as we believed this court was both appropriate and relatively expeditious. For reasons beyond the control of SANEF, this case is being heard almost eight months after it was lodged. This is unfortunate but regardless of that delay, SANEF remains of the view that the Equality Court is an appropriate court.
In addition to infringing the constitutionally protected freedom of the media, we believe that the statements by the EFF and Malema as well as the resulting conduct of the EFF and their supporters constitute hate speech and harassment in terms of the Equality Act.
Section 10 of the Equality Act states: “[N]o person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to –
(a) Be hurtful;
(b) Be harmful or to incite harm;
(c) Promote or propagate hatred.
This section does not require hate speech to involve incitement to imminent violence, as wrongly quoted by some commentators.
Sections 10 and 11 of the Act prohibit hate speech and harassment respectively based on expressly prohibited or similar grounds that negatively affect human dignity and enjoyment of rights, such as, in this case, the complainants’ occupation as journalists.
According to the EFF’s papers in the Equality Court, the basis of this abuse has been the complainants’ occupation as journalists and the perceived bias in their reportage on the EFF. While SANEF welcomes fair criticism of journalists, we cannot condone individuals being subjected to harassment or hate speech based on their occupation, in contravention of the Equality Act.
The trigger for the case
On 20 November 2018, Malema made a statement outside the Zondo Commission during which he named several journalists whom he perceived to have been biased in their reportage against the EFF and in favour of the EFF’s political rivals. He identified these journalists as “the enemy” who need to be dealt with decisively. These statements were also shared on Twitter by the EFF in addition to other tweets by the leadership of the EFF singling out and targeting specific journalists.
The journalists named by Malema have been subjected to a barrage of abuse and harassment by purported supporters of the EFF, ranging from name-calling and insults to threats of violence and calls for the addresses of journalists to be made public. This abuse appears to be a direct result, and in support, of the statements made by the EFF. SANEF has made Malema and the EFF aware of the results of their utterances and has requested that they condemn the abuse on the part of their purported supporters. They have however refused to do so. This has created an environment which enables the abuse and harassment of journalists whose reportage the EFF and its supporters do not agree with.
Max du Preez, one of the applicants in the matter, was one of the journalists named by Malema outside the Zondo Commission. In his affidavit before the court, he details what he believes to have been the impact of Malema’s words.
“I attended the Zondo Commission hearings on Wednesday 21 November 2018. I left after lunch. While I was waiting for my Uber driver to collect me (right next to the BP garage), some of the EFF protestors walked by. One of them recognised me and shouted my name. About a dozen of the protestors then mobbed me, shouting threats and abuse at me. One threat I remember was ‘You’re not safe on these streets, you white bastard’. I was distressed by this incident and feared for my safety. Fortunately, two policemen were very close by and intervened. The protestors then moved away and I was not harmed. It did make me wonder, though, what could have happened if there were no policemen around.’
Three days after Malema’s speech, Ranjeni Munusamy, one of the applicants, was intimidated at a shopping mall. She states in her affidavit:
“At approximately 18:00 on that day, I visited a shopping centre near my house. I go there often on my way home from work. I do not wish to disclose the precise location because I do not want a repetition of what happened on the day. While shopping, I noticed three men looking at me. As I walked past them, they repeatedly called my surname in a mocking tone. I tried to ignore them, walking past them quickly. The men were waiting for me at the entrance of the shop when I left. As I passed them they hissed at me and shouted my name. I was so distressed by the incident that I tweeted what had happened. As a consequence, I am wary of going out to public places.”
SANEF believes and has argued in court that these and other online forms of abuse, harassment and hatred levelled at the applicants were ‘directly’ as a result of Malema’s speech outside the Zondo Commission.
Sanef Chair Mahlatse Mahlase greets EFF leaders Julius Malema and Mbuyiseni Ndlozi at the Equality Court
The purpose of the case
The purpose of our complaint is not to stifle criticism of the media and journalists – the issue is that we believe that the comments by the EFF, Malema and Malema’s purported supporters go beyond fair criticism of the media and constitute hate speech under the Equality Act.
SANEF had initially attempted to resolve its concerns with the EFF through direct engagement and twice requested a meeting. However, the EFF refused to meet with SANEF. In the end, we had no option but to seek legal recourse.
The crux of SANEF’s and the journalists’ complaint is the nature and effect of Malema’s and the EFF’s statements. SANEF believes that Malema has been shown to make inflammatory statements which he is aware will incite a violent and abusive response from his purported supporters and that he has refused to condemn the abuse when it is brought to his attention. As the leader of the third biggest party in South Africa, Malema should be aware that his and the EFF’s words and actions, or lack thereof, have consequences. They should also be held responsible for those consequences. Furthermore, they have to protect the rights enshrined in the Constitution and a duty therefore to condemn the violation of media freedom which has resulted from their statements.
Ultimately, after our failed attempts to meet with the EFF leadership and try to resolve the matter amicably, we had no option but to approach the Equality Court for the relief we are seeking. The alternative was not an option: to do nothing and wait for a journalist to be assaulted, injured or killed before we approach the courts to determine if the EFF’s utterings meet the test for hate speech.
The Press Council of South Africa has published an easy-to-read Code of Ethics manual for journalists titled Decoding the Code.
“Decoding the Code” is an ethics made easy manual or a “Code of Ethics for dummies” which attempts to simplify decision-making of complex and vexing questions of what to or not to publish under deadline pressures. It is immensely useful and a must for every newsroom.” Writes Mathatha Tsedu, former Sanef executive director who wrote the Foreword in the manual.
Mr Tsedu says there is hardly anything that anyone can do without influencing somebody else; there is nothing that a journalist can do in her or his line of duty without affecting somebody. Journalists should fully understand and appreciate just how much power they have.
That everything they do in their professional lives influences people. That this influence can sometimes make or break a person. And that this places a huge responsibility on everybody concerned.
A Code of Ethics and Conduct is the first and most important way of regulating the press and online media (“the media”, for the purpose of this exercise).
“Editors and journalists often ask me for advice prior to publication. My first question always is: What does the Code of Ethics and Conduct say? In most cases, the answer to this question solves the problem,” writes Mr Tsedu.
Johan Retief, former Ombudsman and author of the document, says: “A Code of Ethics is an ethical compass without which the media are all at sea.”
This document is a discussion of the latest South African Code of Ethics and Conduct, section by section and sentence by sentence, explaining why the issues contained in them are important and illustrating the principles and consequences involved – in the hope that this would provide basic guidelines to journalists for acting ethically at all times.
There are examples of actual cases presented in boxes in this interactive version of the booklet published by the Press Council of South Africa.
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