Eighteen months ago, Judge Mohammed Jajbhay ruled that the Prophet Muhammad’s right to privacy outweighed the right to freedom of expression, and interdicted the Sunday Times from publishing cartoons of the prophet. This week, the same judge delivered a ringing endorsement of media freedom, made a decisive statement against censorship, and rejected the health minister’s attempt to gag the same newspaper on the basis that it was invading her privacy.

Is this a turning point? In the past few years, we have seen a number of gag orders against news media: the Mail & Guardian seemed to be at the losing end of most. Even after the Supreme Court of Appeal recently ruled that pre-publication ban is almost never necessary, High Court Judge Lettie Molopa interdicted the Mail & Guardian from publishing details about an internal investigation of the SABC’s legal head, Mafika Sihlali.

Sihlali’s right to dignity, she argued, was more important that the exposure of a matter that was most certainly in the public interest.

Judge Jajbhay has clearly taken note of the SCA judgement, however, and he quotes it in support of his argument in the Manto Tshabalala-Msimang ruling that censorship of that kind is not in the interest of democracy. Hopefully, other judges will follow this precedent the next time some scoundrel applies for an urgent interdict to prevent information harmful to his reputation from being brought into the public domain.

Journalists should take note, though, of the comments Judge Jajbhay made about journalistic standards. Although the Sunday Times could not be legally faulted or prevented from publishing information about the health minister’s private affairs, he said, “if I was presiding in a court of manners or ethics, I might well censure the respondents [the Sunday Times and its journalists]. I trust the Press Ombudsman will fervently consider the conduct of the respondents.”

The fact that the Constitution allows newspapers in certain circumstances to publish private information pertaining to public figures does not mean they have to publish it. He also made pointed reference to the fact the Sunday Times was illegally in possession of the minister’s health records, and that “due process of law” should be expected in this regard.

I applaud those comments, though I don’t necessarily agree entirely with them. Measured criticism of the media, based on an understanding of the fundamental importance of media freedom, is an essential part of the democratic debate. A bit more introspection in the media would not be bad thing either.


Robert Brand

Robert Brand

Robert Brand teaches media law, ethics and economics journalism at Rhodes University. Before joining academia, he worked as a journalist for the Pretoria News, the Star and Bloomberg News.

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