Warren Foster
Warren Foster

Mmm … methinks the Constitution is the cheese!

I hate to be the … *checks it* … fifth person, effectively, to write on the subject of Mondli Makhanya and Jocelyn Maker’s apparently-no-longer-impending arrest (on this site alone), but being a still wet-behind-the-ears media practitioner, I find this situation simply far too enticing to not add my two cents’ worth.

Much of the debate I’ve encountered has been quite one-sided. Coming from my peers in the media, the reaction has been an emotive outcry against what is, conceivably, a dire threat to media freedom as we know it. An editor is to be arrested in connection with a story his paper published — I’d be worried too.

The counter-argument has been the rather reasoned response (alliterations aplenty!) that Makhanya and Maker are being investigated because of a criminal accusation levelled at them by Medi-Clinic, and the law must take its course. Fair enough. Mondli himself has stated something to that effect and far be it for me to tell him how to handle his own.

What intrigues me is the precedent that this event might be set for media freedom in the future. Should it be found that Makhanya and Maker did transgress the law, will they be punished?

One has to bear in mind that the story broken by the Sunday Times has been determined by a judge to be in the public interest. So the question effectively becomes: Does serving the greater good (public interest) mitigate criminal activity?

Anton Harber, on his blog, has cited the example of a man who violates the no-swimming law at Zoo Lake to save a possible drowning victim, to suggest that it does. Someone else (I can’t remember where I read it; sorry, person X) used the example of a person stealing food from a convenience store to feed his starving family to suggest the opposite.

I think the tipping point lies in the mandate of the media in our society and the Constitution — the Bill of Rights specifically. From the 16th chapter of the Bill of Rights:

Everyone has the right to freedom of expression, which includes —
a. freedom of the press and other media;
b. freedom to receive or impart information or ideas.

Note that media freedom is a mere extension of every citizen’s basic right to freedom of expression. This freedom is not really the preserve of the fourth estate. When we specifically postulate the need for a media/press freedom, we acknowledge the role the media have to play in disseminating new information to the public.

Please also note that in the very next breath the Bill communicates the “freedom to receive or impart information”. This is vital to the question of public interest. It is the right of the citizen to have received this information. It was OK for the paper to publish the story, but not for it to obtain the information with which to publish the story? How is receiving the information an action any less in the public interest than the actual publishing was? It’s all the same process, isn’t it?

We need to consider that the uniqueness and necessity of the term “media freedom” lies in the protection of the media’s duty to inform where information would otherwise not be forthcoming or, at least, not otherwise obtainable.

What this case will do is determine, forthrightly, whether investigative journalism is in its rights when it illegally obtains information for the public interest. The true tragedy (and I propose this is where the media’s emotive outcry should be directed) would be if this matter is handled as a straightforward legal case without giving due consideration to the very obvious and relevant constitutional undertones.

Just for the sake of addressing the idea that what I’m saying might be misconstrued as an endorsement of the media being allowed to breach the law where they see fit — that’s precisely why I see this a benchmark case for future litigation that needs to be handled by the Constitutional Court. I’m not calling for a “blanket amnesty”, but a considered ruling.

What needs to be acknowledged (or at east deliberated over) is that the act of publishing information of public interest and the obtaining of that information are part of the same process and thus (as I believe is currently the case with the publishing) action can only be taken against the media where there is a lack of evidence that the paper knew it was acting in the public interest in procuring the information.