Freedom of the Press
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South Africa is home to a vibrant media environment, and press freedom advocacy organizations regularly push back against government encroachments on the rights that journalists enjoy.
However, such encroachments became more frequent in 2014, as President Jacob Zuma and the governing African National Congress (ANC) party stepped up the use of laws such as the apartheid-era National Key Points Act. The year also featured an increase in political and economic pressure by the ANC on both private outlets and the public broadcaster—the South African Broadcasting Corporation (SABC)—as well as an uptick in violence, including the first work-related killing of a journalist in two decades.
Freedoms of expression and of the press are protected in the constitution and generally respected in practice. However, several apartheid-era laws and a 2004 Law on Antiterrorism permit authorities to restrict reporting on the security forces, prisons, and any sites or institutions deemed important to the “national interest” by authorities.
Journalists and media outlets at times face the threat of legal action as a result of their work, particularly when reporting on prominent political or business figures. Civil defamation cases, sometimes involving large fines, are occasionally brought against members of the press. Prosecutions for criminal defamation are rare. In a prominent recent case, the Pretoria High Court in December 2014 overturned the June 2013 conviction of journalist Cecil Motsepe on criminal defamation charges, for which he had been sentenced to a fine of R10,000 ($950) or 10 months in prison, suspended for four years. The charges related to a 2009 article he had written for the Sowetan newspaper about alleged abuse of power by a magistrate in Gauteng Province. Although it reversed Motsepe’s conviction, the Pretoria court also found that, contrary to the arguments of the journalist’s legal representatives and many civic organizations that filed briefs in the case, the criminal defamation law may be considered constitutional. The ruling had the potential to revive the use or deterrent effect of the seldom-invoked law.
Journalists are unable to access or photograph areas deemed of interest to national security under the apartheid-era National Key Points Act. In recent years, there has been an increase in the number of locations designated under the act. As of late 2014, at least 17 new key points had been added during the calendar year, raising the number to an estimated 200. Since the list of sites classified as national key points was not publicly available, journalists risked unknowingly performing investigations or taking photographs at a national key point, for which they could be arrested. Authorities could also claim that a site was a national key point to halt new media investigations. In 2013, the Right2Know Campaign—a coalition of civil society organizations and activists—and the South African History Archive submitted a joint freedom of information application to the minister of police, requesting the disclosure of the full list of national key points; after the minister twice refused, the groups took the matter to the courts. In December 2014, the High Court ruled that the minister’s refusal to release the complete list was “unlawful,” and ordered its release within 30 days. The minister appealed the judgment, and the list had not been disclosed as of the end of 2014.
The constitution protects the right of access to information, and the country’s freedom of information law, the 2000 Promotion of Access to Information Act (PAIA), is designed to implement this guarantee. The PAIA allows citizens to request information from a public—and in some cases a private—body, but it often falls short in practice as requests are frustrated by bureaucratic resistance. According to a 2014 report, PAIA applications were met with full disclosure of information in only 16 percent of cases in the period between August 2012 and July 2013.
The controversial Protection of State Information Bill (POSIB) had not yet been signed into law at the end of 2014. The legislation would grant state agencies broad authority to classify a wide range of information as being in the “national interest” and thus subject to significant restrictions on possession or dissemination, with potential prison terms for violations. Vociferous objections from civic groups and opposition parties forced the government to amend the bill in November 2012. A revised version—passed by the National Assembly in April 2013—narrowed the definition of national security, included a limited public-interest exception, maintained the integrity of the PAIA and constitutionally mandated oversight commissions, and removed most commercial information from the bill’s purview. In a surprise move, Zuma, who had been expected to sign the measure, referred it back to Parliament in September 2013, after determining that some elements fell short of constitutional obligations. Continued pressure from civil society and opposition parties resulted in additional positive amendments, but the bill still contained worrying provisions, including the retention of prison terms of up to 25 years for the disclosure of classified information, and the criminalization of possession of classified information. A number of civil society organizations called on Zuma to submit the bill to the Constitutional Court for a legal review, and stated that they would launch a Constitutional Court challenge if the president signed it.
The government does not restrict internet access, but state monitoring of telecommunications systems is authorized, subject to certain conditions. In 2014, the Film and Publications Board (FPB) released draft regulations, due to be finalized and implemented in 2016, that would require all online content to be classified in terms of the FPB’s guidelines. The regulations require web users, including bloggers, who wish to distribute films, games, or certain publications online to apply for an online distributer’s agreement or face either sanctions or legal action.
Efforts by the ANC to replace the self-regulating Press Council (PCSA) and press ombudsman with a state-run media tribunal have been thwarted for the time being by PCSA reforms, including the establishment in late 2012 of a system of “independent co-regulation” that features equal public and media representation on the council, under the chairmanship of a retired judge. The overhaul also provided the public with greater legal redress, such as the ability to appeal directly to ordinary courts; an expanded definition of complainant that includes not just those directly affected by a story, but also public advocates; a clearer hierarchy of sanctions for violations; and a ban on hate speech and “harmful” coverage of children. Despite these reforms, the creation of a state-run tribunal remains a formal goal of the ANC.
After the May 2014 national elections, in which Zuma won a second term, he announced the splitting of the Department of Communications into two separate ministries: the Department of Telecommunications and Postal Services and the Department of Communications. The latter would oversee “overarching communication policy and strategy, information dissemination and publicity as well as the branding of the country abroad.” The Department of Communications, as described by the president, is primarily tasked with the dissemination of government messaging, both locally and abroad, and houses two public relations bodies: Brand South Africa and the Government Communications and Information System (GCIS). Also placed under the purview of the new Department of Communications were the SABC; the Media Development and Diversity Agency (MDDA); and the broadcasting and telecommunications regulator, the Independent Communications Authority of South Africa (ICASA), despite the fact that these entities have a measure of statutory independence from the executive branch. The move raised concerns among media watchdogs, as it placed the public broadcaster and other bodies intended to advance freedom of expression in a department dedicated primarily to public relations.
While officially independent in its editorial policies, the SABC has come under fire for displaying a pro-ANC bias, reflecting internal ANC rifts in its management struggles, suffering from financial maladministration, and practicing self-censorship. In recent years, a number of programs have been canceled due to political considerations, and prepublication censorship of critical reporting on the ANC and Zuma has increased. In 2013, the SABC canceled a popular political talk show just hours before its second season premiere on supposedly technical grounds, but activists alleged that it was due to the program’s critical reporting and intense scrutiny of government officials.
In January 2014, SABC chair Ellen Zandile Tshabalala reportedly told journalists at the broadcaster that they were working at a national key point and therefore their telephones were being monitored; she warned them against leaking information about the internal practices of the SABC. A February report published by the Public Protector, South Africa’s ombudsman institution, found that there was “abuse of power,” “maladministration,” and corporate governance deficiencies among the top management at the SABC. It recommended that action be taken against then acting chief operating officer (COO) Hlaudi Motsoeneng, who according to the report had been appointed irregularly, misrepresented his qualifications, and allotted himself three salary increases in one year. During the May national elections, Motsoeneng reportedly instructed SABC journalists not to report on protests or smaller political parties, and to reduce reporting on the main opposition parties. In July he publicly called for the licensing of journalists, comparing them to doctors and lawyers. Nevertheless, he was permanently appointed as COO of the SABC shortly thereafter.
During the 2014 election campaign, the SABC refused to broadcast political advertisements of two major opposition parties, the Democratic Alliance (DA) and the Economic Freedom Fighters (EFF). In April the station refused to air a controversial DA ad, entitled “Ayisafani,” that showed an image of a police officer shooting rubber bullets, on the grounds that it could incite violence against the police and constituted a personal attack on Zuma, violating the Advertising Standards Authority’s code of conduct. ICASA later ruled that the ad could be reinstated only if the photograph was removed. The SABC also resisted airing a tamer ad several weeks later, but it eventually gave in to pressure from the DA. In addition, an SABC ban on EFF election ads calling for the physical removal of road tolling stations was upheld by ICASA in late April.
The overall objectivity of the news media is also affected by the growing share of private outlets owned by government allies. A number of key staff members left the newspaper publisher Independent News and Media South Africa, claiming political interference after the company was acquired by the ANC-connected Sekunjalo Investments in August 2013. In December of that year, Sekunjalo threatened to sue Cape Times editor Alide Dasnois and reporter Melanie Gosling over a story on a report by the Public Protector alleging irregularities in the awarding of a major government contract to the company. (The Cape Times is part of Independent News and Media South Africa.) Dasnois was subsequently removed as editor, though Sekunjalo denied that the change was linked to the story, and she was dismissed from the media group in July 2014. In the aftermath of Dasnois’s removal, several prominent editors and journalists either left Independent News or were fired during 2014.
Reporters sometimes face physical attacks, unlawful arrests, or government pressure while attempting to cover sensitive news stories, most often by the police or private security services employed by the ANC. In January 2014, freelance photojournalist Michael Tshele was shot and killed by police while covering a protest in North West Province. He was the first journalist killed in South Africa since the advent of democracy in 1994.
The government also attempts to restrict journalists’ ability to cover news stories in person by invoking the National Key Points Act. In recent years, the authorities repeatedly cited the law to prevent journalists’ admittance to or disclosure of information regarding Zuma’s Nkandla homestead during a controversial remodeling that is estimated to have cost over $200 million. Nevertheless, media outlets have continued to run pictures of the property without sanction. In November 2014, a journalist for the news website Netwerk24 was detained for taking photos of a national key point while reporting on a coal silo collapse at the Majuba power station; he was subsequently released after officials made copies of his press credentials.
Journalists are occasionally harassed and threatened by government officials or nonstate actors in reprisal for their professional activities. In January 2014, a reporter for the Daily Sun was arrested and assaulted by police in Rustenburg after photographing them allegedly receiving bribes; he was released five hours later after being threatened with a longer period of detention. In February, a freelancer for the Daily Sun was detained for several hours after photographing police officers in Cape Town as they took pictures of a badly injured assault victim and made insensitive remarks. And in April, an ANC official forcibly deleted pictures from a reporter’s mobile phone during a campaign event for Zuma in Duduza, Ekurhuleni.
The print media continue to be dominated by four companies: Avusa, Independent News and Media, Media24, and Caxton/CTP. A number of private investigative newspapers—most notably the Mail & Guardian, the City Press, the Sunday Times, and the online newspaper Daily Maverick—remain sharply critical of the government, political parties, and other societal actors. However, print media are consumed in large part by more urban, wealthier South Africans. The majority of the population receives news via radio and television outlets, which are dominated by the state-run SABC. The SABC’s three free-to-air television stations and the privately owned free-to-air station e.TV claim most of the television market, though the country’s main subscription satellite television service, DSTV, is extending its reach. International broadcasts are unrestricted, but they are often dependent on subscription television services for distribution.
Internet access is expanding rapidly, and more people are able to reach the medium from mobile devices than from personal computers. In 2014, 49 percent of the South African population had access to the internet. Usage is hampered by high costs and the fact that most content is in English, an obstacle for those who speak one of the country’s 10 other official languages. Content in local languages is growing, however, especially on social-networking platforms.
A December 2014 ANC National Executive Committee meeting reportedly finalized a plan to withdraw government advertising from newspapers that are critical of the ruling party and the president, to be implemented by the new Department of Communications.