Press freedom and credibility have won the day in Cape Town. Newspaper editor Gasant Abarder, who refused to compromise his ethics by testifying in a defamation case, has escaped prosecution and possible incarceration for contempt of court, as the case has been settled out of court.
The South African National Editors’ Forum (Sanef), who stood by Abarder right from the start, has applauded the development.
Abarder, the executive editor of the Cape Argus, has been battling the courts since 2006, when he was first summoned to give evidence in a case brought by poultry processors County Fair against a representative of the Associated Trade Unions of South African Workers (ATUSAW).
In 2005 ATUSAW’s Grant Twigg attended a protest gathering by County Fair employees following the death of a colleague, where they raised concerns about working conditions. Here, it was alleged, he made defamatory statements against the company – statements reported by Abarder, then news editor of the tabloid publication Daily Voice.
The chicken processor subsequently brought a defamation suit against Twigg. Abarder and Aziz Hartley of the Cape Times were subpoenaed to give evidence.
Hartley yielded to the summons, but Abarder took the stand only to state on record his refusal to testify, on the grounds that it would compromise his professional ethics and strike a blow against media freedom.
A statement released at the time by South Africa’s Freedom of Expression Institute (FXI), in support of Abarder, described the sole role of journalists as that of gathering information for the purpose of news-making – not as courtroom evidence.
In the mind of the public there should be no confusion regarding the function of a journalist, but cases such as County Fair would blur this clear-cut definition. In future, journalists might be treated with suspicion and harassed, or barred from important gatherings. Interviewees might become wary of giving statements to the press. The principle of freedom of expression would be the ultimate loser.
“In this case the freedom of expression must take precedence over the right to dignity and reputation of County Fair,” said the FXI. “If it does not, then all journalists may be affected.”
In February 1999 Sanef and the South African government signed a memorandum of understanding giving journalists the right to protect their sources without fear of prosecution, and to rest assured that they would only be called upon to testify in court as a last resort.
Present at the signing were then justice minister, the late Dullah Omar, Azalia Cachalia on behalf of the minister of safety and security, former director of public prosecutions Bulelani Nquka, and Sanef vice-chair Moegsien Williams, then Cape Argus editor.
With the backing of this important document, Abarder argued that because he had been carrying out his journalistic duties he had a right to protect his relationship with his sources.
Abarder was adamant that the information sought from him could be obtained elsewhere, as there were around 100 people at the gathering, most of them County Fair employees. It was possible to identify many of them, he said, from a photo published in the paper, and to track them down.
The magistrate hearing the case dismissed his reasoning, saying it did not constitute a lawful excuse.
Abarder was now in danger of being hit with charges of contempt of court and an accompanying jail term, but his stance did not waver. He asked for leave to appeal, only to be turned down by the Cape Town High Court, which decided that as Abarder was not one of the main parties in the case, he had no right to appeal.
The High Court later granted Abarder leave to appeal, saying that another court might see things differently. The journalist lost the appeal and was served with a new subpoena. However, before further action could be taken the two litigants decided to settle out of court and the subpoena became invalid.
Abarder said in a statement that he had been fully prepared to go to jail for his principles, despite the pain and inconvenience for him and his family. “It is in the interest of press freedom, credibility and independence that this subpoena be challenged.”
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