Secrecy obstructs democracy by blocking the public’s right to know. We all know this. That’s why, in South Africa’s progressive Constitution, there are guarantees for public interest information through freedom of expression, which includes media. There are even acts to protect this, such as the Promotion of Access to Information Act of 2000.

The first people you’d imagine to know this would be magistrates, officers of the court, judges, lawyers. Yet many of them are the culprits who are throwing journalists out of court with more and more frequency. Journalists then can’t do their jobs properly to fulfil their functions as conduits of information – and analysis – to the public. As much as we have a strong and robust judiciary that is known for its independence the world over, something weird is afoot as we see a pattern develop.

Access denied

Journalists are denied access willy-nilly to court proceedings on spurious grounds because, for example, a witness (Zandi Khumalo, the sister of slain soccer hero Senzo Meyiwa’s partner, Kelly Khumalo) declares herself a famous social media icon who  needs privacy and protection from attention. Oxymoronic, yet she is granted her wish.

Read more in Daily Maverick: Slapp suit: Media freedom vindicated in Zuma private prosecution verdict

Meanwhile, Khumalo keeps busy in court tweeting. Her protection wish is subsequently overturned. But every time media companies apply to be in court after they were summarily kicked out, it costs a small fortune, not to mention time.

At one point there were one or two of these cases of not getting access to court per year, when an understandable protection of certain witnesses, whistle-blowers and children was needed. But now it’s more like weekly that journalists are thrown out.

Media are often told their access will be decided on a case-by-case basis. This can’t be right. Access should be the default position and courts should be the ones interrogated about why they are making such decisions, messing with the public’s right to know. And, often it’s about crooks’ stories.

Slaps and Slapps

The deputy judge president of the Gauteng High Court, Roland Sutherland, in the matter of amaBhungane being gagged from publishing the “Moti Files”, this week struck down the order that had been granted earlier by another judge.

Moti got the court to gag the files’ publication through an interdict granted after an ex parte hearing with only one side, in this case Moti’s lawyers, in court.

AmaBhungane then went to court, appealing the interdict, arguing that leaks from whistle-blowers are normal; it’s how journalists often get information and they then start corroborating it.

The Moti Group, however, argued that the documents had been “stolen”.

Sutherland slapped the Moti Group with punitive costs and called the case a most egregious abuse of court processes.

There is a complete lack of understanding that, for democracy to thrive, the media has to be the ears and eyes of the public and not be at one with the ANC.

During the appeal hearing, amaBhungane’s lawyer, advocate Steven Budlender, said: “This is a typical Slapp [strategic litigation against public participation] case intended to intimidate and censor.”

Clearly, the majority of the judiciary slap down nonsense and stand up for media freedom or democracy.

Two months ago, News24 won the Karyn Maughan case, arguing that her reporting on Jacob Zuma’s medical condition, using documents that were already in the public domain, was all legal. This was also a typical Slapp case. Zuma was using the courts to intimidate and censor Maughan, but he lost the case, with costs.

Secrets and lies

When there are no facts and too many contradictions, speculation grows and fake news spreads. Secrecy is just plain bad for democracy.

We now have a commission of inquiry into the Lady R, the Russian ship that docked in Simon’s Town. That an inquiry is set up for this is scary when the President surely can get the information from a phone call. Even worse is that the findings will not be made public. This secrecy is inexplicable.

Personally, I’ve heard the Russians offloaded gas cylinders that they couldn’t sell in Europe anymore, for use in our winter. Others say South Africa was selling arms. Either or both explanations could be fake news. A press conference could have cleared up this debacle.

Another debacle wrapped in secrecy: the African peace mission in June. A South African Airways aircraft landed in Warsaw en route to Ukraine, but then was “quarantined”, with journalists “tarmacked” for more than 24 hours.

To date, the government has not given a press conference to clear up what happened. The journalists did what they do: they wrote about their experiences. But Minister in the Presidency Khumbudzo Ntshavheni, instead of giving any explanation or apology, wagged her finger with these obnoxious words: “Maybe we have learnt our lesson that maybe we should not take the media on these kinds of trips.” How threatening.

To date, we don’t know exactly why the plane was grounded, but it does seem journalists were collateral damage in a geopolitical and administrative nightmare. And the Presidency doesn’t seem to get the issues: emotional trauma, hunger, the cost of accommodation booked by the media companies. And that speculation spreads if facts are not available.

There is a complete lack of understanding that, for democracy to thrive, the media has to be the ears and eyes of the public and not be at one with the ANC. The ANC is not the embodiment of the media, or vice versa.

But the ANC thinks it represents “the people” – all of the people.

Media and ANC presidents in South Africa

The majority of South African presidents have had one foot in the Stalinist ANC-tendency past (witnessed today in the see-sawing on foreign policy) and the other foot in the democratic Constitution. Nelson Mandela, in his first meeting with editors in 1996, wagged his finger: “You are not doing what we expect of you.”

This followed his far more democratic words in 1994: “A critical, independent and investigative press is the lifeblood of any democracy. The press must be free from state interference.”

Thabo Mbeki wrote long missives to the public in his “Letters from the President” in which he spoke about “enemies” and the lack of patriotism, especially the media.

Kgalema Motlanthe, an interim president for a short time, had nothing much to say about the media. Zuma, the most active, sued journalists and lost; he continues to sue and lose.

Cyril Ramaphosa says all the right things about media freedom. He understands the theory but ducks and dives press conferences.

World Press Freedom Index

The big irony is that South Africa jumped 10 places in the World Press Freedom Index released by Reporters without Borders in May: from 35 in 2022 to 25 in 2023 out of 180 countries.

One of the biggest indicators in media freedom research now is how the environment in which journalists work enables them to do their jobs. Maybe these Slapp suits and the creeping tendency for intimidation and secrecy had not yet registered in the research on South Africa. But it will in 2024, which is also our election year, when journalists get targeted in a shoot-the-messenger syndrome and politicians don’t get what they want: pretty coverage.

Regarding continuously applying for access to courts, the South African National Editors’ Forum (Sanef) held several amicable meetings about the problem with the Magistrate’s Commission over the past year or two, but it persists. Research needs to be done into why this is taking place more frequently when the Constitution is clear and magistrates and judges have no vested interest in the cases, or so you would imagine.

Is it ignorance about what public interest and transparency mean? How direct access through a broadcast can help the facts to be portrayed unmediated, hearing from the horse’s mouth, so to speak?

Things are at an all-time low between journalists and the courts and, after the Warsaw airport drama, the Presidency and the media, including the office ducking and diving press conferences.

Secrecy is the antithesis of transparency, which is intrinsic to democracy. Journalists constantly having to go the legal route to access court stories, or to publish, is willy-nilly obstructionism. It is also expensive to media pockets and democracy itself. DM

Glenda Daniels is associate professor in media studies at the University of the Witwatersrand and Gauteng convener of Sanef, but writes in her personal capacity.

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R29.