Speech by Minister Jeff Radebe, Minister of Justice and Constitutional Development, on the Occasion of the 2010 SANEF NAT NAKASA Award Dinner, at the Wanderers Club, Johannesburg, 24 July 2010

DEMOCRACY AND MEDIA FREEDOM

Let me start off this conversation of ours by registering my observation and indeed an appreciation that you, members of the fourth estate, organized media in this country, deserve a commendation for being able to recognize contribution made in journalism by one of your own, one of ours, the late Nathaniel Ndazana Nakasa, affectionately known as Nat Nakasa. Born in Lusikisiki in the Eastern Cape in 1937, Nakasa was a trailblazer in many ways.

He moved to Durban where he worked for Ilanga newspaper before leaving for Johannesburg where he worked for Drum magazine and the Golden City Post. He was the first black journalist to work for the Rand Daily Mail, a newspaper which at that time served our readership in all important events that unfolded in our country. He excelled in his field of work and secured a scholarship to study journalism at the Harvard College in the United States of America.

Even though he left his motherland on a one way exit permit, I have no doubt in my mind that Nat Nakasa believed that the atrocious system of apartheid would one day be defeated as it was. As you all know, this gallant writer and journalist perished in one of the most unfortunate of circumstances on foreign soil and his remains were never brought home. Government is willing to facilitate a role that will ensure that his remains are returned to his ancestral home.

Programme Director, as we congregate on occasions like this one, let the ideals for which Nat Nakasa stood be a constant reminder to us all, that the pursuit for a just cause may not be something we can achieve in our lifetime, but something that future generations may benefit from as dividends of our struggle that ensued during his lifetime. We must therefore derive courage and inspiration from the Nat Nakasa spirit of endurance.

As we continue with this conversation of ours, let us also take stock of how different the terrain is now than what it was during the days of Nat Nakasa. All of us in this beloved land pride ourselves of the gains brought to us by our democracy. Ladies and gentlemen, ours is a constitutional democracy. It is a democratic dispensation founded on our constitutional order. It is this constitutional order that gives guarantee to our fundamental human rights. These rights include the right to freedom of expression that extends to media in terms of section 16 of our great constitution. This right is one which many of the established democracies in the globe recognize.

We have one of the most progressive constitutions in the world and given the history of our country, we could not afford to falter on this one. Our constitution therefore fully recognizes the significant role the fourth estate must play in our fledgling democracy.

In the exercise of its right to receive or impart information or ideas, media must take note of the fact that for every right, there is also a corresponding duty. As our constitution would remind us, in exercising the right to freedom of expression, there is a duty to guard against using this right in furtherance of propaganda for war and incitement of imminent violence to name just a few examples. These examples illustrate a principle that whilst this right is one that must be jealously guarded, it is one that is not absolute. Before conclusions are drawn on the basis of what I am not saying here, let me emphasize that in the pursuit of seeking to preserve this right, we need to be careful and employ a delicate balancing approach. A mechanism to deal with competing rights in an effort to strike the necessary balance is also provided for in our constitution. In this regard I refer to sections 36 and 39, otherwise referred to as the limitation clause and the interpretation clause respectively.  It is clear on the basis of our constitutional order to which I have alluded that our dispensation is indeed a value based system.

This however does not call for any complacency as challenges still lie ahead. As government we are firmly committed towards making every effort in order to ensure that the interests and rights of the media are observed and respected. We are no less committed and will continue to maintain vigilance and to guard against conduct that could amount to sheer criminality and compromise national security interests carried out under the guise of media freedom.

I am aware as we all are that there is a debate currently raging on the need to have the Protection of Information legislation in place. Opinions have been expressed ranging from the need in the first place to have up to the justification to have this draft legislation in its current form. The beauty of our law-making process is that it is democratic in the true sense of the word. This process seeks to afford those for whom the law is legislated to express their views and in the process contribute towards its final product. The Protection of Information Bill as draft legislation will take no different route than any other Bill that we have dealt with in the past. The debates around these issues, much as others view them negatively, are but another example of participatory democracy this country enjoys.

At yet another level, much energy has been devoted towards revisiting existing legislation that media finds obstructive.

There have been engagements between my predecessors and the media where a number of pieces of legislation have been identified as requiring attention in order to ensure that media must be in a position to fully discharge its mandate. We have for example looked at sections 205 and 189 of the Criminal Procedure Act. We are in the process of finalizing a proposal in this regard. In particular, the South African Law Reform Commission will soon present to me the outcome of its research on this matter and others that the media find to be obstructive. These I believe, will be considered by relevant stakeholders, including yourselves (media). 

As we celebrate these constitutional values in our country today, we do so in honour of the various gallant fighters for freedom through the media over the past decades such as the great Nat Nakasa. This shows that media freedom is an indispensable integral of our democratic evolution.

When the Chief Justice addressed a dinner hosted under the theme "Justice and Media", he contrasted the independence of the media with that of the Judiciary, both of which underpin the values of our constitutional democracy, he stated as follows, and I quote:

"The media possess similar irrevocable power, particularly in a society where freedom of the press is respected. Once a word is written or a news report televised, it can never be taken back. And as long as the courts play their role, media outlets can never be forced to alter their editorial standpoint or pressured into covering up the misdeeds of those with authority."

The critical role of the media was also recognised and amplified by the Constitutional Court in the case of Khumalo and Others Vs Holomisa, and I quote:

"In a democratic society...the mass media play a role of undeniable importance. They bear an obligation to provide citizens, both with information and with a platform for the exchange of ideas which is crucial in the development of a democratic culture. As primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigour, courage, integrity and responsibility......if the media are scrupulous and reliable in the performance of their constitutional obligations, they will invigorate and strengthen our fledgling democracy. If they vacillate in the performance of their duties, the constitutional goals will be imperilled."

All these initiatives, ladies and gentlemen, are geared to correct the wrongs of the past, where the Government of the day and other powerful institutions infringed on their freedoms, are fitting tribute to departed gallant fighters such as Nat Nakasa.

There is no doubt that the media has continued to play a critical role in our democratisation processes in various ways. Amongst others we note the extensive good coverage by the local media on the wide spectrum of issues ranging from good governance, mega events such as the 2010 FIFA World Cup as well as the plight facing poor people from around the country in what has been characterised as xenophobia.

Ladies and gentlemen, let me also be emphatic that as government we will not treat you the same way the apartheid regime treated Nat Nakasa. In other words we will not enact laws detrimental to your cause including the current legislation that is being debated. We will do so in full cooperation and in the formulation with your full participation as one of the important stakeholders.

I can assure that as the Minister of Justice, I will ensure that any law that comes into being must be in conformity with our constitution. It is for this reason that as Government we will not wait to be told on any issue but we need to continue to be voluntary defenders for a media that reports on facts fairly, courageously and without fear or favour to any individual, collective or authority.

We trust that the media is full of competent people who understand the importance of our constitution and the rights that avail to all our people hence we will continue to provide a conducive environment to enhance the execution of your (media) roles and responsibilities. Before I leave this podium, allow me also to congratulate the recipients of these prestigious awards, namely the Nat Nakasa Award which has gone to this fearless journalist, Terry Bell, as well as the SANEF-WROTTESLEY Award to Oom Raymond Louw. Congratulations on your deserved accolades. I do hope these awards you have received tonight will inspire you even more in your diligent work.

Once more, allow me to thank you for inviting me to this very important occasion and wish you well in your deliberations as you conclude your Annual General Meeting.

I thank you!

Source: www.justice.gov.za

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