(a) Discuss the legal position in terms of section 205 of the Criminal Procedure Act 51 of

1977 if a journalist who, when ordered by the court to do so, refuses to disclose the
identity of his informer. Your answer should also discuss the question whether a
journalist may rely on journalistic ethics to justify his refusal to disclose the identity of
an informer. In your answer refer to applicable court cases where necessary. (20)

(St/g par 13.2.1 (p 119-121)) Award 1 mark per relevant fact

S 205 reads as follows:

(1) A judge of a High Court, a regional court magistrate or a magistrate may, subject to
the provisions of subsection (4) and section 15 of the Regulation of Interception of
Communications and Provision of Communication-related Information Act, 2002,
upon the request of a Director of Public Prosecutions or a public prosecutor
authorized thereto in writing by the Director of Public Prosecutions, require the
attendance before him or her or any other judge, regional court magistrate or
magistrate, for examination by the Director of Public Prosecutions or the public
prosecutor authorized thereto in writing by the Director of Public Prosecutions, of
any person who is likely to give material or relevant information as to any alleged
offence, whether or not it is known by whom the offence was committed: Provided
that if such person furnishes that information to the satisfaction of the Director of
Public Prosecutions or public prosecutor concerned prior to the date on which he or
she is required to appear before a judge, regional court magistrate or magistrate, he
or she shall be under no further obligation to appear before a judge, regional court
magistrate or magistrate.

(2) The examination of any person under subsection (1) may be conducted in private at
any place designated by the judge, regional court magistrate or magistrate.

(3) A person required in terms of subsection (1) to appear before a judge, a regional
court magistrate or a magistrate for examination, and who refuses or fails to give the
information contemplated in subsection (1), shall not be sentenced to imprisonment as
contemplated in section 189 unless the judge, regional court magistrate or magistrate
concerned, as the case may be, is also of the opinion that the furnishing of such
information is necessary for the administration of justice or the maintenance of law and
order.
- The normal procedure that is generally followed is that the police consult the director
of public prosecutions or the prosecutor beforehand.
- Thereafter a request is directed to the relevant judicial officer and a subpoena is issued.
Note that the public prosecutor may only direct such a request to the judicial officer
with the written authorisation of the director of public prosecutions.
- The subpoena names a day on which attendance is required and also sets out the
offence under investigation.
- Failure to attend renders the witness liable to arrest and punishment.
- The second part of section 205(1) makes provision that should the witness furnish the
required information to the satisfaction of the director of public prosecutions or the
prosecutor concerned (this is normally done by means of an affidavit) prior to the date
on which he is required to appear, he is under no further obligation to appear before
the judicial officer.
- The hearing almost invariably takes place in camera: only the magistrate, the
prosecutor and the witness are present. May the witness be represented by counsel or
an attorney? The Act is silent here, but the general practice is to allow such
representation. In Smit v Van Niekerk 1976 (4) SA 304 (E), and S v Heyman 1966 (4) SA
598 (A), it was held that a right to legal representation existed.
- The question regarding the constitutionality of section 205 of the Criminal Procedure
Act of 1977 had to be decided by the Constitutional Court in the case of Nel v Le Roux
NO and
Others 1996 (4) BCLR 592 (CC) / 1996 (3) SA 562 (CC). In this case the applicant received
a subpoena in terms of section 205(1) of the Criminal Procedure Act 51 of 1977, in terms
of which he had to appear before a magistrate for examination in connection with
information relating to offences with which another person associated with applicant
had been charged. Before the examination could begin, the applicant raised the
constitutionality of section 205. The issue was referred to the Constitutional Court. The
Constitutional Court therefore had to decide on the constitutionality of section 205 of
the Criminal Procedure Act of 1977.
- The court decided that section 189(1) as it applied to section 205 contained a
qualification, namely that the witness was not obliged to answer any question if he or
she had a ‘‘just excuse’’ for such refusal. The court stated furthermore that if, in a
particular case, the answer to any question put to a witness would infringe or threaten
to infringe any fundamental rights, this would constitute a ‘‘just excuse’’ for purposes
of section 189(1) for refusing to answer the question unless the section 189(1)
compulsion to answer the particular question would, in the circumstances, constitute a
limitation on such right which is justified under section 36(1) of the Constitution of 1996.
In determining whether section 36(1) justified such a limitation in any particular case,
regard had to be had not only to the right asserted but also to the state’s interest in
securing information necessary for the prosecution of crimes. The court noted that
other open and democratic societies based on freedom and equality also employed
procedures such as those embodied in section 205.
- The court was of the opinion that the rights of the witness are protected by the
interpositioning of an impartial entity, independent of the executive and the legislature,
to act as an arbiter between the State and the individual. The court stated that the fact
that a section 205 enquiry takes place before an independent judicial officer and that
the subpoena to attend such proceedings is obtained at the request of an Attorney-
General (currently known as the ‘‘Director of Public Prosecutions’’) or prosecutor
authorised thereto in writing by the director of public prosecutions and could be issued
only at the instance of such judicial officers, formed part of such protection.
- Furthermore, the only persons who could be summoned were those who ‘‘were likely
to give material or relevant information as to any alleged offence’’.
- Apart from that, section 205(4) prohibited the presiding judicial officer from imposing
on the witness the imprisonment contemplated in section 189 unless he or she was ‘‘of
the opinion that the furnishing of such information is necessary for the administration
of justice or the maintenance of law and order.’’
 - The court concluded that all of these afforded the witness the widest possible
protection.
The provisions of section 205 have therefore been tailored as narrowly as possible to
meet the legitimate state interest of investigating and prosecuting crime.
- The court added that similar summary proceedings for imprisoning witnesses, where
the normal strict criminal procedure rules were not applied, were not unknown in other
open and democratic societies based on freedom and equality -- the court referred in
particular to the position in the United States and Germany. The court declared that the
provisions of section 205 of the Criminal Procedure Act of 1977 were not inconsistent
with the Constitution.

May a journalist rely on journalistic ethics to justify his refusal to disclose the identity
of an informer.
P 118 Bosasa case

(b) X a prisoner, is serving the last six months of her prison sentence. She was
convicted for keeping a brothel. She knows that she has no financial prospects when
she is released from prison. She contacts a journalist of a tabloid newspaper and
offers to give her account of the circumstances which led to her conviction to the
newspaper, in exchange for a large sum of money. The journalist writes the article
and phones the National Commissioner to confirm certain facts before the article is
published.

(i) Which procedure should be followed in terms of section 123 of the Correctional
Services Act 111 of 1998 before the article may be published? (12)

In terms of section 123 of the Correctional Services Act 111 of 1998 before disclosure of
information (St/g par 11.3.5 (p 101-102))

(1) The Commissioner must give permission. The information published must form part
of court proceedings

The commissioner may only refuse permission if the publication undermine the
objectives of the imprisonment or the objectives of community corrections

(2) It will be a contravention of section 123, specifically the prohibition that a prisoner
may not receive any reward or remuneration directly or indirectly for any published
account of an offence (1) for which he/she is serving time

(c) Name the elements which must be present to constitute the crime of false
disparagement of goods and services, and give an example from case law.

(St/g par 8.3.1.2 (p 77))

Plaintiff must prove that the defendant made a false representation (act) Which he knew
to be false (wrongfulness). The plaintiff must have suffered or be likely to suffer loss
(damage) because of the false representation (causation) the defendant must have
intended to cause the plaintiff such loss (fault)

Example: Cigarette case –International Tobacco Co (SA) Ltd v United Tobacco Co (South)
Ltd
 Name and gist of case :

• A good example from our case law is the following: A manufactured a particular

cigarette. His competitor, B, instigated the spreading of false rumours about A’s
cigarette. The gist of these rumours was that manufacturer A practised racial
discrimination and that the cigarettes caused tuberculosis. These rumours destroyed
the market for A’s cigarettes, and the court held that A was entitled to damages from B.

(ii) What will the position be if the National Commissioner was not consulted beforehand
and only becomes aware of the situation when he reads the article in the newspaper? (8)

(St/g par 11.3.5 (p 101-102))

(i) The Commissioner must give permission (3)

The information published must form part of court proceedings (3)

The commissioner may only refuse permission if the publication undermine the objectives
of the imprisonment (3) or the objectives of community corrections (3)

(ii) It will be a contravention of section 123 (2) specifically the prohibition that a prisoner
may not receive any reward or remuneration (3) directly or indirectly for any published
account of an offence (3) for which he/she is serving time

(b) Name the elements which must be present to constitute the crime of false
disparagement of goods and services and give an example from case law. (20)

(St/g par 8.3.1.2 (p 77))

Plaintiff must prove that the defendant made a false representation (act) (2)

Which he knew to be false (wrongfulness) (2)

The plaintiff must have suffered or be likely to suffer loss (damage) (2)

Because of the false representation (causation) (2)

The defendant must have intended to cause the plaintiff such loss (fault) (2)

Example: Cigarette case –International Tobacco Co (SA) Ltd v United Tobacco Co (South)
Ltd

Name (2) and gist of case (2):

• A good example from our case law is the following: A manufactured a particular
cigarette. His competitor, B, instigated the spreading of false rumours about A’s cigarette.
The gist of these rumours was that manufacturer A practised racial discrimination and that
the cigarettes caused tuberculosis. These rumours destroyed the market for A’s cigarettes,
and the court held that A was entitled to damages from B.(6)

(d) Name four (4) grounds upon which the provision of records may be refused in terms of
the Promotion of Access to Information Act 2 of 2000. (10)

(St/g par 9.1.2 (p 87))

Award 2 mark each for any 4 (four) of the following:

Award extra 2 marks for attempting question totalling up to 10 marks

(1) Various grounds on which access to records must or may be refused, include the
following:

● the protection of privacy of third parties

● protection of information in the records of the South African Revenue Service

● protection of certain commercial and confidential information

● protection of individuals or their property

● protection of police dockets in bail proceedings

● law enforcement

● legal proceedings

● defence security

● international relations of the Republic

● economic interests and financial welfare of the Republic

● research information of a third party.