The information bill and proposed media tribunal pose a threat to media freedom. Rowan Philp outlines some of the things newspapers would not be able to tell you
Reporters who wrote the story about businessman Saki Macozoma being tailed by intelligence agents would have faced at least five years in prison had the new information bill been law at the time.
Tony Yengeni, Jackie Selebi and dozens of other corrupt officials would probably never have faced prosecution, and dozens more infants may have died at an Eastern Cape hospital.
These are some of the stories that would not have seen the light of day, in the view of leading legal experts and academics. This week they slammed the government's Protection of Information Bill as "draconian", "unconstitutional", and something that would effectively criminalise investigative journalism.
The bill is the subject of public submissions in parliament at present - hearings that have been extended by two weeks due to the storm of criticism. It replaces traditional concerns about national security with a need for secrecy for any information which might harm "the national interest", which it defines as virtually any matter in South African society.
Spokesmen for the SA Law Society, the South African Editors' Forum (Sanef), civil society groups and international human rights organisations said billions of rands in wasteful and corrupt spending of taxpayers' money would also result if the bill was enacted, since journalists and other watchdog organisations would be deterred from exposing this by the bill.
Johannesburg media law expert Okyerebea Ampofo-Anti said that, "amazingly", any media story at all about the functioning of the National Intelligence Agency would be technically illegal, due to the bill's controversial section 43.
She said that, under the bill, the heads of any organ of state or parastatal - from Telkom to a local municipality - would have the power to classify any document.
In terms of another clause which seemed aimed at reporters, rather than spies, the heads of state bodies may apply to court to have even nonclassified, public documents declared "restricted" - "so reporters who didn't know about a document wouldn't become aware of it in court proceedings".
South Africa's press has been demoted from "free" to "partly free" in the new 2010 Freedom of the Press survey by UK-based watchdog Freedom House.
It is now in 70th place in the world, falling below countries such as South Korea, Guyana and Papua New Guinea, due to 10 existing repressive laws, and the threat of a raft of new ones.
Gavin MacFayden, director for the Centre for Investigative Journalism based in London, said the new bill - "which reads like something you'd expect from Burundi or Bolivia" - would cause overall freedom ratings for the country to "plunge" if it became law.
"This legislation is clearly totalitarian in nature - it's a disgrace, and frankly, a national embarrassment for South Africa," he said.
Presented with a list of 18 of the most famous newspaper exposés of the past decade - from Travelgate and Oilgate to Jackie Selebi's shady Kebble links - a number of experts polled said that up to 16 of the stories would probably never have appeared - or been published at a risk of jail - had the bill been law at the time.
Of the 18, there was consensus that "Tearful Niehaus admits fraud" would probably have survived such a bill, as would "Manto: a drunk and a thief" - although the experts said reporters on the Manto Tshabalala-Msimang story would certainly have faced sanction by a media tribunal, had it existed at the time .
Among the verdicts were:
- The Oilgate story about the payment of R11-million in PetroSA money by a private company to the ANC's 2004 election campaign would likely have been prevented, according to the Law Society, because it "contains extensive information about the financial dealings of PetroSA, which is an organ of state (and has the power under the bill to classify its own information). It could potentially have been classified because it could harm the reputation of PetroSA if disclosed.";
- Raymond Louw, spokes-man for the Media Freedom Committee of Sanef, said a March 2009 story on the link between the wife of minister for state security Siyabonga Cwele and an international cocaine ring - "Spy minister's wife and the drug bust" - could have been illegal for six different reasons under the bill, including perceived harm to "the public good"; "relations with international organisations and foreign governments"; "the national interest"; and limits on "details of criminal investigations and police and law enforcement methods";
- The 2005 scandal of the rape of women in Congo by SANDF soldiers would likely have been prevented due to the bill's limits on information on "defence and security plans and operations";
- University of the Witwatersrand professor of journalism Anton Harber said a 2009 story which used an internal audit to show that an SABC official had wasted at least R49-million on dud shows would likely have been stopped due to the bill's link to the Key Points Act, which would allow the heads of "key" public institutions to classify documents; and
- The 2007 exposé of hundreds of needless infant deaths at Frere Hospital would likely have been prevented, due to the Department of Health's "deaths register" that was used being vulnerable to classification, according to Sanef. The Law Society added that "information about how the babies died may have been classified as personal information of a deceased individual".
Dario Milo, representing the SA Law Society, said the bill would also mean the courts would lose their discretion over dealing with classified material and be bound by secrecy limitations.
Ampofo-Anti said: "I don't agree with the view that the bill was drafted to control journalists. "Also, the bill makes it clear that no one is allowed to classify anything for the purpose of concealing wrongdoing, or even inefficiency, which is a good thing. But the first of many major problems with this bill is that it would be virtually impossible to show the real reason why someone classified something; in fact, you could be prosecuted for exposing that reason."
Enver Daniels, chief law adviser to the government, insisted to parliament that the bill was consistent with the constitution.
Temba Maseko, spokesman for the government, said in a briefing that the bill was "not yet law" and its purpose was "(not) to muzzle the media in any shape or form".