Dear Corruption Watch, I live in an area where corruption is rife. The police are indifferent at best, and often complicit.
There seems to be nowhere else to go but the newspapers, so I wonder: what would happen to me – would I be named, or need to testify – if a newspaper report led to prosecution? And would the reporters or publication itself be compromised?
Dear Loose Ends
First, if you are unsure how to report corruption, or are concerned that your local police station is complicit, you can contact Corruption Watch on (011) 242 3900, or firstname.lastname@example.org.
In addition to law-enforcement agencies, the media are indeed a highly effective point of call. In South Africa, journalists, unlike lawyers, do not enjoy "privilege" that would automatically entitle them to refuse to disclose the source of a story if they are subpoenaed to testify in court.
However, a form of qualified protection for journalists and their confidential sources has developed through the courts over the years. The courts have recognised the need to protect journalists and their sources so as to ensure that the press remains free of undue influence, and can be a public watchdog in our society – or as one court has held, can "ferret out corruption".
Professional journalists in South Africa are required to protect their confidential sources of information – but this becomes difficult when a journalist is summoned to appear before court (for example, in a criminal case involving corruption, or a defamation case) and is called on to disclose the source of their information.
On the one hand, the journalist is obliged in terms of his or her professional ethics to protect the confidentiality of their source; on the other, they are obliged by law to comply with a subpoena.
Fortunately, the courts have developed the concept of a "just excuse" in this context.
In essence, a court will excuse a journalist from complying with a subpoena to disclose their confidential sources unless it is satisfied that the disclosure is absolutely necessary, for compelling reasons of justice, or national security, or where it would prevent serious disorder.
Only in those limited circumstances – which clearly must be exceptional cases – will a journalist be compelled to disclose their confidential source.
So, with these principles in mind, and in answer to your questions:
- If you disclose information to a journalist about corruption, you can ask that you remain a confidential source (the journalist is then obliged in terms of their professional ethics to keep your identity confidential); and
- You need not be identified by the journalist or publication (and thus would not need to testify) except in exceptional circumstances where a court may order the journalist to disclose his or her source if the interests of justice (or the public interest) require this.
Journalists will also refuse to disclose their sources, even if ordered to do so.
Fortunately, thanks to an amendment to the Criminal Procedure Act, if a journalist refuses to comply with a court order to identify his or her source, a court can only jail him or her if it is satisfied that the information is required for the administration of justice or the maintenance of law and order.
Remember, your actions could help expose and defeat corruption; our society needs people like you to stand up and make a difference.
• This article was first published in Sunday Times: Business Times