[Type the company name]
LCR4803 Assignment 2
Semester 1 Memo | Due
April 2025
NO PLAGIARISM
[Year]
, (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)
To comprehensively discuss the legal position of a journalist under section 205 of the Criminal
Procedure Act 51 of 1977, when they refuse to disclose the identity of an informer, we must
delve into both statutory provisions and constitutional interpretations, particularly balancing the
public interest, the administration of justice, and press freedom. This issue has been the
subject of important judicial decisions in South Africa, which reflect a tension between
journalistic ethics and legal obligations.
1. Understanding Section 205 of the Criminal Procedure Act
Section 205 empowers a magistrate or judge to summon any person believed to have
information about an alleged offence to appear before them and to answer questions or produce
documents relevant to a criminal investigation. Failure to comply with this summons, without a
just excuse, is a criminal offence, and the person may be committed to prison until they
comply.
Key point: Section 205 does not provide any express exemption for journalists.
2. Application to Journalists – Conflict with Press Freedom
While section 205 applies to "any person," journalists often argue that their role in society as
watchdogs of democracy requires protection of sources, which they see as vital to investigative
journalism. They argue that forcing them to reveal sources under threat of imprisonment
undermines press freedom as protected by Section 16(1)(a) of the Constitution, which
guarantees freedom of expression, including the freedom of the press and other media.
However, this freedom is not absolute. Courts have consistently held that press freedom must be
balanced against other constitutional values, such as the right to a fair trial, security, and
justice.
3. Leading Case Law:
S v Naudé 1991 (1) SA 607 (A)
, In this case, a journalist was compelled under section 205 to reveal his source. The court held
that journalists are not above the law and cannot unilaterally decide which information to
disclose. If a journalist refuses to answer questions under oath after being lawfully summoned,
they can be prosecuted unless they have a lawful excuse.
S v Pienaar 1989 (3) SA 1096 (T)
Here, the journalist refused to disclose information despite a section 205 summons. The court
ruled that journalistic ethics do not constitute a lawful excuse in terms of section 205. The
interest of the state in the administration of justice and combating crime outweighed the
journalist’s reliance on confidentiality.
Minister of Justice and Others v Desai NO 1996 (3) SA 329 (A)
The court emphasized that no profession, including journalism, is exempt from legal
processes. While the role of the media is important, it cannot override the legal duty to provide
information necessary for the prosecution of serious crimes.
MEC for Education: Kwazulu-Natal v Pillay 2008 (1) SA 474 (CC) (not directly a media
case, but relevant in balancing competing rights)
The Constitutional Court affirmed that rights are not absolute and should be limited in terms
of section 36 of the Constitution, based on proportionality. This test is applicable when
assessing whether compelling a journalist to reveal sources is justifiable in a democratic society.
4. Journalistic Ethics vs Legal Obligations
Journalistic ethics, such as the protection of sources, are recognized by various media codes
(e.g., the Press Code of Ethics and Conduct for South African Print and Online Media). These
principles suggest that confidential sources must not be revealed, as it discourages whistle-
blowers and undermines the public’s right to know.
However, South African courts have held that these ethical principles do not amount to a
“just excuse” under section 205. While ethical obligations are important, they are subordinate
to statutory duties and the Constitution. The judiciary generally holds that the rule of law
must prevail, and journalists must comply with subpoenas unless a clear constitutional right is
being infringed.
5. Balancing Test and the Role of Public Interest
Courts often apply a balancing test between:
LCR4803 Assignment 2
Semester 1 Memo | Due
April 2025
NO PLAGIARISM
[Year]
, (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)
To comprehensively discuss the legal position of a journalist under section 205 of the Criminal
Procedure Act 51 of 1977, when they refuse to disclose the identity of an informer, we must
delve into both statutory provisions and constitutional interpretations, particularly balancing the
public interest, the administration of justice, and press freedom. This issue has been the
subject of important judicial decisions in South Africa, which reflect a tension between
journalistic ethics and legal obligations.
1. Understanding Section 205 of the Criminal Procedure Act
Section 205 empowers a magistrate or judge to summon any person believed to have
information about an alleged offence to appear before them and to answer questions or produce
documents relevant to a criminal investigation. Failure to comply with this summons, without a
just excuse, is a criminal offence, and the person may be committed to prison until they
comply.
Key point: Section 205 does not provide any express exemption for journalists.
2. Application to Journalists – Conflict with Press Freedom
While section 205 applies to "any person," journalists often argue that their role in society as
watchdogs of democracy requires protection of sources, which they see as vital to investigative
journalism. They argue that forcing them to reveal sources under threat of imprisonment
undermines press freedom as protected by Section 16(1)(a) of the Constitution, which
guarantees freedom of expression, including the freedom of the press and other media.
However, this freedom is not absolute. Courts have consistently held that press freedom must be
balanced against other constitutional values, such as the right to a fair trial, security, and
justice.
3. Leading Case Law:
S v Naudé 1991 (1) SA 607 (A)
, In this case, a journalist was compelled under section 205 to reveal his source. The court held
that journalists are not above the law and cannot unilaterally decide which information to
disclose. If a journalist refuses to answer questions under oath after being lawfully summoned,
they can be prosecuted unless they have a lawful excuse.
S v Pienaar 1989 (3) SA 1096 (T)
Here, the journalist refused to disclose information despite a section 205 summons. The court
ruled that journalistic ethics do not constitute a lawful excuse in terms of section 205. The
interest of the state in the administration of justice and combating crime outweighed the
journalist’s reliance on confidentiality.
Minister of Justice and Others v Desai NO 1996 (3) SA 329 (A)
The court emphasized that no profession, including journalism, is exempt from legal
processes. While the role of the media is important, it cannot override the legal duty to provide
information necessary for the prosecution of serious crimes.
MEC for Education: Kwazulu-Natal v Pillay 2008 (1) SA 474 (CC) (not directly a media
case, but relevant in balancing competing rights)
The Constitutional Court affirmed that rights are not absolute and should be limited in terms
of section 36 of the Constitution, based on proportionality. This test is applicable when
assessing whether compelling a journalist to reveal sources is justifiable in a democratic society.
4. Journalistic Ethics vs Legal Obligations
Journalistic ethics, such as the protection of sources, are recognized by various media codes
(e.g., the Press Code of Ethics and Conduct for South African Print and Online Media). These
principles suggest that confidential sources must not be revealed, as it discourages whistle-
blowers and undermines the public’s right to know.
However, South African courts have held that these ethical principles do not amount to a
“just excuse” under section 205. While ethical obligations are important, they are subordinate
to statutory duties and the Constitution. The judiciary generally holds that the rule of law
must prevail, and journalists must comply with subpoenas unless a clear constitutional right is
being infringed.
5. Balancing Test and the Role of Public Interest
Courts often apply a balancing test between:
