Mr Chairman, on behalf of the ANC, I rise at the end of this debate in support of the Bill. I think, as members would know or could see from the debate, that all the parties were supporting the Bill. Unfortunately the UCDP was not part of the committee deliberations but, generally, there was consensus and unanimity - with the possible exception of Dr Ambrosini's sometimes obscure points regarding the provisions of the Bill and the amendments made.
What I want to address, though, is the issue that other speakers have alluded to, namely concerns with the Bill from the media. We received written and oral submissions from both the SA National Editors' Forum, Sanef, and Avusa Limited, the owners of, among others, The Times, the Sunday Times, the Sowetan and the Business Day, that the Bill may be used against journalists who are legitimately and in good faith pursuing a story of public interest.
As the ANC, we support the right to freedom of expression and of the media. For that reason, we, as the ANC, proposed an amendment to the Bill, which is contained in section 9(5). Other colleagues - hon Schfer and hon Swart - have read it out or referred to it. In deciding whether to grant a final protection order and whether the conduct that is being complained of or the alleged harassment is unreasonable, the court must take into account the circumstances in which the conduct was engaged in - the reasons for that conduct. That covers the issue of the media. So, these are the factors that the court must consider with regard to whether the conduct amounted to harassment or not and should ensure that the work of journalists in conducting investigative work is not unreasonably restricted.
There was a grudging acceptance of the amendments by some sections of the media. Others, however, felt that the media should be exempt altogether. After this amendment was agreed to, a prominent media lawyer, Dario Milo, who appeared before the committee representing Avusa, was quoted in the media as saying:
The concession fell short of the ideal solution for reporters, but it was an attempt to take into account concerns about freedom of information and the media. Although it is a concession of sorts, it would have been preferable to have an exemption for journalistic inquiry in investigative reporting.
This exchange raises important issues about the often vexed relationship between Parliament - and government, more broadly - and the media. Sanef, for example, complained about not having been properly consulted on the Bill. This Bill was years in the making, as it originated from the SA Law Reform Commission, which commenced work in January 2003. The SA Law Reform Commission engaged in an extensive public consultation process which included the release of a discussion paper for public comment. Sanef, however, seems to feel that they need a special invitation to participate in these processes, and this cannot be correct. Therefore I would really urge Sanef to monitor general invitations to the public to make an input.
Sanef then also felt that journalists should be allowed to "push the envelope". They told us that journalists employ a myriad of techniques in the pursuit of public-interest news stories. In their oral submission they effectively told us that journalists should be allowed to pursue a person until he or she answers their questions. Effectively, what they seemed to be saying is that although everyone has a right to remain silent and not be compelled to speak, this right does not apply against journalists.
The fundamental question is: Can a journalist harass somebody? I think the answer is, very obviously, yes. Individuals need to be protected against this, if they want to be. Journalists are human beings like the rest of us; they are not paragons of virtue from some different spiritual plane. We have seen in the United Kingdom the hacking scandal that contained News of the World reporters who hacked into people's cellphone voice messages that "pushing the envelope" can strongly impinge on people's rights. In addition to the issues I have raised, if you have an exemption for journalists, how do you define a journalist without getting into the territory of registration, which is - not surprisingly - anathema to Sanef?
All the rights in Chapter 2 of the Constitution need to be balanced against each other. In his opening speech the Minister referred to some of those rights, as did the chairperson of the committee. The right to freedom of expression and the right to privacy need to be balanced against the freedom of the press.
I think by including this amendment, the one that I and other members referred to earlier, we as the ANC members of the Justice committee believe we have developed a good compromise in providing for the court to consider whether the allegedly harassing conduct was engaged in to investigate, among others, a news story in deciding whether, in effect, this amounted to harassment or not. Therefore, as the ANC, we support the Bill. [Applause.]