Licensing / Media Regulation
The Case of Patrick Chitongo
Closed Expands Expression
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The High Court of South West Africa (Namibia) set aside a Cabinet decision that required a deposit as a condition of registering a new newspaper. The Free Press of Namibia argued that the Department of Civic Affairs and Manpower requirement of a deposit before registering newspapers was unconstitutional. The newspaper also argued that the fee was discriminatory because the editor of the newspaper was a prominent journalist known for writing articles critical of the government. The Court reasoned that the ability to criticize political figures was protected by the right to freedom of expression and held that the decision to require a financial deposit for the newspaper’s registration, which was required by law, infringed that right.
In 1985, the Namibian newspaper, owned by the Free Press of Namibia (Pty) Ltd, attempted to register as a newspaper in accordance with the Newspaper and Imprint Registration Act, 1971. The Act required that the newspaper provide information related to the proposed content of the newspaper and details of its editor, proprietor, printer and publisher. The application form on which the application was made informed applicants that an application fee of R10 was required for each application. The Department of Civic Affairs and Manpower responded to the Namibian’s application and referred to a provision in the Internal Security Act, 1950 which required a registration fee of R40,000 in order for a newspaper to be registered under the Newspaper and Imprint Registration Act if the Minister of the Interior considers that a ‘section 6 prohibition’ may become necessary in respect of the newspaper. The prohibition in section 6 refers to publications that, inter alia, express views intended to endanger the security of the State. (ps. 63-64).
The Department of Civic Affairs and Manpower then informed the Namibian’s attorney that the Cabinet had met and decided that a deposit of R20,000 was required before the registration could be effected. The Namibian responded and said that the requirement of the deposit was unconstitutional and informed the Department that they intended to launch an application for a review of the decision to require the payment of the deposit. The Department replied, asking for an extension within which to consider the matter. The newspaper agreed but paid the deposit under protest to enable it to receive registration and publish its first edition (p. 65).
Three months after the newspaper received its registration certificate, the Free Press of Namibia launched review proceedings in the High Court seeking an order “reviewing and setting aside the decision of the Department of Civic Affairs and Manpower to require a deposit of R20,000 before registration of the Namibian could be effected (p. 63).
Levy J delivered the judgment of the High Court.
The High Court had to determine whether to review and set aside the decision to require the R20,000 deposit on the grounds that it infringed the right to freedom of expression.
In the High Court, the Free Press of Namibia highlighted that the editor had worked at two different newspapers in the country, and both of those newspapers had paid only the prescribed R10 registration fee. The Free Press of Namibia said that the deposit requirement “was ‘calculated’ to prevent or at least impede the publication of The Namibian and was grossly and improperly discriminatory” (p. 66).
The Cabinet submitted that Gwen Lister, the current editor of the Namibian, had written a number of articles at her previous newspaper which were critical of cabinet members. The Cabinet conceded that “Lister had the right to be critical ‘within the limits of the law’ and that the members of the Cabinet had the right to respond also ‘within the limits of the law’” (ps. 67-68).
Levy noted that the deponent to the Cabinet’s affidavits “specifically states that respondent was influenced in coming to the decision that The Namibian had to pay R20,000 in order to be registered by the adverse criticism of himself and certain other members of respondent” and that the Cabinet “was of the opinion that Lister would continue in this vein as editor of The Namibian and that such criticism ‘was likely to have the effect to endanger the security of the State or the maintenance of public order’” (p. 70).
Levy then turned to the question of freedom of speech and media freedom. With reference to the South African case of Pienaar v. Argus Printing and Publishing 1956 (4) SA 310 (W), Levy said that “[p]eople in authority or people who are involved in public life may be more frequently and more widely criticised than other people … The criticism which is sometimes levelled at them can be far more stinging than that which a person who is not in public life may receive” (p.71). He continued, and referred to the South African cases of Publications Control Board v. William Heinemann 1965 (4) SA 137 (A) and S v. Turrell 1973 (1) SA 248 (C) which had both highlighted the importance of freedom of expression. He that “[i]f freedom of speech is to have any significance in a democratic country, its concomitant, freedom of the press, must be recognised because it is only by reaching a large number of people and rallying their support that these freedoms can be utilised for the benefit of society” (p. 72). Levy also explicitly stated that the Bill of Fundamental Rights in South West Africa protected the right to freedom of expression in Article 5.
Levy said that it was clear that Lister, as a journalist at her previous newspaper, had never done anything unlawful: if she had, members of the Cabinet would have instituted defamation suits or sought interdicts. He added that “[e]ven if these verbal attacks were defamatory and were not frivolous there would have to be some very special features present which would cause such personal attacks to constitute a danger to the security of the State and the maintenance of public order”. Levy referred to the Cabinet’s argument that Lister’s articles may cause citizens to hold the Government in contempt, saying ” [b]ecause people (or a section thereof) may hold their government in contempt does not mean that a situation exists which constitutes a danger to the security of the State or to the maintenance of public order”. In fact, Levy explicitly stated that “to stifle just criticism could as likely lead to these undesirable situations”. Levy reiterated that “[i]n a democratic country, criticism of individual Members of Parliament cannot constitute a danger to that State” (ps. 72-73).
Levy concluded that in light of the Cabinet’s decision to require a R20,000 deposit on the basis only of Lister’s prior criticism of members of the Cabinet, without any evidence of other factors that may have influenced their decision, the Court had no alternative but to set the decision aside (p. 74).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment of the High Court in South West Africa – decided before Namibia’s independence and the adoption of its Constitution in 1990 – confirmed that a journalist’s work criticizing government officials was protected by the right to freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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