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A tale of two paradoxes:Media censorship in SouthAfrica, pre-liberation andpost-apartheidChristopher MerrettPublished online: 29 Aug 2007.

To cite this article: Christopher Merrett (2001) A tale of two paradoxes: Mediacensorship in South Africa, pre-liberation and post-apartheid, Critical Arts: South-North Cultural and Media Studies, 15:1-2, 50-68, DOI: 10.1080/02560240185310071

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~'~ritioa*a~s media f r e e d o m a n d h u m a n rights

A Tale of Two Paradoxes: Media Censorship in South Africa, Pre-Liberation and Post-Apartheid

Christopher Merrettt

Abstract Prior to liberation from apartheid, South Africa's information system laboured under a draconian system of censorship that could have crippled the media. Yet the tradition of defiance and the rise of a strong civi l rights movement challenged censorship and nurtured a surprisingly wide- ranging documentary record of the national condition. The advent of democracy in 1994 heralded an era of constitutional rights and liberal legislation. But the climate of paranoia within which these operate and the demise of activist-run non-governmental organisations have ironically meant that South Africa now seems less well documented than it did during the last days of apartheid.

During the years of struggle, a standard lament about the South African condition was the claim that 'one hundred laws' inhibited the flow of information (Merrett, 1994, p. 209). Its precision was dubious, but it played a role in focusing minds on the pervasiveness of the censorship system. The purpose of this paper is to analyse its characteristics and attempt to explain the nature, and paradoxical success, of resistance to it. This provided impetus for the establishment of constitutional rights and appropriate legislation under South Africa's first democratically elected government. But a second paradox derives from the fact that in this climate of apparent freedom, that of information and expression have been bedevilled by a number of factors ranging from official paranoia to changes within civil society.

There seem to be two possible explanations for the existence of such a massive system of thought control under the apartheid regime. The first may be termed tactical: it involved the control of a numerically superior and largely hostile population by a national minority of whites and their allies.

t Christopher Merrett <merrett@nu.ac.za> is University Librarian, University of Natal (Pietermaritzburg) where he has worked since 1979. In 1991 he was the recipient of the John Phillip Immroth Memorial Award presented by the Intellectual Freedom Round Table of the American Library Association.

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This had a number of sub-plots: the need to suppress, as far as possible, knowledge of the nature and scale of the repression required to sustain apartheid; the inhibition of ideas and information that might counter the customary view of the differences between groups of people; and a desire to minimise understanding of the nature of non-racial opposition to apartheid. The South African government understood only too well that memorable phrase: "The struggle is also a struggle of memory against forgetting" (Suttner & Cronin, 1986, p. 4). The details were peculiarly South African, but the need for censorship was identical to that of any authoritarian regime in its desire for conformity, orthodoxy, mass values and suppression of the enquiring mind.

This tactical explanation is logically compelling but not entirely satisfactory: it requires an ideological dimension. Apartheid was based on division and exploitation and an authoritarianism that involved the law, administrative process, and brute force. Its all-pervasiveness was captured by Christopher Hope (1976) when he described apartheid as "A philosophy so compelled by its own nightmares that it presides over every activity from bowel movements to burials". When Hope's book A Separate Development was banned, he pointed out that "what really disturbed [the authorities] were glimpses of themselves" (Hope, 1988, p. 263). Apartheid, apparently so resilient and sure of itself, had permanent intellectual and psychological weaknesses and a visceral need to control expression (Bunting, 1986). An innate sense of insecurity meant that "opposition is made to appear as treason to the State" (Huddleston, 1956, p. 246). But most important of all, any ideology that arrogates to itself the right to determine the outcome of so many of the factors that frame the life histories of individuals must be sure about the purity of its ideas. Once such certainty had taken a hold, it was but a small step towards the suppression of the ideas of others. As J.M. Coetzee (1990) points out, regimes founded on lies naturally abhor the truth; and cannot distinguish propaganda from information (Levi, 1987). In his writings about the post-totalitarian state, Vaclav Havel (1985) writes compellingly about its characteristics - a bureaucracy trying to exercise tight control, legalism, the need for conformity and the use of falsehood and hypocrisy - which were all easily recognisable in apartheid South Africa.

Consequently, by the mid 1980s South Africa was burdened by a massive structure of censorship, both legislated and informal, legal and illegal. The accumulation of 40 years of police state legislation in the 1982 Internal Security Act allowed the authorities to control individuals and organisations, proscribe publications and, in effect, declare war on the anti-apartheid movement by regulating peaceful expression. In particular, a number of

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journalists were detained and several titles banned in terms of its provisions. Furthermore, the general administration of criminal law contained censorship implications, most notably section 205 of the Criminal Procedure Act of 1977 used to force journalists to reveal their sources of information. It was (and remains) an intimidatory measure designed to inhibit the free flow of information as well as assist a police force whose lack of competence may be traced to over-familiarity with a politically partisan role. Under its provisions, informants were reluctant to come forward with potentially compromising information which newspapers were in any case wary to publish: the experience of the Rand DailyMail in the mid 1960s was a case in point.

The seven states of Emergency declared from 1960 to 1990, plus the subsequent proclamation of unrest areas, contained severe censorship implications although even without them South Africa existed in a state that amounted to permanent emergency. Perhaps the most important purpose to which the Public Safety Act of 1953 was put was the disruption of non-official, internal communication as it dawned on the authorities that graphic descriptions of unrest were no longer serving their purpose. Many of the regulations proclaimed under the Emergency, such as no-go areas for reporters and the power to suspend newspapers, directly challenged the media but the detention provisions were also a constant underlying threat. In a sense, Emergency powers were as much a psychological requirement of the government as a necessary source of power although they did bestow on the security forces the right to act in an arbitrary and often blatant fashion, unchallenged by courts or parliament. The norms of a properly constituted state began to disintegrate during the Emergency as the authorities exercised with impunity illegal means of coercion that caused South Africa to descend into a situation of self-generating and uncontrolled repression. Journalists were threatened by the Department of Information, not just about content but also over the use of language and warned not to use words and phrases such as 'white minority regime', 'draconian' and 'riot-torn' (Graaf, 1988).

Underlying this weight of security legislation was a foundation of official secrecy that affected every significant aspect of South Africa's political economy and severely curtailed investigative journalism. Indeed, so distorted was the national information system that not even those with the vote were able to exercise it in a meaningful way, as so much data and decision- making was hidden from the public. Not only was the concept of the Right to Know foreign to South Africa, but to believe in it was tantamount to treason. As Sir Humphrey Appleby put it so aptly in the British television comedy series, Yes Minister, official confidentiality is about protecting officials,

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not secrets. In apartheid South Africa, government was a private affair conducted by a privileged group from within a minority concerned as far as possible to sanitise its image. Phillip van Niekerk (1993) put it succinctly: "Pathological secrecy shielded the South African kleptocracy from public scrutiny while the treasury was robbed blind."

At its most blatant, South African censorship involved the straightforward banning of the printed word, often with the effect of rendering individuals and corporate bodies invisible in a literary sense. This was achieved through the Publications Act of 1974 (banning specific titles) and the Internal Security Act (banning all the work of an author or organisation) and was an integral part of police state culture, although it was frequently ineffective and occasionally involved comical episodes that descended into farce. It is a sobering reminder of the bureaucratic relentlessness of the apartheid state that from 1975 to 1990, 23,435 titles were submitted to the Publications Control Board, eighty-eight percent of them by the police, customs officials or employees of the Directorate itself. By the late 1980s the percentage referred by the public and publishers had dropped to as low as five percent.

The law on defamation under apartheid was a major stumbling block for media freedom. Case law inevitably tends to reflect dominant influences in surrounding society so it comes as no surprise that it functioned in a fashion that favoured the rich and powerful to the detriment of truth and the public good. In perhaps the most famous case of the period, Max du Preez was forced to close the radical newspaper Vrye Weekbladafter it had published al legations about the activities of Lothar Neethling in supplying poison to police death squads. The fact that the Truth and Reconciliation Commission (TRC) showed this to be substantially true unfortunately came too late for du Preez. The climate of apartheid South Africa was ripe for an interpretation of the law of defamation that intimidated many commentators into self censorship, especially where litigious, high profile public figures were concerned.

In the latter years of apartheid the threat of censorship took on characteristics that became increasingly physical. Virtually every South African who made an active contribution to the anti-apartheid movement was harassed in some way intended to encourage circumspection if not silence. Vigilante action linked to the state was recorded as long ago as the late 1950s in the western Transvaal (Hooper, 1990); and a state-run assassination squad was founded in the 1960s and activated as early as 1970 (Winter, 1981 ). State- linked death squads, vigilante action perpetrated by conservative allies of the government and right wing terror all played a part in inhibiting the communication of information through murder, arson and general

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intimidation. The roots of informal repression ran deep in South African history and typified in many ways systems of control found generally in developing societies (States of Terror, 1989). By the end of the 1980s, informal, extra-legal low intensity conflict provoked by the securocrats who ran South Africa during that decade had developed into the most important facet of the censorship system and the one that had the potential to become the most deeply woven into the fabric of society.

Finding themselves in stressful and challenging times, neither individuals nor orgar~isations always behave in compliant ways, but draw upon strengths and resources of which they were previously unaware. So it was at each stage of the growth of the South African security state. The authorities were in any case hampered by a number of structural problems that played into the hands of the anti-apartheid opposition. First, the South African government, even at its most repressive, consistently demonstrated a need to be understood by the West; and indeed to be seen to be part of the civilised world. Second, the country had a long and honourable tradition of civil rights advocacy based within the non-racial movement that became particularly prominent in the early 1980s with the founding of the United Democratic Front. This human rights culture was based in the universities, trade unions, certain churches, the press, the legal profession, various cultural groupings and non-governmental organisations (NGOs), all of which saw their participation as a matter of duty, obligation and challenge. Third, during the 1980s technological advances were beginning to have a positive effect on the ability of dissident groups to collect data and communicate it across borders.

The declaration of the third State of Emergency on 12 June 1986 was clearly identified by the Centre/Left opposition as an attempt to curtail communication both with the outside world and between elements of the internal resistance. This challenge was taken up with considerable vigour: South Africa, by virtue of language, historical ties with Western Europe, geography and an energetic exile movement, was not to become another Argentina nor an Albania.

It was quickly recognised that a major purpose of the State of Emergency was to i nfl uence the media and thereby control perceptions of the struggle over South Africa. The challenge was taken up, enhancing an already vigorous civil rights movement and creating an opposition of strength, breadth, and sophistication never before witnessed in South Africa. One of its major enterprises was the documentation and analysis of current events that was to contribute in a significant way to the demise of apartheid, particularly in view of the fact that much of it was targeted at foreign news agencies and

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opinion shapers such as those listed in appendix A. The period 1986 to 1990 was essentially one of struggle over an understanding of the reality of the South African condition, a battle for the means of communication and the power of persuasion. The personal memories of those active in the anti-apartheid politics of the early days of the Emergency are dominated by a sense of isolation and a lack of information in which communication, for a while, was paralysed. During this brief period, just one version of events in South Africa, that of the National Party government, dominated the media. Its opponents found documentation, let alone communication, problematic. A society forcibly split along racial lines by its government found itself particularly vulnerable to disruption of communication, and the deleterious effect of this upon the liberation movement rapidly became very apparent.

In attempting to destroy the link between struggles of past and present, the government was particularly interested in controlling internal communication rather than worrying about international reactions. Press restrictions were particularly onerous and there were even rumours that court proceedings and Parliamentary debates would be censored. "Certain types of publication were targeted and the meaning of regulations was kept deliberately vague. The authorities showed a greater level of concern about certain messengers than the messages they carried. Coping with the system became a guessing game, trying to anticipate authoritarian caprice and irrationality" (Merrett, 1993, p. 2). The challenge was accepted. The Defiance Campaign of 1953 is a signal event in South African history while various defiant acts of the late 1980s indicated the end of the Emergency and the eventual collapse of apartheid. But from the mid 1980s onwards another, quieter act of defiance was taking place in the form of a process of documentation that exposed the nature and methods of the apartheid regime in great detail. Significantly, it was the most brutal methods of the South African police state such as detention, torture and assassination that were best recorded.

Documentary defiance of this sort required astute assessment of the security climate, a commitment to civil rights, and a degree of determined recklessness. It was indicative of a number of factors, not least of which involved the nature of the South African state. Suffice it to say that in Nazi Germany the first civil rights publication would have earned its compilers a course of fieldwork in a concentration camp. By contrast, the South African government remained curiously inert in the face of damaging output from NGOs, university departments, commercial publishers, and the alternative press. From the point of view of the opposition it demonstrated the value of the belief that the price of freedom is eternal vigilance, in this case

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gathering, analysing and disseminating information about a state descending into government-inspired lawlessness. U ltimate(y the government ]ost the battle over foreign perceptions of the state of the nation and to a large, although immeasurable, degree this was achieved through the documentation efforts of civil rights campaigners.

A survey conducted on the literature of the Emergency period listed a hundred and twenty-three monographs and sixty-seven periodicals (excluding newspapers) that may be said to have challenged the state's grip on the flow of information by documenting the less savoury side of apartheid. Some of these publications were produced overseas and cannot be considered part of the challenge, strictly interpreted, to the apartheid state, although much of the material involved was collected inside the country by dissidents and published by exiles. A list of the non-governmental organisations, civil rights groups, newspapers and commercial publishers involved is appended and the roll call of names evokes memories of the human rights struggle conducted in the name of the non-racial movement in its different guises. The most important and challenging topics covered were detention without trial, torture, political trials, restriction, assassinations, and the behaviour of the police and their vigilante allies. The most significant event to be documented was undoubtedly the Natal War, which reached its zenith around Pietermaritzburg in March 1990.

This body of evidence of the methods of the police state had a major impact even on conservative allies of the apartheid regime from the Western world, convincing them that their business interests could not be advanced by such reckless brutality. The most significant collector and publisher of evidence of the infringement of human rights was the Human Rights Commission, headed by Max Coleman, which produced monthly repression updates from 1988 onwards and irregular fact papers, special reports and an information manual. Black Sash, the Institute for a Democratic Alternative in South Africa (IDASA) and the Five Freedoms Forum were other significant organisations in this regard. As far as the low intensity conflict in Natal was concerned, the Centre for Adult Education at the University of Natal in Pietermaritzburg performed a magnificent job of data collection and analysis: its work had a profound effect on perceptions of the Natal conflict and is a model of international standing for repression monitoring. Perhaps the most challenging publication of all was Foster, Davis and Sandler's (1987) study of the legal and psychological basis of the torture of Internal Security Act detainees, which contained first-hand descriptions of the methods of the security police. The laconic statement by the publishers, David Philip, that "as all the respondents were detained under the Internal Security Act,

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the current emergency regulations do not apply to the publication of this book" is a classic example of imagination and courage in pursuit of the documentation of truth. A common denominator of all this documentation activity involved lines of communication that crossed the artificial racial divides erected by the regime, and the trust of informants within the black community. Methods of data collection were at the same time both simple and straightforward in execution, but complex in their defiance of the customs of apartheid South Africa.

In spite of the inhibiting trappings of a police state, South Africa was a well-documented country. Indeed there is evidence to argue that the more repressive the regime became, the more vigorous the response by researchers, writers and publishers. The details bear out van der Berghe's contention (1979) that the optimum milieu for a creative intelligentsia is an unjust and indefensible society with a moderately and inefficiently repressive regime and an urban population living reasonably comfortably. Under these conditions the South African Truth and Reconciliation Commission (TRC) of the late 1990s had a less onerous task than its counterparts in other countries. The human rights abuses of the apartheid state were already thoroughly documented. What the hearings involving victims and perpetrators achieved was to put names and faces to events, a process that excited the imagination and attention of a broader public and of course encouraged a measure of catharsis. Those who worked for the TRC acquired much well-deserved acclaim but it was their precursors in the late 1980s who had the prescience and indeed courage to anticipate Ben Pimlott's dictum (1995) that"[a]ccurate history is one essential vessel of liberty, perhaps the most essential ..." (p. 364). The TRC's work was echoed by Klima's experience from the Czechoslovakian liberation movement of the importance of memory: "A responsibility that flows from an awareness of a continuity with everything that went before, with all those who came before, that is, a responsibility for what must not be forgotten if we are to avoid ending up in a vacuum" (1996, p. 37).

It would be logical to assume that this could be the best possible foundation upon which to build a culture of media freedom in a liberated society, and there is plenty of evidence to demonstrate that this has indeed been the case. In constitutional and legal terms South Africa now has one of the most liberal contexts for media freedom in the world and the second half of the 1990s can surely be seen as the most tolerant era in the nation's history. The pillars of this new openness are the Bill of Rights and two statutes, the Promotion of Access to Information Act and the Archives Act. The paradox of the title of this article lies in the fact that their impact has

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been subverted by political forces operating openly within a liberal democracy.

The Bill of Rights (chapter three of the Constitution) contains several clauses which have a bearing upon the freedoms of expression and information. Section 16 (freedom of expression) lists freedom of the press, freedom to receive or impart information or ideas, freedom of artistic creativity, and academic freedom. Section 32 (freedom of information) establishes limited rights to government and non-government information involving data "that is required for the exercise or protection of any _. rights." Inevitably there are in the Bill of Rights built-in limitations. Section 36 requires that they shall be reasonable and justifiable in the context of an open and democratic society, bearing in mind human dignity, equality and freedom; Section 37(4) permits derogation of the freedoms of expression and information (but not some other freedoms) during a declared State of Emergency; while Section 16 condemns war propaganda, incitement to imminent violence, and advocacy of hatred that is based on race, ethnicity, gender or religion and is an incitement to cause harm. In this fashion the Constitution established and defined a need that could be realised through legislation.

Much will depend upon the Promotion of Access to Information Act which, bizarrely, was subject to secrecy in its drafting as a Bill. It gives effect to both vertical and horizontal rights by establishing the right of access to any information held by the state or by another person, in the latter case only when required for the exercise or protection of other rights. It aims to foster a culture of transparency and accountability as well as assist in the guarding of human rights while protecting privacy, commercial confidentiality, and good governance. Excluded from its ambit are the Cabinet and its committees, courts and special tribunals and members of legislatures. Exemptions from the provisions of the Act are certain matters relating to third parties, the Revenue Service, trade secrets and technical information, confidential sources, security of persons and property, police dockets, privileged legal material, defence, international relations, the national economy, research and operational concerns; although all may be overridden by an emergency in which public and/or environmental safety are seen to be at high risk. Limitations must always be reasonable and justifiable in the context of an open and democratic society (Pollecutt, 2000; Streek, 2000).

Information is thus to be made available on request, not routinely published as some critics of the business sector would prefer, although the onus of justifying refusal rests with the supplier. Appeals will be heard in the adversarial, costly, and formal circumstances of the High Court in the

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absence of a special tribunal (Bodibe, 1999). The Act's purpose is consistent with the highest international standards of transparency but its effectiveness will only be evident when exemptions are brought into play and an interpretation of that much-contested and debated phrase 'the national interest' is established in law. But there is a fear that the "government is merely flirting with the notion of transparency and accountability" (White, 1998, p. 75) and that the sheer cost of information officers and the retrieval mechanisms required in each government office will subvert the system.

However, given a sound system of records management and good archival practice there is hope for South Africa's documentary heritage. The National Archives of South Africa Act of 1996, one of the most progressive pieces of archival legislation in the world, permitted a closed period of 20 years and the possibility of even earlier release of documents. This is significant, bearing in mind the importance of government documents not only in relation to outcomes but also to the process of their formulation. Unfortunately, much of the historical record to which these generous terms might be applied has been destroyed. Johnson, (1993) writing, perhaps with some journalistic licence, during the negotiation period observed: "If you stand on a street corner in Pretoria late at night, I am sure you can hear the sound of shredders shredding" (p. 260); although in her account of the TRC, Krog (1 998) suggests that some documents may have been photocopied as future insurance. Most of South Africa's largest biographical dictionary, the files of the security police, has been shredded, together with material confiscated over the years from opposition organisations and records of the undercover army hit squad, the Civil Co-operation Bureau. In his comprehensive account of official document destruction, most of which took place in the early 1990s, Harris (2000) concludes that "[s]wathes of official documentary memory, particularly around the inner workings of the apartheid state's security apparatus, have been obliterated" (p. 51 ).

Hope for media freedom in South Africa may also be seen in the repeal of the Newspaper and Imprint Registration Act of 1971, which in the past thwarted the establish ment of opposition newspapers by bureaucratic procedures and very high registration fees. In this sense, South Africa now has a free press. The situation regarding publications other than newspapers is less clear. For decades South Africa suffered under Publications Acts that granted the government censorship powers over published material. These were exercised in terms of self-serving criteria regarding potential harm to race relations, the bringing of a section of the community into contempt or ridicule, and threats to the safety of the state. New legislation in the form of the Film and Publications Act of 1996 has set out to regulate the distribution

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of publications and films through classification committees, a Board and a Review Board; a structure that is alarmingly reminiscent of the censorship bureaucracy of the apartheid years, although there is now a process of appeal and the Supreme Court has the power to override decisions. As in the past, the Newspaper Press Union of South Africa is exempt from its provisions as is the Independent Broadcasting Authority.

The possibility of the Directorate making submissions to its own bureaucratic structures revives memories of the 1970s and 1980s when the state defined South Africa's moral and social values and the publication process was subject to authoritarian caprice. The Act confines itself to the residual concerns of the legislation of the apartheid era - obscenity and blasphemy - but it also addresses the issue of hate and other undesirable speech as defined under s.16 of the Bill of Rights. It is feared that its powers in this regard will be interpreted in such a way as to restrict the ability of commentators to reflect the true nature of South African society, including the undesirable elements, or that unscrupulous authorities could use this provision to clamp down on straightforward robust speech: it has been described as "unnecessary, over-broad and ... beyond even the requirements of international law" (Johannessen, 1997, p. 136). Not only do hate speech provisions threaten responsible reporting but they may well be counterproductive, driving unacceptable behaviour underground where it is more difficult to challenge and possibly made more attractive to the impressionable (Meyerson, 1990, Neisser, 1994).

Current interpretation of the law of defamation suggests that press freedom may be allowed greater latitude. One of the significant cases of the post-apartheid era was concluded in the Appeal Court on 27 September 1998. In National Media Ltd v. Bogoshil, media liability in defamation actions was diminished, provided that falsehood was not deliberately promoted, publication was in good faith, and there was no negligence nor intention to defame (Soggot, 1998). The judges in this case recognised that the press was the voice of the people; although not without responsibilities and obligations, extending to it qualified privilege (Burchell, 1999). Midgley (1999) summed up the new circumstances for investigative journalists, describing their new-found ability to "inform readers on matters of public interest without fear of being sued, if their information later turns out to be wrong - provided, of course, that they take reasonable steps to verify the accuracy of their reports" (p. 224). Yet within a year this was under question in Oliver Powell v. Times Media Ltd.2, in which an interdict was granted against publication showing that at this stage reasonableness is hard to demonstrate and the courts still tend to favour the rights of powerful

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and influential individuals (Gillespie-White, 2000, p. 5). Writing at the dawn of South African democracy, Breyten Breytenbach

(1993) put forward the view that "only a fool would pretend to understand comprehensively what South Africa is really about, or be objective or far- sighted enough to glimpse its future course" (p. xiv). Some subsequent opinion regarding civil rights has been optimistic. Johnson (1996) puts the view that "whatever else it may be, this is a society with a very strong dissident tradition". Beckett (1998), another liberal commentator, advances the diametrically opposite opinion that "dissent is a thing to be whispered behind cupped hands" (p. 191 ). Hope (1994) tends to support this pessimistic line by voicing alarm that dissenters are treated as counter-revolutionary using "much the same tones as ... in the old South Africa ... [being] called 'Communists' and advised to go back to Ghana". These sceptical comments about the South African condition are worth bearing in mind in view of research findings about the intense level and breadth of intolerance amongst all groups of South Africans whether the historical perpetrator or victim of human rights abuses, in spite of lip-service paid to rights in principle (Gouws, 1993; Humphries & Reitzes, 1995). In his research on the 1999 General Election, Lodge (1999) identified high levels of intolerance towards political opponents especially in small towns and rural areas. In the early 1990s, Tony Heard (1992) wrote: "Much will depend upon whether the public cares" (p. 168); and there is, distressingly, growing evidence that a significant fraction does not.

The future of the freedoms of information and expression and of the media will depend upon newly acquired statutes that have yet to be interpreted by the courts. Whatever the outcome, a major governing factor already exists in the form of socio-political and cultural context. While this has been developing since the dawn of the new South Africa, it has taken on a sharper focus since the beginning of Thabo Mbeki's presidency. In the opinion of many observers, the context may now be characterised as paranoid. The most important indicator was the Human Rights Commission's investigation into racism in the press in mid-2000 (Tomaselli, 200 !a, 2001 b). Significantly, the HRC had no specific reason to launch its probe and was forced to fall back on examples that supposedly had subliminal effect; and was at one stage prepared to use coercive tactics reminiscent of the apartheid regime based on subpoenas. Perhaps the most important aspect of this episode was the almost complete lack of interest let alone protest, the press itself apart, shown by civil society. Rhoda Kadalie (2000), herself an ex-member of the Commission, described the affair as "a gross violation of freedom of expression and an attempt to prescribe to the press what they

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should be thinking and writing"; which was in turn amplified by the Mail and Guardian, a subject of original complaints to the HRC: "we belong to a free people and as such we stand on our right to due process" (Commissioners of the Star Chamber, 2000). The HRC was the same organisation that in 1996 accused Dennis Davis of racism for his criticism of its composition. The new Establishment's lexicon of political correctness is responsible for the cavalier bandying about of the term 'racist' in the same way that spokesmen of~he National Party government used to employ 'liberal' and 'communist' to undermine dissenters.

The idea of shooting the bearer of bad tidings is still deeply entrenched in the culture and psyche of South Africa. Even worse, there are undoubtedly people in influential places who feel that the country cannot afford a robust, dissenting media essential to the comprehensive documentation of the national condition. They elevate the concepts of transformation and development above inalienable freedoms in pursuit of their own agendas: "Democracy ..." writes Barnett (1998) "is subordinated to the rhetoric of nation-building and easily reduced to a set of practices for managing the effects of policy implementation and winning consent" (p. 567). This gives force to the concern of Jackson (1993) about a danger that "... in a post- apartheid South Africa free expression will not emerge as a cardinal value sustaining the society, to be treated as an end in itself and not merely an instrumental good" (p. 171 ). This prescience has been justified by accusations of 'lack of patriotism' directed towards critics of the government.

Examples of explicit and implicit suppression of information and expression abound. In the case of the infamous Sarafina affair, an expensive and dubious exercise in AIDS education by the Department of Health in 1996, the authorities invoked their predecessor's Protection of Information Act of 1982 in order to prevent publication of details. The exemplary parliamentarian, Patricia de Lille, was suspended from the National Assembly in November 1997 for alleging under privilege that seven senior ANC MPs had been agents of the previous regime. The ANC was exercised not so much by the content of her statement but the use of parliamentary privilege and the Cape High Court justifiably found her suspension unconstitutional and an infringement of her freedom of speech.3 The Mpumalanga journalist Justin Arenstein, of African Eye News Service, was excluded from the provincial legislature and accused of racism and false reporting for exposing corruption and mismanagement. Details of the arms trade have been routinely covered up, with good reason if current suspicions of bribery and corruption are justified.

Democratically based governments that succeed authoritarian regimes

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often find a residue of repressive legislation useful to them and in South Africa's case there is s.205 of the Criminal Procedure Act (described above). Journalists may still be jailed for up to five years as recalcitrant witnesses for what in many countries would be the exercise of an inalienable civil right: there are valid reasons why journalists should be protected with regard to the confidentiality of their sources because they fulfil a role in the public interest. In August 1996, police watched a notorious gangster being murdered in a Cape Town street and have subsequently raided newspapers, news agencies and the electronic media for documentary and pictorial evidence. Subpoenas, this time under the Inquest Act, were served in August 1998 and Reuters, citing international standards, refused to comply. Press coverage of urban unrest in the Western Cape has also earned threats from People Against Gangsterism and Drugs (PAGAD), the extremist Muslim vigilante group.

There are a number of indicators that lead to the conclusion that the independent watchdog role, prosecuted so vigorously with regard to civil rights in the 1980s, has ironically been weakened under conditions of liberal democracy. The independent (that is to say, alternative) press so influential during the Emergency and the subsequent demise of apartheid has virtually disappeared: of the newspapers listed in appendix C, only one survives. The role played by non-governmental organisations in the national information system has faded rapidly after the drying up of foreign funding, the absorption of activists into government, politics and business, and the high profile given to development. The flood of documents, based on the work of independent monitors, about human rights, violence, housing, education, health and other crucial issues that poured into libraries during the last days of apartheid has ceased. Investigative reporters aside, information about the current state of the nation is increasingly in the hands of government rather than independent observers. Documentation as dissidence, so characteristic of the apartheid era, has vanished with the loss of what Dangor (1995) terms "demonic inspiration" (p. 47). South African society is increasingly undermined by violence in which "[I]ife has become a rate of exchange" (Nicol, 1995, p. 100). Widespread taxi wars, gang and vigilante violence on the Cape Flats, the murder campaign against white farmers and warlord conflict in KwaZulu- Natal have all created a climate of fear and insecurity in which fact and opinion cannot circulate freely and the people who normally fuel the information system will not come forward. Many South Africans cannot be described as true citizens, but live in areas dominated by clientelism and patrimony in which sectional loyalty is a prerequisite for material improvement. Under such conditions individual freedoms do not flourish

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(Adam & Moodley, 1997). And there can be little doubt that the circulation of opinion in South Africa is badly affected by political correctness (Erkens & Kane-Berman, 2000).

South Africa's peaceful transition to democratic process was dependent upon an accommodation between two powerful nationalisms which have many shared conservative characteristics. There is a tendency in both towards group loyalty and race sensitivity that discounts fundamental freedoms, devalues media responsibility, and undermines the intent of the new constitution. It is, perhaps, unsurprising that in a country with such an authoritarian past bedevilled by colonialism and apartheid, freedom of expression is seen in party political terms, so that when the press criticises the government for its failures, particularly those of delivery, it is excoriated. The most outrageous, and indeed sinister, of these reactions has been a suggestion from ANC members that legislation be introduced making it a criminal offence to criticise the president, the absolute epitome of the tyrannical banana republic. The party has not publicly repudiated the idea.

The British left wing intellectual Richard Hoggart (1995) reminds us: "A well-running democracy will constantly quarrel with itself, publicly, about the right things and in the right way" (p. 340). Beyond doubt, media freedom and the information system of a nation depend upon both legal and politico- cultural frameworks in a close inter-relationship whose internal tensions are capable of pulling in different, even opposite, directions. During the first democratic administration in South Africa's history there was an understandable tendency to dwell on legislative achievement. Now, well into the second, there is a growing realisation that a culture of political intolerance and paranoia and a tendency towards a lack of transparency severely threaten hard won democratic rights. The fact that South Africa ten years after the lifting of the last Emergency is a country that seems less well documented than it then was, is good reason for concern.

NOTES

Reported as 1998 (4) SA 1196 (SCA). Case 99/26715 High Court of South Africa (Wits LD) 23 October 1999. Case 760/98 Patricia de Lille and PAC v. Speaker of the National Assembly in the High Court of South Africa (Cape), 8 May 1998.

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Barnett, C. (1998). The contradictions of broadcasting reform in post-apartheid South Africa. Review of African political economy, 78, 551-70.

Beckett, D. (1998). Madibaland. Parktown: Penguin. Bodibe, O. (1999, March 26). Towards responsible open democracy. Mail & Guardian,

15(12) p. 26. Breytenbach, B. (I 993). Return to paradise. Cape Town: David Philip. Bunting, B. (1986). The rise of the South African Reich. London: International Defence

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red card: National Media Ltd. v. Bogoshi. South African Law Journal 116(1 ), 1 - 11.

Coetzee, J. (1990). Andre Brink and the censor. Research into African literatures 21 (3): 59-74.

Commissioners of the Star Chamber [editorial] (2000, February 18). Mail and Guardian 16(7), p. 28.

Dangor, A. (1995). In Brink, A. (Ed.), 27 April: een jaar later: one year later. Pretoria: Queillerie.

Erkens, R. & Kane-Berman, J. (Eds.). (2000). Political correctness in South Africa. Braamfontein: South African Institute of Race Relations.

Foster, D.H., Davis, D. & Sandier, D. (1987). Detention and torture in South Africa: psychological, legal and historical studies. Cape Town: David Philip.

Gillespie-White, L. (2000). SA court interdicts newspaper. FXI Southern Africa media law briefing, 5(2), 4-5.

Gouws, A. (1993). Political tolerance and civil society: the case of South Africa. Politikon 20(1 ), 15-31.

G raaf, M. (I 988). Ha wks and doves: the pro- and anti-conscription press in South Africa. Durban: Contemporary Cultural Studies Unit, University of Natal.

Harris, V. (2000). 'They should have destroyed more': the destruction of public records by the South African state in the final years of apartheid, 1990-94. Transformation 42, 29-51.

Havel, V. (1985). The power of the powerless: citizens against the state in central-eastern Europe. Armonk, N.Y.: Sharpe.

Heard, A. H. (1992). The struggle for free expression in South Africa. In L. Diamond (Ed.), The democratic revolution: struggles for freedom and pluralism in the developing world (pp. 167-179). New York: Freedom House.

Hoggart, R. (1995). The way we live now. London: Chatto and Windus. Hooper, C. (1990). Brief authority. Cape Town: David Philip, new edition. Hope, C. (1989). A separate development. London: Minerva. Hope, C. (1976). A warning to others. Index on censorship 5(4), 95. Hope, C. (1988). White boy running. London: Abacus.

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Hope, C. (1994, September 18). Quoted in Independent on Sunday (London), p. 17. Huddleston, T. (1956). Naught for your comfort. Johannesburg: Hardingham and

Donaldson. Humphries, R. & Reitzes, M. (Eds.). (1995). Civil society after apartheid: proceedings of

a conference. Johannesburg: Centre for Policy Studies. Jackson, G. (1993). Breaking story: the South African press. Boulder: Westview. Johannessen, L. (1997). A critical view of the constitutional hate speech provision.

South African Journal on Human Rights 13, 135-150. Johnson, R.W. (1996, October). On the way to first base. London Review of Books

18(20) pp. 23. Johnson, S. (1993). Strange days indeed: tales from the old, and the nearly new South

Africa. London: Bantam. Kadalie, R. (2000, February 18). Defy Barney's thought police. Mail and Guardian,

16(7), pp. 31. Klima, I. (1996) Literature and memory, In The spirit of Prague and other essays. Granta.

(New York:) 34-38. Krog, A. (1998). Country of my skull. Johannesburg: Random House. Levi, P. (1987). The truce. London: Sphere. Lodge, T. (1999). Consolidating democracy: South Africa's second popular election.

Johannesburg: Witwatersrand University Press. Merrett, C. (1993). Emergency of the state: a source guide to South African political

issues, 1985-1990. Pietermaritzburg: University of Natal Library. Merrett, C. (1994). A culture of censorship: secrecy and intellectual repression in South

Africa. Cape Town: David Philip. Meyerson, D. (1990). No platform for racists: What should the view of those on the Left

be? South African Journal on Human Rights 6(3), 394-398. Midgley, J.R. (1999). Media liability for defamation. South African LawJournal 116(2),

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for a land recovering from decades of racial repression and violence. South African Journal on Human Rights, 1,336-356.

Nicol, M. (1995). In A. Brink led.), 27 April: een jaar later: one year later. Pretoria: Queiilerie.

Pimlott, B. (1995). Frustrate their knavish tricks: writings on biography, history and politics. London: Harper Collins.

Pollecutt, L. (2000). SA finally passes information law. Southern African media law briefing 5(1 ), 4-5.

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Novi, 21 (2) 7-27.

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African Journal on Human Rights, 14, 65-76. Winter, G. (1981 ). Inside BOSS: South Africa's secret police. London: Allen Lane.

APPENDICES: ORGANISATIONS THAT DOCUMENTED, ANALYSED AND PUBLISHED INFORMATION ABOUT THE SOUTH AFRICAN STATE OF EMERGENCY, 1986-1990

A) NON-GOVERNMENTAL ORGANISATIONS

South Africa

Anti-Censorship Action Group (ACAG) Association of Democratic Journalists (ADJ) Black Sash Centre for Adult Education (CAE, Pietermaritzburg) Centre for Applied Legal Studies (CALS, Johannesburg) Detainees Aid Committee (DACOM, Pietermaritzburg) Detainees Parents Support Committee (DPSC) Five Freedoms Forum (FFF) Free the Children Alliance (FCA) Human Awareness Project (HAP) Human Rights Commission (HRC) Human Rights Trust (HRT) Institute for Contextual Theology (ICT) Institute for a Democratic Alternative in South Africa (IDASA) Lawyers for Human Rights (LHR) Legal Education Action Project (LEAP, Cape Town) National Land Committee (NLC) Organisation for Appropriate Social Services in South Africa (OASSSA) Repression Monitoring Group (RMG) South African Council of Churches (SACC) South African Institute of Race Relations (SAIRR) South African Research Service (SARS) Southern African CathoLic Bishops Conference (SACBC) Theology Exchange Programme (TEP)

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Abroad

Amnesty International Catholic Institute for International Relations Human Rights Watch International Defence and Aid Fund

B) SOUTH AFRICAN COMMERCIAL PUBLISHERS

David Philip Indicator South Africa (Durban) Jonathan Ball Madiba Ravan Southern Taurus

C) SOUTH AFRICAN NEWSPAPERS

Grassroots New African New Nation Saamstaan South Vrye Weekblad Weekly Mail

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