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There is a well-known ‘tradition’ of state censorship and state initiated restrictions on the media in Africa (Bourgault, 1995). During the colonial era foreign powers imposed restrictions in the name of ‘national security’, while in the post-independence the one-party dictatorial regimes continued these restrictions in the name of ‘national unity’ (Mue, 1999).

Today, South Africa remains an exception on the continent as one of few countries considered to have ‘genuine’ press freedom. According to the worldwide press freedom index (FXI), South Africa ranks 44th out of 168 countries. The constitution guarantees freedom of expression including freedom of the press. But despite constitutional provisions and South Africa’s position in relation to the rest of the continent, lawsuits against newspapers and journalists have been fairly common, as are interdicts preventing the broadcast or publication of specific items.

Constitutionally and legally South Africa has one of the most liberal contexts for media freedom, after decades of censorship through a variety of laws under apartheid. Freedom of the press is protected by the Bill of Rights, the Promotion of Access to Information Act and the Archives Act. The Bill of Rights (chapter 3 of the Constitution) contains several clauses that affect the freedoms of expression and information.

However, a Freedom of Expression Institute (FXI) report stated that South Africa is experiencing more censorious activities against the media in the second decade of its democracy, with harassment of journalists and the commonplace activity of courts issuing interdicts or gag orders against the media (Afrol News, 2008). Government has regularly used dated apartheid era laws to subpoena journalists. In 2007 for example, the Mail and Guardian newspaper (M&G) was prevented from publishing the details of an explosive report into alleged corruption, abuse of power and intimidation at the SABC, by a high court interdict. Since May 2005, six interdict applications have been launched in the Johannesburg High court against the M&G alone. Another high-profile case involved an interdict from the Johannesburg High Court which prevented the M&G from publishing a follow-up to its report on oil company Imvume paying R11-million of taxpayer’s money to the African National Congress. Similarly, in 2006, Johannesburg High Court Judge Zukiswa Tshiqi dismissed with costs the SABC's application to have the M&G remove the Sisulu Report on the blacklisting of certain analysts and commentators by the SABC (FXI, 2007).

Government agencies and private organizations are increasingly relying on interdict requests as part of a trend towards pre-publication censorship, hindering the efficient functioning of investigatory news organizations and the ability of newspapers to report on breaking news. During the period in which there was global controversy over the Danish cartoon depictions of the Prophet Mohammed, a high court order prevented several local Sunday newspapers from reprinting the cartoons, even before they had made a decision on whether or not to republish them. This kind of pre-publication censorship by judges allows them to overrule the power of editors to decide what is published; and leads the media to self-censorship. Similarly, Jonathan Ball Publishers decided not to publish Jonathan Kirby’s satirical novel Songs of the Cockroach because they feared that the Democratic Alliance might sue them.

While mainstream news journalism blurs the boundaries of what is legally acceptable in terms of reporting, political satire in the form of opinion, columns, cartoons etc occupy a different realm in the media landscape.
Two interesting examples emerge: the one is the publishing of the cartoon which has led to the court case by president Jacob Zuma against cartoonist Jonathan Shapiro (who writes under the pen-name Zapiro); and the second is the pre-censorship of a television documentary on political satire, which the South African Broadcasting Corporation (SABC) declined to broadcast on two separate occasions.

Firstly, the cartoon under question depicts ANC Youth League president Julius Malema and the general secretaries of the ANC, SACP and COSATU – Gwede Matashe, Blade Nzimande and Zwelinzima Vavi, holding down a female Justice System. Zuma is depicted with a showerhead above his head, in reference to his comments during his rape trial that he had showered to reduce change of contracting the HI virus after having unprotected sex with an HIV positive woman. The cartoon ran in the Sunday Times newspaper on September 7 2008. As a result, Jacob Zuma is suing Zapiro for libel, for R7 million. Prior to this, in 2006, Zuma instituted claims against a number of media outlets, mostly for articles, columns and Zapiro cartoons published during his rape trial. In January 2008 he accepted a R50 000 settlement from Afrikaans Sunday newspaper Rapport, after they published a readers’ letter during his rape trial which contained a defamatory sentence.

Zuma’s allies say that the cartoon was designed to depict Zuma as a rapist despite his acquittal, but Zapiro said that "It showed Jacob Zuma, with the help of his political allies, threatening and intimidating the judiciary to try to manipulate the courts for him to be exonerated and escape going on trial [for corruption], thus paving the way for Zuma to become president" and that he used Lady Justice to represent the South African judicial system, as the figure is internationally recognized as a symbol of justice (M&G online).

Political satire, and cartoons are powerful in their potential to influence political and social life as they often form a site for public debate. Distinct from political journalism, cartoons are a vital component of free speech, freedom of expression and a free press (Manning & Phiddian, 2008). Tunc (2002) for example has argued for the role of political cartoonists in the democratization process, particularly as they tackle controversial issues and the political establishment. Zuma lodged defamation claims against the media for R63-million in 2006 alone, and interestingly nearly all the items in which Zuma felt he was defamed were opinions or cartoons (M &G, 2008). Such incidents can undermine editorial independence and press freedom through leading to self-censorship.

Secondly, and more recently, the SABC failed to air an edition of the investigative magazine television show Special Assignment on the topic of political satire, citing legal concerns. Ironically, the show was subsequently downloaded from the M&G website, causing such heavy online traffic that it almost blocked the site (Newmarch, 2009). The most contentious point of the cartoon may have been Zapiro’s cartoon that shows Jacob Zuma about to rape a blind ‘Lady Justice’.  A previous case similarly saw the SABC serving papers on production companies Broad Daylight Productions to prevent the screening of the documentary "Unauthorised: Thabo Mbeki ". Modelled on British spoof TV series Splitting Image, Zapiro’s Z-News, featuring local politicians in the form of puppets, was commissioned by the SABC but then shelved. These incidents imply that self- censorship is possibly the single biggest threat to the independence of the public broadcaster.

Ultimately self-imposed censorship leads to a biased media and compromises the media’s ability to fulfill its ‘watchdog’ functions. If the news media are to play a critical role in holding the state accountable in our deliberative democracy, then the increasing trend of using the courts to silence the media is a threat to press freedom. This is particularly worrying as it most frequently pertains to cartoons and other kinds of political satire, which fall outside of the realm of mainstream reporting. The nature of a liberal democracy is that in order to protect the rights of the many, at any given time the sensibilities of the few will be offended (Hanson, 2006). One might argue that press freedom in South Africa is being threatened by a censorial political culture and that the positive impact of the supportive and constitutional environment is being subverted by political forces operating openly within a liberal democracy (Merrett, 2001).

References

Afrol News (2008). Concern over "creeping censorship" in South Africa. Available online at http://www.afrol.com/articles/14323. Retrieved 21 June 2009.

Bourgault, L. (1995). Mass media in sub-Saharan Africa. Bloomington: Indiana University Press.

FXI, Freedom of Expression Institute. (2007). FXI outraged by gag on M&G newspaper. Available online at http://www.fxi.org.za/content/view/124/51/. Retrieved 21 June 2009.

Hansen, R. (2006). The Danish cartoon controversy: A defense of liberal freedom. International Migration 44(5): 3-62.

M&G, (2008). Zuma, Rapport settle defamation claim out of court. Mail and Guardian. Available online at http://www.mg.co.za/article/2008-01-16-zuma-rapport-settle-defamation-claim-out-of-court. Retrieved 21 June 2009.

Manning, H. & Phiddian, R. (2005). The political cartoonist and the editor. Pacific Journalism Review 11(2): 127-150.

Merrett, C. (2001). A tale of two paradoxes: media censorship in South Africa, pre-liberation and post-apartheid. Critical Arts 15(1).

Newmarch, J. (2009). SABC Cancels Show, M&G Makes It a Hit. Business Day. Available online at http://allafrica.com/stories/200905280090.html. Retrieved 21 June 2009.

Mue, N. (1999). Press freedom's changing legal regime--still a dangerous landscape. Rhodes Journalism Review 18(61): 8-9.

Tettey,  (2002). The media, accountability and civic engagement in Africa. United Nations Development Report, Occasional Paper. Available online at http://hdr.undp.org/en/reports/global/hdr2002/papers/Tettey_2002.pdf. Retrieved 21 June 2009.

Tunc, A. (2002). Pushing the Limits of Tolerance: Functions of Political Cartoonists in the Democratization Process: The case of Turkey. International Communication Gazette 64: 47-62.

Notes from a position paper presented at the workshop entitled: The legal, ethical, economic and socio-cultural challenges to press freedom in South Africa and Brazil, UWC/Stellenbosch University, 22 June 2009