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The legal implications of accreditation or non-accreditation of journalists under the Access to Information and Protection of Privacy Act
prepared by Irene Petras on behalf of MISA-Zimbabwe Chapter
October 19, 2002

© reserved - Irene Petras October 2002

Who falls within the confines of the Act?
A journalist is currently defined in terms of section 62 of the Act, but the Amendment Bill seeks to make the definition read a little better. It will now read ‘a person who gathers, collects, edits or prepares news, stories and materials for a mass media service whether as an employee of the service or as a freelancer’. Such a person must seek accreditation in terms of the Act.

Section 79 of the Act makes it mandatory for a journalist to be accredited by the Media and Information Commission if he wishes to exercise the rights of a journalist in Zimbabwe. The constitutionality of this provision will be dealt with in more detail later in this paper.

An argument that has been put forward is that in order to be classified as a journalist who must accredit, an individual must be connected to a mass media service by reason of employment, and that if one were to be a consultant or work for free, then there would be no need to accredit in terms of the Act. It is submitted that the offering of free services to escape accreditation would not find favour either with the Commission or with the courts.

Courts in South Africa and in Zimbabwe have defined employment as a situation where ‘one person in terms of an agreement makes his working capacity or energy available to another for remuneration in such a way that the latter may exercise control (authority) over the former’. This would give the employer the right to control the employee1.

A consultant, or an independent contractor, on the other hand, also undertakes to render services to another for remuneration without, however, being subject to his control. He sells his services to an organisation or institution at his discretion and in his own time. There is a danger that this category of persons could be seen as freelance journalists and therefore still be subject to accreditation under the Act. However it could be argued that freelance journalists do not have contracts of employment or consultancy contracts, but rather that they operate in terms of contracts of sale. If ‘journalists’ reconstitute their contracts and become consultants, there is a chance that this might allow them to escape accreditation under the Act. It must be pointed out, though, that this is a tentative argument and also does not take into consideration things such as loss of entitlement to medical aid and pensions, leave and sick days, job security and other benefits existing under a contract of employment.

1See The Law of Delict 2nd Ed : Potgieter and Visser

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