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Last Updated: 4 September 2004
THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
CASE NO: 054/2003
Reportable
In the matter between
SANKIE MTHEMBI-MAHANYELE Appellant
and
MAIL & GUARDIAN LIMITED
First Respondent
PHILIP VAN NIEKERK
Second Respondent
CORAM: HOWIE P, MPATI DP, MTHIYANE, LEWIS
JJA,
PONNAN AJA
HEARD: 7 May
2004
DELIVERED: 2 August
2004
Summary: Defamation of a cabinet minister by
implying that she was corrupt: cabinet ministers do have locus standi to sue for
defamation;
but publication found to be both justifiable (lawful) and reasonable
in all the circumstances; defamation thus not actionable; appeal
dismissed with
costs.
JUDGMENT
LEWIS JA
[1] ‘SANKIE
MTHEMBI-MAHANYELE
Minister of Housing
Grade: F
Why is she still in the
Cabinet? She has shown she cannot deliver in one of our key delivery ministries.
Her award of a massive housing contract to a close friend and her sacking of
her former director general, Billy Cobbett, continue
to haunt the public
perception of her (my emphasis).
Prognosis: A coupé
on the gravy train would do nicely, thank you very much.’
This is the
wording of a ‘report card’ in respect of the then Minister of
Housing, the appellant in this matter, written
and published by the first
respondent, a weekly newspaper (referred to as ‘the M & G’),
late in December 1998. The
second respondent, Mr Philip van Niekerk, was then
the editor of the paper. The statement was part of a general ‘report
card’
grading and commenting on the work of all members of the cabinet in
1997. The grade ‘F’ was stated to mean: ‘Pathetic.
A fail.
Jump before you are pushed’.
[2] The appellant sued for defamation,
asserting that the words in the report that I have emphasised were defamatory of
her. She claimed
damages in the sum of R3m. At the trial the appellant did not
persist in asserting that the words relating to the dismissal of Mr
Cobbett were
defamatory, but rested her case on the publication of the words that she had
awarded ‘a massive housing contract
to a close
friend’.
[3] The appellant alleged that the words complained of
signified that she was a person of base moral standard; that she was dishonest,
and would thus dishonestly award a massive housing contract to a close friend;
that she was incompetent and unable to deliver as
a minister; and was not worthy
of holding public office. She pleaded that the respondents had acted recklessly,
not caring whether
the contents were true; and that they took no reasonable
steps to establish whether the statement made was true.
[4] The
respondents pleaded that as a member of Cabinet, the appellant had no locus
standi to sue for damages for defamation; that the words did not convey a
defamatory meaning; that the words were at least substantially
true; and that it
was in the public interest that the facts were published. In so far as the
statement constituted the expression
of an opinion, that opinion was alleged to
be honestly held and expressed in good faith. In the alternative the respondents
pleaded
that publication of the statement was protected by qualified privilege
in that they were members of the press which is both bound
and entitled to make
available to the public information, opinions and criticisms about every aspect
of political activity, in the
public interest. Further, they asserted, s 16 of
the Constitution expressly protects the right of freedom of expression
(including
freedom of the press) such that the statement was published in the
exercise of a duty to inform the public. A further alternative
plea was that the
statement was published reasonably (without negligence) and in the genuine and
reasonable belief that it was true.
[5] The trial court (Joffe J in the
Johannesburg High Court) found for the respondents, refusing the action on the
basis that the
appellant, as a cabinet minister, did not have locus
standi to sue for defamation where the statement complained of related to
the performance of her work as a member of government and was
made without
malice. The court found also that the words were not defamatory of the appellant
since the reader of the M & G
report card would already have been familiar
with the allegations that were made in respect of the award of the housing
contract
and that the appellant’s reputation had already been tarnished.
There had been a great deal of publicity accorded to the matter
by many South
African newspapers, and the M & G in particular had undertaken an
investigation and had published a number of articles
during 1997 calling for an
explanation of the award.
[6] The appellant appeals against the decision
of the trial court with its leave. At issue in the appeal is the balancing of
two fundamental
rights, both protected by the common law and enshrined in the
Constitution: freedom of expression, on the one hand and dignity, including
the
right to protect one’s reputation, on the other. Should one right, in
certain circumstances, prevail over the other? In
particular, when dealing with
freedom of expression in a political context (political speech) should a member
of government’s
right to protect her reputation be eclipsed by the need
for robust criticism and comment in a democratic state where the public’s
right to be informed, and to free debate, is vital?
THE
BACKGROUND
[7] Before turning to the respective allegations of the appellant
and the defences raised by the respondents, an explanation of the
background to
the making of the statement is required. In January 1997, when the appellant was
the National Minister of Housing,
the Mpumalanga Housing Board (‘the
Board’) purported to award a contract for the construction of houses to
Motheo Construction
(Pty) Ltd (‘Motheo’). Some 10 500 houses were to
be built at a total cost of R190 million. At the time when the Board
made the
decision to award the contract Motheo had not yet been incorporated. It was
registered only in February 1997, and the sole
director was Dr Thandi Ndlovu.
The contract was formally executed in March of that year. The National Housing
Board was ostensibly
represented by Mr Saths Moodley who was the chair of the
Board; the Mpumalanga Department of Local Government was represented by
its
chief director, Mr B S Ngwenya; and Motheo was represented by Ndlovu.
[8] Ndlovu claimed to be a close friend of the appellant. They became
acquainted with one another when exiled from South Africa during
the years of
the liberation struggle. The appellant does not deny that they are friends.
Ndlovu’s sister, Granny Seape, worked
for Nedcor Bank Ltd. Nedcor had
entered into an agency contract with the various parties to the Motheo contract.
It was represented
by one Kevin Gibb. Ms Seape was Gibb’s
assistant.
[9] Towards the end of April 1997, Mr Billy Cobbett, then the
Director-General of the national department of housing, who had previously
had
misgivings about the award of the contract, was informed that Gibb had been
suspended by Nedcor. He became concerned about the
whole enterprise and
immediately referred the matter to the Auditor-General, asking him to
investigate and to undertake a forensic
audit. Cobbett then contacted the
appellant to advise her of Gibb’s suspension. He told her that he had
referred the contract
to the Auditor-General. He requested her not to attend the
public launch of the Motheo project, due to take place the following day.
The
appellant did not accede to Cobbett’s request.
[10] On 25 April
– the day of the launch – Cobbett wrote a memorandum to the
appellant. He recorded the history of his
discussions with Gibb at the beginning
of 1997. Gibb, on being appointed to his position at Nedcor, had conceived plans
for the rapid
delivery of low-cost housing in rural areas. Cobbett had agreed to
facilitate the flow of funds from the national department to Motheo
in order to
ensure the building of the houses in a period of ten months. However, at a
meeting in March with various officials from
the relevant bodies in Mpumalanga,
including Ngwenya, Cobbett had ascertained that the province’s funds were
heavily overcommitted.
It could not afford the cost of the Motheo contract.
Cobbett had agreed, however, to attempt to devise a plan to channel other
funding
to the project, but could not commit national funds to it. Despite this,
Cobbett recorded, the appellant had phoned him a week before
the Motheo launch
and had reported complaints that he was blocking funds for the project.
[11] Of most concern to Cobbett was that he discovered that national
funding had been committed to Motheo in January 1997, before
Motheo was
incorporated. In addition, he complained, Motheo had a share capital of only
R400; it had not ever built a house; the
housing contract was one of the largest
ever entered into by the state; Ndlovu’s sister, Seape, worked for a party
to the contract,
Nedcor; and the other director of Motheo was a member of the
provincial housing board. Moreover, the contract committed national
funds
without the authority so to do, and in Cobbett’s view, contravened proper
subsidy procedures. For these reasons, Cobbett
stated that he had referred the
matter to the Auditor-General.
[12] On 5 May 1997 Cobbett’s
appointment as Director-General was terminated. The appellant made a statement
to the press to
the effect that Cobbett had resigned. He denied this, claiming
that he had been fired. It is not necessary to deal with this dispute
save to
say that documents admitted in the court below indicate that he had indeed been
dismissed. The dispute became public and
much was made of it in the press. In
one of the first reports carried by the M & G, written by Stefaans Brummer,
Mungo Soggot
(a journalist who had investigated the Motheo project, and who
testified at the trial) and Peta Thornycroft, the headline read:
‘Why
minister axed her housing boss’. The byline read: ‘Joe Slovo’s
handpicked Director General, Billy Cobbett,
asked the auditor general to
investigate a R185-million housing project in Mpumalanga – and lost his
job’. The report
referred to Ndlovu’s friendship with the appellant
and to the fact that her sister had worked for Nedcor, under Gibb. It also
referred to a statement by Ndlovu that the appellant was her
‘mentor’.
[13] Other newspapers also carried reports on the
Motheo project, on the appellant’s relationship with Ndlovu and on the
firing
of Billy Cobbett. They are far too numerous to discuss in detail and
there is no reason to do so. Suffice it to say that all questioned
the dismissal
of Cobbett and many mentioned the appellant’s friendship with Ndlovu.
There was editorial comment too. In the
Sowetan (26 May 1997) the editorial
mentioned the allegation that the appellant had dismissed Cobbett after he had
expressed ‘unhappiness’
in respect of the award of a contract to a
friend. It stated: ‘there appears to be prima facie evidence pointing to
nepotism
and lack of transparency in the housing tender system that can be
tested only by a commission of inquiry’.
[14] Business Day and the
Citizen, for example, reported on 29 May that the appellant had claimed that it
was at her request that
Cobbett had referred the Motheo contract to the
Auditor-General for investigation. And in Parliament she was directly accused of
nepotism – a charge reported in several papers subsequently. Indeed, the
Sowetan of 3 June 1997 published a cartoon about the
Motheo affair, depicting a
house of cards, one of which, at the bottom, is labelled ‘Sankie’s
nepotism’.
[15] The press pointed out too that what the appellant
had said in Parliament (that she had encouraged Cobbett to refer the Motheo
contract to the Auditor-General) was in conflict with statements she had
previously made to the press. Business Day commented in
this regard (30 May
1997) that she was guilty of an ‘astonishing reinterpretation of events
surrounding the deal involving
her personal friend, Thandi Ndlovu’. There
were calls for an explanation as to Cobbett’s position. Business Day of 7
July stated that the public ‘had not been told who lied – Cobbett or
the Minister – about the circumstances of
his
departure’.
[16] Reporters of the M & G wrote on 30 May that
there was a ‘web of cozy relationships spanning central government,
provincial
government and the private sector’. The report referred in this
regard to the friendship of the appellant and Ndlovu, the ‘close
working
relationship’ between the appellant and Gibb, and the fact that
Ndlovu’s sister worked for Gibb at Nedcor. It
reported that Mr Barney
Mthombeni, a member of the Board at the time when the contract was awarded, had
subsequently become a director
of Motheo and as a result had been dismissed from
the Board.
[17] The Auditor-General filed his report on 28 August 1997.
He found that there were many irregularities attendant on the award of
the
housing contract to Motheo, and recommended the appointment of a commission of
inquiry to investigate the allegations about the
relationships between the
appellant and her friends who might have benefited improperly. The terms of the
report were widely publicised,
and the press called for answers to questions
relating to the appellant’s integrity.
[18] A provincial commission
of inquiry was set up by the Premier of Mpumalanga in September 1997. It was
chaired by Mr H R Dreyer.
The terms of reference were limited to the role of the
provincial authorities in the award of the Motheo contract. The commission
was
not mandated to inquire into the appellant’s role in the award of the
contract and indeed did not do so. It examined the
procedures followed by the
provincial authorities, and concluded that there had been numerous
irregularities. Among these was that
when the Board resolved to award the
contract to the then non-existent company, the Board was not quorate, and there
was some confusion
as to its membership. The minutes reflected people present at
the meeting who were not members of the Board, and the attendance register
did
not tally with the minutes.
[19] Various role players gave evidence to
the commission. Moodley told the commission that the province was interested
only in an
‘emerging developer’, and that he had been given the
names of Motheo and Ndlovu by Gibb. However, there was no competitor
in the
field. Moodley said that Motheo’s lack of track record was not relevant.
What was important was that the company was
headed by a woman who was interested
in rural housing. Gibb confirmed in his evidence that Ndlovu’s name had
come from him,
as the representative of the financial backer of the project,
Nedcor. There had been no evaluation done of Motheo after he had proposed
Ndlovu. The evidence was widely covered by the press. At the same time, the
refusal of the national government to appoint a commission
with power to inquire
into the appellant’s role was widely criticised. A report of Beeld on 14
October 1997 referred to the
evidence of a Mr Piet du Plessis, the Mpumalanga
Director of Housing, who had apparently said that the province’s officials
had been comforted by the fact that the appellant had herself
‘driven’ the Motheo project, and had been personally involved.
The
same report did, however, state that the appellant had previously denied any
involvement, and had refused to comment when evidence
was given to the Dreyer
Commission.
[20] Cobbett’s evidence before the commission was
also widely reported. On 23 October 1997 The Star carried a report entitled
‘Ex-housing chief says he was fired because he queried deal’. The
subheading read: ‘Inquiries about Mpumalanga’s
acceptance of
R198-million tender by unknown contractor with no money led to loss of
job’. The report referred to Cobbett’s
statement that he had
‘hit a panic button’ when he had heard of Gibb’s suspension by
Nedcor, and had contacted
Ngwenya, who made conflicting statements to him about
whether the contract was to be funded by Nedcor. He was reported to have said
that he had advised the appellant not to participate in the launch of the Motheo
project because of his concerns. ‘She chose
to ignore me’ he said.
‘I subsequently lost my job for questioning the proceedings and the
sequence of how the tender
was awarded.’ Similar reports were published by
other newspapers. The commission itself did not deal with the appellant’s
role since it was outside its terms of reference.
[21] The Dreyer
commission report was filed on 4 November 1997. It reported, as I have said,
several irregularities in the award of
the Motheo contract, but stressed that it
was not mandated to inquire into the involvement of the appellant and the
national department.
Again, there were numerous press reports dealing with the
commission’s findings and the mystery still shrouding the
appellant’s
involvement with Motheo.
[22] The Public Protector,
who was also asked to investigate the matter, produced an inconclusive report.
It appears that only Cobbett
had been questioned and the Member of Parliament
who had called for the investigation had failed to produce any evidence to
substantiate
her complaint. In any event, the report was made only in January
1999. By the end of 1998 it was clear that the Motheo project had
failed. A
report in the Sunday Times on 13 September 1998 claimed that only two families
had been housed. The report was entitled
‘The village of rubble and broken
dreams’. It referred back to the relationships between the appellant, Gibb
and Ndlovu,
and to the dismissal of Cobbett.
[23] It is against this
background that the report card that is alleged to be defamatory of the
appellant was published in December
1998. The author was Mr Howard Barrell, then
the political editor of the M & G. Such report cards had been a feature of
the
M & G for a number of years. Barrell gave evidence that it was an
important feature on which he worked hard. Because it was written
for the last
edition of the M & G for each year, it would have a shelf-life longer than
that of the usual edition – the
following year’s first edition would
be published only in the second week of January. It was also anticipated that
readers
would pay more attention to the feature than they would to a standard
article simply because, over the Christmas holiday period,
they would have more
time to read. The report cards were also written in a tone appropriate to the
festive season: they were, according
to Barrell and Soggott, who gave evidence
for the M & G, ‘irreverent, snappy and robust’ accounts of the
views of
the M & G on the performance of all cabinet ministers through the
year under review. They both testified that the report cards
did not refer to
any new information: they did no more than comment on facts already in the
public domain.
[24] As I have earlier indicated, the trial court found
that the appellant did not, as a cabinet minister, have locus standi to
sue for defamation of her when the words complained of related to the
performance of her work. It found also that the words did
not have defamatory
effect. I shall deal first with whether the words were defamatory.
WERE
THE WORDS COMPLAINED OF DEFAMATORY ?
[25] The test for determining whether
words published are defamatory is to ask whether a ‘reasonable person of
ordinary intelligence
might reasonably understand the words . . . to
convey a meaning defamatory of the plaintiff. . . . The test is an objective
one. In the
absence of an innuendo, the reasonable person of ordinary
intelligence is taken to understand the words alleged to be defamatory
in their
natural and ordinary meaning. In determining this natural and ordinary meaning
the Court must take account not only of what
the words expressly say, but also
of what they imply’ (per Corbett CJ in Argus Printing and Publishing Co
Ltd v Esselen’s Estate[1]).
[26] One must have regard also, however, to what the ordinary reader of
the particular publication would understand from the words
complained of. A
clear statement of this principle is to be found in Channing v South African
Financial Gazette Ltd[2] a
passage relied on by Joffe J in the court below. In Channing Colman J
said, with reference to the locus classicus in point, Johnson v Rand
Daily Mails Ltd:[3]
‘From
these and other authorities it emerges that the ordinary reader is a
“reasonable”, “right-thinking”
person, of average
education and normal intelligence; he is not a man of “morbid and
suspicious mind”, nor is he “super-critical”
or abnormally
sensitive; and he must be assumed to have read the articles as articles in
newspapers are usually read. For that assumption
authority is to be found in
Basner v Trigger 1945 AD 22 at pp 35-6. It is no doubt fair to impute to
the ordinary reader of the South African Financial Gazette a somewhat
higher standard of education and intelligence and a greater interest in and
understanding of financial matters than newspaper
readers in general have. But
this, I think, is clear: one may not impute to him, for the purposes of this
inquiry, the training or
the habits of mind of a lawyer.’
[27] The
first question to be asked then is what the ordinary reader of the M & G
would have understood when reading the statement
‘Her award of a massive
housing contract to a close friend . . . continue[s] to haunt the public
perception of her’.
The appellant’s complaint is that the statement
indicates that she actually awarded the contract to Motheo whereas she did
not.
It was the Mpumalanga Housing Board, she contended, that had the authority to
conclude such contracts and that did in fact enter
into the housing contract
with Motheo. Is the appellant correct that the reader of the M & G would
have understood the statement
to mean that she had been directly responsible for
the award? Or as intelligent, well-informed readers would they have understood
that the contract was awarded by the provincial housing authorities? The
reference to ‘her award’ might well be understood
to mean no more
than that she was the person overall in charge of the allocation of funds for
housing. But the reference to the award to a close friend implies more
than that: it suggests that she had influenced the authorities who in fact
concluded the contract to make the award
to her friend in circumstances where
such an award would not otherwise have been made. That is an allegation of
corruption, no matter
whether it took the form of influencing people or making
the award directly.
[28] In my view, therefore, the ordinary reader
would have understood these words to mean that the appellant was guilty of
corrupt
behaviour. She had been responsible for the award of a contract,
directly or indirectly, that was tainted by corruption in that a
contract had
been concluded with a close friend of hers, and the circumstances were such that
the contract would not have been concluded
but for the relationship. The words
are in my view defamatory of the appellant. They convey to the ordinary reader
of the report
card that the appellant was corrupt.
[29] The court below
concluded, as indicated earlier, that even if the words were defamatory, they
did not have ‘defamatory
effect’. Joffe J accepted the evidence of
Barrell and Soggott that the readers of the M & G were ‘the most
educated
group of newspaper readers in the country’. Barrell testified
that the average reader would be a critical thinker, who read
several newspapers
and listened to radio and television broadcasts. He or she would thus be
well-informed about the political issues
of the day. The controversy about the
Motheo project, and the questions raised about the appellant’s involvement
in it, would
have been familiar to those who read the report card. They would
not have learned anything new from it. The court
stated:[4]
‘The context in
which they [the readers of the M & G] would have read the report card was
therefore one in which the public
perception of the plaintiff was already
tarnished. The content of the report card cannot be relied upon to show that
plaintiff’s
reputation was reduced in the estimation of right-thinking
readers of the Mail and Guardian and in the result is defamatory. To the
contrary, the damage had been done long before the report card
appeared’.
[30] The appellant argues that the conclusion is wrong
in this respect. She asserts, first, that the allegation that she had
made the award to Motheo was made for the first time in the report card.
Previous publications had been highly critical of her,
had questioned whether
there was nepotism (cronyism) in the award but had not asserted that she had
been personally responsible for
the award of the contract to Motheo. And,
second, even if such allegations had previously been made, and were in the
public domain,
this could not alter the defamatory impact of the statement. It
does not lessen its defamatory content.
[31] The finding that the words
complained of had no defamatory effect in that they did not cause the readers of
the M & G to
have a lesser opinion of the appellant is, in my view, not
correct. The logical consequence of this reasoning is that the more a
plaintiff
is defamed the less likely it is that he or she will have an action. Dario Milo
states:[5]
‘[T]he causation
requirement has not received the attention of the courts because, once the
plaintiff proves that defamatory
material has been published, there is a
presumption of damage to reputation (see Jonathan Burchell Personality Rights
and Freedom of Expression: The Modern Actio Injuriarum’ (1998) p 204.
What Joffe J [in the court below] appears to be saying . . . is that, given the
context of previous media attention
and the target audience, the report card was
not defamatory. But this seems absurd: taken to its logical conclusion, it means
that
the more defamatory articles that are published about the plaintiff, the
better the chances for the publisher of a later article
escaping liability on
the ground that his article is not defamatory, given what came before.’
The author suggests that the extent to which a plaintiff’s reputation
has already been tarnished should be taken into account
only in assessing the
quantum of damages to be awarded. I agree.
[32] But that is not the end
of the inquiry as to the actionability of the defamation, for there are several
defences to the action
raised by the respondents. I shall deal first with the
question whether cabinet ministers, and indeed public officials and politicians,
are deprived, by virtue of their status or role in government, of the protection
normally afforded to individuals by the law of defamation.
I shall then
consider whether, even if a cabinet minister is not precluded merely by virtue
of his or her status from claiming damages
for defamation, there is nonetheless
a special defence attaching to comment or information about members of
government: that is,
whether political speech is to be treated differently. This
is not a question that has come squarely before this court since the
seminal
decision in National Media Ltd v
Bogoshi.[6] But that case, as I
shall show, suggests that as a matter of public policy there may be a defence
that the making of defamatory statements
about members of government is
justifiable in all the circumstances: that greater latitude may be allowed in
publishing information
about members of government, in so far as the performance
of their work is concerned, than is the case with private individuals.
And
lastly I shall consider whether the respondents’ conduct was reasonable in
all the circumstances.
THE RIGHT OF A CABINET MINISTER TO CLAIM DAMAGES
FOR DEFAMATION
[33] This case, as I have mentioned, raises fundamental
questions about the balance between the right to dignity, including reputation,
and the right to freedom of expression. Both rights are now given special
protection in the Bill of Rights. Should a class of people
(members of
government) lose the right to the protection of their dignity and reputation in
the interest of public information and
debate? In what follows I shall for
convenience refer generally to cabinet ministers. But that should not be taken
to mean that other
members of government, or parliamentarians or officials of
state – representatives of government generally – are to be
treated
differently.
[34] The court below concluded in effect that the appellant
had forfeited her right to claim damages for defamation because there
should be
a general immunity in so far as criticism and reporting of a cabinet
minister’s performance of her work (political
speech) is concerned. The
starting point for the learned judge in answering this question was the seminal
case in 1946, Die Spoorbond v South African Railways; Van Heerden v South
African Railways.[7] This court
held that the Crown (the respondent being an arm of government) cannot sue for
damages for defamatory statements that
had allegedly injured its reputation.
Watermeyer CJ, for the majority,
stated:[8]
‘[T]he
Crown’s main function is that of Government and its reputation or good
name is not a frail thing connected with
or attached to the actions of the
individuals who temporarily direct or manage some particular one of the many
activities in which
the Government engages, such as the railways or the Post
Office; it is not something which can suffer injury by reason of the publication
in the Union of defamatory statements as to the manner in which one of its
activities is carried on. Its reputation is a far more
robust and universal
thing which seems to me to be invulnerable to attacks of this nature. . .
.
If the defamatory statements are false and malicious and cause actual
damage or loss to the Administration then, maybe, such loss
can be recovered,
but the action would not be one based on an injury to the reputation of the
Crown, but upon a wrong done which
causes loss.’
[35] In a
concurring judgment Schreiner JA set out more fully the rationale for the
decision. He said:[9]
‘[I]t
seems to me that considerations of fairness and convenience are, on balance,
distinctly against the recognition of a right
in the Crown to sue the subject in
a defamation action to protect that reputation. The normal means by which the
Crown protects itself
against attacks upon its management of the country’s
affairs is political action and not litigation, and it would, I think,
be
unfortunate if that practice were altered. At present certain kinds of criticism
of those who manage the State’s affairs
may lead to criminal prosecutions,
while if the criticism consists of defamatory utterances against individual
servants of the State
actions for defamation will lie at their suit. But subject
to the risk of these sanctions and to the possible further risk, . . .
of being
sued by the Crown for injurious falsehood, any subject is free to express his
opinion upon the management of the country’s
affairs without fear of legal
consequences. I have no doubt that it would involve a serious interference with
the free expression
of opinion hitherto enjoyed in this country if the wealth of
the State, derived from the State’s subjects, could be used to
launch
against those subjects actions for defamation because they have, falsely and
unfairly it may be, criticised or condemned
the management of the
country.’
[36] This passage was cited and approved by Lord Keith in
the Court of Appeal in Derbyshire CC V Times Newspapers
Ltd.[10] There the court held
that a local authority could not sue for defamation when its administration was
the subject of defamatory remarks.
The court also cited New York Times v
Sullivan[11] which had approved
the decision in City of Chicago v Tribune
Co[12] where it was held that
the city itself could not sue for libel. Lord Keith stated in Derbyshire
CC:[13]
‘While these
decisions were related most directly to the provisions of the American
Constitution concerned with securing freedom
of speech, the public interest
considerations which underlaid them are no less valid in this country. What has
been described as
“the chilling effect” induced by the threat of
civil actions for libel is very important. Quite often the facts which
would
justify a defamatory publication are known to be true, but admissible evidence
capable of proving those facts is not available.
This may prevent the
publication of matters which it is very desirable to make
public.’
[37] Spoorbond, it was found by the court below,
had stood the test of time. But is a distinction to be drawn between members of
government acting
as a corporate body, and individual members of government
singled out for their conduct? In South African Associated Newspapers Ltd v
Estate Pelser[14] the court
found such a distinction. It held that the then Minister of Justice could claim
damages for defamation where the executive
of government, of which he was a
member, was accused of lack of concern for justice. Although the minister was
not named, the court
concluded that if criticism was not confined to any policy
or decision, but dealt with the motives underlying the policy or the decision,
then the reasonable reader would attribute that motive to individuals. If
unlawful or immoral conduct was imputed to an individual
minister then he was
entitled to sue. Spoorbond did not preclude an action by an individual in
these circumstances. Wessels JA
stated:[15]
‘I might add
that, in my opinion, it cannot be said that the reputation of an individual
Minister has those “robust and
universal” characteristics which, in
the case of the Government (as a separate entity), render it invulnerable to
criticism
of a defamatory nature. His reputation is, indeed, a “frail
thing”, capable of suffering injury by the publication of
defamatory
matter regarding his conduct in the management of State
affairs.’
[38] The decision in Estate Pelser has met with
much criticism. It is not necessary to deal with it all here. The principal
difficulty with it is the potential chilling
effect on freedom of speech to
which the decision gives rise. Joffe J in the court below considered that the
distinction between
cabinet ministers collectively and individually is not
tenable. ‘After all, government at its highest form comprises a collective
of individuals, being the
cabinet.’[16]
[39] P Q
R Boberg, in 1975 Annual Survey of South African Law in his comment on
Estate Pelser,[17] argued
that a distinction should be drawn between the case where a member of government
is defamed by reason of his or her association
with the policies or decisions of
the government, and that where the defamation relates to purely personal
matters. Dario Milo[18] in
criticising the decision of the court below, takes the view that Estate
Pelser was simply wrongly decided on the facts. The court should have held,
he argues, that the words did not refer explicitly to the minister.
‘The solution to the problematic precedent created by Estate Pelser
should not be for the law to be radically altered to non-suit a plaintiff by
mere dint of the fact that he or she is a member of
the cabinet. Rather, when
confronted with a general criticism of the government or a governmental
department, courts should be loath
to regard this as an attack upon individual
members of the government.’
I agree that Estate Pelser was
incorrectly decided on the facts. The article about the then minister had not
referred to him, nor any individual, expressly.
It was critical of government
itself and fell to be decided on the Spoorbond principle.
[40] The
criticisms made by the appellant and by Milo of Joffe J’s decision to deny
a cabinet minister locus standi to sue for defamation when the words
complained of relate to performance of work as a cabinet minister are, with
respect, well-founded.
A blanket immunity for defaming cabinet ministers would
undermine the protection of dignity. It would give the public, and the media
in
particular, a licence to publish defamatory material unless the plaintiff can
prove malice. In elevating freedom of expression
above dignity in this way the
decision simply goes too far. A balance must be struck. That there is no
hierarchy of the rights protected
by the Constitution is affirmed by the
Constitutional Court in Khumalo v
Holomisa.[19]
[41] O’
Regan J said in
Khumalo:[20]
‘In a
democratic society, then, the mass media play a role of undeniable importance.
They bear an obligation to provide citizens
both with information and with a
platform for the exchange of ideas which is crucial to the development of a
democratic culture.
As primary agents of the dissemination of information and
ideas, they are, inevitably, extremely powerful institutions in a democracy
and
they have a constitutional duty to act with vigour, courage, integrity and
responsibility. The manner in which the media carry
out their constitutional
mandate will have a significant impact on the development of our democratic
society. If the media are scrupulous
and reliable in the performance of their
constitutional obligations, they will invigorate and strengthen our fledgling
democracy.
If they vacillate in the performance of their duties, the
constitutional goals will be imperilled. The Constitution thus asserts
and
protects the media in the performance of their obligations to the broader
society, principally through the provisions of s 16.
However, although
freedom of expression is fundamental to our democratic society, it is not a
paramount value. It must be construed
in the context of the other values
enshrined in our Constitution. In particular, the values of human dignity,
freedom and equality.
. . .
It has long been recognised in democratic
societies that the law of defamation lies at the intersection of the freedom of
speech and
the protection of reputation or good name. . . .
Under our new
constitutional order, the recognition and protection of human dignity is a
foundational constitutional value. . . .
The value of human dignity in our
Constitution therefore values both the personal sense of self-worth as well as
the public's estimation
of the worth or value of an individual. . . .
The
law of defamation seeks to protect the legitimate interest individuals have in
their reputation. To this end, therefore, it is
one of the aspects of our law
which supports the protection of the value of human dignity. When considering
the constitutionality
of the law of defamation, therefore, we need to ask
whether an appropriate balance is struck between the protection of freedom of
expression on the one hand, and the value of human dignity on the
other.’
[42] The decision of the court below in denying to a
cabinet minister locus standi to claim damages for defamation is, with
respect, incorrect. It does not give sufficient weight to the right to dignity
and to not
having one’s reputation unlawfully harmed. It elevates freedom
of expression above that of dignity when there is not, and there
should not be,
a hierarchy of rights. It denies to a class of people the ability to protect
their reputations, save where defamatory
statements are made with
malice.
[43] How then is the balance between the right to dignity and
the right to freedom of expression in a democratic state to be struck
when
dealing with ‘political speech’? I consider that the proper approach
to finding the appropriate balance is to recognise
that, in particular
circumstances, the publication of defamatory statements about a cabinet minister
(or any member of government)
may be justifiable (reasonable) in the particular
circumstances and therefore not unlawful.
JUSTIFIABLE
PUBLICATION
[44] In National Media Ltd v
Bogoshi[21] this court held that
in an action against the press for defamation a defendant is entitled to raise
‘reasonable publication’
as a defence. The publication of defamatory
statements will not be unlawful if ‘upon a consideration of all the
circumstances of the case, it is found to have been reasonable to publish
the
particular facts in the particular way and at a particular
time’.[22] ‘Publication
in the press of false defamatory statements of fact will be regarded as lawful
if, in all the circumstances of
the case it is found to be reasonable; . . . .
protection is only afforded to the publication of material in which the public
has
an interest (ie which it is in the public interest to make known as distinct
from material which is interesting to the public –
Financial Mail (Pty)
Ltd v Sage Holdings Ltd & another . . .
.’[23]
I consider
it preferable to use the term ‘justifiable’ rather than
‘reasonable’, but only in order to avoid
possible confusion between
inquiries as to unlawfulness and as to negligence. However, the terms are in
this context generally interchangeable.
[45] The decision in
Bogoshi relates both to the fault element of the delict of defamation and
to the element of unlawfulness. In so far as fault is concerned,
the usual rule
is that one will be liable for defamation only if one has animus
injuriandi – the intention to harm the reputation of the plaintiff.
But in a series of cases in this court (culminating in Pakendorf v De
Flamingh[24]) it was held that
strict liability (liability without fault) should be imposed on the press.
Bogoshi held those cases to have been incorrectly decided and introduced
a requirement, in so far as the press is concerned, of reasonable
publication.
The focus in Bogoshi was thus the question of fault (negligence as
opposed to strict liability). But the court dealt also with the policy
considerations
that generally have an impact on the lawfulness of
conduct.[25] In introducing a
defence of reasonable publication in the law of defamation, the court in
Bogoshi considered that the development was in accordance with the
common law; and that the common law in this regard was compatible with
the
interim Constitution then in
force.[26] Hefer JA said in this
regard: ‘The ultimate question is whether what I hold to be the common law
achieves a proper balance
between the right to protect one’s reputation
and freedom of the press, viewing these interests as constitutional values. I
believe it
does.’[27]
[46] The
press will thus not be held liable for the publication of defamatory material
where it can show that it has been reasonable
in publishing the material.
Accordingly, the form of fault in defamation actions against the press is
negligence rather than intention
to harm.
[47] However, fault need not be
in issue at all if in the particular circumstances anterior inquiry shows that
the publication is
lawful because it is justifiable. Bogoshi indicates
that the reasonableness of the publication might also justify it. In
appropriate cases, a defendant should not be held liable where publication is
justifiable in the circumstances – where
the publisher reasonably
believes that the information published is true. The publication in such
circumstances is not unlawful.
Political speech might, depending upon the
context, be lawful even when false provided that its publication is reasonable.
(See in
this regard the test for reasonableness in
Bogoshi[28] cited
above.) This is not a test for negligence: it determines whether, on grounds of
policy, a defamatory statement should not be
actionable because it is
justifiably made in the circumstances.
[48] There are a number of
traditional defences to an action for defamation. In Argus Printing and
Publishing Co Ltd v Esselen’s
Estate[29] Corbett CJ explained
the reasons underlying the standard defences thus:
‘I agree, and I
firmly believe, that freedom of expression and of the press are potent and
indispensable instruments for the
creation and maintenance of a democratic
society, but it is trite that such freedom is not, and cannot be permitted to
be, totally
unrestrained. The law does not allow the unjustified savaging of an
individual's reputation. The right of free expression enjoyed
by all persons,
including the press, must yield to the individual's right, which is just as
important, not to be unlawfully defamed.
I emphasise the word ''unlawfully''
for, in striving to achieve an equitable balance between the right to speak your
mind and the
right not to be harmed by what another says about you, the law has
devised a number of defences, such as fair comment, justification
(ie truth and
public benefit) and privilege, which if successfully invoked render lawful the
publication of matter which is prima facie defamatory.’
[49] Hefer JA in
Bogoshi[30] took the view
that the list of defences is not closed. Rather than citing instances of special
defences formulated over the years,
the court looked at the question of
unlawfulness from the vantage point of policy and principle:
‘But it
is hardly necessary to add that the defences available to a defendant in a
defamation action do not constitute a numerus clausus. In our law the
lawfulness of a harmful act or omission is determined by the application of a
general criterion of reasonableness
based on considerations of fairness,
morality, policy and the Court's perception of the legal convictions of the
community. In accordance
with this criterion Rumpff CJ indicated in
O'Malley's case [Suid-Afrikaanse Uitsaaikorporasie v
O’Malley 1977 (3) SA 394 (A)] at 402fin-403A that it is the task of
the Court to determine in each case whether public and legal policy requires
the
particular publication to be regarded as lawful.’
[50] In
Holomisa v Argus Newspapers
Ltd,[31] in a judgment
presciently foreshadowing Bogoshi as regards the availability of a
defence based on absence of negligence, Cameron J held that a defamatory
statement ‘which
relates to “free and fair political activity”
is constitutionally protected, even if false, unless the plaintiff shows
that,
in all the circumstances of its publication, it was unreasonably made’.
This statement was endorsed in Bogoshi save in so far as the incidence of
the onus is concerned. The court in Holomisa did not, however, consider
it correct to import into our law the so-called Sullivan principle
(New York Times Co v
Sullivan)[32] that defendant
press members will not be liable for defamatory statements made of public
figures unless the plaintiff can show that
the statement was made with actual
malice. Such a principle would give far too little protection to the right to
dignity. The approach
preferred in both Holomisa and Bogoshi is
that of reasonable publication. Jonathan Burchell Personality Rights and
Freedom of Expression: The Modern Actio
Injuriarum’,[33]
commenting on Bogoshi writes: ‘The test of reasonableness
or public (legal) policy is a supple criterion which can ensure that the law of
delict is able to
meet the needs of a changing society. . . . The accommodation
of freedom of expression under the unlawfulness inquiry is now firmly
acknowledged by the Supreme Court of Appeal.’
[51] The
considerations to be taken into account in assessing the justifiability of the
publication of defamatory material (by the
press in particular) are described by
Hefer JA in Bogoshi as
follows:[34]
‘But, we must
not forget that it is the right, and indeed a vital function, of the press to
make available to the community
information and criticism about every aspect of
public, political, social and economic activity and thus to contribute to the
formation
of public opinion (Prof JC van der Walt in Gedenkbundel: HL
Swanepoel at 68). The press and the rest of the media provide the means by
which useful, and sometimes vital, information about the daily affairs
of the
nation is conveyed to its citizens – from the highest to the lowest ranks
(Strauss, Strydom and Van der Walt Mediareg 4th ed at 43). Conversely,
the press often becomes the voice of the people – their means to convey
their concerns to their
fellow citizens, to officialdom and to government. To
describe adequately what all this entails, I can do no better than to quote
a
passage from the as yet unreported judgment of the English Court of Appeal in
Reynolds v Times Newspapers Ltd and Others delivered on 8 July 1998. It
reads as follows:
“We do not for an instant doubt that the common
convenience and welfare of a modern plural democracy such as ours are best
served by an ample flow of information to the public concerning, and by vigorous
public discussion of matters of public interest
to the community. By that we
mean matters relating to the public life of the community and those who take
part in it, including within
the expression ''public life'' activities such as
the conduct of government and political life, elections . . . and public
administration,
but we use the expression more widely than that, to embrace
matters such as (for instance) the governance of public bodies, institutions
and
companies which give rise to a public interest in disclosure, but excluding
matters which are personal and private, such that
there is no public interest in
their disclosure. Recognition that the common convenience and welfare of society
are best served in
this way is a modern democratic imperative which the law must
accept. In differing ways and to somewhat differing extents the law
has
recognised this imperative, in the United States, Australia, New Zealand and
elsewhere, as also in the jurisprudence of the European
Court of Human Rights. .
. . As it is the task of the news media to inform the public and engage in
public discussion of matters
of public interest, so is that to be recognised as
its duty. The cases cited show acceptance of such a duty, even where publication
is by a newspaper to the public at large. . . . We have no doubt that the public
also have an interest to receive information on
matters of public interest to
the community. . . .” ‘
[52] In deciding in Bogoshi
that Pakendorf (above) had been incorrectly decided, and that publication
by the press of defamatory statements would not be regarded as unlawful
if, upon
a consideration of all the circumstances, it was found to have been reasonable
to have published the facts in the particular
way at the particular
time,[35] this court did not
expressly hold that there is any specific defence relating to political speech.
Nonetheless this court did approve
a number of decisions in other jurisdictions
that have held political speech to be in a special category. Those cases are
discussed
below.
[53] The question that arises in this case, however, is
whether special principles should be invoked to protect the press, or for
that
matter individuals, when they make defamatory statements about a member of
government. The Reynolds decision in the Court of Appeal (referred to by
Hefer JA in Bogoshi) was confirmed by the House of
Lords.[36] I refer to the House of
Lords decision as Reynolds 2. The House of Lords declined to recognise a
special defence of political speech. It differed in this regard from the
Australian High
Court decision in Lange v Australian Broadcasting
Corporation[37] (a case approved
by Hefer JA in Bogoshi), finding that the common law should not develop
‘political information’ as a generic category of information the
publication
of which attracts a qualified privilege irrespective of the
circumstances. So too, decisions elsewhere in the Commonwealth (Theophanous v
Herald & Weekly Times Ltd and
Another,[38] Stephens and
Others v West Australian Newspapers
Ltd[39]) were considered in
Reynolds 2 not to reflect the English law. And in Lange v J B Atkinson
and another (New Zealand)[40]
the Privy Council pointed out that in the Reynolds decision of the Court
of Appeal the approach of the Australian and New Zealand courts to political
speech had been rejected.
[54] Lord Nicholls said in Lange v J B
Atkinson,[41] commenting on his
earlier speech in Reynolds 2, that a different, simpler approach had been
followed in that case: whether a publication is in the public interest (that is,
whether
there is a duty to publish to the intended recipients) ‘depends
upon the circumstances, including the nature of the matter
published and its
source or status’.
[55] Since Lange v J B Atkinson had been
decided by the New Zealand Court of Appeal before the decision of the
House of Lords had been handed down in Reynolds 2, the Privy Council
referred the matter back to the Court of Appeal for further hearing in the light
of the recently-enunciated English
approach. Lord Nicholls pointed out,
however,[42] that ‘one feature
of all the judgments, New Zealand, Australian and English, stands out with
conspicuous clarity: the recognition
that striking a balance between freedom of
expression and protection of reputation calls for a value judgment which
depends upon local political and social conditions. These conditions include
matters such as the responsibility and vulnerability of the press’ (my
emphasis). For that reason
the court considered it inappropriate to determine
the matter: the courts of New Zealand, it said, were ‘better placed to
assess
the requirements of the public interest in New Zealand’ than was
the Privy
Council.[43]
[56] The House
of Lords in Reynolds 2 considered that the common law principle of
qualified privilege, based on a consideration of all the circumstances of the
publication,
enables a court to give appropriate weight to the importance of
freedom of expression. Essentially what was to be considered was
whether the
public had a right to know the particular information. The case related to
statements about the plaintiff, formerly
the Prime Minister of Ireland. He had
in effect been called a liar (the article concerned was entitled ‘Why a
fib too far proved
fatal for the political career of Ireland’s peacemaker
and Mr Fixit’). Although the information published about the plaintiff
was
undoubtedly in the public interest, publication had taken place without giving
the plaintiff any opportunity to explain his conduct.
The court held that
qualified privilege therefore did not attach to the publication in the
circumstances.
[57] The House of Lords thus declined to recognise a
‘new category of occasion when privilege derives from the subject matter
alone: political
information’.[44] Political
information, Lord Nicholls held, adopting the Australian definition in
Lange (above) is ‘information, opinion and arguments concerning
government and political matters that affect’ the public. However,
despite
the rejection of a special category of privilege in the form of political
information, Lord Nicholls did make it clear that
established categories of
qualified privilege are not exhaustive. Such categories are ‘no more than
applications, in particular
circumstances, of the underlying principle of public
policy’.[45] That court did
recognise, however, that in different jurisdictions different considerations
might come into operation.[46]
[58] In Australia and New Zealand, as I have indicated, political speech has
been recognised as being in a different class because
of constitutional
considerations. Brennan CJ in Lange v Australian Broadcasting Corporation
(above, not approved in Reynolds 2) speaking for the court held
that each member of the ‘Australian community’ has an interest in
both disseminating and
receiving information and opinions concerning government
and political matters that affect Australians. ‘The duty to disseminate
such information is simply the correlative of the interest in receiving it. The
common convenience and welfare of Australian society
are advanced by discussion
. . . about government and political matters. The interest that each member of
the Australian community
has in such a discussion extends the categories of
qualified privilege.’ The finding was based largely on the requirements
of
the Australian Commonwealth Constitution, and is subject to the qualification
that publication must be reasonable in order to
protect the reputations of those
defamed.
[59] The High Court of Australia in Lange approved the
decisions in Theophanous v Herald & Weekly Times and Stephens v
West Australian Newspapers Ltd (above, also discussed and not followed in
Reynolds 2). In both those cases the courts had recognised a special
category of qualified privilege in respect of political information disseminated
in the press. In Theophanous it was held that the Commonwealth
Constitution allowed the publication of material discussing government and
political matters, and
of information concerning members of Parliament which
relates to the performance of their duties as members of Parliament; and in
relation to the suitability of persons for office as Parliamentarians.
Publication would not be actionable if the defendant proved
that it was unaware
of the falsity of the publication; it did not publish the material recklessly,
not caring whether it was false;
and the publication was reasonable in
the circumstances.
[60] The High Court in Lange adopted the
approach to the interest in receiving political information formulated by McHugh
J in
Stephens:[47]
‘In
the last decade of the twentieth century, the quality of life and the freedom of
the ordinary individual in Australia are
highly dependent on the exercise of
functions and powers vested in public representatives and officials by a vast
legal and bureaucratic
apparatus funded by public moneys. How, when, why and
where those functions and powers are or are not exercised are matters that
are
of real and legitimate interest to every member of the community. Information
concerning the exercise of those functions and
powers is of vital concern to the
community. So is the performance of the public representatives and officials who
are invested with
them. It follows in my opinion that the general public has a
legitimate interest in receiving information concerning matters relevant
to the
exercise of public functions and powers vested in public representatives and
officials. Moreover, a narrow view should not
be taken of the matters about
which the general public has an interest in receiving information. With the
increasing integration
of the social, economic and political life of Australia,
it is difficult to contend that the exercise or failure to exercise public
functions or powers at any particular level of government or administration, or
in any part of the country, is not of relevant interest
to the public of
Australia generally.’
[61] Of particular importance in this matter
is the approach to reasonableness enunciated by Brennan CJ in
Lange.[48]
‘Whether
the making of a publication was reasonable must depend upon all the
circumstances of the case. But, as a general rule,
a defendant’s conduct
in publishing material giving rise to a defamatory imputation will not be
reasonable unless the defendant
had reasonable grounds for believing that the
imputation was true, took proper steps, so far as they were reasonably open, to
verify
the accuracy of the material and did not believe the imputation to be
untrue. Furthermore, the defendant’s conduct will not
be reasonable unless
the defendant has sought a response from the person defamed and published the
response made (if any) except
in cases where the seeking or publication of a
response was not practicable or it was unnecessary to give the plaintiff an
opportunity
to respond.’
[62] This passage was approved by Hefer JA
in Bogoshi.[49] The court
there held (contra Holomisa, above) that the defendant bears the
onus of proving reasonableness. In the inquiry as to the reasonableness of the
publication,
account must be taken of the tone of the publication –
whether there is an unnecessary sting attached; the nature of the information
published; the reliability of the source; and steps taken to verify the
information.[50] These questions
relate both to unlawfulness (the unnecessary sting or the gravamen of the
statement) and to fault – negligence
– (steps taken to verify the
information). But the inquiries inevitably overlap.
[63] That political
information or speech should be treated differently, and members of government
expected to be more vulnerable
to robust criticism, is also the view of the
European Court of Human Rights in Lingens v
Austria[51] affirmed by that
court also in Oberschlick v
Austria[52]. The court said in
Lingens:
‘The limits of acceptable criticism are
accordingly wider as regards a politician as such than as regards a private
individual.
Unlike the latter, the former inevitably and knowingly lays himself
open to close scrutiny of every word and deed by both journalists
and the public
at large, and he must consequently display a greater degree of tolerance. No
doubt Article 10(2) [of the European
Convention of Human Rights] enables the
reputation of others – that is to say, of all individuals – to be
protected,
and this protection extends to politicians too, even when they are
not acting in their private capacity; but in such cases the requirements
of such
protection have to be weighed in relation to the interests of open discussion of
political issues.’
This dictum was approved by Lord Steyn in
Reynolds
2.[53]
[64] In my view,
the reasons advanced in Lange and Lingens, as well as those
underlying the decision in Spoorbond, for recognizing that the defamation
of government and members of government might be justifiable in certain
circumstances, and thus
lawful, are compelling. They require that there be a
special defence attaching to political information, such that the publication
of
defamatory matter in circumstances where it is justifiable (reasonable) is not
actionable.
[65] Freedom of expression in political discourse is
necessary to hold members of government accountable to the public. And some
latitude must be allowed in order to allow robust and frank comment in the
interest of keeping members of society informed about
what government does.
Errors of fact should be tolerated, provided that statements are published
justifiably and reasonably: that
is with the reasonable belief that the
statements made are true. Accountability is of the essence of a democratic
state: it is one
of the founding values expressed in s 1(d) of our Constitution:
‘Universal adult suffrage, a national common voters roll, regular
elections and a multi-party system of democratic government,
to ensure
accountability, responsiveness and openness’ (my emphasis).
And see
further s 92(3)(a) read with s 195 (1)(a) to (f) and s 195(2) of the
Constitution which govern the basic values and principles
of public
administration. In Holomisa Cameron J
said:[54]
‘Our
constitutional structure seeks to nurture open and accountable democracy. Partly
to that end, it encourages and protects
free speech and expression, including
that practised by the media. If the protection the Constitution affords is to
have substance,
there must in my view be some protection for erroneous
statements of defamatory fact, at least in the area of “free and fair
political activity”.’
[66] This court has in several cases
recently, when dealing with the Aquilian action for damage inflicted
negligently, stressed the
importance of the state’s accountability to the
public in finding state action to be unlawful. See, in particular, Minister
of Safety and Security v Van
Duivenboden;[55] Van Eeden v
Minister of Safety and
Security;[56] Premier,
Western Cape v Faircape Property Developers (Pty)
Ltd;[57] Minister of Safety
and Security v Hamilton;[58] and
Minister of Safety and Security and another v
Carmichele.[59] See also the
decision of the Constitutional Court in Carmichele v Minister of Safety and
Security[60] on wrongfulness in
the law of delict in the light of constitutional values. The state, and its
representatives, by virtue of the
duties imposed upon them by the Constitution,
are accountable to the public. The public has the right to know what the
officials
of the state do in discharge of their duties. And the public is
entitled to call on such officials, or members of government, to
explain their
conduct. When they fail to do so, without justification, they must bear the
criticism and comment that their conduct
attracts, provided of course that it is
warranted in the circumstances and not actuated by malice.
[67] That does
not mean that there should be a licence to publish untrue statements about
politicians. They too have the right to
protect their dignity and their
reputations.[61] As Burchell puts
it:[62]
‘There are limits
to freedom of political comment, especially in regard to aspects of the private
lives of politicians that
do not impinge on political competence. Politicians or
public figures do not simply have to endure every infringement of their
personality
rights as a price for entering the political or public arena,
although they do have to be more resilient to slings and arrows than
non-political, private mortals.’
[68] But where publication is
justifiable in the circumstances the defendant will not be held liable.
Justifiability is to be determined by having regard to all relevant
circumstances, including
the interest of the public in being informed; the
manner of publication; the tone of the material published; the extent of public
concern in the information; the reliability of the source; the steps taken to
verify the truth of the information (this factor would
play an important role
too in considering the distinct question whether there was negligence on the
part of the press, assuming that
the publication was found to be defamatory);
and whether the person defamed has been given the opportunity to comment on the
statement
before publication. In cases where information is crucial to the
public, and is urgent, it may be justifiable to publish without
giving an
opportunity to comment.
[69] Was the publication of the M & G report
card in respect of the appellant justifiable in all the circumstances, such that
the respondents may invoke the defence of justifiable political speech? The
executive authority of the Republic is vested in the
President who exercises it
‘together with the other members of the cabinet’ (s 85 of the
Constitution). Members of the
cabinet are accountable both collectively and
individually to Parliament for the exercise of their powers and the performance
of
their functions (s 92(2)). They are also tasked with the attainment of an
accountable public administration. They must act in accordance
with policy as
determined by the cabinet. Cabinet ministers thus represent government at the
highest level. Freedom to discuss and
criticise government – the
country’s affairs – must include the freedom to discuss the conduct
of individual cabinet
ministers. The M & G, and all the other newspapers and
media that commented on and criticised the conduct of the appellant were
entitled, indeed obliged, to do so. Was the statement that ‘her award of a
massive housing contract to a close friend’
in keeping with that right and
duty, or did it go too far?
[70] Earlier in the judgment I set out at
length some of the statements made about the appellant and the Motheo project. A
reading
of them shows that the press, including the M & G, repeatedly called
for an explanation from the appellant of a contract awarded
under her auspices
as National Minister of Housing. It is common cause that the contract was
concluded without the necessary procedures
having been followed. The Board that
purported to award it was not quorate when the decision to make the award was
taken. The company
to which it was awarded did not yet exist, let alone have any
track record of building houses. The person (Gibb of Nedcor) who had
undertaken
to fund the project in part was, to the knowledge of the appellant, under
suspicion. The Auditor-General reported adversely
on the contract, as did the
Dreyer commission of inquiry. The press called for explanations from the
appellant, especially as to
why she had fired Mr Cobbett, and received no
response. They called for an inquiry that would focus on her role in the award
to Motheo.
There was no response. They knew she was in overall charge of housing
nationwide[63] and could and should
have stopped the contract at the outset. The call for a commission of inquiry
had been dismissed. There was
no point in again seeking a response from the
appellant. She had stated publicly more than once that she had had nothing to do
with
the award.
[71] There was also no point in asking Moodley or Gibb
about the role of the appellant in the whole affair: their evidence to the
Dreyer commission and their public statements pointed to the prospect of
another denial. Yet the obvious question was how Gibb
had come to know of
Ndlovu. In the light of all the information about the links and friendships
between the appellant and Ndlovu,
the appellant and Gibb, and Ndlovu’s
sister (Seape, who worked for Gibb at Nedcor) and Gibb, it was reasonable for
the M &
G to believe that the appellant had influenced the choice of Motheo,
Ndlovu’s company, as the housing developer. And it could
not have been
expected of the M & G to hold its own commission of inquiry. The
respondents’ publication of the defamatory
statement was, in all the
circumstances, justifiable.
REASONABLE PUBLICATION
[72] As to the
reasonableness of the respondent’s belief and the issue of fault, much of
what has been said above is relevant
here too. It must also be remembered that
the question now is not: was the appellant’s involvement in the choice of
Motheo
(Ndlovu) the only reasonable inference (as it would be for liability in a
criminal case), or the most probable inference (as for
liability in a civil
case)? It is simply: was it a reasonable inference for the respondent to draw
given, in particular, all the
press reportage and the Dreyer
report?
[73] The essential question at the time, as I have said, was who,
in late 1996 or early January 1997, selected Ndlovu, the close friend
of the
appellant, and the intended director of a company yet to be formed, which had
neither financial capacity, nor any experience
in, nor knowledge of the
construction industry? Mpumalanga province did not have the funds to expend on
the project. It was dependent
on the choice of developer being made by the
supposed financial backer, Nedcor, or the national ministry. Nedcor’s
later
rejection of Gibb’s initiatives and Cobbett’s disapproval of
the entire scheme reasonably show that the choice of Ndlovu
must have come not
from them, but from an ostensibly initially authorised Nedcor operative (Gibbs
or Ndlovu’s sister) or from
someone in the ministry. Given the links
between Gibb, Seape, Ndlovu and the appellant, it was reasonable to infer
that Ndlovu’s
name would not have come from Gibb alone. The obvious
inference to be drawn was that Gibb knew that the name that he suggested would
be acceptable to the ministry. But whether the name came from Gibb or Ndlovu
herself, or from her sister Seape, ultimately authoritative
ministerial
acceptance, in the absence of Cobbett’s involvement, was obtainable from
only one person. That was the appellant.
She had already recorded a denial of
involvement and nobody could expose her to cross-examination or interrogation in
any available
form of inquiry. It was also reasonable to conclude that any
other informants either did not know enough to answer the question,
or would not
alter the stance, supportive of the appellant’s denial, which they had
already made public in the press or before
the Dreyer
commission.
[74] The tone of the report card was undoubtedly irreverent.
It was critical of the performance of all members of government, even
those to
whom it awarded ‘good grades’. It was an overall assessment of
performance over the year under review. It assumed
knowledge of political events
over the year. It did not purport to convey new information. And it relied on
the myriad of reports
made in a multitude of papers over the course of the year,
all calling for an explanation from the appellant herself of the Motheo
contract. Admittedly what was said was stated to be fact, not opinion, but it
nevertheless was clearly proffered as
political criticism. And it concerned the
actions of a public figure in relation to a major political talking-point. Thus
even if
the report were to have conveyed the impression that the appellant had
personally made the award and signed the contract, the conduct
of the writer
and the editor, the second respondent, was reasonable in all the circumstances.
CONCLUSION
[75] Accordingly I find that the publication of the
defamatory article was not unlawful, because it was justifiable in all the
circumstances,
and that it was not negligent. The report card constituted
political speech that was justified and reasonable in all the circumstances.
The
defamation is thus not actionable.
[76] It is thus not necessary to
consider the respondents’ further arguments in relation to the
introduction of new remedies
(the amende honorable – apology in
suitable form to the plaintiff, and setting the facts straight – or a
substantial reduction in the award
of damages) for politician plaintiffs, as a
means of achieving an appropriate balance between the competing rights of
freedom of
speech and dignity.
[77] The appeal is dismissed with costs
including those occasioned by the employment of two counsel.
C H Lewis
Judge of Appeal
Concur: Howie P
PONNAN AJA (concurring in the order of Lewis
JA, but for different reason):
[78] An ostensibly easy question, first
articulated by Lord Atkin in Sim v
Stretch[64] and adopted
repeatedly by our courts, namely, ' ... would the words [complained of] tend to
lower the plaintiff in the estimation
of right thinking members of society
generally ...', is a salutary starting point. The answer it yields, is, in my
view decisive
of the present appeal.
[79] The test is an objective one.
The standard is the ordinary reader with no legal training or other special
discipline, variously
described as a ‘reasonable’, ‘right
thinking’ individual of ‘average education’ and ‘normal
intelligence’. It is through the eyes of such a person who is not
‘super-critical’ or possessed of a ‘morbid
or suspicious
mind’ that I must read the report card.
[80] The ordinary reader of
the M & G, so we are told, is ' ... highly educated, informed and critical'.
It is someone who keeps
abreast of current affairs by reading an assortment of
newspapers, listening to the radio and viewing television. It would thus be
fair
to impute to such a person a higher standard of education and intelligence and a
greater interest in and understanding of national
affairs than newspaper readers
in general in this country. (see Channing v South African Financial Gazette
& others 1966 (3) SA 470 at 474A.) But, it is clear that one may not
impute to such a reader, for the purposes of this enquiry, the training
or
habits of the mind of a lawyer.
[81] ‘In an era when rebellion for its own sake is the fashion and revisionism its intellectual style, values which used to be taken for granted are re-appraised so frequently and ferociously that to identify the "right-thinking", and to postulate some general accord among them, is a difficult enough task in a homogeneous community. The problems are compounded enormously in a mixed country like South Africa, with its variety of races, cultures, languages and religions, and its wide social and economic differences. No single group has a monopoly of such a society's "right-thinking" members, and the "mythical consensus" must encompass them all. Subjectivity inevitably intrudes whenever this is sought. A Judge would doubtless hesitate to see himself as the epitome of all "right-thinking" persons, or to say so at any rate. He is seldom likely, on the other hand, to attribute to the "right-thinking" a viewpoint sharply in conflict with his own. More often he decides what he personally thinks is right, and then imputes it to the paragons. To others, however, the tenets thus decreed may seem merely the innate prejudices of the group or class from which he has sprung. That they indeed are is the danger against which he must guard.'
(Per Didcott J in
Demmers v Wyllie & others 1978 (4) SA (D) 629 A-D.)
[82] The
Minister's complaint in this matter is a very narrow one, it is that she did not
award the housing contract to Motheo. The
award of the contract had been made
by the Mpumalanga Housing Board, accordingly, so it was argued, the report card
should not have
attributed it to her. The logical starting point is whether the
words complained of convey the defamatory meaning which the plaintiff
seeks to
place on them. Properly understood, so it was submitted, the reference to 'her'
award of the contract carried with it an
imputation of ‘corrupt
nepotism’, implying as it did, that she had awarded a lucrative contract
to a close friend. That,
according to the Minister’s counsel, was the
meaning to be attributed to the report card.
[83] It is indeed so that
the Minister did not award the contract to Motheo. Nor could she. It was after
all a provincial housing
contract which had been awarded by the provincial
housing authority. Readers of the M & G would have known that. In that
context
they would have understood the reference to 'her award', not as her
having personally awarded the contract, but, as her possibly
having influenced
the award of the contract.
[84] There was a widely held public
perception that the Minister had used her influence to secure a lucrative
contract for a close
friend. Cartoons, caricatures and editorials accompanied
lead articles in national, daily and weekly newspapers. Vivid journalese
was
employed to describe the Motheo scandal as it came to be known, which dominated
the print media for a protracted period prior
to the publication of the report
card by M & G. The report card, it bears noting, was a 'snappy',
'irreverent' and ‘robust’
assessment of the performance of cabinet
ministers during the year under review. It did not purport to add anything to
what was
described in the evidence as the then ‘prevailing political
folklore’. Readers of the M & G would not have attached
any
significance to the reference 'her award' instead of the more apt 'the award'.
[85] It is fair to say, that there was at that time a public perception
created by the extensive reportage, long before the publication
of the report
card, that the Minister may indeed have been guilty of nepotism. Those
allegations had repeatedly been made in the
media amidst strident calls for a
full, fair and proper inquiry into her role in the scandal. Not only did those
calls go unanswered,
but the Minister's evasive and contradictory responses did
little to erode that perception. Properly understood, the words complained
of
were no more than a reference to the role she had played in the matter as
revealed by the information already in the public domain.
Views already shaped
by the preceding avalanche of publicity would not have been altered by the
report card. The report card was
intended to be allusive rather than specific.
It was evidently designed for entertainment rather than instruction. It sought
to
be irreverent rather than informative. So construed, although the matter is
by no means free from doubt, the Minister was not disparaged
by the words
complained of.
86] In Pienaar & another v Argus Printing and
Publishing Co Ltd 1956 (4) SA 310 (W) at 318 Ludorf J said ‘... The
Courts must not avoid the reality that in South Africa political matters are
usually discussed in forthright terms. Strong epithets are used and accusations
come readily to the tongue. I think, too, that, the
public and readers that
debate political matters are aware of this.’ Those sentiments assume
heightened significance in a fledgling
democracy such as ours struggling to rid
itself of its securocratic and censorious past. The Minister has been too
sensitive about
the report card. She is in her own right a public figure who at
the relevant time was entrusted with a key national portfolio. The
true enquiry
relates to the manner in which the report card would have been understood by
those readers of it whose reactions are
relevant to the action. In my view, it
cannot be said that to those readers it bore a defamatory meaning. It follows
that the report
card was not defamatory of the Minister.
[87] I
accordingly concur, albeit for different reasons, in the order proposed in
paragraph 77 of the judgment of Lewis JA. I also
express my concurrence with
paragraphs 33 to 42 of my Sister's judgment.
V M PONNAN
ACTING JUDGE OF APPEAL
MTHIYANE JA (dissenting):
[88] I have read the
judgments of my colleagues Lewis JA and Ponnan AJA and regret that I am unable
to agree with either’s conclusion.
In what follows I set out my approach
to the matter.
[89] The appellant, then the National Minister of
Housing, instituted a defamation action in the Johannesburg High Court against
the first
and second respondents. The action arose out of a statement in a
‘report card’ published in the Mail and Guardian of
24 December
1998. The statement read:
‘Why is she still in cabinet? She has
shown she cannot deliver in one of the key delivery ministries. Her award of a
massive
housing contract to a close friend and the sacking of former
Director-General, Billy Cobbett, continue to haunt the public perception
of
her.’
[90] The appellant relied on only that portion of the
statement which accused her of having awarded a massive building contract to a
close
friend. The appellant pleaded that the said statement, in the context of
the ‘report card’, was per se defamatory and
published animo
injuriandi. In the alternative, she alleged that the statement was intended
and understood by readers of the ‘report card’ and by
the general
public to mean, inter alia, that she:
‘(a) is of a base moral
standard;
(b) is a dishonest person and that she would dishonestly award a massive housing contract to
a close friend of hers;
(c) is incompetent and is unable to
deliver as a minister;
(d) is not worthy of holding public
office.’
[91] The appellant alleged further that, in
publishing the statement:
‘(a) the defendants were reckless in that
they did not care whether the contents were true or false;
(b) they took no
reasonable steps to establish and/or to investigate the truth of the allegations
contained in the article; and
(c) the defendants failed to ensure that
enquiries were directed to the plaintiff and/or that a response was sought from
the plaintiff.’
[92] In their plea the respondents denied
that the statement, in the context of the report card, was defamatory of the
plaintiff or that
it conveyed the meaning attributed to it by the appellant.
They also raised other defences: reasonableness, qualified privilege,
and the
defence of truth and public benefit.
[93] The appellant’s
action was dismissed by the court a quo (Joffe J) on two grounds: first,
that as a cabinet minister the appellant had no locus standi to sue for
defamation, and secondly, that she had not been defamed because by the time the
statement was published, her reputation
had already been tarnished by the past
reportage on the Motheo contract. The learned judge found that the context in
which the readers
of the Mail and Guardian would have read the ‘report
card’, was one in which the public perception of the appellant was
already
tarnished and the damage done. The issues relating to the other defences were
not addressed in the judgment.
[94] The appeal raises four
questions: first, whether a cabinet minister has a right in law to sue for
defamation. Secondly, whether or
not the statement was defamatory of the
appellant, in the context of the reportage of a year and a half on a scandal
concerning the
award of the housing contract which was found to be irregular in
several respects. Thirdly, whether or not in the circumstances of
this case, the
conduct of the respondents fell within the scope of the reasonableness defence
(or remedy) set out in National Media Limited v
Bogoshi.[65] Fourthly, whether
this court should develop the common law in order to provide for a defence that
would protect both the maker and
publisher of the defamatory statement as well
as the victim of the defamation.
[95] The accusation that the
appellant awarded the Motheo contract to a close friend was unproven. With that,
the defence of truth and
public benefit, in my view, fell by the wayside. I deal
fully with this aspect later in the judgment. During argument in the appeal
before us, counsel for the respondent was constrained to submit that the defence
of truth and public benefit was legally suspect.
That approach, it seems to me,
in the context of the present matter, was informed by the very nature of the
defence contemplated
in Bogoshi. It is meant to protect publication of an
untrue statement (not a true statement), in circumstances where there is no
fault (or unreasonableness)
on the part of the maker or publisher. In the
absence of proof, the accusation against the appellant must, in my view, be
approached
on the basis that it is untrue.
[96] I deal first with
the question whether the appellant, as a cabinet minister, has locus
standi to sue for defamation. The respondents contend that the appellant
lacks locus standi to sue. They submitted that the decision in
Die Spoorbond and Another v South African
Railways[66] to the effect that
the state cannot claim damages for defamation for injury to its reputation,
should be extended to cabinet ministers
so as to preclude them from suing for
defamation. In developing his argument counsel for the respondents stressed the
need to protect
the freedom of every person to comment, without inhibition, on
the management and conduct of the country’s affairs to avoid
the chilling
effect of defamation actions by cabinet ministers. For this submission reliance
was placed on the judgment of the House
of Lords in Derbyshire County Council
v Times Newspapers Ltd and
Others[67] where the principles
laid down in Spoorbond were followed and extended to local authorities -
in the case in question to the Derbyshire County Council. Counsel urged that the
decision in South African Associated Newspapers Ltd and Another v Estate
Pelser,[68] where this court
declined to extend the Spoorbond rule to actions for defamation by
cabinet ministers, should not be followed.
[97] There is a lot to
be said for counsel’s criticism of the decision in Pelser. The
facts in that case were briefly the following: two persons, one white and the
other black, were sentenced to death for the same
crime. The State President (as
the head of the state was then called) granted a reprieve to the white murderer
but not to the black
one. The black man was executed. The Sunday Times, a
newspaper published by the first defendant in that case, printed an article
in
which the late Professor Barend van Niekerk was quoted as having
remarked:
‘The execution of [the black man] must fill all South
Africans with shame.’
For reasons that are difficult to comprehend the
court rejected the argument by Mr SW Kentridge SC, for the newspaper publisher,
that
the above statement was, on its correct interpretation, not capable of
being read as defamatory of Minister Pelser. I agree with
Lewis JA that
Pelser was wrongly decided on the facts.
[98] I do not
agree with the submission that the principle in Spoorbond should be
extended and that cabinet ministers should be barred from suing for defamation.
In my view, that approach would undermine
the protection of an
individual’s right to dignity, which includes reputation, and elevate the
right to freedom of expression
above the right to reputation. Under our law the
right to reputation equally enjoys protection. The ‘recognition and
protection
of human dignity is a foundational constitutional value,’ and
the right to human dignity entrenched in the Constitution ‘values
both the
personal sense of self-worth as well as the public’s estimation of the
worth or value of an
individual.’[69] Even though
the right to reputation is not protected eo nomine as a fundamental
right, it is considered to be part of the right to respect for, and protection
of, the dignity of an individual,
which is protected by s 10 of the
Constitution.[70] It is therefore
crucial to strike a fair balance between the right to freedom of
expression,[71] and the right to
dignity[72] and reputation, so that
one right is not accorded more value than the other. The tension between the two
competing constitutional
rights has, for now, been resolved adequately in
defamation matters by the application of the principles laid down in
Bogoshi.[73]
[99] In
my view, ministers of state, as everybody else, are not above criticism in
relation to the execution of their duties as members
of government – and
such criticism is indeed a good thing for purposes of public debate and
discussion in an open and democratic
society. In fact the end-of-the-year
‘report card’ devised by the respondents, properly utilized, might
prove to be a
useful exercise to encourage members of government to keep their
wits about them on issues of public concern. But unchecked, unjustifiable
imputations of dishonesty detract from a proper exercise of the right to freedom
of expression and disrupt the balance referred to
in para 98 above. I consider
fair reporting and the retention by a cabinet minister of the right to sue, not
to be strange bed fellows.
They can easily subsist side by side, without the
right to freedom of expression being compromised. In my judgment, the appellant
does have locus standi to sue for defamation.
[100] I now
turn to the effect of the past reportage on the appellant’s claim. The
court a quo held that the appellant failed to establish that she had been
defamed because by the time the ‘report card’ was published,
damage
had already been done. This finding is supported by the
respondents.
[102] I do not agree. The test whether the
appellant’s reputation was lowered in the estimation of right thinking
readers is an objective
one. The question in the present matter is how the
reasonable reader of the Mail and Guardian would have understood the statement
in the ‘report card’, in the context and against the background it
was published. The test envisages that the words in
the statement are to be
construed ‘in their context’, and the meaning thereof determined by
reference to ‘what
they would convey to ordinary reasonable persons,
having regard to the sort of people to whom the words were or were likely to be
published.’[74] I do not see
the relevance of the dictum of Didcott J in Demmers v Wylie and
Others,[75] referred to by my
colleague, Ponnan AJA (para 81) in his judgment, in the context of the present
matter. In that part of the judgment
in Demmers, Didcott J was dealing
with the difficulties associated with identifying a ‘right-thinking
reader’ in a non-homogenous
community such as ours. No such problem is
encountered in the present matter. The right-thinking reader we are concerned
with is
the ordinary reader of the Mail and Guardian. The issue before us is
what the statement in the ‘report card’ would have
conveyed to that
reader, having regard to the above test.
[103] In my view, the
conclusion reached by the court a quo on the effect of the past reportage
is flawed in two respects: first, it ignores the fact that the allegation that
the appellant had
awarded the contract to Motheo was a novel statement.
Secondly, any perspective earlier held of the appellant by readers of that
reportage, could not have been caused by a belief that she had indeed made such
an award, as no assertion of such a fact had ever
been
made.
[104] Mr Howard Barrell, the writer of the ‘report
card’, testified that readers of the Mail and Guardian were on the whole
the most educated group of newspaper readers in the country. He described the
typical reader as ‘a highly educated, informed
and critical
individual’, who probably reads three or four different newspapers and
regularly listens to the radio and watches
television. The readers of the Mail
and Guardian, he said, base their judgments on the information they receive from
a variety of
sources and do not uncritically accept what they
read.
[105] In my view, that type of reader would have realized
that the avalanche of past reportage conveyed no more than a suspicion of
nepotism,
and that the reportage cried out for an investigation to establish the
appellant’s involvement, if any, in the award of the
Motheo contract. That
class of reader, given his or her ability to discern and analyse, is not likely
to have accepted the past reportage
as asserting that the Motheo contract had
been awarded by the appellant or that she had played a role in the award of the
contract.
[106] But, when the report of 24 December 1998 appeared,
suggesting that the appellant had awarded the contract, it seems to me that the
reader, in considering the new information objectively (as a right-thinking
reader), would have compared it with what had been gleaned
from the earlier
reportage, and would have been led to conclude that the appellant had in fact
done what was alleged: that the report
meant that she had influenced the process
of awarding the contract or played a role in its award to a close friend because
the ‘report
card’ now says so (something not stated previously).
Although the average reader of the Mail and Guardian would have been aware
that
the award of housing contracts was a provincial competency, he or she was now
being told pointedly that the appellant had caused
the contract to be awarded.
From this latest statement the reader would have concluded that the Mail and
Guardian was now in possession
of information that linked the Minister directly
with the nepotistic award of the contract. This, because even the earlier
reportage
of the Mail and Guardian, and indeed other newspapers, had not carried
a story that linked the appellant directly to the award of
the Motheo contract.
As all the other newspapers had done, the Mail and Guardian had simply raised
questions calling for answers.
It is true, as stated by Lewis JA (para 23), that
Barrell and Soggot, called as witnesses for the respondents, maintained that the
report card did not refer to any new information. But when Barrell, in
particular, was challenged by counsel for the appellant to
point to any prior
media statement, if any, implicating the appellant in the award of the contract,
he was unable to do so.
[107] In my view, the latest statement was
novel and lowered the appellant’s reputation in the eyes of the right
thinking reader of
the newspaper. I consider the earlier reportage to be
relevant to the assessment of quantum rather than as a complete defence
to the defamation action. It is one thing to say that a person has a bad
reputation, but quite
another to conclude or imply that such person has none at
all to protect – which is the effect of the finding of the court
a quo
in so far as the appellant is concerned. Even in cases where a
person’s reputation has sunk to its lowest ebb, that factor does
not
constitute a complete
defence.[76]
[108] Although
the earlier reportage was critical and sometimes strident, in the present matter
it never included an allegation that, whether
directly or indirectly, the
appellant had awarded the contract to Motheo. In my view, previous defamations
(even of an identical
kind) cannot and do not render what was defamatory to be
not defamatory. The relevance of earlier defamations is confined to the
topic of
damages, where it would be a factor to be contextualized in the course of an
assessment of quantum. The statement in my colleague, Ponnan AJA’s
judgment (para 84), that there was ‘a widely held public perception that
the Minister had used her influence to secure a lucrative contract for a close
friend’ is, in my view, not borne out by the
facts nor by the past
reportage. On the contrary, the past reportage merely raised suspicion and
called for answers.
[109] The proposition that the appellant
awarded, or caused the contract to be awarded, is unproven. The respondents did
not attempt to
adduce evidence to establish that fact. Instead Barrell, in his
evidence, was driven to assert that an inference was to be drawn
from a range of
surrounding circumstances. When Barrell was invited to substantiate his
accusation (that the appellant had awarded
the Motheo contract) during
cross-examination, he stood by his bare assertion and, rather than provide
proof, challenged counsel
and said: ‘[P]lease eliminate my conclusion,
please prove me wrong’. I agree with Lewis JA (para 28), that the ordinary
reader of the Mail and Guardian would have understood the words complained of to
mean that the plaintiff was guilty of corrupt behaviour.
Such serious accusation
cannot, in my view, be regarded as mere political criticism. In my view, that
conclusion was reached without
any factual basis. Accordingly, having failed to
show that the allegations are true, the respondents can only escape liability if
their conduct in publishing the defamatory statement, can be brought within the
Bogoshi defence.
[110] In
Bogoshi[77] Hefer JA
said:
‘[T]he publication in the press of false defamatory allegations
of fact will not be regarded as unlawful if, upon a consideration
of all the
circumstances of the case, it is found to have been reasonable to publish the
particular facts in a particular way and
at a particular time. It is for the
respondents to prove all the facts on which they rely to show that the
publication was reasonable
and that they were not
negligent.’[78]
Dealing
with how the test was to be applied Hefer JA continued:
‘In considering
the reasonableness of the publication account must obviously be taken of the
nature, extent and tone of the allegations. We know, for instance, that
greater latitude is usually allowed in respect of political discussion
(Pienaar and Another v Argus Printing and Publishing Co Ltd 1956 (4) SA
310 (W) at 318 C-E), and that the tone in which a newspaper article is
written, or the way in which it is presented, sometimes provides additional,
and perhaps unnecessary, sting. What will also figure prominently
is the
nature of the information on which the allegations were based and the
reliability of their source, as well as the steps taken to verify the
information. Ultimately there can be no justification for the publication of
untruths, and members of the press should not be left with the impression
that they had a licence to lower the standards of care which must be observed
before defamatory matter is published in a newspaper. Professor Visser is
correct in saying (1982 THRHR 340) that a high degree of circumspection must
be expected of editors and their editorial staff on account of the nature of
their occupation; particularly, I would add, in the light of the powerful
position of the press and the credibility which it enjoys amongst large sections
of the community. (Münchener Kommentar zum Bürgerlichen Gesetzbuch
vol 5 at 1679.) I have mentioned some of the relevant matters; others,
such as
the opportunity given to the person concerned to respond, and the need to
publish before establishing the truth in a positive manner, also come
to mind.’[79] [Emphasis
added].
[111] In the statement complained of the appellant is
accused of awarding the contract to a close friend. None of the guidelines
suggested
in Bogoshi was followed by the respondents before publishing
the offending statement. The appellant was not offered an opportunity to respond
to the allegations. I agree, though, with Lewis JA, that it may not have been
necessary to offer her such an opportunity in view
of her repeated denial that
she had anything to do with the awarding the contract to Motheo. But, what of
the other role players?
The respondents could have checked with Cobbett or the
members of the Provincial Housing Board, in particular its Chairman, Mr Saths
Moodley, whether the appellant had been involved in the awarding of the
contract. No attempt was made to interview either Cobbett
or Moodley or the
Mpumalanga Director of Housing, Mr Piet Du Plessis (or any other Board member)
for their impressions. The remarks
by Du Plessis (referred to in para 19 of
Lewis JA’s judgment) that he understood the project to have been
‘driven by
the Minister’, which were accorded prominence in the
press when he testified before the Dreyer commission, were intended to
exculpate
himself and should not have been taken at face value. In any event, the said
remarks did not assert knowledge that the
appellant had indeed made herself
culpably involved. Barrell was, in his own words, not even aware of the context
in which Du Plessis
made his remarks. Had Cobbett been interviewed Du
Plessis’ allegations would have been shown to be false because, on the
evidence
on record, there is no reason to believe that Cobbett himself would
have said that the appellant was involved in the award of the
contract to
Motheo. This is fortified by what Cobbett told the Public Protector. According
to the Public Protector’s report
to Parliament, Cobbett said that he had
no reason to believe that the appellant had been involved in the award of the
contract. In
her judgment Lewis JA (para 22) says that the Public Protector
produced an inconclusive report. In the light of what I have said
above, I am
not certain in what respects the report was inconclusive.
[112] The respondents could easily have checked these facts but
failed to do so. There is no suggestion that they were under pressure to
meet any deadline. Barrell testified that he had worked on the ‘report
card’ for some time. There is no suggestion that Cobbett and the members
of the Provincial Housing Board, in particular, its
Chairperson, Mr Saths
Moodley, were not available and accessible to the respondents, nor that they
would not have been able to throw
light on whether the appellant had played any
role in the award of the contract. Lewis JA (para 71) concludes that there was
no point
in seeking further information from Mr Moodley or Mr Gibb about the
role of the appellant in the whole affair, because their evidence
to the Dreyer
Commission and their public statements pointed to the prospect of another
denial. This conclusion, together with the
other factors mentioned in paras 70
and 71, have led Lewis JA to conclude further that it was reasonable for the
Mail and Guardian
to believe that the appellant had influenced the choice of
Motheo, Ndlovu’s company, as the housing developer. The suggestion,
it
seems to me, is that where the press does not get a response to its calls for an
inquiry into allegations about the conduct of
a cabinet minister which might, if
true, amount to corrupt behaviour, and it (the press) believes that the answers
it would receive
from persons who can throw light on the issue would not be to
its satisfaction, or would not confirm a suspicion of corrupt behaviour,
it
would be reasonable for the press to publish false assertions which are
defamatory of such cabinet minister. Not only would this
suggestion enable the
press to ignore the requirements for reasonableness set out in Bogoshi,
but it would, in my view, also lead to abuse.
[113] When the
story broke in May 1997 the appellant dealt with the matter fully in Parliament.
She made it clear that she did not interfere
in the provincial process of
awarding contracts and did not sit on the Provincial Housing
Board.[80] She added that she did
not even live in Mpumalanga. In her judgment Lewis JA (para 71) raises some
concern about the relationships
between the plaintiff and the various role
players in Motheo. I am not certain how these relationships could provide a
basis for
the conclusion by the Mail and Guardian, that the appellant had
influenced the choice of Ndlovu’s company. The degree of contact
between
the Motheo players and the appellant was not materially different to their
contact with Cobbett. From the appellant’s
public statements in
Parliament[81] it is clear that her
contact with certain business and political people was unavoidable. But, as the
appellant pointed out this did
not mean that they were now, because they were
acquainted with her, disqualified from tendering for contracts. The rhetorical
question
posed by Lewis JA as to how Gibb came to know Ndlovu seems to me, at
best for the respondents, to be neutral. In any event Ndlovu’s
sister,
Seape, worked for Gibb at Nedcor. I have not been able to find anything in the
record to suggest that it was the appellant
who brought the two together. So
also is the case of the other links and relationships which appear to cause my
colleague some concern.
[114] Not only did the respondents fail to
consider all the facts known to them, they chose to rely on certain selected
facts which were
consistent with (but not conclusive of) the proposition
favoured by them, and ignored the rest. They ignored the fact that Cobbett
never
suggested that the plaintiff acted nepotistically and that the formal process of
awarding tenders had no place for the role
of the appellant. Nowhere is it even
suggested how the appellant would have influenced the choice of Motheo as the
housing developer
when there was no competitor in the field. The National
Ministry was not involved in the evaluation, selection and awarding of contracts
– a fact which resulted in a material distance between the Ministry and
the Provincial decision-makers. The respondents also
overlooked the fact that
the failure by the Provincial Housing Board to follow the guidelines and the
gross irregularities it perpetrated,
were not demonstrated to be at the instance
of the appellant. The appellant’s public statements on the question, for
example
in Parliament, where she put her perspective of the relationship with
the Motheo players, were totally ignored. Neither Barrell nor
the second
respondent read or had regard to Hansard (especially where the minister
made a public statement on these
issues[82]).
[115] In
certain instances the respondents plainly distorted facts to fit in with the
view they had formed of the appellant. For example,
they distorted the meaning
of Cobbett’s letter to imply that the appellant had expressed her own
opinion that Cobbett was blocking
funds, when, on a proper reading, her remarks
were understood by Cobbett to be a report to him of criticism by others. In his
letter
to the appellant Cobbett wrote:
‘As you will recall, you
[referring to the appellant] phoned me in my car on the night of the
17th April, saying that you had received a complaint from Mpumalanga
that I was obstructive and ‘blocking’ the funds. I indicated
my
belief in the correctness of my approach, and that of my officials, but
undertook to keep the issue alive.’
Nowhere does Cobbett say it was the
appellant who accused him of blocking the funds, as stated by Barrell in his
evidence-in-chief.
All the appellant did was to relay this complaint to
Cobbett.
[116] The ipse dixit of Barrell that his own
opinion of the appellant as having awarded the contract to her friend was also
held by others, is unsupported
even by the slightest corroboration. In contrast,
other press articles say no more than that deeper investigation would be
appropriate.
In my view, the respondents could never have held a reasonable
belief that the appellant had influenced the award of the contract
to Motheo.
They have accordingly failed to bring themselves within the Bogoshi
defence.
[117] In her judgment, Lewis JA deals extensively
with the question whether special principles should be invoked to protect the
publisher
of defamatory statements about members of government. In Holomisa v
Argus Newspapers Ltd[83] Cameron
J held that a defamatory statement which relates to free and fair political
activity is constitutionally protected, even if
false, unless the plaintiff
shows that, in all the circumstances of its publication, it was unreasonably
made. Except for placing
the onus on the defendant to prove
reasonableness, I consider that the same view was expressed by Hefer JA in
Bogoshi, although in the latter case the court was not dealing with
so-called political speech. I agree with Lewis JA (in para 64) that publication
of political information which is defamatory in circumstances where it is
justifiable (reasonable) is not actionable. Although this
court has hitherto not
dealt with the practical workings of the defence of reasonableness in political
speech, I do not, however,
consider this to be a special defence outside of or
in addition to what was said in
Holomisa[84] and ultimately
endorsed in Bogoshi.[85] As
it was stated in Bogoshi (see para 110 above) ‘greater latitude is
usually allowed in respect of political discussion’. With such
recognition,
political speech is, in my view, adequately catered for in the
defence of reasonableness introduced in Bogoshi.
[118] I
turn to the fourth and final issue: whether the common law should be developed
so as to provide for a defence that would go beyond
Bogoshi. It was
submitted by counsel for the respondent that the proposed defence cum
remedy (an order that an apology be published) would protect both the publisher
and the maker of the defamatory statement as well
as the victim, and would be
cast in the form of an order compelling the maker or publisher of the statement
to publish an apology.
[119] I do not think that there is any
merit in the submission. While I can understand that a plaintiff who complains
that he or she has
been defamed may well wish to claim, either as his or her
sole remedy, an order that an appropriate apology be published, or such
an order
in addition to an award of damages, I do not see on what basis a defendant, who
was at all times free to publish an apology
and thereafter to plead that as a
result thereof any damage suffered by the plaintiff had either been completely
eliminated or at
least substantially reduced, but has not done so, can rely in a
case such as the present, on the new ‘defence’ for which
counsel for
the respondents contended.
[120] In my view the appellant’s
claim should have succeeded on the merits. I would consequently allow the appeal
with costs.
[121] In view of the fact that this is a minority
judgment, I do not consider it necessary to deal with the question of quantum of
damages.
__________________ KK
MTHIYANE
JUDGE OF
APPEAL
CONCUR: MPATI DP
[1] 1994 (2) SA 1 (A) at
20E-G.
[2] 1966 (3) SA 470 (W) at
474A-C.
[3] 1928 AD
190.
[4] Para
50.
[5] (2003) 120 SALJ 282
p 289.
[6] 1998 (4) SA 1196
(SCA).
[7] 1946 AD
999.
[8] At
1009.
[9] At
1012-13.
[10] [1993] 1 All ER
1011 at 1019d-1020c.
[11]
(1964) 376 US 254.
[12] (1923)
307 Ill 595.
[13] At
1018f-h.
[14] 1975 (4) SA 797
(A).
[15] At
808B-D.
[16] Para
32.
[17] Pages
194-6.
[18] (2003) 120
SALJ 282.
[19] 2002 (5) SA 401 (CC).
[20] Paras 24-28,
footnotes omitted.
[21] 1998 ((4)
SA 1196 (SCA).
[22] At
1212G-H.
[23] 1993 (2) SA 451 (A). The
passage from Bogoshi is at 1212A-C.
[24] 1982 (3) SA 146
(A).
[25] See the comment on
Bogoshi in Jonathan Burchell Personality Rights and Freedom of
Expression: The Modern Actio Injuriarum pp
224-6.
[26] At 1216E-F and
1217F-H.
[27] At
1217F-H.
[28] At
1212A-C.
[29] 1994 (2) SA 1
(A).
[30] At 1204C-E. See also
the comment in Bogoshi at 1209A-B on Corbett CJ’s approach to
defences.
[31] 1996 (2)
SA 588 (W) at 618E-F.
[32] 376 US
254 (1964).
[33] Page
208.
[34] At
1209H-I.
[35] At
1212G-H.
[36] [1999] 4 All ER 609
(HL); [2001] 2 AC 127.The references that follow are to the All
ER.
[37] (1997) 189 CLR
520.
[38] (1994-1995) 182 CLR
104.
[39] (1994-1995) 182
CLR 211.
[40] [1999] UKPC 46. It
is of interest that the decisions of the House of Lords in Reynolds and
of the Privy Council in Lange v Atkinson were handed down on the same
day, and that the same law lords sat in both cases.
[41] Above, para
15.
[42] Para
16.
[43] The New Zealand Court of
Appeal confirmed its earlier decision in Lange: [2003] NZLR 385. It
considered that qualified privilege did extend to political speech, which
constituted a particular class, and
that the law in England was different in
this regard. The judgment is one written by the full court. Reasonableness of
the publication
is not the test to be used, however. Gratuitous slurs on
politicians would be actionable because the privilege had been abused, and
not
because the publisher had acted unreasonably. The essential test is the interest
in making the statement, and the interest in
receiving
it.
[44] At
621e-g.
[45] At
616e-f.
[46] See also the speech
of Lord Steyn at 630g-j.
[47]
(1994-1995) 182 CLR 211 at
264.
[48] (1997) 189 CLR 520 at
574.
[49] At
1211F-H.
[50] At
1212H-J.
[51] (1986) 8 EHRR 407
(para 42).
[52] (1991) 19 EHRR
389 (para 59).
[53] At
635e-j.
[54] At
616I-J.
[55] 2002 (6) SA 431
(SCA).
[56] 2003 (1) SA 389
(SCA).
[57] 2003 (6) SA 13
(SCA).
[58] 2004 (2) SA 216
(SCA).
[59] 2004 (3) SA 305
(SCA).
[60] 2001 (4) SA 938
(CC).
[61] See Burchell op cit p
229. ‘It has for many years been accepted that greater latitude must be
given to freedom of expression
on political matters. However, although
politicians may, in one sense, be fair game for criticism, it is not completely
open season
in the political veld.’
[62] Loc
cit.
[63] Housing is one of the
areas of concurrent national and provincial legislative competence: schedule 4
of the Constitution.
[64] [1936]
2 All ER 1237 (HL)
[65] 1998 (4)
SA 1196 (SCA) at 1212 H – 1213
A-C.
[66] 1946 AD
190.
[67] [1993] 1 All ER 1011
(HL).
[68] 1975 (4) SA 797
(A).
[69] See Khumalo and
Others v Holomisa 2002 (5) SA 401 (CC) at paras 26 and
27.
[70] See Lawsa (1) par
270.
[71] Protected under s 16 of
the Constitution.
[72]
“ “ s 10 of the
Constitution.
[73] See
Khumalo at para 39.
[74]
Johnson v Beckett and Another 1992 (1) SA 762 (A) at 773 B-D; Johnson
v Rand Daily Mails 1928 AD 190 at 204; Channing v SA Financial Gazette
Ltd and Others 1966 (3) SA 470 (W) at 474 A–C; Botha en ‘n
Ander v Marais 1974 (1) SA 44 (A) at 48
D-F.
[75] 1978 (4) SA 619 (DCLD)
at 629 A-B.
[76] Cf Grobbelaar
v News Group Newspapers Ltd and Another 2002 (4) All ER 732 (HL) at 733 (f)
- (g).
[77] at
1212G.
[78] See Bogoshi at
1215 I.
[79] See Bogoshi
at 1212 H-J –
1213A-C.
[80] See Debates of
National Assembly (Hansard), First Session – Second Session – Second
Parliament, column 3468 (Thursday
29 May
1997).
[81] See Hansard Column
3465-3466.
[82]
Ibid.
[83]1996 (2) SA 588
(W).
[84]
Ibid.
[85] at 1212 H-J.
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