It was heartening to hear that the ANC believes that criminal defamation has no place in our common law.
The national dialogue regarding media freedom and related issues has largely been characterised by hostile tensions between the ruling ANC and most of the mainstream media.
Hardliners from either side are seldom prepared to see and hear reason. Even though there are still suspicions and cynicism, it seems the perennial protagonists have finally found common ground on what seems to be a sticky issue of mutual interest: criminal defamation.
In April, the ANC shocked a number of lawyers and media practitioners when it unambiguously said it was opposed to defamation being part of our criminal law. This came as a surprise for two reasons. First, criminal defamation in South Africa has been mostly used by the powerful to suppress free speech and we wrongly assumed that, for a party that believes it’s under siege by the media, it would prefer to exploit such a legal tool against any “hostile” press. More so because some of the ruling party’s politicians have previously called for insult laws and a media appeals tribunal.
Second, criminal defamation grants the complainant the enormous power of the state’s criminal justice system through the police and prosecution. Cecil Motsepe, a former Sowetan journalist, and Burkina Faso journalist Lohe Issa Konate can testify to this.
It was heartening, therefore, to hear that the ANC believes that criminal defamation has no place in our common law. It has followed up on its statement by convening a workshop with civil society organisations – including the South African National Editors Forum (Sanef) – to tackle this last vestige of a troublesome law. Sanef, which has had its own fair share of fights with the ANC, has welcomed the initiative.
Sanef previously raised its concerns when the court in the Motsepe case reaffirmed the constitutionality of criminal defamation in our jurisprudence. We accept that the public and newsmakers must have remedial measures and recourse against any report that impairs their dignity and reputation. But there are procedures and forums for such redress, including civil litigation, the press ombudsman and other remedies.