The Mail & Guardian continues to stagger under the sheer weight of libel actions, ranging from Aubrey Levin to the Inkatha Freedom Party. Although the newspaper’s slender resources are strained (the most ill-founded of writs have to be discussed to some extent with lawyers), just one of them could prove to be a torpedo that slips our guard and sinks this newspaper forever. Writs usually come from the powerful and the wealthy trying to shut us up and we take a certain pride in the evidence they provide that we do have an impact in such quarters, and that we are not going to shut up. At the same time, the writs testify to the glaring inadequacies of our defamation laws. One is that they are, self-evidently, the weapons of the powerful and rich, because of the huge legal costs involved in going to court – usually exceeding the damages being sought. This self-evidently precludes an ordinary citizen from seeking justice for his or her cause by this means. Then there are the delays. The intention of the defamation laws is to give redress to those unfairly subjected to public calumny, most desirably by way of early correction and otherwise by an award of financial damages. As it is, the laws are so cumbersome and the courts so packed that, even though great reputations may be at stake and issues of public importance involved, the case may not be resolved until long after the original quarrel is lost to public memory. There is another consideration that is not so often aired where defamation is concerned: that so great is the weight of defamation litigation, so ponderous and costly proceedings that they give a weight to public reputation that is perhaps not merited in the 21st century and the age of the Internet. The present trend in constitutional law is to tilt the balance in favour of freedom of speech, as against defence of reputation, in order to encourage public debate, and this newspaper wholly endorses that approach. At the same time it would be unfortunate if the entire concept of discovering the truth by trial were lost to us. The M&G would be perhaps the last newspaper in this country to argue that appointment to judicial office confers a unique insight into ”the truth”. But we do recognise the need of society for finality of judgement, subject to appeal, by due authority. The courts remain a fitting arena for such decision where public argument is concerned. Their value in that regard was demonstrated by the recent defamation judgement in Britain against the right-wing historian, David Irving, whose public reputation has been destroyed by a judge’s comprehensive repudiation of his denial that the holocaust took place. It is in the light of the above that this newspaper has decided to try and make a contribution to the reform of the defamation laws, most immediately by its handling of what is likely to become known as the Jeff Radebe case. The background to the Radebe case is already well-known. The minister of public enterprises took the stand under oath before the Human Rights Commission (HRC) and – at the very best – recklessly made the untrue allegation that the editor of this newspaper had himself authored an article critical of the government and had it published under the name of a black journalist on his staff. The M&G referred the matter to the commission that has constitutional powers specifically designed to deal with such an eventuality, by way of criminal sanction, but has failed to exercise them. This leaves us with little other option than a resort to a legal action.
Frankly this brings us some embarrassment. Our reservations where the libel laws are concerned are known to our readers and we are not comfortable using them in their present state. We are also aware that Radebe’s defence and any damages award would no doubt be funded by the African National Congress and we appreciate – although the organisation’s officials seemingly fail to do so – that it is funded by public subscription. We would not like to feel we are enriching ourselves at the expense of a constituency that is fundamentally poverty- stricken and with whose interests we identify.
Yet his motives in making the allegation can only be described, in the absence of alternative explanation, as criminally malicious. The minister of public enterprises is a liar. How he can bear to cling on to public office in the face of such shame is beyond comprehension. The rest of the leadership of the ANC open themselves to the charge that they are liars, by association, if not through active connivance. They have done huge damage not only to the credibility born of the proud traditions of the ANC, which was not theirs to squander, but to one of the Constitution’s ”watchdogs” for liberty, the HRC, which is now to be seen as unable to defend its own integrity in the face of government abuse. At the same time we feel compelled to turn to the courts to try and secure their judgement as to the minister’s mendacity as a matter of authoritative record, if only for future generations. The editor has therefore decided to take a seemingly novel approach – in the hope it will also make a small contribution to the development of both newspaper practice and the law – by bringing a suit without claim for financial damages.
Our lawyers have been instructed to serve papers accordingly next week.