The media in eSwatini is facing a new crackdown, in the form of a spate of defamation actions by the rich and powerful and massive damages awards by the courts.
Recent awards range between E200 000 and E350 000 (one lilangeni is equivalent to one rand).
Judicial compensation on this scale is unknown in South Africa, except in rare cases where the plaintiff’s business interests have been affected.
At one major newspaper, the Eswatini Observer, the trend is coupled with a proposed policy under which journalists are to be fined for writing stories that result in damages for defamation.
The Inhlase Centre for Investigative Journalism has seen a draft of the policy, which states that journalists will be charged “50% of the insurance excess for stories that lead to libel claims being brought up against the company” to recover lost revenue.
The Observer is owned by the royal investment house Tibiyo takaNgwane and has a princess, the nation’s attorney general and influential business people on its board.
Swazi journalists are poorly paid, with some senior practitioners earning as little as R7 000 a month.
In a country where social status is important, the huge monetary awards reflect the desire of the judiciary to protect VIPs from the media, rather than the other way round.
The trend has prompted concerns that compensation is becoming an industry and that the role of the media as a vital democratic institution and curb on executive power is being undermined.
One worrying indication is that the courts do not necessarily recognise the overriding principles of public interest or “fair comment” as defences against defamation claims.
There are close parallels with the Brazilian experience: the Committee to Protect Journalists (CPJ) reported in 2011 that judicial censorship was one of the heaviest restrictions facing Brazilian journalists.
In a publication titled Attacks on Press, the CPJ’s Americas senior programme coordinator, Carlos Lauria, wrote that hundreds of lawsuits had been filed by Brazilian political figures, government officials and business people alleging that critical media reports had damaged their reputation or invaded their privacy.
“Plaintiffs usually seek court orders to bar journalists from publishing anything further about them … News outlets and journalists are often subject to intimidation in the form of multiple lawsuits, straining their financial resources and forcing them to halt their criticism,” he said.
The trend in Eswatini was set in 2014, when the supreme court ordered the Times of Swaziland (now the Times of Eswatini) to pay the unprecedented amount of E550 000 to former senate president Gelane Simelane-Zwane, who had sued the newspaper for questioning her paternity and claim to the chieftaincy of the ko-Ntshingila area.
Other recent defamation cases include:
• South African-based gospel artist Sipho Makhabane sued the Observer after it published an opinion piece questioning his Christian values. In January 2017 the supreme court awarded him E300 000.
• The Observer was successfully sued by medical doctor-cum-businessman Futhi Dlamini over a story about a dispute relating to his father’s estate. Dlamini won damages of E200 000 when the supreme court dismissed the newspaper’s appeal in 2018.
• The Observer’s former managing director, Rev Alpheous Nxumalo, sued the paper over a report relating to his HIV status and won E250 000 in the supreme court in June.
• In September this year, the high court ordered the Times to pay E350 000 to the deputy speaker of parliament, Phila Buthelezi, and E175 000 to assistant master of the court Ceb’sile Ngwenya for defaming them by intruding on their privacy.
The Observer on Saturday is currently in court defending a E500 000 defamation suit brought by lawyer Simanga Mamba, the chair of the Teaching Service Commission, over an article about his billing of clients.
The Observer’s new policy of fining journalists is headed “policy and procedure for the recovery of cash lost due to employee negligence”.
An earlier copy stipulated 1 July 2020 as the effective date, while the latest version omits a commencement date pending a meeting between management and the media workers’ trade union.
The policy says the aim is to implement discipline fairly and consistently throughout the company with regard to lost revenue due to employee negligence, defined as damage to company property, costing revenue by repeating or publishing advertisements incorrectly, and defamation claims.
It also covers staff in the transport and advertising departments.
The policy states that employees will be surcharged 50% of the insurance excess for any damage to insured company property, such as vehicles and working tools.
For repeated or wrong advertisements, employees will be surcharged 20% of the cost of the advert, shared among “the responsible employee/s involved in the production chain, whose fault will be established by a formal hearing”.
This will take place under the watch of Eswatini attorney general Sifiso Khumalo, a director of the Observer, who chairs the remuneration and ethics committee.
The other directors are a cross-section of Swazi business and royal power. The board’s chairperson, S’thofeni Ginindza, is a partner at African Alliance; deputy chairperson Simanga Simelane is managing director of Tibiyo takaNgwane subsidiary Dalcrue Agricultural Holdings; Dumsile Sigwane is a businesswoman and member of the traditional women’s regiment Lutsango lwaKaNgwane; and Princess Phumelele is one of King Mswati’s appointed senators.
Ginindza was approached for comment but did not answer his phone. Alan Mkhonta, the Observer’s managing director, would neither confirm nor deny the proposals and had not commented at the time of publication.
University of Eswatini journalism lecturer Maxwell Mthembu criticised the judiciary’s “aggressive stance” towards the print media in defamation cases and described the Observer’s proposed policy as a microcosm of judicial censorship.
He said the courts are creating a climate of fear in newsrooms that undermines the ability of media practitioners to report on issues of public interest. “No one wants his or her pay cut for writing critical stories. Journalists are paid low salaries,” he said.
Mthembu pointed out that it is also the responsibility of editors to check stories before publication.
Media Workers’ Union of Swaziland representative Patrick Dlamini said the Eswatini Observer’s plan has been reported to the union’s executive. He said it had provoked anger, anxiety and despair among journalists.
Bheki Makhubu, editor of The Nation magazine, said he thought fining journalists was illegal.
Makhubu remarked that the judiciary and prominent figures are turning the media into the “industry of compensation”, as huge awards encourage people to become litigious.
“Our judiciary has moved beyond being an arbiter of justice and taken on a seeming censor’s role. Fearful journalists then self-censor, shying away from reporting any story that might get them into trouble with the law. The media is now expected to do the bidding of the powerful people and government,” said Makhubu.
He added that because the courts are an extension of the monarchy, they brook no criticism or opposition to royal power.
“There is a deeply ingrained atmosphere of fear among journalists. Self-censorship has become established in all the media houses.”
Times managing editor Martin Dlamini said that the hefty damages are sending a strong message that the media should not write stories critical of powerful people.
This, he said, would undermine media sustainability.
“There are avenues that aggrieved people can use to get redress from the media houses, but the courts do not encourage complainants to use them,” Dlamini said.
“We have the Media Complaints Commission with an ombud and in-house ombuds [at individual papers]. It looks like the judiciary has an agenda to silence the media and suppress information,” he said.
Swaziland National Association of Journalists president Welcome Dlamini alleged that some lawyers comb the news media for potentially defamatory articles and then advise those affected by the reports to sue.
“But our biggest challenge is the lack of solidarity, advocacy and activism within the media. As a result, a lot of the anti-media conduct goes unchallenged by the media fraternity,” he added.
This story was produced by the Inhlase Centre for Investigative Journalism, in association with IJ Hub