THE Attorney General of KwaZulu-Natal, Tim McNally, is suing the Mail & Guardian for R250 000 over reports published last month detailing criticism of his handling of investigations into hit squad activities.
McNally, charging that the reports “cut at the very heart of his reputation and dignity”, has demanded publication of a “complete, unconditional and unequivocal retraction and apology” in this edition of the newspaper.
The M&G has instructed its lawyers to oppose the action, raising as part of its defence the United States Supreme Court judgment in the case of the New York Times v Sullivan
The judgment, delivered in 1964, established that a public official cannot sue for libel in regard to the exercise of his official duties unless it can be proven that allegations were published without an honest belief that they were true, or with reckless disregard as to whether they were true or not.
The argument underlying the case was that the threat of libel action deters free speech and dampens public debate on policy issues. The principle has been adopted in varying degrees by, among others, the European Court of Human Rights, the Indian Supreme Court, the Australian High Court and the Law Lords in the UK.
In 1988 the US Supreme Court reaffirmed the decision in the New York Times v. Sullivan with another landmark judgement which overturned an award of damages against the pornographer, Larry C. Flynt, for publishing a parody depicting the Rev. Jerry Falwell having sex with his mother in an outhouse.
The Chief Justice, William H. Rehnquist, in a unanimous judgment by the eight- member court, said: “The freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole.”