Serjeant AT THE BAR: Publish and be damned

Conflicting defamation judgments have served to confuse the issue

Pity any journalist in Gauteng who is sitting on a controversial story and wants to know whether he can publish it; pity also his legal advisers, who must correctly predict for him what the consequences will be if he does.

His dilemma arises from two recent judgments in the Johannesburg Supreme Court. In one, the Transvaal Judge President, Fritz Eloff, recently held in a defamation action brought by a Mr Bogoshi against the editor of City Press that the guarantees of freedom of speech and freedom of the press in the Constitution did not change the current law of defamation at all; in the other Judge Edwin Cameron held, most decisively, that they did.

And the journalist’s difficulty goes further than simply choosing between the two judgments — both are quite arguably wrongly decided and, for their very different reasons, thoroughly unfortunate.

Judge Eloff’s is the easier to criticise because he gave fresh approbation to a particularly regressive area of law: in South Africa, a litigant suing a newspaper for defamation arising from the publication of incorrect facts does not have to prove his case — it is for the newspaper to disprove it. This is not only disconsonant with general principles of law, but it is determinedly out of step with the rest of the world, the spirit and tenor of the Constitution and the modern trend towards expansion of freedom of speech.

The judge president’s decision, in short, represents a lamentably obstinate refusal to recognise the passing of the ancien regime and the arrival of a new democracy and new freedoms.

Judge Cameron is certainly not trapped in the past. One of the new and conspicuously progressive appointments to the bench in Gauteng, he recognised — and applied with great force — the “values of equality, democracy, governmental openness and accountability” that he found in the Constitution. Not surprisingly, he came to a conclusion so different from Judge Eloff’s as to begger belief.

His case concerned an action brought by Bantu Holomisa, now a deputy cabinet minister in the Government of National Unity, but formerly the military dictator of Transkei, against a daily newspaper that claimed, in 1993, his direct involvement in a plot to infiltrate insurgents into Northern Natal in order to kill whites.

Judge Cameron found — and on this there can be no quibble — that the fundamental rights in the Consitution have a direct impact on the law of defamation, so much so that the law could not be allowed to stand unchanged.

But at this point he most regrettably declined the newspaper’s invitation to make a fundamental break with the past, and hold that media can only be liable if they publishe material maliciously, in that it was known to be untrue or in reckless disregard of its truth.

Instead he took a far more cautious position and decided that the media were liable in defamation if they acted unreasonably in publishing allegations that were incorrect. There are two primary objections to this compromise.

Firstly, it affords less protection to the media than the test of malice and therefore still inhibits publication. Secondly, it introduces a test — unreasonableness — so elastic as to be readily manipulable. It throws the law of defamation back on to the (inevitably) subjective outlooks of the judge and this, in part, is why the law of defamation today is so out of touch with the modern world.

In short, while the one judgment manifestly provides no relief at all from the current unsatisfactory state of affairs, the other promises more than it delivers. Neither resolves the quandary of the journalist with a scoop that he cannot absolutely confirm.

This is the first of an occasional column on legal issues. Members of the legal profession are invited to submit contributions

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