president
IT is usual for newspapers, in the name of free speech, to excoriate those who resort to the laws of libel. But there are grounds for regret among the most freedom-loving of journalists that the case of De Klerk v Mokaba is unlikely to be heard, at least in relation to the African National Congress MP’s recent depiction of the former state president as a “bald-headed criminal dripping with the blood of innocent people”.
When FW de Klerk reacted to this colourful description with a threat to sue, it must have sent a frisson of excitement down the spines of many. After the frustrations of listening to his whitewash “confessions” to the Truth and Reconciliation Commission, the prospect of De Klerk being subjected to cross-examination in the witness box by a team of suitably ruthless lawyers was only to be relished.
But, as De Klerk has to date failed to issue a writ, it can be assumed (if charitably) that he has received advice from his own lawyers that litigation is no longer a suitable weapon for the defence of a politician’s honour.
Although domestic law on the point has still to be fully developed, South Africa’s courts appear to be heading in the direction of the United States judgments in the cases of Sullivan v the New York Times and Hustler Magazine v Falwell, which held that – in the absence of “actual malice” – public figures cannot recover damages for libel.
Peter Mokaba might well have been safe even if he had taken the lead of Hustler editor Larry Flynt and accused De Klerk of doing unmentionable things to his mother while inebriated in an outhouse.
But, while the US Supreme Court’s defence of the “free flow of ideas and opinions” is greatly to be applauded, this development does leave a vacuum. If public figures cannot be libelled, they also cannot be challenged to defend their reputations in the courts. Are we to be robbed, by the freedom of speech, of a means to access information?
Perhaps our legislature should consider a proposal which has been floated in the US for the introduction of suits for “declaratory judgments” in which no damages are awarded and costs are shared. This would at least ameliorate the gagging effect of threatened litigation and enable such as bald-headed ex-presidents to hang on to their honour. If they have any.