THE former editor of Private Eye, Richard Ingrams, once said memorably that a libel suit is like a game of Russian roulette, the outcome being equally unpredictable. The financial magazine, Finance Week, has recently put a gun to the Mail & Guardian’s head and pulled the trigger. We are waiting anxiously to discover whether there was a bullet in the chamber.
Finance Week, its editor, Nigel Bruce, and its proprietor, David Gleason, have recently issued summons against the M&G for R900000. The M&G this week entered an appearance to defend. If they win the case they may succeed where PW Botha & Co failed, in shutting this newspaper down.
The magazine is suing us for articles we published earlier this year reporting a squabble which had broken out between itself and Business Day. The details of the squabble are complex, but boil down to an allegation made by Business Day that Gleason put improper pressure on Rand Merchant Bank to facilitate a business deal with Randgold – offering to cease writing critical articles about the bank if they would do so. The allegation made by Business Day is based on affidavits sworn by senior executives of Rand Merchant Bank, of which we have copies. No other evidence to support or discredit the allegation is available. Finance Week has not issued summons against Business Day. Nor have they alleged malice on our part, either in the summons or articles they have published on the subject.
The decision of Finance Week to attack the M&G in this way is extraordinary. The libel laws inherited by South Africa from the English tradition were notoriously repressive where freedom of speech was concerned. Following the introduction of our new Constitution those laws are in a state of flux. But it is the earnest hope of anyone concerned with press freedom that we will go down the road set by the United States Supreme Court in the case of the New York Times v Sullivan, which is already being followed by much of the rest of the civilised world. The effect of this and ensuing judgments was to disqualify public figures from obtaining damages for libel, on the grounds that it would otherwise inhibit debate on matters of public interest. The decision led, famously, to a case in which the American evangelist, Jerry Falwell, was refused damages against the pornographer, Larry Flynt, who had published the suggestion that the leader of the Moral Majority had had drunken sex with his mother in an outhouse.
Clearly, a business magazine and two of the country’s leading financial commentators fall into the public arena. They are therefore, presumably, bringing the action against the M&G in the belief that they can persuade the courts against the principles enshrined in Sullivan and South Africa’s own “Holomisa” judgment, in which Judge Edwin Cameron stretched the ambit of Sullivan even wider.
We are not privy to any goings-on which might have taken place between Bruce and Gleason and their respective mothers in outhouses. But surely the mothers are deserving of some opprobrium for having foisted on our society two such pompous farts.