Mungo Soggot : A Second Look
Judge Monas Flemming bestowed on Allan Greenblo the honour of becoming the new South Africa’s first banned author when he turned the clock back on the country’s media law in the Johannesburg High Court last week.
His decision to ban Greenblo’s biography of Sol Kerzner was all the more puzzling because it came three weeks after he himself quashed a bid by Liberian politician Emanuel Shaw II to stop the Mail & Guardian publishing material about Shaw’s corrupt past.
Although South Africa’s media law has been in a state of flux since the passing of the constitution, there has been a discernible shift away from the repressive approach previously adopted by the courts where freedom of expression was concerned.
In the most important post-constitution defamation case, Holomisa v Argus Newspapers, Judge Edwin Cameron effectively shielded newspapers from attack by public figures providing journalists show diligence and providing they show they are reasonable.
But Judge Flemming, the deputy judge president of the Witwatersrand, has adopted an approach in Kerzner which is far more favourable to plaintiffs in defamation actions.
He has gone even further than Sol Kerzner wanted when he applied to interdict Greenblo’s publishers, Jonathan Ball, from publishing Kerzner Unauthorised. Judge Flemming ordered the proceedings be held in camera – despite the fact Kerzner’s legal team did not call for it. The deputy judge president noted in his judgment that he presumed Kerzner said this to avoid looking like the kind of man who likes to “gag the press”.
Judge Flemming has also banned the entire book – Kerzner only asked for sections to be excised. He said in his judgment: “If the book unlawfully invaded rights on publication, there is a single act which is interdicted and the whole of the book may not be published. There is no need to give an opinion on what amendments will justify the survival of a new edition.”
Does this mean that if an article in a newspaper is successfully interdicted, the entire edition must be cancelled?
The judge could have upheld Kerzner’s interdict merely on the grounds that Greenblo infringed sections of the Divorce Act by publishing details of the gambling supremo’s break-up with Anneline Kriel.
But he went much further than this technicality, attacking other material in the book – such as a detailed exploration of Kerzner’s notorious pay-off to Transkei leader George Matanzima – and arguing that its publication could damage Kerzner’s business interests.
He also questioned the notion that being a public figure disqualified a plaintiff from claiming damages for defamation: “It is only a pointer in a rough manner to one aspect of considering whether private rights have to yield.”
And he dismissed the suggestion that South African courts should follow the US doctrine against “prior restraint”. He noted: “American ideas of fairness and interference would cause many changes in various areas of our law.”
Judge Flemming adopted a different approach in Shaw.
The judge ruled that that week’s material on Shaw – which included an editorial entitled “Well qualified to pillage” – did not add “to any noticeable extent to what has already been said in the two previous publications … no additional harm is done in any material sense”.
The same could be argued for much of Greenblo’s book, which provides more detail and more discussion about incidents that are so well-known – such as Kerzner’s R2-million pay-off – they are now part of South African folklore. If anything, Judge Flemming could have argued that Shaw, as a new man on the South African block, should have been given a chance to develop a reputation in South Africa.
In the Kerzner judgment Judge Flemming distinguishes his Shaw decision, saying: “What is to be learnt from the Shaw case is only that where a party has intended to do little more than what he himself has already done to Shaw, the additional harm from refusing an interdict is so little that it is outweighed by the harm for public interest … Here (in Kerzner) there are new defamers, there is a new readership, new infringing material is added, allegations which must have faded in the public mind are given new life, there is no contemporaneous relevance to much of the material, etc …”
Judge Flemming gave Shaw – who conducted the interdict from Monrovia, or what the judge referred to as “some strange place” – until December 24 to sue for defamation.
Far from suggesting that the M&G’s expos of Shaw could damage the Liberian’s business interests, the judge said that Shaw’s employer, state oil chief Don Mkhwanazi, was clearly a man who “sticks to his loyalty never mind what is said; and will not be influenced”. He also implied the M&G’s reports did not affect Shaw’s standing in South Africa as he could not assume that the kind of people with whom Shaw associates – such as Mkhwanazi and the minister of minerals and energy – read the M&G.
The difficulty in reconciling Shaw and Kerzner makes this area of the law even murkier than before. But what is perhaps most important about the Kerzner judgment is Judge Flemming’s expression of his fondness for interdicts in general – a fondness that could cause havoc in South African newsrooms until a higher court injects some clarity into this area of the law.
He says: “I have on a previous occasion pointed out the outdatedness of the law of defamation, inter alia that a modern medium like a newspaper does the harm prominently to thousands of readers but the apology comes in modest terms, in a small item on a different page …
“It seems to me better to use the available means to ensure that if a case is made that publication would be libellous, publication should not take place before the applicant has had a chance to prove his case if it is in dispute. But once the applicant’s case is adequately proved, there is no justification for allowing that the wrong be committed.”
ENDS