The Mail & Guardian has taken something of a battering at the hands of the legal system over the past couple of weeks. After winding ourselves up for the libel case with the KwaZulu-Natal Attorney General, Tim McNally, we were advised by senior counsel to “tender” for a settlement of R50 000, which McNally took.
(For those unacquainted with this kind of settlement it resembles a wager. The defendant in a sense “bets” that even if the plaintiff wins, he will not get more than a specified sum in damages. If the plaintiff chickens out on the gamble, he can pick up the cash and run for it. If he successfully fights the action, but wins less than the defendant’s tender, he gets the lesser amount and has to pay both sides’ costs incurred from the date the tender was made. McNally – who was suing for R250 000 – grabbed the R50 000 and ran.)
We also backed down on another libel case – again on last-minute advice from counsel – this time brought against us by truth commissioner Hlengiwe Mkhize. In this instance we were advised to offer a retraction and a contribution to Mkhize’s costs, which she accepted. Even more unsettling than the outcomes of these two cases, however, was the discovery – in the course of protracted consultations with counsel – that the defence we were relying upon would probably not have succeeded if we had gone to trial.
That defence – which we will not go into in depth here today, having previously done so at some length in these columns – is based on the case of Sullivan v The New York Times which held that public servants should not be entitled to damages for libel in the absence of malice.
The rationale is that it is not in the public interest for the threat of libel proceedings to discourage open debate on the conduct of public affairs. The principle is already accepted to a greater, or lesser, extent by courts in the United States, the United Kingdom, India and Australia. But, admirable though the principle might be, approval of it is seemingly not shared by their lordships on the South African Bench.
There is a widely held view among members of the Bar that the argument will not be accepted by our courts. Why this should be the case is not clear to us. One possible explanation is offered, however, by a diatribe directed against us in the last edition of the Saturday Star by the columnist, broadcaster and editor, Jon Qwelane, which represents what might be described as a fundamentalist view on the issue.
Exulting in the outcome of the Mkhize case, Qwelane admonishes us for failing to live up to what he describes as the basic rule of journalism, to “get the facts straight”.
There is a particularly rich irony about Qwelane’s charge. A couple of weeks ago he wrote a similar article which was so full of factual inaccuracies (not to mention racist drivel) that we felt obliged to write a letter of protest in an attempt to put the record straight. The Saturday Star chose to ignore our protest and failed to publish our letter.
Qwelane maintains his lamentable standards of inaccuracy in the latest column, clearly again relying on one interested source for his assertions and not bothering to check a single one of his facts even against the original article (not articles, as he claims), as well as making such bizarre suggestions as that the circumstances of Princess Diana’s death showed that legal opinion in the UK on the Sullivan principle was divided. (The relevance of the paparazzi pursuit of the Princess of Wales to British libel law is a complete mystery.)
Qwelane, worshipping so noisily at the shrine of unblemished truth, thus provides a striking illustration of the difficulty even the most virtuous have in getting it right.
Should this disqualify him from participation in public debate? We would hope not.
The truth is that mistakes in newspapers are unavoidable. Newspaper publishing is a remarkably efficient manufacturing process. There are few other industries in which a product is created and distributed in the time within which a newspaper is produced. But pressures of deadlines inevitably lead to unintentional errors, which is what happened in the cases of Mkhize and McNally.
The absence of malice in our reporting is underlined by the fact that the “nub” of the libels – and the reason why, in both cases, we agreed to settle – was contained in the headlines and not in the articles as such.
Whether the South African courts will in the end adopt the simplistic stance of Qwelane, or take the sophisticated lead of the US Supreme Court, time will tell.
While we wait for it to do so, South African libel law is governed by the case of the former police forensic chief, General Lothar Neethling, against the Vrye Weekblad for suggesting he was a poisoner.
Since the general effectively shut that newspaper down, fresh evidence has emerged … But say no more. What’s the point of taking the risk?