Mail & Guardian reporters
The Natal High Court handed down a landmark judgment in favour of press freedom last week when it denied an application by the Inkatha Freedom Party to gag the Mail & Guardian.
The IFP launched a two-pronged attack on the newspaper last week, applying to the court to stop the M&G from publishing sequels to an article (“How IFPofficials milked KZNmillions”, August 7 to 13) that detailed a scheme to siphon money from the provincial government into IFP coffers.
The party – whose application was dismissed with costs – also demanded that the newspaper remove all copies of the previous week’s newspaper from the shelves of shops in KwaZulu-Natal.
Judge Hillary Squires said there was no acceptable basis for granting the interdict (to remove the newspapers) even if the article was defamatory, laying down an important precedent for political parties tempted to gag newspapers in future.
Judge Squires said he could not rule on whether the article was defamatory, although he noted that it was a “balanced investigation where allegations are commented on and which carried the point of view of the other side.”
The judge said that the right of political parties to sue for libel was weaker than that of private individuals, adding that the law of defamation was undergoing fundamental change in the light of the new Constitution. The Supreme Court of Appeal would be tasked with reflecting the spirit of the new constitutional values in the common law.
As far as the IFP’s request to prevent all further defamatory articles was concerned, he said: “This would constitute as gag on the newspaper which would violate free speech and freedom of the press and can be dismissed out of hand … until a report is found to be defamatory, the publication of it cannot be restrained.”
The M&G article which triggered the IFP attack quoted extensively from an extraordinary statement by a businessman who was put on to the witness protection programme after blowing the whistle on the scheme last August.
The report also referred to a civil case launched by the businessman in which the provincial government has defended itself against a claim for R790 000 by accusing its head of expenditure of fraud.
The Constitution’s guarantee of freedom of expression has yet to be entrenched in South African libel law. There is a post-1994 high court decision which reflects the spirit of the new Constitution by giving newspapers immunity from attack by public figures – providing the defamatory material is written diligently and without malice.
But there is also a strong body of case law, affirmed in the Supreme Court of Appeal in Bloemfontein, which requires publications to prove defences against a libel charge by showing our facts are substantially true.
In November 1997, the Johannesburg High Court quashed a bid by Liberian financier Emanuel Shaw II to interdict the M&G from publishing a follow-up to two articles about his appointment as adviser to the Central Energy Fund.
The Deputy Judge President, Monas Fleming, said he was dealing with a case “where there is a prehistory. In that sense then, to the regular reader of the publication, no additional harm is done in any material sense … the extent of additional harm is relatively limited.”
Shaw subsequently sued the M&G for R7- million. That case is due to be heard in the Johannesburg High Court on September 7.