Khadija Magardie Mail & Guardian editor Phillip van Niekerk and The Star’s associate editor Lizeka Mda this week served court papers on Minister of Public Enterprises Jeff Radebe and the African National Congress, kicking off a lawsuit that could set a crucial precedent in South African defamation law. Van Niekerk and Mda are asking the Johannesburg High Court to rule on Radebe’s allegation before the Human Rights Commission (HRC) that Van Niekerk penned an article critical of President Thabo Mbeki under the byline of Mda. What is unprecedented about the lawsuit is that Van Niekerk and Mda are not asking the court to award damages but to instead rule on the veracity of the statement, and then order Radebe and the ANC to publicly retract and apologise. In April this year, during the HRC public hearings into racism in the media, Radebe, submitting a paper on behalf of the ANC, alleged that Van Niekerk, and not Mda, was the author of an allegedly racist opinion piece on Mbeki, entitled “A short leap to dictatorship”. Describing the article as a bid to discredit Mbeki’s public image, Radebe said: “Of course, he [Van Niekerk] did not say that the article was in fact not written by the black woman journalist under whose name it appeared, but by a white male journalist and specifically the editor.” Radebe elaborated further, accusing Van Niekerk of lacking journalistic ethics and of having “abused a member of his staff to enable him to say that the alarm has been sounded by an African woman journalist”. In the court papers, as well as in statements to the media, both Van Niekerk and Mda have repeatedly denied the allegations, describing them as scurrilous and defamatory. Both journalists say the allegations have damaged their credibility and reputation, and called on Radebe and the ANC to retract their statement. Neither has done so. The statement has been affirmed several times – and both Radebe and the ANC have refused to retract or apologise.
In response to a request by the HRC to Radebe to explain an alleged violation of Van Nierkerk and Mda’s constitutional rights, the minister and the ANC have not been able to provide any proof of the allegations. The one time Radebe alludes to his proof is in a letter to Mda’s lawyers, which alleges that Mda herself was the source of the information regarding the authorship of the article. Mda has denied this. In his founding affidavit Van Niekerk says the conventional approach in defamation cases of seeking damages is problematic – and proposes that an alternative relief measure be applied by the court. Van Niekerk says defamation law as it currently stands often serves as a smokescreen to inhibit the exercise of the right to freedom of the press and other media.
In the affidavit, Van Niekerk says: “The conventional remedy of damages for defamation is moreover unsatisfactory for various reasons. The first is that it is slow because it can only be pursued by action for damages. Because it is so slow, the ongoing harm done by the defamation is unduly perpetuated. It secondly affords the victim of the defamation no more than the payment of damages. I am frankly not interested in the money. It is a poor substitute for an unequivocal finding, retraction and apology by which the slur on my reputation is removed and an end put to its ongoing harm.” Radebe and the ANC have until October 12 to give notice of intention to oppose the application.
The HRC has referred the matter to the National Directorate of Public Prosecutions to investigate possible criminal charges against Radebe in terms of legislation governing the HRC.