OWN CORRESPONDENT, Johannesburg | Thursday
THE war of words between the Mail & Guardian newspaper and the ANC has now come to a head in court, with the newspaper demanding a public apology from Public Enterprises Minister Jeff Radebe.
Radebe, on behalf of the ANC, told the Human Rights Commission hearing into racism in the media in April last year that the then editor of the newspaper, Phillip van Niekerk, wrote an opinion piece in 1998 critical of President Thabo Mbeki and published it under the name of Lizeka Mda, now associate editor of The Star newspaper, but then an employee of the M&G.
Both Van Niekerk and Mda have continuously denied the allegations publicly, in private and in affidavits.
“We want the respondent [Radebe] to publicly say that it [the allegation] is untrue and apologise,” Advocate Wim Trengove, SC, told the Johannesburg High Court.
The court heard on Wednesday that some members of the ANC, including its national representative Smuts Ngonyama, had been told by Parks Mankahlana (who died last year), Nelson Mandela’s representative at the time, that Van Niekerk had written the article.
Mankahlana, who met Mda a few days after the article was published, claimed that Mda had told him that Van Niekerk had written the article. Mda has denied this.
Trengove argued that Radebe had to set the record straight because although the SAHRC hearings were conducted under qualified privilege, the ANC had continued to make the allegations publicly where this privilege did not stand.
“This [allegation] caused and has continued to cause harm to both the applicants,” he said.
Qualified privilege allows a person to make statements on evidence he or she considers true without worrying about defaming a person such as a witness giving evidence in a court of law.
Civil law only allows for the damages of defamation to be remedied by monetary payment.
Trengove told Judge Joop Labuschagne that claiming damages was inadequate and would not vindicate the reputations of those harmed.
He argued that under common law it was appropriate for a court to recognise and introduce an order saying that the respondent should apologise for the defamatory remarks.
Referring to the article, Trengove said there was overwhelming evidence supporting the denials by Mda and Van Niekerk. This included affidavits by fellow journalists who were at a weekly news conference at the M&Gs offices where Mda had stated her intention to write the article.
Mda also showed her article to the news editor and said anybody who knew her would have seen that the piece was written in her style.
Van Niekerk said earlier in an affidavit that the first time he saw the story was just before publication. He said he did not alter it at all.
He also said that Mankahlana told ANC members that when he met Mda they had had a “heated discussion” on the story, and Mda would not have had heated talks if she had not written the article.
Trengove accused the ANC of using the SAHRC hearing for political gain, because members of the party admitted that they did not feel “obliged” to find out if Mankahlana’s accusations were true.
In the opinion piece headed “A Short Leap to Dictatorship”, Mbeki is accused of interfering with the former Independent Broadcasting Authority’s granting of the free to air television licensing procedure. Underneath a photograph of him is a line saying “Godfather”.
Advocate George Bizos, SC, who is representing Radebe, said the article made Mbeki out to be a criminal and accused him of nepotism and corruption.
He told the court that Van Niekerk and Mda had no right to demand an apology from the minister. “I submit that it is wishful thinking to expect the court to come to the assistance of a person who has defamed a respondent [Mbeki] but says you defamed me please clear my name,” he said.
“[They] lost that opportunity to seek relief when the story was published without facts.”
Bizos also said Trengove’s suggested changes to the law should not be made in this case because the newspaper had also made defamatory remarks and had not apologised.
He said the ANC was not trying to discredit the newspaper when it made its SAHRC submission because the article showed, as its other submissions did, that there was a tendency by the media to stereotype black people.
The hearing continues today.
THE ARTICLE:
A short leap to dictatorship
*ZA NOW:
Editors to sue over Radebe claims April 17, 2000
Charge Radebe, says M&G April 7, 2000
White media vilify black leaders – ANC April 6, 2000
M&G under attack from ANC April 5, 2000
FEATURES:
Parks key witness in M&G v ANC November 20, 2000
Editors take Radebe to court October 9, 2000