The Mail &Guardian and the ANC faced each other in court this week over the allegation that a white editor wrote an article and put a black journalist’s name above it, Khadija Magardie reports
The Johannesburg High Court looks miles away from a resolution of the dispute between the Mail & Guardian and the country’s ruling party.
The newspaper’s former editor, Phillip van Niekerk, and former M&G journalist Lizeka Mda are suing a senior member of the African National Congress, and the party for defamation. This was after Van Niekerk was accused of being a dishonest racist who penned an allegedly nefarious article under Mda’s byline.
In what could possibly set a legal precedent, the court is being asked to broaden the law of defamation, which only makes monetary awards, to include, as part of relief sought, a declaratory order for a retraction and a formal, written apology. The two journalists are not seeking any financial award from the court.
But several key issues are in dispute including an affidavit by the late Parks Mankahlana alleging that Mda told him Van Niekerk wrote the article. This has been denied, but as long as such issues remain,many of which could only be resolved by the admission of oral evidence, the court looks set to reserve judgement.
Counsel for the respondents, Minister of Public Enterprises Jeff Radebe and the ANC, made a counter-application on the basis that both Van Niekerk and Mda have authored a series of articles defamatory of President Thabo Mbeki, Radebe and the ANC. In short: “If we have to apologise, then so should they.”
The application is founded on statements made by Radebe at last year’s Human Rights Commission (HRC) hearings into racism in the media. In remarks that were repeated in consequent months, Radebe told the panel that, in 1998, Van Niekerk authored an article highly critical of Mbeki, then deputy president, but passed it off as the work of Mda, a black journalist on his staff, who is now a senior editor at The Star newspaper.
The article, which appeared in the paper’s opinion section, Crossfire, was entitled “A short leap to dictatorship”, and was highly critical of Mbeki and his leadership style, describing public perceptions of him as one “who ferrets behind closed doors and sticks his finger in every pie”. The article was authored in the context of hearings into the granting of radio licenses by the then Independent Broadcasting Authority Mda expressed concern that Mbeki may have exercised undue influence in the awarding process.
Describing the article as an unashamedly racist piece of writing that contributed to a public sense of apprehensiveness about Mbeki, Radebe, speaking in his capacity as the ANC’s head of policy, claimed: “Of course, [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!” He added: “It is so obvious that so overriding was the need to confirm the racist stereotype that the editor was ready to throw all ethics out of the window. Accordingly, he abused a member of his staff to enable him to say that the alarm had been sounded by an African woman journalist.”
The remarks were met with outrage by Van Niekerk and Mda, who described the statement as “a gross, inflammatory lie”. They demanded that Radebe and the ANC, publically retract the statements and apologise this was refused and the statements were repeated by the ANC several times.
Appearing on behalf of the M&G and Mda, Wim Trengove, SC, questioned the fact that the ANC, despite apparent knowledge of the “true” authorship of the article waited at least two years before raising the issue. This, he said, heightened speculation that Radebe and the ANC had made the statements at the HRC to pursue a political vendetta against the newspaper and had not, as it claimed, “acted in good faith” or out of a genuine motive to assist the HRC in its work.
He said the relief sought was appropriate because the statements had been made and repeated in the public domain, causing “untold harm” to the reputation and integrity of Van Niekerk and Mda, as long as the public record was not corrected.
He said the protection of reputation was a fundamental human right and encouraged the court to uphold democracy by ensuring that Van Niekerk and Mda’s reputations were vindicated.
Countering that not only was the statement believed to be true when it was made, but that it was also made on a privileged occasion, the ANC’s counsel, George Bizos, SC, said it was “wishful thinking” to expect the court to come to the assistance of individuals who claimed their reputations were slighted, but who at the same time indulged in reputation-damaging of their own.
He told many in the visibly smiling court that amending the common law of damages to include retractions or apologies was conditional that the applicants were not blatant rumour-mongers and that they should “come with a clean tongue”.
Asking the court to consider that Mbeki, Radebe and the ANC were equally defamed by the article, and several that followed it in the M&G, he said: “I am not saying that politicians should not take it on the chin, but the same should apply to editors and reporters.”
The counter-application, if it succeeds, could mean that Van Niekerk and Mda would get a retraction and apology, on condition that they do the same. The court is either expected to reserve judgement or take several weeks before making a finding.
The hearing continues.
Trengove is instructed by Rosin, Wright and Rosengarten on behalf of the M&G and by Weber, Wentzel, Bowens on behalf of Mda. George Bizos is instructed by Nicholls, Cambanis and Associates on behalf of Radebe and the ANC.