THE law on press freedom could face substantial change if the Constitutional Court allows a newspaper to appeal a ruling in politician Bantu Holomisa’s defamation case.
The United Democratic Movement (UDM) leader sued the Sunday World after it published allegations that he was involved in a spate of bank robberies.
The newspaper on Tuesday applied to the Constitutional Court for leave to appeal a judgement the Transvaal High Court gave in Holomisa’s favour.
In the high court the Sunday World argued that Holomisa did not ”disclose a cause of action” because he had not pleaded that the newspaper report was false.
The newspaper argued the law should require a person intending to sue for defamation to prove the falsity of the alleged defamatory statement. Unless this is done, the threat of defamation actions will unduly restrict reporting by the press.
The high court judge dismissed the newspaper’s action and it subsequently applied for leave to appeal to the Constitutional Court.
According to the rules that govern appeals, the high court judgement could not be appealed in the Supreme Court of Appeal.
Gilbert Marcus, SC, for the Sunday World, told the Constitutional Court on Tuesday the law should find a balance between the right to dignity and the right to freedom of speech.
He said there was a current imbalance in the law in favour of the right to dignity.
In order to correct the imbalance, the law should require that the onus be on a plaintiff to prove the falseness of a statement instead of a defendant proving that his report was true.
He said one should avoid a situation where anyone could sue for defamation by merely telling the court that what had been written about them was untruthful.
French Bezuidenhout, arguing for Holomisa, said Marcus failed to mention that a plaintiff would also be cross-examined and that the defendant would be required to prove that his statements were truthful.
Bezuidenhout said the right to dignity was one of the most fundamental constitutional rights and that a person should not be required to defend that in court.
”It would be incorrect for a person to prove his own dignity — the person who attacked him should prove why he did that. When it comes to balancing (dignity and press freedom) the law does exactly that.”
Justice Ben du Plessis said if one accepted the notion that a plaintiff had to prove the falseness of the allegations against him in order for a defamation suit to be successful, the media would be able to publish anything that was true but not necessarily in public interest.
Holomisa, who attended the court hearing, said he felt optimistic about the court proceedings.
”I will continue to promote press freedom, but the media can’t print false statements around an individual and think because they have money they are untouchable,” he said.
Judgement was reserved.