If I said Judge Kate O’Regan had a beautiful mind, would she use it against me? Is it permissible to say that a Constitutional Court judge has a sexy cerebrum? (Before anyone accuses me of sexism, I must confess a long-standing attraction to the output of Judge Kriegler’s pert frontal lobes). Or would this impugn the dignity of Ms O’Regan as a person, let alone as a judge?
The question arises because of an important judgement handed down by the Constitutional Court last week, written by Judge O’Regan, in which the issue of dignity — and its constitutional protection — plays a central role.
The subject was an appeal lodged by the Sowetan Sunday World in its defence of a defamation action brought by General Bantu Holomisa. The defamation suit arose from an article in which it was stated, among other things, that the good general was involved with a gang of bank robbers and that he was under police investigation.
Sunday World appealed on the basis of the principle, enshrined in the common law of defamation, that someone who is defamed is not required to prove (or even aver) that the aspersion cast on their good name is false. Instead, the publication is given the onus of proving that it is true.
As Judge O’Regan points out, the issue of the publication of defamatory material goes to the heart of the conflict of different human rights enshrined in our Constitution — those of dignity and privacy, on the one hand, and a free media and free expression on the other.
It is this conflict — and the balance to be drawn between these competing rights — that has greatly exercised critics of the Mail & Guardian recently.
Is Barney Pityana’s right to dignity greater than the right of this newspaper to raise questions about the spending of public money that might reflect poorly on him? Is Peter Mokaba, who certainly courted controversy during his life, entitled to undisturbed dignity in death, or was this newspaper right to raise questions about whether his struggle record was entirely without blemish?
Naturally, those whose dignity was routinely and systemically abused during our racist history are likely to be more sensitive about the need to respect dignity — as the condemnation of the Pityana article by Dr Xolela Mangcu and Dr Njabulo Ndebele has shown.
Equally predictably, many of us in the media are going to argue for a more robust and permissive style of public discourse, which subordinates some dignity to legitimate public interest.
The judgement in the Holomisa case, though not without its flaws, goes to the heart of this debate — and is instructive to both sides.
Dispensing crisply with the legal issues, Judge O’Regan considers the double indemnity of requiring either side to prove their case absolutely. At the centre of this dilemma is the fact, acknowledged by the court, that it is “often difficult, and sometimes impossible” to determine the truth or falsity of a particular statement.
She finds, therefore, that it would be unfair to force the injured party — in this case Holomisa — to prove that the allegations were false.
“In not requiring a plaintiff [Holomisa] to establish falsity, but in leaving the allegation and proof of falsity to a defendant to a defamation charge, the common law chooses to let the risk lie on defendants. After all, it is by definition the defendant who published the statement and thereby caused the harm to the plaintiff.”
But Judge O’Regan also accepts that to demand from the media an absolute burden of proof would be unfair and deleterious to media freedom. She quotes with approval a British judgement by Lord Keith that states: “What has been described as ‘the chilling effect’ induced by the threat of civil actions for libel is very important. Quite often the facts that would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public.”
In this sense, the judge is alive to the fact that the courts of public opinion are not the same as courts of law and that the media should not, and can not, be restricted to reporting only what can be legally proven. This point was misunderstood by Mangcu in his debate with M&G editor Howard Barrell on the Tim Modise Show last week.
So, instead of choosing to favour one or other side in what she calls this “zero-sum” approach, Judge O’Regan confers constitutional approval on the compromise hammered out by the Supreme Court of Appeal in what is known as the Bogoshi judgement.
In essence, the appeal court ruled that the publication of defamatory material, if found to be either false or unproven, could still be justified if it was found to be “reasonable” given all the circumstances that prevailed at the time of publication.
So far so good: the Sunday World appeal is dismissed (thereby forcing the newspaper to defend its article) and a fair balance is struck between the constitutional interests of free expression and human dignity. It is a supple judgement that reminds us that “a person’s interest in their reputation can only further constitutional values if that reputation is a true reflection of their character”.
But, I confess, there is trouble in paradise. As is often the case with Constitutional Court judgements, the meat around the bones of the decision is as important as the ruling itself — as it is this “background opinion” that will give other courts direction on how to apply the ruling to other cases. In other words, Judge O’Regan has given pointers for what may be regarded as “reasonable” and what not. And here there is cause for concern.
Firstly, Judge O’Regan is at pains to establish that dignity is “a foundational value” in our Constitution, while free speech is not.
That much is unarguable on a literal reading of our Constitution. However, the judgement does not deal with the arguments, developed by the United States Supreme Court, that free speech is foundational, in that the free exchange of ideas underpins and is crucial to the very notion of democratic politics and a rational, constitutional order.
More seriously, Judge O’Regan treats two issues of the “media” and “dignity” as monolithic or indivisible notions. This makes it more difficult for lower courts to develop the shades of meaning that should go into deciding whether or not the publication of a particular piece of defamation was reasonable or not.
The media are treated as if they are a coherent institution, with a uniform set of rights and responsibilities, whereas they are, in fact, a largely anarchic continuum. For example, the average reader will not respond in exactly the same way to The Star as to noseweek.
It seems unreasonable not to promote a similar degree of differentiation in our courts. This is particularly important because media freedom is more like a complex ecosystem than a black and white issue. The bottom-feeders, the “yellow press” are as important to the system as the media kings higher up the food chain. Many an important story has first been floated in the “gutter press” — and without those first pricks of public consciousness, would not have been taken on by bigger publications with more to lose.
On the issue of dignity, Judge O’Regan fails to deal with the attempt by the Sunday World to distinguish between public figures such as Holomisa and the ordinary man in the street.
Her only nod to the notion that public figures should submit to greater scrutiny is contained in something of a throwaway line in which she states: “There can be no doubt that persons in public office have a diminished right to privacy, though of course their right to dignity persists.”
With due respect, the judge has chosen the wrong right to limit.
It is only the tabloids (that are different creatures to the yellow press) that have an interest in invading the privacy of public figures.
For the powerful, it is often their bloated dignity that is their one Achilles heel — and it is often the only target that can be reached by the weak. More often than you might like to imagine, the weak include the media.