Two weeks ago the Mail & Guardian won an important victory in the battle for free expression and government accountability.
Judgement was handed down in the defamation case launched by Minister of Housing Sankie Mthembi-Mahanyele against the M&G and its former editor, Phillip van Niekerk. Judge Joel Joffe dismissed Mthembi-Mahanyele’s claim with costs and set an important new precedent, ruling that a Cabinet minister could not sue for defamatory criticism of his or her conduct as minister.
Mthembi-Mahanyele had taken offence at her showing in the paper’s famous annual report card on government, published in December 1998. Her entry for that year gave her an F-grade and stated:
”Why is she still in Cabinet? She has shown she cannot deliver in one of our key delivery ministries. Her award of a massive housing contract to a close friend and the sacking of her former director general, Billy Cobbett, continue to haunt the public perception of her. Prognosis: A coupe on the gravy train would do nicely, thank you very much.”
Notwithstanding its somewhat jocular tone, the M&G report card appeared to hit a nerve. In her claim the minister argued the report suggested she was ”a dishonest person and that she would dishonestly award a massive housing contract to a close friend”; that she ”improperly and unfairly dismissed Cobbett” and that she was incompetent and ”not worthy of holding public office”.
Readers will recall the row about the R190-million Mpumalanga housing contract, awarded to Motheo Construction, a company headed by the minister’s friend, Thandi Ndlovu. The story began to emerge in 1997, following the sudden departure of housing director general Cobbett after he had taken the bold step of referring the Motheo deal to the auditor general.
Mthembi-Mahanyele maintained he had resigned. The media, including the M&G, reported he had been forced out.
Despite her apparent outrage, the minister waited more than a year before lodging a R3-million claim for damages against the paper.
In evidence before the court, it was speculated that Mthembi-Mahanyele acted when she did because the summons was ”politically motivated” and formed part of the run up to the Human Rights Commission inquiry into racism in the media.
If so, the action backfired badly — at least in legal terms.
In his judgement Judge Joffe noted the minister’s failure to testify or produce any witnesses to rebut the contention that the case was politically driven. He stopped just short of finding that the minister had lied about the circumstances of Cobbett’s departure.
He noted that at the beginning of the trial the minister’s counsel indicated she was no longer pursuing the issue of Cobbett’s departure.
”This is a disquieting feature of the plaintiff’s case,” Judge Joffe commented dryly. ”The newspaper articles and editorials alluded to above leveled the accusation clearly. Either the plaintiff or Cobbett lied in regard to the termination of the latter’s employment. Without any explanation it no longer forms part of the plaintiff’s case.”
More importantly, Judge Joffe has now stripped ministers of the comfortable protection they enjoyed under a long-standing judgement of the old Appellate Division. The so-called Pelser case ruled that while government itself could not sue for defamation, individual ministers could, even when the subject matter was the performance of their official duties.
Delivered in 1975, during the long period when the Appeal Court was seemingly in thrall to the interests of the apartheid government, the judgement severely curtailed the protection afforded by a 1946 ruling that held that the state could not sue for defamation.
As Joffe noted: ”It is difficult to imagine how criticism of government can effectively occur without Cabinet ministers being identified … as being the relevant representative of government.”
Judge Joffe found that the effect of the judgement in the Pelser case was to provide a ”chilling effect”, inhibiting public debate. The promotion of free expression in regard to the management of the country’s affairs was an important part of ensuring that government was open and accountable, Judge Joffe argued.
The judge politely declined to follow the old superior court, citing the injunction in the Constitution for the lower courts to develop the common law in the light of the new constitutional framework.
The effect of his judgement is that ministers may not sue, though if the defamation is of such a serious and baseless nature, it would still be open to a minister to lay a charge of criminal defamation.
Judge Joffe added a further important element to the law of defamation. In the past the courts have tended to focus on whether the truth or reasonableness of a defamatory statement is supported by evidence contained in the article itself.
Judge Joffe found that readers of the M&G would probably have read many of the previous critical articles published in other media: ”The context in which they would have read the report card was therefore one in which the public perception of the plaintiff was already tarnished.”
Since the case was launched the government has learned simply to ignore much criticism and its pursuit of the ”transformation” of the media has been strengthened by its success to date. The government may have lost this particular battle, but the war is far from over.