The Supreme Court of Appeal reserved judgement on Thursday in a defamation case lodged by African National Congress deputy secretary-general Sankie Mthembi-Mahanyele against the Mail & Guardian newspaper.
At issue is whether Cabinet ministers can sue for damages in a defamation claim where it relates to their performance as Cabinet ministers.
A high court decision in 2002 ruled that a Cabinet minister could not sue for damages in a defamation claim.
Lawyers for the M&G argued to uphold that decision and also said massive defamation awards have a chilling effect on freedom of expression (because they can bankrupt small media organisations). Alternative outcomes such as declaratory orders or retractions and apologies were more appropriate.
The case is also a test to extend the boundaries of free political speech while protecting the right to dignity -— a core pillar of the Constitution. Defamation suits are generally framed on an alleged loss of dignity.
In 1998, in its annual report card, the M&G gave Mthembi-Mahanyele an F. Its assessment of the minister’s performance began by asking: ”Why is she still in Cabinet?” It suggested that the Motheo housing scandal, in which a R198-million contract was granted to her friend and which led to the axing of her director-general, Billy Cobbett, had tarnished her reputation.
Mthembi-Mahanyele hit back 14 months later, slapping the paper with a R3-million defamation suit. She lost in 2002 and took the case on appeal.
Lawyers for the M&G say that by arguing against Cabinet members’ right to sue for damages in a defamation case where it relates to their performance as Cabinet ministers, the case seeks to enshrine the right to criticise government conduct, although to do so in ways that are not malicious and which do not cause material loss.
Mthembi-Mahanyele’s lawyers argued for the restoration of her right to defamation suits. – Sapa and M&G reporter