The Supreme Court of Appeal (SCA) ruled on Monday that a news story published by the Mail & Guardian newspaper about former housing minister Sankie Mthembi-Mahanyele was defamatory, but not actionable.
The SCA in Bloemfontein dismissed an appeal by Mthembi-Mahanyele against a decision of the Johannesburg High Court in the newspaper’s favour.
The case arose from the December 1998 “report card” the M&G published on Cabinet ministers. The newspaper said the minister had awarded a massive housing contract to a close friend.
The contract had been awarded by the Mpumalanga Housing Board to a company run by a friend of Mthembi-Mahanyele. The former minister sued the newspaper for defamation, claiming that the statement was false and that it had implied she was corrupt.
The Johannesburg High Court, however, found that she could not sue for comments about her performance in her portfolio because her actions as a Cabinet minister were in the public domain. The court further found that the statement was not defamatory because of previous publicity about the former minister’s alleged involvement in awarding housing contracts. The newspaper’s readers would therefore have been familiar with the allegations and her reputation had already been tarnished when the statement was published.
The majority of the SCA held that the statement complained was defamatory because it implied that Mthembi-Mahanyele was corrupt in influencing the award of the contract. It was also held that the defamatory contact and impact were not lessened by allegations of corruption having been in the public domain before.
The court unanimously held that a minister did have standing to sue for defamation. However, where the circumstances were such that the statement was justifiable and reasonable, the defamation would not be actionable.
The factors taken into account in this case were the “web of connections between the appellant [the former minister] and the various people involved in the contract”.
These included “… the fact that Motheo [the company which received the contract] had no track record of building houses, and was owned and run by a medical doctor, the appellant’s friend; the dismissal of the director-general of housing, Mr Billy Cobbett because of his referral of the project to the auditor-general for investigation; the appellant’s refusal to explain the circumstances of the award; and adverse reports on the contract by the auditor-general and by a provincial commission of inquiry.”
The M&G reasonably inferred that Mthembi-Mahanyele had improperly influenced the award of the contract.
“The publication was therefore both justifiable and reasonable [not negligent].” – Sapa
Here is Mthembi-Mahanyele’s report card from 1998.
SANKIE MTHEMBI-MAHANYELE
Minister of Housing
Grade: F
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 her sacking of her former director general, Billy Cobbett, continue to haunt the public perception of her.
Prognosis: A coupé on the gravy train would do nicely, thank you very much.