Former housing minister Sankie Mthemba-Mahanyele is to ask the Constitutional Court for special leave to appeal a court ruling that she may not sue the Mail & Guardian for publishing a defamatory story about her.
In a statement issued on her behalf by the African National Congress on Wednesday, Mthemba-Mahanyele welcomed a decision by the Supreme Court of Appeal (SCA) that politicians do have standing to sue for defamation.
”This ruling fortifies my belief that the courts are the custodians and defenders of the rights of all citizens, including the right to dignity of political office-bearers,” she said.
She regretted, however, that the court has found it was reasonable and justifiable for the M&G to have published the story about her alleged involvement in awarding a housing tender to a friend.
In the light of that she decided to approach the Constitutional Court for special leave to appeal.
On Monday the SCA in Bloemfontein ruled that a news story published by the M&G about Mthembi-Mahanyele was defamatory, but not actionable.
The SCA 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 paper said the minister had awarded a massive housing contract to a close friend. The Mpumalanga Housing Board had issued a contract 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 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 was defamatory because it implied that Mthembi-Mahanyele was corrupt in influencing the award of the contract.
It was also held that the defamatory content and impact were not lessened by allegations of corruption having been in the public domain before.
The court also 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 newspaper reasonably inferred that Mthembi-Mahanyele had improperly influenced the award of the contract.
”The publication was therefore both justifiable and reasonable [not negligent].” – Sapa