Every year the Mail & Guardian publishes its annual “report card”, which assesses the performance of each of the members of the Cabinet and awards them a symbol.
The 1998 report card included an assessment of Sankie Mthembi-Mahanyele, in her capacity as then-minister of housing, to which she strongly objected.
The minister did not respond to the assessment initially, but sent a letter of demand to the M&G more than a year later on February 3 2000 .
Then, on March 13 2000, she brought a defamation action, claiming for damages amounting to R3-million against the newspaper.
In its defence the M&G pleaded, inter alia, that as a Cabinet minister Mthembi-Mahanyele had no locus standi (right to bring an action) to sue for defamation.
In September 2002 Judge Meyer Joffe in the Witwatersrand Local Division dismissed the minister’s claim on the grounds that a Cabinet minister had no locus standi to sue for damages for defamation where the disputed statement related to the performance of her work as a member of the government and was made without malice.
The minister appealed against this judgement in the Supreme Court of Appeal. The appeal was heard on May 6 this year and judgement was handed down on Monday this week.
The appeal court dismissed the minister’s appeal with costs, including costs occasioned by employing two counsel.
The main judgement was delivered by Judge of Appeal Carol Lewis, with the President of the Court Judge Craig Howie concurring. Judge of Appeal Nathan Ponnan concurred with the order of Judge Lewis, but for different reasons. Judge of Appeal Khayalihle Mthiyane delivered a dissenting judgement, with the Deputy President of the Court, Judge Lex Mpati, concurring.
In the main judgement, Judge Lewis held that while the statement published in the report card was defamatory of the minister, its publication was justifiable and reasonable and, therefore, not unlawful.
Does a Cabinet minister have locus standi to sue?
Judge Lewis held that a Cabinet minister has locus standi to claim damages for defamation.
She ruled that Judge Joffe’s earlier decision that a Cabinet minister does not have locus standi to claim damages for defamation when the words complained of relate to performance of work as a Cabinet minister was incorrect, because it does not give sufficient weight to the right to dignity and to protection against unlawful harm to one’s reputation.
It also elevates the right to freedom of expression above that of dignity when there is no, and should not be, a hierarchy of rights.
Was the publication unlawful?
Judge Lewis held that the proper approach to finding the appropriate balance between freedom of expression and the right to dignity is to recognise that, in particular circumstances, publication of defamatory statements about a Cabinet minister (or any member of government) may be justifiable in the particular circumstances and, therefore, lawful.
In this regard, the court held that: “Political speech might, depending on the context, be lawful even when false, provided that its publication is reasonable … This is not a test for negligence: it determines whether, on the grounds of policy, a defamatory statement should not be actionable because it is justifiably made in the circumstances.”
Judge Lewis then referred to decisions in other cases that held that defamation of the government and members of the government might be justifiable in certain circumstances, and thus lawful. The court held that the reasons advanced in these decisions are compelling and “require that there be a special defence attaching to political information, such that the publication of defamatory matter in circumstances where it is justifiable [reasonable] is not actionable.”
The judge also held that freedom of expression in political discourse is necessary to hold members of the government accountable to the public, and that some latitude must be allowed to allow robust and frank comment in the interest of keeping members of society informed about the government’s actions. She said that errors of fact should be tolerated, provided that statements are published justifiably and reasonably.
The judge stated that the state and its representatives, by virtue of the duties imposed upon them by the Constitution, are accountable to the public. The public has the right to know what the officials of the state do in discharge of their duties and the public is entitled to call on such officials, or members of government, to explain their conduct.
When they fail to do so, without justification they must bear the criticism and comment that their conduct attracts, provided that it is warranted in the circumstances and not actuated by malice.