More than 100 years ago, a talented playwright born in Ireland and educated at Oxford University launched a libel case. He fell apart in the witness box under the relentless cross-examination of a leading barrister, Edward Carson QC, and was forced to abandon his case, with disastrous consequences.
That celebrated trial in London appeared to have its local counterpart in the Cape High Court last year. Of course, there were differences: Oscar Wilde brought a case of criminal libel, while Ronald Suresh Roberts sued the Sunday Times for defamation. Wilde was a world-class playwright, Roberts a journeyman biographer. However, if reports about proceedings are correct, Roberts, also an Oxford graduate, like Wilde before him thought that a public intellectual from the top imperial university would be more than a match for the leading barrister of the day.
But, as any decent lawyer would tell you, it is really an act of folly to think that the forensic brilliance of a barrister such as Wim Trengove SC is so easily seen off by a combination of hermeneutic engagement, sophistry and intellectual abuse.
In short, launching a defamation action can be a hazardous occupation.
That is probably the major significance of the outcome of the Roberts case. Some commentators have suggested Judge Leslie Weinkove’s judgement broke new legal ground. But this is simply not the case. Roberts based his case on two grounds: the claim in an article by Chris Barron in the Sunday Times that Roberts had pursued the SABC relentlessly and obsessively about allegations made of child abuse on a programme, and a second complaint that he was dismissed by his law firm for making private business arrangements in conflict with his terms of employment.
The court found that the first complaint was, on the facts, not defamatory. Even if Barron’s remarks were defamatory, Judge Weinkove found that they were made reasonably, after careful research by Barron, and because they represented fair comment. After all, Roberts himself appeared to concede that his response to the SABC had “been over the top”.
It was common cause that the second complaint was defamatory. To fend off the action, the Sunday Times had to show that the comment was true and in the public benefit or that it was reasonable for the publication to take place. The court found that Roberts had taken a position with the Whitney Houston group in breach of his duties to his employer.
Roberts was found to be an “opportunistic and evasive” witness, whereas Barron had produced a carefully researched article in which the claim about Roberts’s departure from the law firm was substantially true.
Viewed in this context, the outcome and the judicial reasoning are unexceptional. The case turned on the evidence, particularly the performance of Roberts, who, as a witness, was totally discredited by the court. Like Carson before him, Trengove found Roberts forensically out and the result followed.
There is perhaps one aspect where the judgement is at fault. The judge found, correctly, that Roberts is a public figure. But he may well have got it wrong when he then said that because Roberts had in the past engaged in venomous public criticism of public figures he had “set a standard which legitimately constitutes an invitation to be used in judging him”.
Even if Roberts is as abrasive and venomous as the judge found, this is not the test to be employed in determining whether the comment is in the public benefit or if it is reasonable.
Of course, Roberts may well prove all wrong if he can appeal successfully, although he may now face the problem of providing a guarantee for the adverse costs order already made by the court.
Perhaps the most important point of this case is that the existing law of defamation strikes a balance between the protection of the dignity of the individual and the guarantee of freedom of the press. Too often, trial courts have erred in stifling press freedom.
In the context of a very hostile approach by public authority to investigative journalism and the foundational principle of public accountability, the Roberts judgement is of public importance.