You wouldn’t know it if you visited Barry Aaron’s Sandton law offices, but South African courts have been setting some fine precedents on how press freedom functions within the carefully poised architecture of the Bill of Rights.
Nevertheless, Aaron’s clients pay to keep him in the tawdry pastiche of Nelson Mandela Square because he has developed a routine legal product for delaying the appearance of their names in the Mail & Guardian. Libel sticks, the counsel he briefs tend to say as they press for yet another urgent interdict, and remedies after the fact never really repair the harm.
That argument is to our Constitution what the grinning bronze of Nelson Mandela that commands the square is to sculpture (not to mention the man): an obvious and expensive affront. The courts have by and large seen it as such, ruling that the right to dignity can only limit the right to free expression under the most compelling circumstances. Those circumstances do not include the desire to keep from public knowledge evidence that you are undignified in your attitude to public money.
Occasionally, however, a plaintiff wins a reprieve when m’lord or m’lady hasn’t been paying attention to what has been going on at Constitution Hill or Bloemfontein.
So an interdict is worth a punt: the turnstiles at those glamorous offices keep turning and, in the urgent courts, the midnight oil keeps burning. Instead of gathering news, journalists waste their time fighting for the right to disseminate it. That is a serious problem, and not because the press has some superior status.
”The constitutional promise is made rather to serve the interest that all citizens have in the free flow of information, which is possible only if there is a free press. To abridge the freedom of the press is to abridge the rights of all citizens and not merely the rights of the press itself,” the Supreme Court of Appeal recently remarked. A court may not, when rights compete, elevate one right over another, although it may limit the exercise of a right under very special conditions.
The recent progress of the Film and Publications Amendment Bill through the legislative machinery — replete with strident pronouncements about balancing freedom of speech with the imperative to protect children from pornography — suggests that the executive branch and many in Parliament have a tin ear for these constitutional niceties. That some in the judiciary are similarly tone deaf, despite the precisely annotated score provided by our highest courts, suggests that we still suffer from a transformation problem.
This, as the ANC might say, is a question of mindset. More precisely, a pre-constitutional mindset conforming to Roman-Dutch (and sometimes British) precedent in putting reputation, privacy and state secrecy ahead of free speech.
Last week Judge Lettie Molopa granted an interdict to Aaron client and SABC legal chief Mafika Sihlali. It prevented the M&G from publishing details of a report suggesting that Sihlali had defrauded the broadcaster of nearly R2million. Sihlali would be ”destroyed” if the allegations were made public, said Molopa.
Is it possible she was confusing the Roman law concept of dignity — essentially status and reputation — with the constitutional concept, which deals rather with fundamental humanity?
We all have a right to be treated in accordance with our basic humanity, but we clearly do not all have a right to be perceived as people of integrity. Some of us, after all, are crooks. Perhaps Sihlali’s reputation is less worthy of protection than the polity the SABC purports to serve.
South African judges and legal scholars are wary of admitting American precedent, because the first amendment has a special status in the United States Constitution in a way that our right to free speech does not. But a US-influenced attitude to the virtues of openness might help in the development of our juridical values.
In its celebrated 1964 judgement in Sullivan v The New York Times the US Supreme Court concluded: ”Debate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” The protection of such speech under the Constitution, the court unanimously held, remained in place even when factual errors were published, so long as there was no actual malice — that is, wilful disregard for the truth.
If that sounds a little strong, consider this: LB Sullivan was suing The Times over an advertisement placed by civil rights activists who were trying to raise funds for the defence of Martin Luther King. The advertisement painted the police under Sullivan’s command as a gang of racist thugs, and it did contain a few inaccuracies (knowledge of which hardly tends to alter the prevailing impression of the cops).
The Sullivan decision is widely credited with enabling the US press to shine a light on state-sponsored racism in the South in a way that had previously been deemed far too legally risky. That coverage in turn was crucial to the success of the civil rights movement.
How’s that for judicial transformation?