Finance Minister Trevor Manuel should have considered asking for an apology rather than a gagging order against arms-deal activist Terry Crawford-Browne, the Cape High Court was told on Monday.
Manuel is seeking an urgent interim order to stop Crawford-Browne from continuing to publicly accuse him of criminal conduct in signing loan agreements for the deal, and from saying he should be charged with corruption.
The application stems from material that Crawford-Browne published in his recent book on the arms deal, Eye on the Money, and on his website in December and January.
Manuel’s senior counsel, Brian Pincus, told judge Andre le Grange on Monday that Crawford-Browne’s remarks were ”serious and degrading”.
”It’s very harmful and it’s very hurtful to be accused of this kind of thing,” he said.
He said the reason Manuel had opted for the interdict rather than a damages claim was that Crawford-Browne was ”a man of straw”, and would not be able to pay should an award be made against him.
However, Crawford-Browne’s advocate, Peter Hathorn, told the court this had alarming implications for the quality of jurisprudence.
It suggested that wealthy people were not subject to the restraints on freedom of speech that might be imposed on people of lesser circumstances.
If Manuel did not want to pursue damages, he should explore the possibility of ”nominal compensation”, or institute action for an apology.
The right of free speech was fundamental to a democratic society, and the order Manuel was seeking would stifle debate on the arms deal and have a ”chilling effect” on Crawford-Browne himself.
A prior restraint should be granted only if Manuel could show there was substantial risk of grave injustice, which he had not done.
Pincus retorted that the notion of an order for an apology did not exist in modern South African law, and that an apology was relevant only in calculating the amount of damages.
He told Le Grange that Manuel did not seek to stop political debate on the arms deal, and there was no objection to Crawford-Browne criticising Manuel and the government.
However, to say the minister should be charged with corruption was highly damaging, and Crawford-Browne had not given the court any justification for his claim.
”If you want to box, box above the belt … we want Queensberry rules,” Pincus said.
Manuel, who did not attend the hearing, said in an affidavit that Crawford-Browne’s allegations ”exceeded the bounds of lawfulness”.
”I have every reason to believe that he will continue doing so [making these claims], and may indeed increase the intensity and frequency of doing so,” the minister said.
In 2004 Crawford-Browne, a former banker, lost a court bid to have the loan agreements set aside, and as a result faced claims for R900 000 in legal costs incurred by the state.
A bid by Manuel to have him sequestrated the following year was unsuccessful after the high court ruled that there was no evidence this would be of benefit to creditors.
Crawford-Browne said at the time that he had spent all his money on his campaign against the arms deal, had no assets apart from a rusty Fiat Uno, and that there was no point in sequestrating him.
Judge Le Grange reserved judgement. — Sapa