An appeal judgment in favour of the Mail & Guardian last week gives succour to journalists often uncertain about whether suspects can be named before they appear in court.
Former MTN South Africa chief executive Maanda Manyatshe appealed against a high court judgment dismissing his attempt to gag the M&G three years ago.
He lost his MTN job when the M&G published allegations of tender irregularities while he was chief executive of the Post Office. Manyatshe persisted with an appeal, claiming that it was vital to restoring his reputation and that important legal principles were at issue.
In a unanimous judgment last Thursday Supreme Court of Appeal Judge Fritz Brand agreed with the M&G that an appeal which “will have no practical effect — ought to be dismissed on this ground alone”.
But Brand made findings that help to demarcate — and arguably expand — the space for journalists to name suspects.
The article Manyatshe failed to gag included revelations that his Post Office successor, Khutso Mampeule, had laid criminal charges against him. Publishing the article, Manyatshe argued, contravened the principle, enunciated in the SCA’s 2004 Independent Newspapers Holdings v Suliman verdict, that a suspect may not be named until he or she appears in court.
In the Suliman matter Judge Robin Marais had buttressed the rule constitutionally, saying that the premature disclosure of a suspect’s identity can be so “traumatic that the constitutional right to dignity and privacy and the common law right of reputation outweigh the media’s right to inform”.
But Marais allowed for exceptions, saying the media might be justified in warning when a doctor was alleged to endanger patients’ lives or the incumbent of a “high-profile public office” allegedly abused the public trust.
Manyatshe argued that as MTN chief executive he was not covered by an exception. But Brand found that “the interpretation of Marais JA’s judgment contended for by the appellant is far too wide” and the Suliman rule did not cover his case.
Brand made a distinction: Walleed Suliman, the plaintiff in the Suliman matter, “was arrested by the police as a suspect of a crime”. Prematurely reporting this was defamatory as “it would lead the reasonable reader to infer that the police believed, on reasonable grounds, that the arrested person committed the crime”.
But the allegation that a criminal charge had merely been laid against someone would have a lesser impact on the reasonable reader.
Brand awarded costs to the M&G.