Zim ConCourt finds criminal defamation is 'unconstitutional'

Media freedom. (AFP)

Media freedom. (AFP)

The ruling, involving two Zimbabwean journalists, has resonance in South Africa where a case of criminal defamation, also involving a journalist, is due to be heard in the Pretoria High Court at the end of July. Even more significant is that the Zimbabwe Constitutional Court quotes portions of an article carried in the Mail & Guardian and co-written by a member of the law firm representing the South African journalist entitled “The Dangers of Criminalising Defamation”, to -support its ruling. 

The case in South Africa, involving Sowetan journalist Cecil Motsepe, has attracted the attention of numerous organisations, who are concerned it will inhibit free speech. Many of these organisations have asked to join the case as friends of the court.

Motsepe is appealing in the Pretoria High Court against his conviction for criminal defamation, which saw him sentenced in the Nigel magistrate’s court to R10 000 or 10 months’ imprisonment, suspended for five years. 

Dario Milo, partner and media law expert at Webber Wentzel said the case was an important one for South African media freedom. 

“The very existence of the crime of defamation in South African law restricts media freedom because it creates a potent chilling effect on investigative, public interest journalism. Our courts would do well to adopt the approach of the Zimbabwean Constitutional Court to criminal defamation, and this opportunity, at least in cases of criminal defamation charges against the media, presents itself in the Cecil Motsepe case.” 

Milo believes the decision by the Zimbabwe Constitutional Court “will certainly play an important role in seeking to persuade the high court hearing the Motsepe case that the crime of defamation against the media should no longer be tolerated in our democracy”. 

The Zimbabwean case followed an application by the former editor of Zimbabwe newspaper Standard, Nevanji Madanhire and one of its reporters Nqaba Matshazi, for a -permanent stay of prosecution on charges of contravening section 96 of the Criminal Law Act.

In a judgment on June 12 by Justice Bharat Patel, supported by the full bench, found in favour Madanhire and Matshazi, found criminalising defamation contravened of Section 20 (2) of the former Constitution, which dealt with freedom of expression.  “I take the view that the harmful and undesirable consequences of criminalising defamation, namely the chilling possibilities of arrest, detention and two years’ imprisonment, are manifestly excessive in their effect,” Patel said. 

Madanhire and Matshazi were arrested and charged followed the publication of an article concerning former Reserve Bank Governor’s advisor, Munyaradzi Kereke, which stated that the Green Card Medical Aid Society, of which Kereke is founder and chairman, was unable to pay its members and staff or its creditors, and was on the brink of collapse. 

Patel in his judgment quoted from an article written by Vinayak Bhardwaj (of the Mail & Guardian’s amaBhungane) and Ben Winks (of Webber Wentzel attorneys), carried in the newspaper’s November 1 edition. 

“Civil law exists to provide relief and restitution when one person harms or threatens to harm another’s private interests. Criminal law exists to ensure retribution and protection of the public, by detaining offenders and deterring others from offending,” the article said. 

“For assault, imposing imprisonment or supervision is essential to protect the victims and the public at large. For damaging speech, however, the civil law is as effective, if not more so, in providing the public with proportionate protection from offenders.”

Patel said there is an “appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation… in short, it is not necessary to criminalise defamatory statements”.

The effect of the judgment is to strike down section 96 of the Code under the former Constitution, which still applied when the Zimbawean journalists were charged. Patel said the constitutionality of the provision is yet to be tested against the new Constitution, which at first glace is less protective of freedom of expression than its predecessor. 

South African journalist Motsepe wrote some articles on a magistrate Marius Serfontein, in which he accused him of favouring a white employee over black employees at the court. He then accused Serfontein of handing out different penalties to offenders based on race.

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