/ 23 August 2019

Defamation law’s face is changing

Slander: In 2016
Slander: In 2016, the Economic Freedom Fighters’ Floyd Shivambu (left) was all smiles with Minister Pravin Gordhan (right) and former minister Trevor Manuel. Defaming Manuel changes this. (David Harrison/M&G)



With big-money claims in rapidly heard defamation cases seemingly increasing, legal reporter Franny Rabkin takes a look at why this is happening and what it means

The number of high profile defamation cases seems to have risen sharply in recent months — the result of a combination of factors: the exponential growth of social media platforms, changes to the law and creative lawyering.

Former finance minister Trevor Manuel was awarded a whopping R500 000 from the Economic Freedom Fighters and its leaders Julius Malema and Floyd Shivambu for defamation. The governor of the South African Reserve Bank, Lesetja Kganyago, is suing Nelson Mandela Bay ANC councillor Andile Lungisa for a tweet calling him a “dutiful servant of racialist superiors”. Former cabinet minister Derek Hanekom is suing former president Jacob Zuma for tweeting that he was “a known enemy agent”. ANC secretary-general Ace Magashule is suing over claims that he helped in the formation of a rival political party. Thandeka Gqubule, a former journalist at The Weekly Mail, and one of the newspaper’s founding editors, Anton Harber, are also suing the EFF for saying that Winnie Mandela had said that the two “worked for Stratcom”, the apartheid government’s unit that ran disinformation campaigns.

But there was a time when lawyers would advise against defamation suits — even when there was a good case. The process was expensive and slow. A civil trial can take two years (and cost vast sums of money) to be ready for hearing. By the time it is heard, it is old news. It was far easier and quicker to approach the Press Council’s ombudsman.

Speaking to former Constitutional Court clerks eight years ago about defamation law, senior counsel Wim Trengove put defamation law in its constitutional context. He said the Constitution protects dignity, which includes reputation, and freedom of expression. But these two rights are in tension. To protect reputation you have to limit speech. And to protect free speech you expose a person’s reputation to being defamed. The role of defamation law is to strike a balance between the two.

Under the Constitution, the balance must be struck in a way that “affords maximum protection to both dignity [reputation]and speech. And at the same time, it must limit the two of them as little as possible”.

For a long time, the optimum balance had not been found, said Trengove. One of the problems was that there was only one remedy available under the common law of defamation — a claim for monetary damages. But, the courts have changed this aspect of the law.

The Constitutional Court decided in Le Roux vs Dey that an apology was an appropriate order, opening the way for other types of remedies. In the recent case of Manuel in the Johannesburg high court, Judge Elias Matojane gave a declaration that the statement was false and the EFF leaders were ordered to retract and apologise.

Hanekom is seeking a similar order. He wants the court to declare that Zuma’s statement is false and to apologise on Twitter.

Another interesting feature of the Manuel, Gqubule and Hanekom cases is that they were brought as applications rather than as trial actions. Applications to court are made on paper only, with no oral testimony and no cross-examination as is found in court trials. They proceed much more quickly than civil trials — a day or two at most versus often a week or more — and are much less complicated and expensive. An application to court is usually made when there is no material factual dispute.

Dario Milo of Webber Wentzel Attorneys is the attorney behind these three cases. He says there is no rule that defamation cases cannot be brought by way of application and there is precedent for this. It works “if you don’t anticipate a material dispute of fact”, he says.

But it will be interesting to see how the Gqubule application plays out, because the EFF has directly put this in question, saying the application must be dismissed because there are material disputes of fact. There may be many instances where the only way to go is the long way — a defamation trial — as Kganyago has chosen.

The other thing that made the Manuel case move very quickly is that it was brought urgently. Judges tend to be strict and grill applicants about whether an application is truly urgent. But Matojane had this to say in Manuel’s case: “Mr Manuel is accused of grave allegations … There is no reason why [he] ought to submit himself to further indignities and assaults on his dignity before this matter can be determined. Dignity is not only a value fundamental to the Constitution, but it is also a justiciable and enforceable right that must be respected and protected.”

This seems to set the bar fairly low for when a defamation case may be urgent and may assist Hanekom because his argument on urgency is made on similar grounds.

There has been another huge change in recent years. Social media — where much of the defamation is happening — does not fall under the Press Code, unless the media’s social media accounts are involved. So there is really no way other than court to deal with alleged defamation.

Milo says thought should be given to a faster and cheaper way to resolve defamation cases that arise through publication on social media.

The nature of publication on social media is different — it is fast, it is often unverified, it goes viral. It is, especially in the case of Twitter, robust, to put it mildly. It is also often anonymous. All this needs to be considered when looking at how to find the balance between free expression and dignity.

A part of Hanekom’s affidavit is instructive: “Mr Zuma has over 323 000 Twitter followers. The statements appeared automatically to each of those 323 000 people. The defamatory tweet also received 1 817 comments and was ‘retweeted’ 2 902 times from Mr Zuma’s Twitter account — that is, it was shared and thus republished by 2 902 other Twitter users, many of whom have large followings.”

One of the retweets was from Zuma’s son, Duduzane, who himself has 31 000 followers, said Hanekom.

The sheer reach of Twitter has had an effect on the amounts claimed. Before, courts seldom awarded more than R50 000 to R250 000 for defamation. Now, R500 000 has become the buzz-amount in defamation cases.

Milo said that, in part, this was a result of the law “catching up”.

But also, Matojane, in his judgment refusing the EFF leave to appeal said: “The respondents knew that communication via Twitter is instantaneous, interactive, borderless and far-reaching. This is a significant factor to consider in defamation cases.”

But in that case what seemed to really take the number up was that he found that the EFF leaders had been malicious and motivated by spite.

Hanekom has made a similar claim: “Not only is the statement false, but it is inconceivable that Mr Zuma could genuinely believe it to be true … The statement was malicious.”

It is also worth remembering that quantifying damages is case-specific and is always entirely at the discretion of the court.