Comfort for the high and mighty?

Console Tleane

Published in Business Day, 6 August 2004

ON THE face of it, the Supreme Court of Appeal’s judgment delivered on Monday in the matter between former housing minister Sankie Mthembi-Mahanyele and the Mail & Guardian newspaper sounds reasonable and just.

While dismissing the appeal brought by Mthembi-Mahanyele in her attempt to sue the Mail & Guardian for allegedly defaming her good name, the court ruled that cabinet ministers have the locus standi (legal right) to sue other parties in cases when they feel that their good names and dignity have been defamed.

The case arose from a December 1998 scorecard compiled by the newspaper in which it stated that the former minister “(had) shown that she cannot deliver on one of our key delivery ministries”. The newspaper argued that Mthembi-Mahanyele offered a major housing contract in Mpumalanga to a close friend and fired a director-general who questioned some irregularities in the project.

The question that arises is; what does the judgment mean for freedom of expression, particularly political speech, and more specifically, what does it mean for media freedom?

Mthembi-Mahanyele said she would contest the second and major section of the judgment, which dismissed her appeal with costs because her intention to sue the paper was not “actionable”.

The court made an important and far-reaching observation that publication of the scorecard was justifiable and reasonable. It held that “freedom of expression in political discourse is necessary to hold members of government accountable to the public. And some latitude must be allowed in order to allow robust and frank comment in the interest of keeping members of society informed about what government does”.

The judgment stated that “errors of fact should be tolerated, provided that statements are published justifiably and reasonably: that is with reasonable belief the statements made are true”.

It is difficult to dispute the section of the judgment which rules that cabinet ministers have the right to sue for defamation in their personal capacities. Yet, this ruling should be looked at together with or against other factors that will come into play whenever other parties, be they newspapers, interest groups or even private citizens, express views that might be deemed “defamatory” by cabinet ministers.

It is not unlikely that the new right won by cabinet ministers will be used to “silence” those who might want to express robust views against them. Given the relative power that ministers hold in society, and their access to resources, even in their private capacities, it will not be unreasonable to argue that some might use these to close down debate. Small and struggling media outlets might start self-censorship out of sheer fear of being sued.

Groups such as the Treatment Action Campaign might be forced to tone down on their rather robust expression — which many will agree has been an effective advocacy and lobbying tool — for fear of being sued.

This being an appeal court judgment, it will surely open flood gates for more precedent-setting cases which will have the net effect of giving powerful individuals in society an escape route from being confronted in public and accounting for their actions.

The judgment, which dismisses Mthembi-Mahanyele’s application for leave to appeal against the high court judgment that ruled that she cannot sue, is welcome. For the appeal court, her intention is not actionable, even though the court found the Mail & Guardian might have made implications to the effect that she was directly involved in the Mpumalanga housing scandal, a point that the court ruled was in spite of fact.

It is important that the right of the media to express views that might be uncomfortable for the most powerful sections of our society is respected and protected. While some may want to argue the media should not be treated any differently from other sections of society, which is of course not what the media is saying, it is important to fully understand the role the media plays — informing the public and providing a platform for open, robust and frank debate.

Usually, the erosion of the democratic ethos, including the right of citizens to express themselves, starts with a clamp-down on the media. In some cases this takes the form of outright harassment.

In a number of countries there is a growing trend of a more subtle form of intimidation in the form of lawsuits from powerful members of society, including cabinet ministers and MPs.

One can only hope that the media in SA won’t face such levels of harassment. It seems unlikely Mthembi-Mahanyele will win her Constitutional Court case.

The right to freedom of expression is well protected in section 16 of the Bill of Rights. An examination of even the limitations in section 16, together with section 10 (the right to human dignity), and section 36 (limitation of rights), does not suggest that Mthembi-Mahanyele stands any chance of making a convincing legal argument at the highest court of the land to sue the Mail & Guardian.

The appeal to the Constitutional Court is unlikely to pass the constitutional strictures.

Tleane is the head of the research unit at the Freedom of Expression Institute.