The paper had been sued for R250 000 ($38, 461) by the Attorney General of KwaZulu-Natal, Tim McNally, but the case was settled out of court in August, with the AG accepting R50 000 ($7 692). Around the same time, the newspaper was forced to retract statements made against Truth Commissioner Hlengiwe Mkhize and offer a contribution to her legal costs. In both cases, the newspaper reluctantly opted to settle after having been advised that, as the South African libel law stood at present, they stood little chance of successfully defending themselves in court.
The defence the Mail & Guardian would have relied upon is based on the US Supreme Court decision in The New York Times v Sullivan, 376 US 254 (1964), which held that public servants should not be entitled to damages for libel in the absence of malice. The rationale is that it is not in the public interest for the threat of libel proceedings to discourage open debate on the conduct of public affairs Despite having been accepted in many countries that place a high value on robust debate on public issues [See 'Sullivan's Travels', SAMLB Vol.2 No. 1], courts in this region have been reluctant to accept the wisdom of Sullivan. This has resulted in the stifling of the media in its role of public watchdog, since it is virtually impossible to obtain unblemished truth in the short time available for newspapers to publish and pass on information to the waiting public.
As the Mail & Guardian laments in the McNally and Mkhize cases: "The absence of malice in our reporting is underlined by the fact that the 'nub' of the libels… was contained in the headlines and not in the articles as such." In light of the important role played by the press in exposing malpractices by public officials, the case for Sullivan to finally and unequivocally dock on our golden shores cannot be overstated. Sullivan did seem to make a brief appearance in South Africa. In Holomisa v Argus Newspapers Limited, 1996 (6) BCLR 836, the Supreme Court held that, having due regard to the spirit, purport and object of the Fundamental Rights Chapter in developing the common law, a defamatory statement which related to free and fair political activity was constitutionally protected, even if false, unless the plaintiff showed that in all the circumstances of its publication it was unreasonably made.
But there have been conflicting authorities in South Africa since Holomisa [See e.g. Kerzner & Ors v Jonathan Ball Publishers (Pty) Ltd & Anor., SAMLB Vol. 3, No. 1, February 1998] and the law remains unsettled. Perhaps courts and legislatures in the region should follow the example of the South African Press Ombudsman when he states that it would be wrong to withhold information on public figures from the public of any country which aspires to be a democratic and open society. A good starting point would be to incorporate Sullivan.
Njonjo Mue
Article 19
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