Court refuses to ban book

Balance favours freedom of expression over libel claims

Van Zyl and Another v Jonathan Ball
(Pty) Ltd and Others
Case No 99/15462 (unreported)
High Court of South Africa (Witwatersrand Local Division)
30 June 1999

THE HIGH COURT of South Africa, Navsa J presiding, refused to grant an injunction (interdict) barring the distributor and booksellers of a recently published book, which chronicles the applicants' alleged role in the apartheid government, from "disseminating, distributing, selling, or displaying or offering for sale the book." The court was of the view that the requirements for an interim interdict had not been met.

Facts

Abraham van Zyl and Leon Maree ("the applicants") sought an urgent interdict in the Witwatersrand division of the High Court against Jonathan Ball Publishers (Pty) Ltd, CNA and Exclusive Books. Jonathan Ball (Pty) Ltd ("the first respondent") is the distributor of the book Dangerous Deceits which had been on sale for three weeks prior to the court proceedings. CNA and Exclusive Books are booksellers who purchased a number of copies of the book. Only the first respondent opposed the application.

The book describes the applicants as assassins in the employ of the Apartheid State. It states that they sought to eliminate an English businessman, Julian Askin, to prevent him from making damaging disclosures regarding an alleged unlawful liquidation of a South African company, Tollgate Holdings. The applicants contended that specific passages in the book concerning them were defamatory.

The Decision

The central issue before the court was that of striking an appropriate balance between the values of dignity, reputation and privacy on the one hand, and freedom of expression on the other, in the context of the principles that apply to interim interdicts.

The requirements of the discretionary remedy of an interim interdict are: a prima facie right, a well-grounded apprehension of reasonable harm if the interdict is not granted, the balance of convenience favours it being granted, and that the applicant has no other remedy (Hix Networking Technologies v System Publishers (Pty) Ltd and Another 1997 (1) SA 391 (A) at 398I - 399A). The court held that the applicants failed to satisfy these requirements. Navsa J found that on a totality of the evidence, the applicants had not shown a prima facie right to be protected. Instead, the court held that the first respondent laid a "sustainable foundation for [its] averments"; it was able to mount several sustainable defences.

FW de Klerk: last apartheid president

The learned judge found that the defences of truth for the public benefit or fair comment on matters of public interest were apposite. Similar or equal statements to those complained of in the passages in the book were widely available from secondary sources inter alia, judicial inquests and commissions of inquiry, the Truth and Reconciliation Comission (TRC) report and hearings, newspaper articles (in print and on the internet), and a book authored by Jacques Pauw.

There was also considerable media coverage of the court proceedings. (The applicants had not sought an in-camera hearing). The publication of such statements, which related to the estimation of the applicants in the public's eye, could therefore not be disputed. The court also found that these secondary sources indicated that the veracity of the impugned passages could possibly be established. Moreover, although the "applicants complain that they have been branded as murderers and criminals which they deny in toto… they do not object to passages in the book which assert criminal conduct on their part as being defamatory". This too weighed against them.

Navsa J also looked favourably on the defence of reasonableness. Notwithstanding the fact that the applicants were not informed or given an opportunity to respond prior to the distribution of the book, the court held that it was "not inconceivable" that such distribution was done reasonably without intention to injure and that the publication of the impugned statements in the particular manner and time was reasonable.

The court premised this finding on two unchallenged statements of the first respondent: firstly, that it had discussed with the publisher steps which were taken to establish the accuracy of statements in the book, and secondly, that it had viewed favourable opinions of counsel confirming that the contents of the book were not defamatory. As to requirements of harm and balance of convenience, the court held that "the fact of other extensive continuing publication is not unimportant… given their notoriety, the applicants customers, clients or associates would by now have heard, seen or come to know about the assertions in these other publications and that it is unlikely that they will now be deserted or suffer pecuniary loss as a result".

However, the respondents would likely have suffered at least wasted marketing costs as well as depreciation in the currency of the book were the interdict granted. "More importantly,… the granting of relief will silence the media on matters that are current". On the basis of these considerations, the court concluded that the balance of convenience favoured the first respondent. The court also took into consideration the fact that the applicants were not without another remedy. They failed to claim damages against either the first respondent or other publications that mentioned them in a similar manner. For these reasons Navsa J refused to grant the interim interdict.

Commentary

The court's refusal to muzzle the media "on matters that are current" is most welcome. The decision reinforces the heightened protection that South African courts have sought to give to political expression (see Mandela v Falati 1995 (1) SA 251 (W) at 260C-D, Gardener v Whitaker 1995 (2) SA 672 (E), and Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W); cf National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA)). Indeed, questions concerning the covert activities of the Apartheid State and its alleged agents are overtly political. However, perhaps too great a store ought not to be placed on the court's statement that the media should not be silenced on matters that are current. Firstly, the court expressly articulated this factor only when assessing the balance of convenience.

Secondly, Navsa J concluded by sounding a warning to the media: "The conclusions I have reached and the order I intend to make should not be seen as licence to the media to publish and distribute any statement regardless of harm to others. The media should be aware that courts would not hesitate in appropriate circumstances to protect the dignity of those who rightfully seek their protection".

Faizel Ismail
Legal Researcher