Facts
In May 1993, The Star newspaper published a report which alleged that the plaintiff, General Bantu Holomisa, had been "directly involved" in the infiltration into South Africa of an Azanian People's Liberation Army and Transkei Defence Force squad. At the time, the plaintiff was the military ruler of the Transkei, a quasi-independent "homeland". According to the report, this infiltration was aimed at "killing whites" in the Northern Natal region and included a plan to assassinate a top South African official in the Transkei. In 1994, the plaintiff issued summons against the publishers of The Star claiming damages for defamation.
Decision
This judgement concerns an exception. The exception seeks to establish that where a public official (or public figure) claims damages for defamation, it is incumbent on him or her to prove that the defamer had actual knowledge that the matter published was false, or alternatively that the defamer published the matter with reckless disregard as to whether it was false or not - a requirement similar to that in the landmark case of New York Times Co v Sullivan (376 US 254 (1964)).
In essence, Cameron J has established a new defence in the law of defamation: a defamatory statement which relates to "free and fair political activity" is constitutionally protected, even if false, unless the plaintiff can show that the publisher acted unreasonably. The publication of most untrue statements of fact will remain unreasonable. However, "due inquiry" and the application of reasonable care will qualify such statements for protection. The new defence applies to defamatory truths published in the sphere of political activity, which was held to include the conduct of the plaintiff when he was military ruler of the Transkei. Therefore, unless the plaintiff could show the defamation to have been published unreasonably, his claim would fail (p 40). The exception was thus upheld and the plaintiff given two weeks to amend his particulars of claim.
This judgement has an impact on both the law of defamation and the development of South Africa's constitutional jurisprudence. The defendants clearly tried to import the New York Times v Sullivan principle into South African law, namely that in order for a public official to succeed in a defamation action, he or she must prove "actual malice" on the part of the defamer. They sought to ground their exception in the guarantees of s15(1) of the Interim Constitution, which provides for freedom of speech and expression, including freedom of the press and other media. This necessitated a discussion on whether the Constitution applied vertically (between the state and individuals) or horizontally (between private individuals).
Cameron J found by implication that the chapter on fundamental rights did not have an horizontal application and the defendants could not therefore rely on s15(1) to ground the exception. (See pp. 4-8 and De Klerk and Another vs. du Plessis and others 1995 (2) 40 (T).)
However, Cameron J also made the point that in light of the shift from parliamentary supremacy to constitutional competence, a new legal authority has been established, whereby every aspect of legal reasoning and decision-making must necessarily be informed by the structures and values of the constitution. As such, s35(3) which obliges a court when interpreting any law, or in applying and developing the common law, to "have due regard to the spirit, purport and objects of the fundamental rights chapter", becomes more than a mere interpretive directive, and rather a "force that informs all legal institutions and decisions with the new power of constitutional values." (p 9) This reasoning concludes that the values which infuse the Constitution require that a consideration of defamation law must refer to the competing provisions of s15(1), freedom of expression, and s10, the constitutional guarantee of personal dignity.
In order to realize the directive of "developing the common law", as enjoined by s35(3), previous Appellate Division decisions that violate a fundamental rights guarantee may have to be superseded, "even when those rules have been invested with the highest stature of pre-constitutional judicial authority." (p 20. See Dhlomo NO vs. Natal Newspapers (Pty) Ltd and another 1989 (1) SA 945 (A); Argus Printing and Publishing Co Ltd vs. Inkatha Freedom Party 1992 (3) SA 579 (A); Neethling vs. Du Preez and Others 1994 (1) SA 708 (A); Argus Printing and Publishing Co Ltd and others vs. Esselen's Estate 1994 (2) SA 1 (A) and Financial Mail (Pty) Ltd and others vs. Sage Holdings Ltd and another 1993 (2) SA 451 (A).)
The judgement then turns its attention to the question of intention as a requirement of injuria. Consideration of the early Appellate Division cases indicate that the animus injuriandi [loosely translated, the intention on the part of the defendant to cause harm] was satisfied if the defamer "intended to produce the effect of his act" (See Whittaker vs. Roos and Batemen 1912 AD 92). After 1948, the enquiry shifted to the defamer's subjective belief that the publication was justified, as opposed to whether the publication was intended. (See Maisel vs. van Naeren 1960 (4) SA 836 (C); Jordaan v van Biljon 1962 (1) SA 286 (A); Craig vs. Voortrekkerpers Bpk 1963 (1) SA 149 (A) and Nydoo v Vengtas 1965 (1) SA 1 (AD)) The trend towards pure subjectivity was tempered in Hassen vs. Post Newspapers (Pty) Ltd 1965 (3) 562 (W), but in respect of the media, it was later abandoned completely. The cumulative effect of Suid-Afrikaanse Uitsaaikorporasie vs. O'Malley 1977 (3) 394 (A) and Pakendorf en andere vs. De Flamingh 1982 (3) SA 146 (A), was that the media were now strictly liable for the publication of defamatory matter. Cameron J holds however, that the true focus of the enquiry into the wrongdoer's liability for injuria should take place in relation to unlawfulness, and not fault. It conforms with the trend away from subjectivity and towards an objective assessment of the justification for conduct. It is in this context that the new reasonableness test, outlined above, must be viewed.
Invoking s15(1) of the Constitution to ground the exception means that the competing right of dignity as guaranteed by s10, needs consideration, because in the area of defamation, these two fundamental rights must inevitably clash.The Constitution provides no answer on which right should prevail should this occur. Both values are important to a democracy and both are given special protection in the limitations clause, requiring that any limitation on these rights be not only reasonable and justifiable, but also necessary. No absolute standard can be established for determining reasonableness and necessity (See S vs. Makwanyane 1995 (3) SA 391 (CC) at 436 C-D), but the value that receives protection in the balancing process must be that which most closely illuminates the constitutional goals to which we have committed ourselves (p 23). As the Court pointed out, the answer lies in an evaluation of "what is necessary for the working of the constitution and its principles." In that regard, the common law rule enunciated in Neethling, which places the full onus of proving the truth of a defamatory statement on the defendant and which also establishes that there is no public policy defence for the publication of defamatory statements, gives primacy to the value of reputation over that of freedom of expression.This is difficult to reconcile with the importance the Constitution attaches to free speech. The onus on the defendant to prove the truth of the defamation, in the context of political speech, is unreasonable, particularly because of the provisions of s33 that a limitation on such speech must be "necessary" (p 30). Cameron did not however decide on the question of onus as it relates to private disputes between individuals where the defamation is unrelated to political activity.
Explaining his departure from the common law rules enunciated in Neethling, Cameron J gave the following reasons: first, freedom of expression is essential to the democratic process. (See Free Press of Namibia (Pty) Ltd vs. Cabinet for the Interim Government of South West Africa 1987 (1) SA 614 (SWA) at 623F-H and Government of the Republic of South Africa vs. Sunday Times Newspaper and another 1995 (2) SA 221 (T) 227I-228A). The crucial role of the media is recognized by s15(1) which expressly states that freedom of expression shall include "freedom of the press and other media" and s15(2), the aim of which is to prevent the media from becoming a state-controlled, partisan mouthpiece for the government. The requirement that a limitation on the rights guaranteed by s15(1) insofar as they relate to free and fair political activity, be necessary in addition to reasonable and justifiable, buttresses this conclusion. This more onerous test indicates the worth which the Constitution places on the value of a free press as "an indispensable adjunct to free and fair political activity".(p 26).
Secondly, for the same reasons, Cameron rejected the position stated in Neethling, that no public policy-based defence exists to a claim for defamation. He reaffirmed the approach of Coetzee J in Zillie vs. Johnson (1984 (2) SA 186) that public policy may in fact justify the publication and make it lawful, but stated that that defence needed reformulating to say that the question is now whether the constitutional guarantee of free speech justifies the defendant's publication and requires that it be found lawful (p 31). According to Cameron J, this approach also offers a resolution to the conflict created by attempting to balance the freedom of speech with the right to dignity. (See Theophanous vs. Herald & Weekly Times Ltd and another (1994) 124 ALR 1 (HC)). Cameron J however, approved of the position in Neethling that no newspaper privilege exists for journalists, in that they receive no greater immunity than that of the ordinary citizen (p 27).
The new defence, as set out by Cameron J also avoids the problems of defining "public official" or "public figure", because it focuses on the nature of the defamatory statement and not on the status of the plaintiff. If it relates to political activity, it warrants application of the constitutional defence (p 40). The new defence now imposes a duty to see whether in fact a reasonable justification exists for publishing defamatory speech, and if so, s15(1) applies.
Tracy Cohen CALS Media Project
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