FXI Law Clinic Cases
The FXI has contributed to the body of knowledge on freedom of expression in South Africa through cases undertaken by the FXI Law Clinic. The FXI Law Clinic has intervened in over 200 freedom of expression related matters since its inception.
Brief history of the FXI Law Clinic
The Media Defence Trust was established in 1989 in response to the wave of state action against the media, such as the closure of newspapers and detention of journalists. In its six years of establishment the Media Defence Trust was the sole supporter and defender of independent media and journalists. The Media Defence Trust was incorporated into the FXI in 1994, at the request of its administrators, and became the Defence Fund of the FXI. The Defence Fund was re-launched as the Freedom of Expression Defence Fund in 1997 to reflect the broadening of its role to include all cases involving freedom of expression and access to information. The Freedom of Expression Institute Law Clinic was established in 2005 and is accredited by the Law Society of South Africa.
Media 24 and SA Taxi Securitisation (PTY) LTD
Media 24 published an article sharply criticizing the conduct of SA Taxi Securitisation (Pty) Ltd. and accusing it of, inter alia, "cheating taxi operators." SA Taxi thereafter brought suit against the news source and its editors for (1) general damages under the law of defamation (based on an actio iniuriarum) and (2) special damages (based on an actio legis Aquiliae for patrimonial loss).
The court unanimously held that a plaintiff who seeks to recover special damages for an allegedly defamatory statement must prove all elements of an Aquilain action. Since SA Taxi did not establish that the defamatory statements were false, it did not meet its burden of proof and could not succeed on the Aquilian claim.
With respect to general damages, the court debated the validity, extent and the form of such remedies in cases involving corporations accusing other entities of defamation. The amici curiae (including the Freedom of Expression Institute) argued that the protection granted by the law of defamation should not extend to corporations because this would inevitable have a chilling effect on the constitutional right to free expression and free press (see section 16 of the Constitution). While individuals have a simultaneous right to reputational dignity (see section 9 of the Constitution), which the law of defamation protects, juridical persons (such as corporations) do not suffer hurt feelings or reputational harms in the same way. Based on this proposition, the amici curiae argued that the growing power of corporations should be kept in check by allowing others to criticize without fear of litigious action.
The majority of the court disagreed, citing a long line of contrary precedent as well as the need to balance free expression with other fundamental concerns. Judge Brand also pointed to the modest amount of potential damages (R250 000) in support of his contention that defamatory actions would not chill speech or free press. Despite the majority's inclination to grant general damages in similar cases, it did not do so in this action, ultimately finding of the defendant.
The dissent did not agree that general damages should be awarded to corporations in defamatory claims. Instead, Judge Nugent contended that alternative remedies, such as retractions or apologies, should suffice in most cases. An award of general damages appears to be punitive, and thus, barred by South African law. To support his position, Judge Nugent pointed to the practices of other countries (e.g., Australia), which generally do not allow defamation claims to be brought by corporations.
Open/View PDF (Media-24-v-SA-Taxi-Securitisation-(PTY)-LTD.pdf)
July 05 2011 By Freedom Of Expression Institute media 24, SA Taxi securitisation