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30 A Practical Guide to Media Law

The media defendant may rebut the presumption of intention by proving that the defamatory material was published without the intention to defame the plaintiff; for example, where the defendant was mistaken as to the identity of the plaintiff or the content of the allegation, as long as the mistake was not due to the negligence of the defendant. The traditional defences available to the media will now be considered in more detail.

2.4 Truth for the public benefit (or in the public interest)
Defamatory statements that are true, or substantially true, and published for the public benefit, cannot give rise to a successful defamation action, and the defence of truth and public 52 benefit is a complete defence to a plaintiffs claim. It is not necessary for a plaintiff to prove that the published statements are true in every respect. The rationale for this is that a plaintiff is not entitled to recover damages in respect of an injury to a reputation which he does not deserve. Consequently, the defendant need not justify immaterial details or mere expressions of abuse which do not add to the sting and would produce no different effect on the mind of the reader than that produced by the sub53 stantial part justified. What is required is that the main thrust of the defamatory statements, 54 or the material allegations, or the sting, must be true. The fact that there is some exaggeration in the language used by the defendant will not deprive him of the defence, provided the exaggeration is not calculated to convey the wrong 55 impression to the detriment of the plaintiffs reputation. This principle is well illustrated in the SCA decision in Times Media Ltd and Others v Nisselow.56 The Sunday Times published an article under the heading Cook that spoiled games broth and a placard reading Poisoned kids cook found. The article was about events at a meeting of the All Africa Games, attended by 600 children from around the country who were engaged to perform at the opening ceremony. It said that the event was catered for by the plaintiffs, who served the children beef stew, pap, and fruit juice. A large number of the children took ill within an hour of having consumed food provided by the plaintiffs, and many were taken to hospital. At the hospital, the children were treated by Dr John Boden, a trauma physician, who was reported to have said to my mind this is the biggest medical disaster of its sort I have ever come across. The article alleged that the caterers refused to take responsibility for the fiasco until the food had been tested, and that a professor at the Johannesburg Hospital, who was head of disaster planning, believed that the respondents stew was to blame. The plaintiffs sued the Sunday Times for defamation, claiming that the article was defamatory because it conveyed to the readers of the newspaper the following meanings: that the beef stew that it served was poisonous; that they were negligent; and that notwithstanding the resultant illness of the children, they continued to serve the beef stew, implying that they were callous and negligent, causing the biggest medical disaster of its sort. ___________
52 Unlike e.g. the defence of qualified privilege or protected comment, which may be defeated if a plaintiff can establish malice or improper motive on behalf of the defendant. 53 The Johnson case at 206. 54 At 204. 55 At 206207. 56 [2005] 1 All SA 567 (SCA).

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The SCA found that the article was defamatory, but that the caterers had established only the following meanings or stings of the article: that the samples of the food smelt awful and looked appalling; and that the food-poisoning incident, for which they were responsible, was the biggest medical disaster that Dr Boden had ever seen. In upholding the principle that the requirement for the justification of defamatory matter is substantial truth and not absolute truth, the Court found that the newspaper was able to establish, through the evidence of Dr Boden, that this was one of the biggest medical disasters faced in the number of patients affected by the medical condition. The Court found that this meaning was therefore true. As to the sting that the food smelt awful and looked appalling, the newspaper was able to establish through the evidence of various witnesses that the food did not look wholesome; that it looked sour; and that something was not right with the food. The Court accepted that this evidence was substantial proof of the allegation that the food smelt awful and looked appalling. Relying on the principle that even if the words used are exaggerated, provided the essential facts are proven to be true, the defence applies, the Court therefore found that the newspaper had established the truth of the allegations. There was no dispute that the article was in the public interest. Unlike the law in England, South African defamation law does not recognise truth in itself as a complete defence to defamation, and the public benefit or public interest element must be present if the defence is to succeed. Where the reportage relates to the conduct of politicians, public servants and public figures, proving that the publication of defamatory material is for the public benefit should not be 57 problematic. However, the courts have repeatedly cautioned against confusing material in which the public has an interest with material which is interesting to the public.58 Where defamatory material concerns private individuals, there is room to prove that the publication engages the public interest by reference to surrounding circumstances, in particular the time, the manner and the occasion for the publication. This issue has arisen in the context of whether it is in the public interest to name a person suspected of committing a crime before the suspect has appeared in court. In the Modiri case, the Court was required to consider whether the publication of defamatory material was in the public interest. The article in the Daily Sun containing the defamatory material commenced by informing the reader that the Mangaung police are getting on top of the crime situation in the Bloemfontein area. It then proceeded to convey some general information about police business, which it ascribed to a senior police officer, Superintendent Adam Wiese. Thereafter, it continued with the following statements which eventually gave rise to the defamation action:
Daily Sun readers in the area are asked to help the police in catching Stanford Modiri, who is allegedly involved in drug dealing, cash-in-transit heists and car theft. Wiese said: We will catch

57 See the Mthembi-Mahanyele case. 58 The Bogoshi case at 13 and Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another [1993] 2 All SA 109 (A). Good examples of this distinction can be found in the cases that are dealt with in para 3.5.1. See in general for discussion of this distinction, Milo D, Defamation and Freedom of Speech (2008) at ch IV.

32 A Practical Guide to Media Law him, but it would be great to have some help. The problem is that he uses other people to do his dirty work for him.

The Court first had to consider the implication of the general rule that had been set in the earlier decision in the Suliman case, which was that it was not in the public interest or for the public benefit that the identity of an arrested suspect be made known prematurely, in particular before the suspect appeared in court. The Court said that this general rule was not an immutable rule, and each case had to be determined on its own merits. There were cases where it would be in the public interest to disclose the identity of the suspect prior to the suspects appearance in court, and there would be other cases where it would not be in the public interest to disclose such identity. The Court continued that the public interest element of each case, ultimately, had to be considered on its own facts and merits, and guidelines, general rules or starting points could not be of assistance in determining the public interest element of a case. In amplification of 59 this statement, the Court gave the following example:
In the case of mere suspicion held by the police the court may well come to the conclusion, in a particular case that the right to dignity of the suspected person outweighed the publishers right to freedom of expression. This may happen in a case where, for example, it is found to be true that the police held the suspicion, but that the suspicion was based on no more than unfounded allegations by a meddlesome neighbour or antagonistic police informant. If in that case publication of the unfounded suspicion then wrecked the reputation of the suspected person or destroyed his or her career, the defence of truth and public benefit is most likely to fail. On the other hand a blanket ban against publication of police suspicion may very well impede the press in the performance of its vital function to ferret out corruption, dishonesty and graft whenever it may occur and to expose the perpetrators.

In finding for the Daily Sun, the Court found that publication of the suspicion held by the police was for the public benefit because it was not based on a nosy neighbour or flimsy grounds; nor was the police suspicion confined to a single, isolated incident. In addition, the Court said that the publication of the polices suspicions could serve the purpose of persuading members of the community to come forward with potential evidence against the plaintiff, which the police so eagerly sought. Even though it may be in the public interest that the truth about the character or conduct of an individual should be made known, defamation law allows a person to live down his past, and the courts have held that to re-publish past misdemeanours may not be in the public interest, 60 because the worst characters sometimes reform. This principle would not apply to the commission of recent offences, as the Court found in the McBride case,61 which is discussed below.

2.5 Reasonableness
The decision in the Bogoshi case established the reasonableness defence for the media. The reasonableness defence is also sometimes referred to as the media privilege defence. The

59 The Modiri case at para 23. 60 Graham v Ker (1892) 9 SC 185. 61 The McBride case at para 109.

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essence of the defence is that a media defendant will not be held liable for the publication of false and defamatory statements if, in publishing the defamatory statements, it acted without negligence, and in all the circumstances the publication of the defamatory material was reasonable. In an assessment of the reasonableness defence, a court will look at all the circumstances at the time of publication. The defence is described by Hefer JA in this oft-quoted extract from the 62 case:
In my judgment we must adopt this approach by stating that the publication in the press of false defamatory allegations of fact will not be regarded as unlawful if, upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time. In considering the reasonableness of the publication account must obviously be taken of the nature, extent and tone of the allegations. We know, for instance, that greater latitude is usually allowed in respect of political discussion (Pienaar and Another v Argus Printing and Publishing Co Ltd 1956 (4) SA 310 (W) at 318CE), and that the tone in which a newspaper article is written, or the way in which it is presented, sometimes provides additional, and perhaps unnecessary, sting. What will also figure prominently is the nature of the information on which the allegations were based and the reliability of their source, as well as the steps taken to verify the information. Ultimately there can be no justification for the publication of untruths, and members of the press should not be left with the impression that they have a licence to lower the standards of care which must be observed before defamatory matter is published in a newspaper. Professor Visser is correct in saying (1982 THRHR at 340) that a high degree of circumspection must be expected of editors and their editorial staff on account of the nature of their occupation; particularly, I would add, in light of the powerful position of the press and the credibility which it enjoys amongst large sections of the community. I have mentioned some of the relevant matters; others, such as the opportunity given to the person concerned to respond, and the need to publish before establishing the truth in a positive manner, also come to mind. The list is not intended to be exhaustive or definitive.

The reasonableness of a publication can therefore be evaluated by answering the following question: Was it reasonable to publish the particular facts in the particular way at the particular time? What follows is a non-exhaustive list of factors relevant to determining the reasonableness of a publication:63 The nature of the defamatory allegations: Publication of the allegations must be in the public interest. Where political discussion is concerned, greater leeway is allowed. However, the more serious the allegations made, the greater the duty on the journalist to ensure that the allegations that are ultimately published are true. The source of the information and whether the source is reliable: At least the following questions should be asked: Did the source have first-hand knowledge of the information? If the information is not first-hand, is there corroboration from an alternative source? Does the source have an ulterior motive or an axe to grind? Where is the source placed in relation to the facts? Does the source have a good track record with providing information to the publication? ___________
62 The Bogoshi case at 14. 63 This is not a closed list of considerations, and as the defence of reasonableness develops, more considerations will emerge.

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What is the moral character of the source? How reliable is the source? Would there have been have any reason to doubt the truthfulness of the defamatory allegations made by the source? Where documents are relied on as sources of information, the following questions should, depending on the facts, be asked to test the integrity and reliability of the documents: What are the documents? What is the context in which the documents arise? Are they authentic? Has the journalist read the documents in full? What is the status of the information in the documents, for example is the document an interim report, a final report, a signed letter, an unsigned letter? Is the document an affidavit that has been properly attested before a commissioner of oaths, or is it a written statement? Who provided the documents to the publication, and do these sources have an ulterior motive? Are obvious documents (such as annexures which are referred to) missing, and if so, why? The right of reply: At least the following questions should be asked by the media defendant: Was the subject given the right of reply? Have all the material allegations been put to the subject for comment? Was the subject given a reasonable opportunity to respond? If the subject provided a response, was a fair and accurate reflection of the response incorporated into the article? The media, in publishing critical reportage, is generally under a duty to include the essence of the subjects response. It is not necessary to publish the subjects verbatim response, especially where time and space is constrained, and the response may be summarised. However, the more comprehensive the summary of the subjects response, the better the chances of being able to discharge the medias obligations in the reasonableness defence. The circumstances of the publication including the timing: Was there an urgent need to publish the article before the truth could be established in a positive way? The scoop value of the article will seldom count as a factor justifying premature publication, but courts will take into account the pressures of a busy newsroom publishing breaking news. Similarly, a higher standard of care may be demanded of publishers such as book publishers, where there may be more time to verify allegations. The tone of the article: Allegations which cannot be positively confirmed prior to publication should not be portrayed as declarations of fact; they should rather be reported on as allegations yet to be conclusively confirmed. Cautious language should be used, and the 64 words used must be carefully chosen to reflect the correct meaning. The tone of the article must also correctly reflect the extent to which allegations have been positively ___________
64 See the discussion at paras concerning meaning.

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established. So, for example, where there is a pressing need to publish before positively establishing the truth of allegations, the tone of the article can report on the allegations as allegations that raise questions, or call for an investigation, rather than adopt allegations as statements of fact. Three cases involving the reasonableness defence are now discussed. The first is Lady Agasim 65 Pereira v Johnnic Publishing Eastern Cape (Pty) Ltd, a case in which the Court was critical of the manner in which the publication conducted itself, finding that the publication fell seriously short of meeting the requirements of the reasonableness defence. 66 The second case, namely Sayed v Editor, Cape Times, is a case which the Court described as an exemplary illustration of the manner in which the press are enjoined to conduct them67 selves. 68 The third case, Malema v Rampedi and Others, is the most recent reported decision where the reasonableness test set out in Bogoshi was applied. It is also useful as an example of how the Bogoshi defence is applied in the context of an urgent interdict. In the Lady Agasim Pereira case, the plaintiff, who came from Port Elizabeth, was married to an affluent and somewhat controversial businessman, who had a number of international business interests and properties abroad, as well as in Port Elizabeth. The Herald published a number of articles concerning the plaintiffs husband, claiming that he was reported to have been charged with a number of serious and unusual offences. The charges were unfavourable to him and portrayed him as a person of dubious character and business ethics who caused his former business partner and his family a great deal of trauma. In response to these articles, the plaintiff wrote a letter defending her husband, and calling the newspaper a tabloid not worthy of being called the press, and circulated the letter within the Jewish community in which she and her husband lived at certain times of the year. This letter reached the newspaper, and it decided to investigate the plaintiff. The journalist uncovered a serious family feud involving the plaintiff and her mother, and, based on her investigations, wrote an article entitled High flying baroness disowned by bitter mom. The article was found to be highly defamatory of the plaintiff, discrediting her, vilifying her, and describing her in an unfavourable light. The plaintiff sued the newspaper for defamation, and it raised the reasonableness defence. In rejecting this defence, the Court took issue with the publication in the following respects: The journalist relied on the plaintiffs mother as her only source of information, when the mother was an embittered person who had severed links with her daughter and was therefore a major protagonist in the family feud. In all the circumstances, the Court found that it was not reasonable for the publication to rely on the plaintiffs mother as the source of the information. In the article, the journalist described her source as a close family friend when, in fact, the source was the plaintiffs mother. The Court said that even though the mother did not want to be identified, this could not be a justification for an untruth which does not have the 69 effect of merely withholding the identity but in fact misleads as to the source. ___________
65 66 67 68 69 [2003] 2 All SA 416 (SE) (referred to hereafter as the Lady Agasim Pereira case). [2003] 4 All SA 86 (C) (referred to hereafter as the Sayed case). At 92. 2011 (5) SA 631 (GSJ) (referred to hereafter as the Malema case). The Lady Agasim Pereira case at 423.

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The journalist failed dismally in her attempts to contact the plaintiff for comment, and failed to provide her with a right of reply before publishing. Even though the plaintiff was abroad at the time, it would have been very easy for the journalist to contact her. The journalist failed to seek any corroboration of the information provided to her by the plaintiffs mother. The Court said it must have been obvious to the journalist that the plaintiffs mother was using the opportunity to vilify the plaintiff, giving all the more reason for the journalist to verify the statements made with other family members or with persons to whom the plaintiff was well known. There was no public interest in the publication of the content of the article because the allegations were of a private and personal nature. The Court said that even though there would have been members of the public who found the personal affairs of the plaintiff interesting, it was not in the public interest to publish the information concerning the plaintiffs personal and private affairs. The plaintiff was not a prominent and newsworthy person, despite the fact that her husband had been in the news. The journalist could not argue that the letter the plaintiff had written in defence of her husband made her a newsworthy subject, because none of the journalists had known of it. In the Sayed case, the Cape Times published two articles, one of them entitled Strange story of dodgy diplomat. The articles stated that the plaintiff was a bogus diplomat, a crook, an impersonator, that he had masqueraded as the Honorary Consul for Malawi and was involved in an international car theft syndicate. The articles were based on the contents of a pack of documents which the journalist had anonymously received. The plaintiff sued the newspaper for defamation. The journalist had sought to verify the authenticity and integrity of the documents with a senior police official and the Malawi High Commissioner for South Africa, both of whom confirmed the authenticity of the documents. The journalist also attempted to obtain a reply from the plaintiff, spoke to him on a number of occasions and asked him to respond to allegations, but he did not do so. The journalist was also personally present when the police attempted to execute a warrant of arrest that had been issued for the arrest of the plaintiff regarding his involvement in organised crime. The Court found that the matter was clearly in the public interest. The plaintiff claimed to hold public office; in fact, he held himself out to be a diplomat. The Court said that it was clearly permissible for the press to be able to report on corruption and abuse of public office, including someone who misrepresents to the public that he is the Consul-General. In dismissing the plaintiffs claim, the Court concluded that:
[T]his case is an exemplary illustration of the manner in which the press are enjoined to conduct themselves in circumstances where they seek to hold public officials accountable to the principles of public integrity and at the same time fall within the test of reasonableness as outlined in the 70 Bogoshi case . . .

The Court also said that:

It is difficult to see what further measures could have been taken by the reporters and by 71 defendants to ensure the reasonableness of the publication.

70 The Sayed case at 92. 71 Supra.

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In the Malema case, the City Press newspaper, in preparing to publish an article, sent the applicant, Julius Malema, former president of the African National Congress Youth League, a list of questions relating to his relationship with his Ratanang family trust. Malema did not respond to the questions, and approached the High Court to interdict the publication of any article that included allegations that were made in some of the questions that had been posed to him. These questions were as follows:
9 City Press was told by a businessman that he deposited R200 000 into the Absa account of the Trust as a reward for you having facilitated a tender for his company. Comment Query. 10 The same businessman says you personally sent him the Absa account number on SMS, gave him 24 hours to deposit the money and sent another SMS, thanking him after receiving confirmation of payment? 11 What is your response to the allegation that you used money deposited into the account of the Ratanang Family Trust to fund your lifestyle? 12 What is your response to the allegation that you received cash payments worth thousands of Rands from contractors, individuals and politicians into the Trust in exchange for securing them lucrative tenders, protecting them politically or pushing their political agendas? 13 What is your response to the claim that you charge a fee of at least 45% of the total profit made from a tender you secured for contractors?

Malema argued that the allegations made in these questions were false and defamatory of him, and that the City Press should be interdicted from publishing these allegations. The City Press responded by stating that it had obtained information in support of these allegations from confidential sources who did not want to reveal their identity because they feared victimisation, as the applicant was a powerful political figure. The newspaper also told the Court that it had corroborative evidence as to the existence of the source, this being a tape recording of the sources evidence. The newspaper would only provide the presiding judge with the tape recording and the transcript. The Court however accepted the newspapers counsels word regarding the existence of such evidence, and this was confirmed when the presiding judge viewed an attenuated part of the transcript which dealt with the issues set out in the questions. The newspaper also argued that the source was reliable, as various additional issues contained in the questions put to Malema were not contested by him, and these emanated from the same source and had proven to be correct. The Court applied the test set out in the Bogoshi case and said that the approach to the whole matter was whether there was some substance to the claims made by the newspaper and whether the source was reliable. The first issue was whether the allegations made by the City Press, in the form of the questions sent to Malema, were supported by fact. This enquiry involved a consideration of both the source of the allegations, and Malemas response to the questions. The Court found that Malema had dealt with the questions very superficially when he could have responded to these questions in much more detail, had he wished to do so. This had to be weighed against the fact that the newspaper had a witness who had provided detailed information, some of which had to date proven to be correct.

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Even though there was no obligation on Malema to have dealt with the questions otherwise than that he did, it led to the inference being drawn that the enquiries which were made by the City Press met the test of reasonableness. The second issue was that whilst the applicant had a right not to be defamed, he was a highprofile public figure who had made controversial statements at times, and there was at that time a discussion in the press concerning whether his income justified his expenses. The question of his income was therefore topical and relevant. The Court said that the public is entitled to have full disclosures concerning persons who stand in a public position and who are highprofile personalities, and who invite comment about themselves. In concluding, the Court found that the newspaper had met the test of reasonableness, and refused the interdict. l Journalists notes It is very important for the reasonableness defence that thorough, legible notes of all conversations with sources are available, in order to prove that the journalist acted reasonably in taking steps to verify the information. These notes must be retained for safekeeping. In addition, a record of all attempts to communicate with the subject should be kept, including copies of emails or SMSes, and a record of telephone calls (which should ideally be recorded). Likewise, all communications from the subject must be kept. Any research conducted by the journalist in preparing the article should also be documented and stored for safekeeping, for at least three years after publication (the period of prescription) and longer if the material remains accessible in Internet archives.

2.6 Protected (fair) comment

The defence of fair comment is regarded as fundamental to the right of free speech, and has 72 been part of South African law since 1886. It has, however, been pointed out in many judgments that the use of the word fair is a misnomer, because commentary that is protected under this defence need not be impartial, well-balanced, or fair. In fact, criticism which is extreme, unjust, unbalanced, exaggerated and prejudiced is protected, as long as it expresses 73 an honestly-held opinion, without malice, on a matter of public interest on facts that are true. Cameron J recently stated that it would be clearer, and helpful in the understanding of the law, if the defence were known rather as protected comment .74 The authors will take their cue from Cameron J, and refer to this defence as protected comment in this book. The 75 elements of the defence were set out in the early judgment of Crawford v Albu, and in a useful quotation drawn from this case, the Court stated that the defence requires that the defendant justify the facts; but he need not justify the comment. ___________
72 Davis & Sons v Shepstone (1886) 11 LR App Cas 187 (Privy Council, on appeal from the Supreme Court of Natal). 73 The McBride case at para 84. 74 Supra. 75 1917 AD 102 at 115117. The defence has been applied in Marais v Richard en n Ander 1981 (1) SA 1157 (A) at 1167CG; and endorsed and applied post-constitutionally in Delta Motor Corporation (Pty) Ltd v Van der Merwe [2004] 4 All SA 365 at para 13; and Hardaker v Phillips 2005 (4) SA 515 (SCA) at para 26.

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An important rationale for the defence of protected comment is to ensure that divergent 76 views are aired in public and subjected to scrutiny and debate. In confirming the importance of protected comment and the special responsibility of the media in fostering democracy and the free flow of information, Cameron J in the McBride case emphasised the importance of untrammelled debate, so that even the most unreasonable and unacceptable opinions might be aired. The defence protects the publication of defamatory commentary or opinions, provided that the commentary or opinion is based on facts that are true or substantially true, and that the matter commented on is one of public interest. Depending on the facts, protected comment is often raised as a defence in conjunction with other defences, typically reasonableness, or truth for the public benefit. The requirements necessary to establish the defence of protected comment are as follows: the material in question must amount to comment or opinion, not statements of fact; the commentary must be fair, but in the sense that the commentary or opinion, however extreme it is, must objectively speaking qualify as an honest, genuine (though possibly exaggerated or prejudiced) expression of opinion relevant to the facts upon which it was 77 based, and not disclosing malice by the author; the facts on which the commentary is made must be true or substantially true,78 and such facts must be expressly stated or clearly indicated in the commentary, unless they are facts that are generally known; and the commentary must concern a matter of public interest. It is important that reportage distinguish between comment and fact, particularly where comment and fact are intertwined in an article. The facts on which the comment is based must be expressly stated in the opinion piece, or clearly indicated, so that the reader is able to distinguish between fact and commentary. The test of whether a statement is commentary or fact is an objective one the ordinary reasonable person should be able to distinguish the statements of fact from opinion. Once again, in assessing whether a statement is commentary or fact, the courts have stated the importance of interpreting the meaning in the context in which the statement appears. A good example of a case where a court had to determine whether a statement was a statement of fact or commentary is the (former) Appellate Divisions decision in Johnson v 79 Beckett and Another. The April/May 1988 edition of the Frontline magazine published a scathing satirical piece on coverage of South Africa by the foreign media and local journalists. The article was entitled Foreign media: The slippery search for moral outrage from our own foreign correspondent, and made the following statement in respect of the plaintiff: the increasingly depraved Johnny Johnson. Johnny Johnson was a journalist and editor who wrote a column in the Citizen newspaper entitled Johnny Johnsons Height Street diary. The article stated the following: ___________
76 77 78 79 The McBride case at para 82. At para 81. Or (in the authors view) reasonably true. 1992 (1) SA 762 (A) (referred to hereafter as the Beckett case).

40 A Practical Guide to Media Law In one of Johannesburgs choicest northern suburbs there lives an admired and learned foreign correspondent. Local legend has it that he grows the finest mealies this side of the equator. Like all of us his salary is paid in hard currency which when converted into slimline Botha-rands looks like a Houghton telephone number. What could be better than this delightful existence? But a dark cloud hangs over this mans life. In his own words, he has lost his ability to inject a bit of moral outrage into the situation. He risks falling into the foreign correspondents vision of hell becoming the balanced reporter, ridiculed by his colleagues for understanding the complexities of the South African situation to the satisfaction of the crimplene toadies in Pretoria. Its a condition we all dread. The first sign of infection is when the [South African Broadcasting Corporation] starts reporting ones despatches; the condition is terminal when complimentary mutterings appear in the leader columns of The Citizen. The first imperative is to remain hostile, to guard against what is classed in South African terms as the balanced view. Thus, we are castigated for negativity, intellectual dishonesty, and whooping it up while the country is burning (or not, as the case may be). Go on, said the saintly editor of this esteemed journal, its time someone lifted the lid on this whole foreign correspondents circus. An unbalanced view in itself, one might think, but here we go.80

The article then included statements regarding the local press:

You revile us, but you need us. You deplore our outpourings as you flatter us by reprinting them in the columns of local newspapers. The normally balanced Daily X, and the invariably hostile Sunday Y, report this, that, and the other. We send out our thoughts only to see them return, repackaged and sanitised for the South African reader. Witness the local medias second-hand coverage of the Sharpeville Six. Not one local journalist stood up to say: reprieve them, they patently dont deserve to hang. The Progs whined in the wilderness about diplomatic damage and sanctions. It was left to us to create their ammunition. Certainly some of us went over the top, but something had to be done to shake you out of your lethargy. How much easier to let the foreign media stick their heads above the parapet. Then wait for the Argus man in London to telex our reports back to let you know theres something pongy about hanging six people who didnt do it. You readily attach labels to us, but on the rare occasions we find it necessary to quote from the local media we are restrained. We dont refer to the invariably soporific Harvey Tyson, the increasingly depraved Johnny Johnson, or the nauseatingly smug Hogarth column. Perhaps we should, and then we could recover our lost sense of moral outrage.81

(The you is a reference to the local media, while the we relates to the foreign media.) The defendant raised the defence of protected comment, and had to prove that the statement was one of comment and not fact, that the facts upon which it was based were true, and that the commentary was a matter of public interest. One of the issues to be decided was whether the statement the increasingly depraved Johnny Johnson was a statement of fact, or whether it was commentary. The plaintiff alleged that the statement was a statement of fact, and therefore the defendant had to prove that as a matter of fact, he was increasingly depraved. In determining whether this statement was comment or fact, the Court said it had to first determine the meaning of the words the increasingly depraved Johnny Johnson. The plaintiff alleged that the meaning of these words implied that he as a person was morally corrupt, perverted and debased, and not fit to be an editor or a journalist. The Court rejected this interpretation, stating that it was obvious, from a contextual point of view, that the piece was a satirical piece, that the word depraved was not used in a literal sense, but in a figurative ___________
80 The Beckett case at 776. 81 At 776777.

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sense, and that the reasonable reader would interpret the words increasingly depraved as a figure of speech, namely, hyperbole, used by the author to emphasise the point. Where facts are generally known to the audience, or notorious, it is not necessary to repeat the facts in the article. In reviews of books, films and works of art, it is not necessary (nor, of course, practical) to state the facts. Where a plaintiff can establish that the commentator acted with malice or improper motive, the defence of protected comment is defeated. In the context of media publications, as mentioned above, the plaintiff will in the authors view have to show that the media did not genuinely believe the comment, or based it upon facts it knew to be false (or acted recklessly about the truth, or otherwise, of the facts). As in the defence of truth for the public benefit, the facts on which the commentary is based must be true, or substantially true. The authors are of the view that where facts are published which meet the requirements of the reasonableness defence, this should satisfy the protected comment requirement for truth. The McBride case is an excellent example of the extent to which the protected comment defence supports free speech. In 2003, Robert McBride became a candidate for a senior police post, that of head of the Metro Police in one of South Africas largest municipalities, namely Ekurhuleni. Seventeen years before this, while acting as an operative of the African National Congress (ANC), he had planted a car bomb outside Magoos Bar and the Why Not Restaurant on the Durban beachfront. The ensuing explosion killed three people and injured 69 others. McBride was caught, tried, found guilty of multiple murders and was sentenced to death. In 1991, he was reprieved, and in 1992, he was released. In 1997, he applied for amnesty for the murders in terms of the Promotion of National Unity and Reconciliation Act (the Reconciliation Act).82 He was granted amnesty in 2001. Over a seven-week period, during September and October 2003, the Citizen newspaper published a number of articles and editorials scathingly critical of McBrides candidacy for police chief. The newspaper contended that McBride was unsuitable for appointment to this post because he was a criminal and a murderer, and because in 1998 he had been arrested and detained in Mozambique on suspicion of gun-running. McBride instituted a defamation claim against both the Citizen and the journalists who wrote the articles and editorial. He claimed that because he had been granted amnesty for the murders arising out of the bombing, it was not permissible for the media to label him a murderer. Such an allegation was untrue as his conviction was deemed, for all intents and purposes, not to have taken place. He therefore claimed damages from the defendants and asked that they be ordered to publish an unconditional and full apology to him on the front page. The High Court found in his favour, awarding him damages of R200 000. On appeal, the SCA reduced the damages to R150 000. Both parties appealed to the CC on various grounds. The essence of the newspapers defence was protected comment. It said the factual claims, upon which the comment was based, were true. McBride was a convicted murderer and a criminal, because he detonated a bomb which killed several people, and he had engaged in a dubious flirtation with alleged gun dealers in Mozambique. The CC found that in the abovementioned articles, these facts were adequately stated, including the fact that he had been granted amnesty, in the context of the reportage as a ___________
82 34 of 1995.

42 A Practical Guide to Media Law

whole. It went further, stating that in any event McBride was a very widely-known public figure, and the Durban beachfront bomb and McBrides subsequent amnesty were such wellknown facts that they did not have to be stated repeatedly in each of the editorials. Newspaper readers do not read articles in isolation, especially when they read editorial comment or a columnists comment on current affairs. Accordingly, the CC found that the newspaper had satisfied the requirement of stating the facts upon which the commentary was based. As to the truth of the facts upon which the comments were based, the CC found that the effect of an amnesty in terms of the Reconciliation Act was to expunge a convicts previous conviction from official records, and restore him to the status of never having been convicted. It does no more than this, and it certainly does not render untrue the fact that the perpetrator had committed murder and was convicted in that regard. The CC went on to find that even though the newspapers commentary was at times to a degree ungenerous and distasteful, vengeful and unrelentingly harsh and unforgiving (the editorial had stated, for example, that it [McBrides act] was the act of human scum), this was not relevant, because the commentary qualified as an honest, genuine (though possibly exaggerated or prejudiced) expression of opinion relevant to the facts upon which it was 83 based, and not disclosing malice. The commentary was therefore protected in terms of the 84 protected comment defence.

2.7 Privileged occasion

It is in the public interest that the communication of defamatory statements made on specific occasions should not be discouraged by the threat of a defamation action. The law therefore recognises that there are occasions when the public interest demands that there be no restriction on reporting, even where untrue defamatory statements are published. This is called the defence of privileged occasion, and it is the occasion that determines whether the privilege arises. Absolute privilege protects the utterer of defamatory statements made in the course of parliamentary proceedings. At this stage, South African law recognises no other absolute privilege. Qualified privilege extends to defamatory statements made on certain other occasions. The privilege is qualified because it may be forfeited if it is actuated by improper motive or malice. From a media perspective, the most important occasions on which the publication of defamatory statements are protected are reports of proceedings in Parliament, provincial legisla85 tures, local government, public bodies, and, of course, the courts and similar tribunals. The policy underlying the privilege is that it is clearly in the public interest that the public should be fully informed of what is said and done in open forums such as these, because the public itself is unable to attend on such occasions. However, in order to benefit from this defence, the report must be a fair and substantially accurate report of the proceedings. Fair and substantially accurate reporting does not require a

83 The McBride case at para 81, referring to the Beckett case at 783B. 84 At paras 101112. 85 The defence would also apply, in the authors view, to proceedings of open tribunals.