S v Motsepe

• Jurisdiction: South Africa
• Citation: 2015 (2) SACR 125 (GP)

S v Motsepe
2015 (2) SACR 125 (GP)

2015 (2) SACR p125

Citation	2015 (2) SACR 125 (GP)
Case No	A 816/2013
Court	Gauteng Division, Pretoria
Judge	Molefe J and Janse Van Nieuwenhuizen J
Heard	October 6, 2014
Judgment	November 5, 2014
Counsel	T Ngcukaitobi for the appellant.; M Jansen van Vuuren (with C Burke) for the state.; S Budlender for the amici curiae, instructed by the Freedom of Expression Institute.

Flynote : Sleutelwoorde

Defamation — Elements of offence — Unlawful and intentional publication of E matter concerning another which tended to injure his or her reputation — Journalist appealing conviction of defamation — Published story defamatory of magistrate — Based on incorrect facts which journalist believed to be true — Lacking intention — Appeal succeeding. F

Defamation — Whether offence consonant with Constitution — — Various amici seeking to have common-law crime of defamation declared unconstitutional in regard to media — Not succeeding — Whilst existence of criminal defamation undoubtedly limited right to freedom of expression, such limitation was reasonable and justifiable in open and democratic society and was consistent with criteria laid down in s 36 of Constitution. G

Headnote : Kopnota

The appellant appealed against his conviction in a magistrates' court for criminal defamation. The circumstances of the conviction were that the appellant, a journalist, had written an article for a major newspaper dealing with two H sentences imposed by a white magistrate, one on a black man and the other on a white woman, which suggested that the magistrate was biased. It was common cause that the articles were published and, on a proper reading, it clearly injured the reputation of the magistrate, and only intention and unlawfulness were in issue. The evidence was to the effect that the appellant had relied on information received from an attorney and that he had not I verified the information. On appeal the court held that, on the evidence, the appellant was clearly negligent in not taking further measures to ensure that the information he received was correct. (Paragraph [18] at 130b.)

The court held, further, that the court a quo was correct in holding that the appellant had acted hastily and had thrown all caution to the wind and in this regard the finding that he had acted recklessly was correct. Recklessness, however, did not equate to intention. (Paragraph [20] at 130d.) J

2015 (2) SACR p126

A Held, further, that from the evidence it appeared that the appellant had relied on the truth of the statement and deemed it in the public interest to publish the facts. Once a person thought that the published words were covered by one of the recognised defences to a claim for defamation, such person lacked the necessary intention required for a conviction on criminal defamation. In the premises the state had failed to prove intentional publication beyond a B reasonable doubt and the conviction could not stand. (Paragraphs [21] at 130f and [22] at 130g.)

Fourteen institutions applied to intervene in the appeal as amici curiae in the interests of the media and their concern regarding the effect of criminal defamation laws on the freedom of the media and the constitutionality of criminal defamation laws. They contended that the civil remedy for C defamation provided adequate means to deter and prevent defamation by the media. They relied on a number of international instruments and international case law to support their argument in favour of the repeal of criminal defamation laws against the media. They contended that the common-law crime of defamation was not consistent with the Constitution D and amounted to an unjustifiable limitation on the right to freedom of the media. They requested that the court should develop the common law to limit the crime to the publication of defamatory statements by persons who were not members of the media.

Held, that there could be no doubt that the right to freedom of the media was of critical importance and the media stood in a distinct position relative to the E general right to freedom of expression. (Paragraph [32] at 132i.)

Held, further, that the request that the criminal defamation law be declared unconstitutional undermined the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Almost all of the international instruments and international case law referred to by the amici in support of their argument involved the condemnation of F extreme situations of governmental abuse of journalists. These examples did not find application in South Africa where journalists and citizens enjoyed the benefit of the law and the Constitution. (Paragraph [39] at 135c–d.)

Held, further, that freedom of expression did not have a superior status to other rights under the Constitution. (Paragraph [40] at 135e.)

G Held, further, that a criminal sanction was indeed a more drastic remedy than the civil remedy but that disparity was counterbalanced by the fact that the requirements for succeeding in a criminal defamation matter were much more onerous than in a civil matter and these onerous requirements in the case of criminal defamation would probably be the reason for the paucity of H prosecutions for defamation compared to civil defamation actions. (Paragraph [46] at 136h–137a.)

Held, further, that prosecution of media journalists who committed a crime of defamation was not inconsistent with the Constitution. In exercising their rights under s 16 of the Constitution, the media should also guard against rights of others, as freedom of expression was not unlimited and had to be construed in the context of other rights, such as the right to human dignity. I (Paragraph [49] at 137f.)

Held, further, that the amici failed to make out a case for the decriminalisation of defamation. Even though the defamation crime undoubtedly limited the right to freedom of expression, such limitation was reasonable and justifiable in an open and democratic society and was consistent with the criteria J laid down in s 36 of the Constitution. ([Paragraph 50] at 137g.) The appeal

2015 (2) SACR p127

was accordingly upheld and it was declared that the common-law crime of A criminal defamation as pertained to the media was consistent with the Constitution.

Cases cited

Southern Africa B

Argus Printing and Publishing Co Ltd and Others v Esselen's Estate 1994 (2) SA 1 (A) ([1994] 2 All SA 160): referred to

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2002 (1) SACR 79 (CC) (2001 (4) SA 938; 2001 (10) BCLR 995; [2001] ZACC 22): dictum in para [39] C considered

Dikoko v Mokhatla 2006 (6) SA 235 (CC) (2007 (1) BCLR 1; [2006] ZACC 10): dicta in paras [141] – [142] applied

Farrar v Hay 1907 TS 194: dicta at 199 – 200 applied

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; [2002] ZACC 12): referred to

Maisel v Van Naeren 1960 (4) SA 836 (C): dicta at 840 applied D

Masiya v Director of Public Prosecutions, Pretoria and Another (Centre for Applied Legal Studies and Another, Amici Curiae) 2007 (2) SACR 435 (CC) (2007 (5) SA 30; 2007 (8) BCLR 827; [2007] ZACC 9): referred to

Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) E 2007 (2) SACR 493 (SCA) (2007 (5) SA 540; [2007] (9) BCLR 958; [2007] 3 All SA 318): referred to

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1998 (2) SACR 556 (CC) (1999 (1) SA 6; 1998 (12) BCLR 1517; [1998] ZACC 15): referred to

S v Hoho 2009 (1) SACR 276 (SCA): followed

South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others F 2007 (1) SACR 408 (CC) (2007 (1) SA 523; 2007 (2) BCLR 167): referred to.

Canada

R v Lucas [1998] 1 SCR 439 ((1998) 50 CRR (2d) 69 (SCC)): referred to.

England G

Worme and Another v Commissioner of Police of Grenada [2004] UKPC 8: dicta in para [42] followed.

European Court of Human Rights

Cumpana and Mazare v Romania [2004] ECHR 692 ((2005) EHRR 14): referred to. H

Legislation cited

Statutes

The Constitution, 1996, ss 16 and 36: see Juta's Statutes of South Africa 2013/14 vol 5 at 1-28 and 1-30

The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000: see Juta's Statutes of South Africa 2013/14 vol 5 at 1-266. I

Case Information

T Ngcukaitobi for the appellant.

M Jansen van Vuuren (with C Burke) for the state.

S Budlender for the amici curiae, instructed by the Freedom of Expression Institute. J

2015 (2) SACR p128

A An appeal against a conviction in a magistrates' court for criminal defamation.

Order

(1)

The appeal is upheld and the conviction is set aside.

(2)

The common-law crime of criminal defamation insofar as it pertains B to the media is consistent with the Constitution.

Judgment

Molefe J and Janse van Nieuwenhuizen J:

[1] The appellant was found guilty of criminal defamation and sentenced to a fine of R10 000 or ten months' imprisonment wholly C suspended on certain conditions for a period of five years. This appeal is with leave of the court a quo against conviction only.

[2] At the inception of the hearing, the 1st – 15th amici curiae sought leave to intervene in the appeal, which leave was granted. Their participation relates to their concerns regarding the negative effects of D criminal defamation laws on the freedom of the media, and the constitutionality of criminal defamation laws. I will firstly deal with the appellant's appeal.

Facts

E [3] The following facts are common cause between the appellant and respondent:

(i)

The appellant is a senior journalist at the Sowetan newspaper;

(ii)

the appellant was the author of an article titled 'Spot the...