Two weeks ago, I presented at a workshop organized by the African National Congress (ANC) on criminal defamation – how it differs from civil defamation, some recent developments across Africa, and why criminal defamation is unconstitutional, in my view.  

At the workshop, the ANC made a dramatic and welcome announcement that it would spearhead legislation to rid South Africa of criminal defamation – an announcement which I wrote about in the Mail & Guardian last week.  

The announcement was widely covered in the media – a good report by eNCA can be found here. 

Unfortunately for the Democratic Alliance (DA), its premature speculation in a media statement before the ANC’s workshop – that the ANC’s intention was to pass insult laws to protect the president – proved to be a spectacular own goal.  (Of course the DA has other problems to deal with at the moment, following the sharing on Facebook by one of its prominent MPs and the shadow minister of police of a post praising PW Botha).

Here is an extract from my speech which I presented at the ANC workshop on criminal defamation.

Civil v criminal defamation and the history

Let me begin with a brief working definition of defamation and how the civil claim differs from the criminal prosecution.

Civil defamation is a legal remedy used to compensate for damage done to a person’s reputation by statements that lower that person’s reputation in the eyes of others. The purpose of the law is to protect a person’s reputation.

Examples are many. I’ve been involved in many interesting cases, and I’ll give two examples from two Constitutional Court cases I have been involved in.

In Le Roux v Dey, the deputy headmaster of a school sued three students for defamation for creating and disseminating a created image of him in a sexual position with the headmaster. And in McBride v The Citizen, Robert McBride sued The Citizen for publishing editorials and columns that stated that he was a murderer who ought not to be appointed to an important public office.

Our law allows the successful plaintiff in a civil defamation case to claim damages for loss of reputation, as well as an apology and an interdict to prevent the defamation from being repeated.

More recently in our law there have been numerous cases involving defamation on the Internet – 5 Facebook cases in particular, 3 of which involve ex-husbands and wives suing each other for remarks posted on the other’s Facebook wall after a messy break up. This is another illustration of civil defamation law, adapting itself to modern circumstances and technology.

Civil defamation, then, enables a person to sue another person – the politician who is accused of wrongdoing by a newspaper, eg, briefs a lawyer to sue the newspaper, and ultimately the politician and the newspaper meet in court where, in theory at least, the truth will prevail.

Criminal defamation on the other hand is enforced by the state. It is a crime in the same way that stealing a car is. A charge gets laid against you, the police investigate the charge and you may be arrested, and then there may be a prosecution by the National Prosecuting Authority, and if a court convicts, the defamer is punished, either by a fine or imprisonment.

The purpose of civil defamation is to restore the person’s reputation. The purpose of the crime is to do the same but by punishing the person who made the statement for the good of society as a whole.

The structure of each action differs as well.

In a civil defamation case, the person suing must show on a balance of probabilities that the defamatory statements were published about him or her. The newspaper must then show on a balance of probabilities that it is able to rely on a defence – typically truth and public interest or reasonableness for news stories – to win the case.

In a criminal defamation case, the state must prove the elements of the crime beyond a reasonable doubt.

So how did criminal defamation get here?

Our law of criminal defamation is essentially a combination of Roman-Dutch law (which inherited the concept from Roman law) as well as English law. In early Roman law someone who recited words that harmed another person with ridicule was a crime and it was punished with the death penalty.

In the 17th and 18th centuries the crime was regularly prosecuted in Holland and was seen in a serious light. And so it was imported into our law.

Commentators have said that it is difficult to discern the precise rationale underlying the crime of defamation under Roman and Roman-Dutch law, though some authors trace it back to the desire of those in power, particularly rulers and governments, to maintain the social class structure and the status quo. And even in England, the offence of criminal libel was abolished in 2009, with the then Justice Minister saying that it was an “arcane offence from a bygone era when freedom of speech wasn’t seen as the right it is today“.

African developments

Now that I have set out the basics I would like to discuss some very positive developments which occurred around the continent in criminalizing defamation.

The place to start in analysing these developments is the 2010 resolution of the African Commission on Human and Peoples’ Rights on repealing criminal defamation laws in Africa. The Commission said this: “Criminal defamation laws constitute a serious interference with freedom of expression and impede the role of the media as a watchdog, preventing journalists and media practitioners [from] practising their profession without fear and in good faith“. Despite the resolution, no progress took place around the continent.

But this all changed with two decisions last year – a December decision of the African Court on Human and Peoples’ Rights, and a July decision of the Zimbabwean Constitutional Court. I’ll begin with the African Court’s decision. The case dealt with the law of criminal defamation in Burkina Faso, which is of course in the news at the moment.

Konatè, a journalist working in Burkina Faso, was charged with criminal defamation for defaming the state prosecutor. He was convicted and sentenced to 12 months’ imprisonment. The local court also imposed a severe fine and damages and costs, and banned Konatè’s weekly publication for 6 months. After exhausting local remedies in Burkina Faso, he approached the African Court.

I am happy to say that the Court unanimously found that Konatè had been wrongly imprisoned. The majority of the Court (7 judges), however, found that criminal defamation was not necessarily bad in principle. The major problem was the sanction of imprisonment. The main judgment found that criminal defamation could not be punished via custodial sentences. The Court went further and said that except in extreme cases such as incitement to commit international crimes or hate speech, one should never be imprisoned for speaking one’s mind. It also overturned all the other remedies against Konatè, including the banning of his newspaper and the disproportionate fines, damages and costs.

It is noteworthy that our very own Adv Pansy Tlakula, the Special Rapporteur on Freedom of Expression and Access to Information in Africa, who we are honoured to have in the audience today, is reported to have said this following the judgment: “This is a landmark decision that will change the free expression landscape on the African Continent. The decision will not only give impetus to the continent-wide campaign to decriminalise defamation but will also pave the way for the decriminalisation of similar laws such as insult laws and publication of false news“.

The minority judgment (4 judges) of which our representative of the Court was part – that is former Judge President in Gauteng Judge Bernard Ngoepe – rightly took the view that the main judgment did not go far enough.

As Judge Ngoepe has stated in a recent public speech – he does not lightly write a minority judgment. His reasons and those of the other minority judges were principally these:

•     there are avenues for adequate redress for any victim – you can sue the offender in a civil case.
•     And where the speech amounted to incitement, sedition or hate speech there are laws to cover this.

So in my view the majority of the Konatè court did not go far enough: it should have thrown the crime out altogether. And so I come to arguably the most important development for free speech in 2014.

The Madanhire decision in Zimbabwe

On 12 June 2014, the Constitutional Court in Zimbabwe delivered a unanimous judgment striking down the offence of criminal defamation as unconstitutional, as it was “not reasonably justifiable in a democratic society”.

Nevanji Madanhire was the editor of The Standard newspaper in Zimbabwe. Nqaba Matshazi was a reporter at that newspaper. They published an article in November 2011 which defamed the chairman of a medical aid society. I should say at this juncture that The Standard is one of the very few independent newspapers left in Zimbabwe – the others are all in one way or another under the control of the government of Robert Mugabe. And Madanhire had been arrested many times in the past for criminal defamation, usually for stories critical of the government’s regime.

Madanhire and Matshazi were arrested and charged under the Zimbabwean Criminal Code for defamation. They raised the unconstitutionality of the crime as a defence.

The Zimbabwe Constitutional Court struck the crime down as offensive to freedom of expression, for reasons I’ll explain briefly in a moment.

But it is worth pausing to understand the impact of this decision, and why it this year won a global freedom of expression award which was awarded by Columbia University.

Criminal defamation has been used as a tool in Zimbabwe by state actors to stifle freedom of expression for decades. It is well known that Zimbabwe faces various crises including, many argue, the government’s respect for the rule of law. In the past, the former chief justice of the court faced intense governmental pressure after his court ruled against various land reform measures introduced by the government, and was effectively forced out of office.

In this context, the unanimous decision of the Constitutional Court is remarkably brave. It shows that this court, like ours, is truly independent of government and decides cases without fear or favour.

Judge Patel, on behalf of the court, went through the importance of freedom of expression in a democracy – quoting from various international instruments – including instruments passed by the UN General Assembly, the Human Rights Committee established by the International Convention on Civil and Political Rights, previous decisions of the Zimbabwe Supreme Court and decisions of the South African courts.

Ultimately, Patel held that the crime failed the proportionality test in constitutional law. He put the consequences of a complaint of criminal defamation as follows:

“The accused person would be investigated and face the danger of arrest. This would arise even where the alleged defamation is not serious and where the accused has an available defence to the charge. Thereafter, if the charge is prosecuted, he will be subjected to the rigours and ordeal of a criminal trial. Even if he is eventually acquitted, he may well have undergone the traumatising gamut of arrest, detention, remand and trial. Moreover, he will also have incurred a sizeable bill of costs which will normally not be recoverable“.

This meant, the judge said, that the very existence of the crime created a stifling or chilling effect on reportage: and, as the judge continued, “The overhanging effect of the offence is to stifle and silence the free flow of information in the public domain. This in turn may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices".

The Court considered that the alternative remedy of civil defamation was sufficient to provide compensatory redress to defamed persons.

Although this case dealt with the previous constitution, I have no doubt that the reasoning applies with equal force to the new Constitution of Zimbabwe and that a number of pending criminal prosecutions for defamation will soon be relegated to the dustbin of unconstitutionality. I note that it was reported that just a few days ago, a media NGO filed a fresh application to invalidate criminal defamation under the new Constitution.

But more importantly, what the Zimbabwe Court has done is provide a template for how other countries in Africa, in particular, but even beyond our continent, should deal with the free speech abuse that is criminal defamation. For that, we owe the court an eternal debt of gratitude.

South Africa

That brings me to South Africa. And Les Morrison SC will go into more detail on this. In 2009 the Supreme Court of Appeal upheld the crime of defamation in S v Hoho.

The appellant was an employee of the Eastern Cape Provincial Legislature who was found to have himself authored and published several pamphlets which falsely defamed various governmental officials. He was convicted of the crime of defamation, and the Court rejected a challenge to its constitutionality.

It was thought that there were significant differences between defamatory statements published by members of the media and defamatory statements published by members of the public, and that when the right case came along the courts would at least protect the media from the reach of criminal defamation.

That is, until Cecil Motsepe, then a Sowetan journalist, was charged with criminal defamation for publishing an article in 2008 which alleged that a magistrate imposed a heavier sentence on a black male than he imposed on a white female for the same offence.

The problem was that the journalist got his facts wrong – the case dockets were mainly in Afrikaans, and Motsepe’s sources, an attorney and a court official, had relayed the incorrect information to Motsepe. The magistrate laid a charge of criminal defamation, and sued for civil defamation, and Motsepe was ultimately convicted of the crime of defamation, and sentenced to a R10 000 fine or 10 months’ imprisonment wholly suspended for five years, on certain conditions. Motsepe appealed the conviction.

Two judges of the Pretoria High Court overturned the conviction.

But unfortunately the reason for their decision was that the prosecution had failed to show beyond a reasonable doubt that Motsepe acted with intention to defame the magistrate. In other words, even though the court held that Motsepe was reckless, this was not sufficient to constitute dolus eventualis – a criminal law concept that, following the controversy surrounding Judge Masipa’s judgement in the Oscar Pistorius criminal case, needs no further explanation. The judges specifically rejected pleas from friends of the Court that the crime of defamation was unconstitutional.

So while others nations around the world and indeed the continent have taken the correct steps to eradicate this unconstitutional crime from the law – South Africa is now a step behind. And this is something that should change. Indeed, the minority judgment in Konatè stated that it was a “step backward in the evolution of human rights in Africa” to uphold criminal defamation laws. Unfortunately, in my view, Hoho took that backward step, and the opportunity to correct it in Motsepe was squandered by the court.

My last point is that the ANC’s announcement here today – that it will decriminalise the crime of defamation and that it will work with the media to achieve this objective – is not only to be welcomed but to be celebrated. Eradicating criminal defamation from our law will do the legacy of Nelson Mandela proud: as he said back in 1994, with an eloquence no lawyer or judge can ever match: “A critical independent and investigative press is the lifeblood of any democracy. The press must be free from state interference“. Criminal defamation is exactly the kind of state interference which impacts significantly on the freedom of the media in our democracy. The sooner we get rid of it, the better.

Musings on Media is written by Dario Milo, a blog by Webber Wentzel