On 21 June 2013, Magistrate Voogt of the Nigel Magistrates' Court (Gauteng province) convicted Cecil Motsepe, a former journalist of Sowetan, of criminal defamation and sentenced him to a fine of R10,000,00 or 10 months' imprisonment, suspended for five years.

A charge of criminal defamation was laid against Motsepe in 2009, arising from a series of articles authored by him regarding Magistrate Marius Serfontein, the complainant in the matter. Serfontein, who presides in the Meyerton Magistrate's Court (near Vereeniging in the Gauteng province), was accused in the articles of allegedly using his position as a magistrate to protect his friend, a farmer who had assaulted a number of black people.

The specific article that was the subject of the charge was published in the Sowetan on 10 December 2008 under the headline "Spot the Difference". The article alleged that Serfontein had given a white woman convicted of drunk driving a lighter sentence than the sentence given to a black man convicted of the same crime. It subsequently emerged that these allegations were incorrect.

Motsepe's defence was based on two primary grounds. Firstly it was argued that he did not have the requisite intention to defame Serfontein because at the time that the article was written, he believed the facts contained in the article to be true. Secondly, it was contended that Motsepe had not acted unlawfully in the circumstances because the publication of the allegations was reasonable.

For a conviction on a charge of criminal defamation, unlike civil defamation, the court must be satisfied beyond a reasonable doubt that the accused had the intention to defame the complainant. Negligence on the part of the accused is not sufficient.

As to his first ground of defence, Motsepe alleged that his lack of intention was evident, among other things, from the fact that he had presented the incorrect statements to Serfontein when he offered Serfontein the opportunity to comment. Serfontein declined to comment. In addition, the dockets regarding the two cases mentioned in the article were in Afrikaans, a language that Motsepe does not understand. He had been informed of what was contained in the dockets by two sources, one of which he could not disclose.

Serfontein disputed that he had declined to comment and stated that although he had told Motsepe "you can write what you like", he had qualified this statement by saying "as long as it is the truth". It further emerged from Serfontein's testimony that he had been instructed not to talk to the media following the previous articles authored by Motsepe of which Serfontein was the subject.

As regards Motsepe's second ground of defence, it was argued that he had acted reasonably, taking into account a number of factors, including:

• the nature of the allegations (the allegations were clearly in the public interest as they related to possible racial bias on the part of a magistrate);
• the manner in which the article was published, which made it clear that the views expressed were those of an individual Motsepe regarded as officer of the court, and not his own; and
• all the steps Motsepe took in attempting to verify the allegations, including presenting the allegations to Serfontein.

The Court, however, found that Motsepe had acted recklessly in writing the article, and that he had approached the story with preconceived ideas of racism on the part of Serfontein. The Court dismissed Motsepe's evidence about the fact that he did not understand the content of the document due to the language barrier.

Motsepe's evidence regarding the translation by the anonymous source was dismissed on the basis that the identity of the individual was not provided and the Magistrate further ruled that, although Motsepe had also obtained a translation from a second, identified source, Motsepe should have checked the accuracy of the translation with a completely independent person.

The Court went on to find that Motsepe seemingly did not want to hear the truth and accordingly proceeded to write the article without exhausting all the steps he could have taken to determine the truth of the allegations. His conduct was therefore found to have been unreasonable.

Motsepe has applied for leave to appeal to the High Court, which has been granted.

To the best of our knowledge, this is the first time that a journalist has been convicted of criminal defamation since the advent of our new Constitutional dispensation, which protects freedom of expression, including media freedom, as a fundamental right.

Our view is that the crime of criminal defamation may well be unconstitutional, particularly when applied to the media. Judgments such as this one will undoubtedly have a chilling effect on the profession as whole, as, if the logic in the judgment is followed, a journalist can effectively be found guilty of a crime in instances where he or she makes a mistake as to factual allegations, without having a clear intention to publish falsehoods.

The Webber Wentzel media team represented Motsepe in this matter.