Does South Africa want critical or compliant media?
ThisDay (Johannesburg), 30 September
- Mediawhoresonline.com, a US website, describes itself thus: "The site that set out to bring the media to their knees, but found they were already there." Its objective is to name and shame those journalists who allegedly fall short of the profession's standards: those who are incurious, craven, cowardly or just plain conservative.
Behind this vitriol is the conviction that the media's role is to hold government to account - to make it answerable to the people. We expect the media to be critical, not compliant.
In South Africa, you sometimes can't help thinking that the ruling party would prefer media of the other kind.
Earlier this year, former Housing Minister Sankie Mthembi-Mahanyele took the daily independent 'Mail & Guardian' newspaper to South Africa's Supreme Court of Appeal, alleging that she had been defamed by its annual "report card".
She sought damages of Rand 3 million (euro 375,000).
Now the ANC and 92 of its members, MPs and ex-MPs, are threatening legal action against the Johannesburg daily 'ThisDay' for having published a list of names in connection with the travel-voucher scandal.
The ANC is demanding Rand 48 million (euro 6 million) in damages.
The ANC maintains that statements in the article are defamatory in that they create the impression that ANC members are involved in the travel scandal, that they are unfit for their positions, and that the ANC is not fit to govern this country as its representatives are corrupt.
Yet even if we suppose that the publication of these individuals' names did in fact amount to defamatory statements, the newspaper can, in accordance with developments in South Africa's defamation law, repel these charges bymounting a successful defence of reasonableness in publication.
And, given that parliament has continued to drag its heels on the matter and has not provided a full public account, can it really be said of any media source that it has acted beyond the bounds of reasonableness in disclosing this information?
Admittedly that isn't the legal test to be applied. As set out in the recent case brought by ex-Minister Mthembi-Mahanyele, the courts will consider a number of factors, such as the interest of the public in being informed; the manner and tone of publication; the steps taken to verify the truth of the information; and whether the person named has been given the opportunity to comment on the statement before publication.
But in cases where information is crucial to the public, and is urgent, it may be justifiable for the media to publish without giving the person an opportunity to comment.
Thus, just as Ms Mthembi-Mahanyele's challenge failed at the stage of reasonableness, so is the ANC's recent defamation charge likely to fail.
This is not to say that politicians and officials have no rights to reputation: South Africa's courts have been at pains to point out that they do. But political speech or comment directed at public officials is treated differently from other potentially defamatory matter. Public officials are expected to withstand public attack. The very nature of their office invites and requires close scrutiny.
We expect the media to perform this function. As the courts have explained: "It is the function of the press to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators ... It must advance the communication between the governed and those who govern."
Were the courts to hold the media to the ordinary standards of defamation law when it comes to comment on public officials, the media would be much less inclined to make such comment. The result would be an undermining, or chilling, of the media's watchdog function. It is the courts' understanding of the workings of democracy, and how integral the role of a free and independent media is to democracy, that has led them to conclude that a different standard operates.
Yet it isn't only the institution of the judiciary that should be concerned to strike the appropriate balance required in a constitutional democracy. South Africa's constitution does not envisage that the executive and the legislature get to kick the constitutional ball alongside everyone else while the courts are assigned the function of sole umpire.
Quite the opposite, the executive and the legislature as much as the courts are required to promote and support our constitutional democracy.
And it is this reality, more than the ANC's arguably inflated estimate of its prospective legal success, that is most disquieting.
As overwhelming majority party, largely constitutive of both the executive and legislature, we should rightly be able to expect the ANC to act outside of narrow self-interest and with an appreciation for the larger consequences to our democracy of this type of legal action.
For instance, we might ask about the cost of this action for the ordinary citizen.
The "Travelgate" scandal is already estimated to have cost the taxpayer a large amount of money. Even if the ANC bears the direct costs of bringing this lawsuit, valuable, publicly accountable time is still to be spent by MPs and cabinet members in preparation of this case, or on the stand.
We might also ask about its understanding of the respective roles played by the media and government in our constitutional democracy: does it really believe, putting aside the legalistic conceptions of reasonableness, that it is unreasonable, and in effect punishable, for the media to publish the names of the allegedly implicated MPs in the face of parliament's silence?
And finally we might ask about the real stakes involved here.
The damages award the ANC seeks is a very large one: Rand 48 million. It seeks these damages against a newspaper only recently established and widely understood to have encountered certain financial difficulties in its first months of operation.
It is not wildly speculative to suggest that damages of this amount, if ordered, would have severe repercussions for the continued operation of 'ThisDay'.
Is the ANC really prepared to risk the demise of a newspaper, in effect to stifle the communication between the governed and those who govern, in the formulation of its legal action?
And if it is, what does that say about our democracy?
* Nicole Fritz is a lecturer in constitutional and international law at the University of the Witwatersrand in Johannesburg.
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