S v MOTSEPE 2015 (5) SA 126 (GP)

Media — Freedom of expression — Limitations — Criminal defamation — Limitation of media freedom justified — No grounds for decriminalisation of defamation in respect of media accused.

The facts
A magistrates’ court convicted Mr Motsepe, a journalist, of criminal defamation for stating in a newspaper article that a magistrate’s sentencing showed racial bias. Although the statement turned out to be based on false information and untrue, Mr Motsepe did not realise this and based his decision to publish on truth and public interest. Injury to the magistrate’s reputation having been conceded, the only issues before the appeal court were intention and unlawfulness.
The law
The offence of criminal defamation consists in the unlawful and intentional publication of matter concerning another which tends to injure his or her reputation. It was held to be consistent with the Constitution in S v Hoho 2009 (1) SACR 276 (SCA) ([2009] 1 All SA 103).
The issues
Several media organisations — the amici — contended that the offence was an unwarranted and unconstitutional restriction of the freedom of the media I and asked the court to develop the common law by limiting its application to non-media entities. They argued —
• that Hoho failed to address the effect of the offence on the media and therefore did not bar the court from deciding that criminal defamation was unconstitutional insofar as it applied to the media;
• that the civil remedy for defamation provided adequate means to deter and prevent defamation by the media; and
• that a number of international instruments and international case law supported their argument in favour of the repeal of criminal defamation laws against the media.
As to intention: It was absent. Although Mr Motsepe had acted recklessly by failing to ensure that the information provided to him was accurate, this did not equate to intention. Intention was also negated by Mr Motsepe’s belief that publication was covered by the defence of truth and public interest. The absence of intention meant that the conviction could not stand.
As to the arguments of the amici on unlawfulness: They would not stand. Hoho had to be interpreted in the light of judgments holding that freedom of the media was not unrestrained but had to yield to other rights, in particular the individual’s rights to dignity and not to be unlawfully defamed. While the media had a special role in the protection of freedom of expression, it also had an obligation to respect the rights of others, in particular the right to individual dignity. So viewed, the criminal offence of defamation constituted a reasonable and justifiable limitation of journalists’ right to freedom of expression, its relatively drastic effect being counterbalanced by its onerous burden of proof. The prosecution of media journalists who committed the offence of defamation was therefore consistent with the Constitution. Moreover, the international instruments and case law referred to by the amici involved the condemnation of extreme situations of governmental abuse of journalists and were not applicable to South Africa, where journalists and citizens enjoyed the protection of the law and the Constitution. Since the amici failed altogether to make out a case for the decriminalisation of defamation in respect of media accused, the common-law crime of criminal defamation as it pertained to the media would be declared consistent with the Constitution.