South Africa: Court decision upholding constitutionality of Criminal Defamation is a blow to freedom of expression


5 December 2014

South Africa: Court decision upholding constitutionality of Criminal Defamation is a blow to freedom of expression

A court decision that criminal defamation is not against the South African Constitution risks putting journalists in prison for their work, PEN International said today.

Earlier in the year, PEN International joined a coalition of local civil society and international human rights organisation as amici — or friends of the court – in the appeal of journalist Cecil Motsepe against his conviction for criminal defamation. He had cited unnamed court officials as saying that a Magistrate at the Meyerton Magistrate’s Court discriminated against black people in favour of whites when passing sentence, in an article published in the Sowetan newspaper on 10 December 2008.

Motsepe was sentenced in the Nigel Magistrate’s Court to a fine of R10,000 and a jail term of 10 months, suspended for five years.

Although the court did not uphold Motsepe’s conviction, it ruled that criminal defamation did not violate the South African Constitution, citing the need to construe the right to freedom of expression ‘in the context of other rights such as the right to human dignity’.

‘We are extremely disappointed at this decision that will continue to allow journalists to be criminalised in the course of their legitimate work.  While individuals have a right to seek redress for harm to their reputation, this should never be through the criminal courts,’ said Carles Torner, Executive Director of PEN International.

‘Criminal defamation has been widely recognized – including by the African Commission on Human and Peoples’ Rights – to be  inconsistent with a democratic society where writers and journalists should be free to carry out their work without fear,’ said Margie Orford, President of PEN South Africa.

We know that the existence of criminal defamation laws allow officials to target their critics. South Africa could have set an example to the rest of Africa by decriminalising defamation, particularly for journalists whose watchdog role plays a vital role in holding officials to account. We will continue to campaign until no one faces a prison sentence or punitive fines for insult or libel.

The amici coalition highlighted the disproportionately harsh sanction criminal defamation carries, violating freedom of expression. PEN calls on South African authorities to review the Constitution and relevant legislation as a matter of urgency to ensure that criminal defamation is removed from the statute books.

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South African court debates constitutionality of criminal defamation – case of journalist Cecil Motsepe