The defamation of another person in its true sense if proven is a true violation of one’s dignity. But such a violation to suffice must be a grave one, if to overshadow the importance of the constitutional right to expression. The reality in the South African context and other jurisdictions is defamation laws are used by many in a position to do so as a deterrent to freedom of expression generally and more so journalistic expression.
Defamation laws in the South African context have claimed numerous unthinking victims, authors writing in good faith have been dragged to court by those who felt their “esteem had been lowered in society”, also authors have self-censored on matters worthy of publication in fear of falling victim to this process. This is particularly disturbing where the media is concerned, the single most important vehicle of mass communication of information.
It is inconceivable therefore that defamation as the existing hindrance of free speech can be made criminal. This is however the unfortunate truth as was seen in the matter of The State v Motsepe. The facts in brief, are that a former Sowetan journalist was convicted of the crime of criminal defamation for the publication of a series of articles authored by him regarding Magistrate Marius Serfontein. This conviction is being appealed by Mr Motsepe and is in court on Monday the 6th October 2014, Pretoria High Court.
In this regard civil society has come together and has involved itself in this case in the role of amici. This involvement aims to address the plight of the effect of criminal defamation on freedom of expression as well as journalistic work and press freedom. The amici coalition is somewhat restricted in its argument based on the SCA decision in Hoho v The State wherein the court held the crime of defamation to be consistent with the Constitution. The amicus coalition will in event make submissions to assist the court in considering the validity of imposing such sanctions on the work of journalists.
We look forward to the courts deliberation and conclusion of the matter. We hope that this case will re convene debate on the stance of the South African Justice system on the crime of criminal defamation. It is worth noting in this regard that majority of jurisdictions have repealed the crime of criminal defamation.
The civil society organizations that have formed a coalition with the FXI Law Clinic as attorneys of record are:
THE FREEDOM OF EXPRESSION INSTITUTE
THE ASSOCIATION OF INDEPENDENT PUBLISHERS
CENTRE FOR HUMAN RIGHTS
COMMITTEE TO PROTECT JOURNALISTS
HUMAN RIGHTS WATCH
MEDIA LEGAL DEFENCE INITIATIVE
MEDIA MONITORING AFRICA
M&G CENTRE FOR INVESTIGATIVE JOURNALISM
PAN AFRICA HUMAN RIGHTS DEFENDERS NETWORK
PRINT AND DIGITAL MEDIA SOUTH AFRICA
PROFESSIONAL JOURNALISTS ASSOCIATION OF SOUTH AFRICA
RIGHT TO KNOW CAMPAIGN
WORLD ASSOCIATION OF NEWSPAPERS AND NEWS PUBLISHERS
More on this matter can be read from: