Pretoria - In a groundbreaking judgment regarding the rights of the media, the high court in Pretoria warned that journalists who committed a crime of defamation couldn’t hide behind their constitutional right of freedom of expression.
“This is not an absolute right,” Judge DS Molefe said.
Media freedom came under the spotlight during an appeal by a former senior journalist at the Sowetan, against his conviction on a charge of criminal defamation.
Cecil Motsepe was sentenced to a R10 000 fine, or 10 months’ imprisonment, suspended for five years in the Nigel Magistrate’s Court.
This was after he was convicted of badmouthing a magistrate in articles published in the newspaper, under the heading “Spot the Difference”.
The stories insinuated that magistrate Marius Serfontein was a racist and that he treated white and black accused differently. Motsepe had obtained the information - which later proved to be wrong - from a source. He also did not verify his facts before writing a series of articles.
The magistrate laid a complaint against him, but instead of going the normal civil route, claiming damages for defamation, the magistrate went the criminal route.
Judge Molefe said Motsepe was clearly negligent in not ensuring that the information he had received, was correct.
The magistrate’s court, in convicting him, found Motsepe acted recklessly and that what he wrote, may not have been the truth. It was said that because of his eagerness to expose the magistrate, he threw caution to the wind.
Judge Molefe said this finding did not support the facts and there is no evidence that he knew the facts in the stories were wrong.
“I am of the view the State failed to prove intentional publication beyond reasonable doubt…” he said. Meanwhile, 15 bodies involved in media freedom, including the Freedom of Expression Institute and Sanef, lost their bid in asking the judge to rule that the common law crime of defamation regarding the media is inconsistent with the Constitution.
The judge was told that the criminal defamation laws had a negative impact on the freedom of the media. They argued that the civil remedy for defamation provided adequate means to deter and prevent defamation by the media.
Judge Molefe said freedom of expression didn’t have a superior status to other rights under the Constitution. “The Constitutional Court has ruled that freedom of expression must sometimes take a back seat… The law of defamation has to find a workable balance between various rights and interests. A balance must be struck…” the judge added.
Pretoria News