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South Africa Slides Down The Free Press Ladder

South Africa Slides Down The Free Press Ladder

On December 5, the High Court of Pretoria in South Africa issued its long awaited verdict in a criminal defamation case against Cecil Motsepe, a journalist. At trial, Motsepe had been convicted of criminal defamation and sentenced to a fine or suspended 10-month sentence last year due to a 2009 article he had written for the Sowetan, a South African news outlet.

On appeal, the Pretoria High Court overturned his sentence, but maintained that criminal defamation was in line with the country’s constitution. Such criminal defamation laws protect public figures from undue defamation, but ultimately hinder journalism, both as an industry and an individual pursuit.

The expense of court fees and fines surrounding allegations of criminal defamation, in addition to the significant hindrance on the freedom of the press, have caused such laws to fall out of favor across the continent and, indeed, across the globe.

Motsepe’s case began with writings in 2009 that impugned the judgment and character of a magistrate judge. In a series entitled “Spot the Difference,” Motsepe insinuated that magistrate Marius Serfontein was a racist and treated the accused differently based on the color of their skin.

According to a report by the Independent Online, Motsepe got that information from a source, information that would later turn out to be false.

Serfontein then alleged defamation, but instead of pursuing the traditional civil course and seeking damages for falsities written, he attempted to pursue criminal charges. These charges were born out when the magistrate court found that Motsepe was reckless and therefore guilty of criminal defamation.

This ruling was overturned last week when Judge Molefe of Pretoria’s High Court ruled that the facts were unsupported by the evidence.

According to Article 19, an international free speech organization, in general criminal defamation cases require that the writer knew the allegations were false or that he or she was reckless in printing them (i.e. should have known they were false). Molefe found that neither was supported by the evidence and thus the conviction itself was overturned.

In addition to attempting to overturn Motsepe’s individual conviction, a number of civil society organizations had urged the High Court to find that the crime was in violation of the free speech and free press guarantees of the South African Constitution.

Violating Free Press

This element of the decision may surprise many Africa watchers and frequent readers of AFK Insider. Earlier this year we reported on a relatively similar case from South Africa’s northern neighbor, Zimbabwe.

In the case, the Zimbabwean Herald newspaper had reported on the financial dealings of a former government minister. In response, the government charged the editor and writer responsible for the story with criminal defamation.

This case, after appeal, would result in criminal defamation laws being struck down in Zimbabwe. The Constitutional Court went even further, writing that such laws were “not reasonably justifiable in a democratic society.”

This is a position shared by much of the continent. In 2010 the African Commission on Human and People’s Rights passed a resolution calling “on states parties to repeal criminal defamation laws or insult laws which impede freedom of speech, and to adhere to the provisions of freedom of expression, articulated in the African Charter, the Declaration, and other regional and international instruments;” and “on States Parties to refrain from imposing general restrictions that are in violation of the right to freedom of expression.”

There have been similar denunciations of criminal defamation laws by various organizations throughout the globe including the United Nations, the Organization for Security and Cooperation in Europe, the Organization of American States and a number of others.

It is rare to find a situation where Zimbabwean law is more aligned with international human rights norms and fundamental freedoms than its southern neighbor, however, with the recent decision upholding criminal defamation in Pretoria, South Africa finds itself on the wrong side of this divide.

Criminal defamation laws make for tremendous difficulties in a number of arenas. Not only do they abridge basic free speech and free press norms, they also make it difficult for private media to develop under threat of expensive prosecutions.

While civil defamation laws serve to ensure that damaged individuals can receive compensation for the damage caused by fraudulent or false claims, criminal defamation serves no positive purpose and for that reason much of the world has cast it to the dustbin of history. The High Court of Pretoria stayed on the wrong side of history when it opted against doing just that.

Andrew Friedman is a human rights attorney and consultant who works and writes on legal reform and constitutional law with an emphasis on Africa. He can be reached via email at afriedm2@gmail.com or via twitter @AndrewBFriedman.