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

The appeal of journalist Cecil Motsepe’s criminal conviction on a charge of defamation was heard in the Pretoria High Court on 6 October 2014. This matter had been watched very closely by civil society organisations and free speech forums as a great cause for concern in terms of the implications on freedom of expression. This saw the coming together of a coalition of 15 like-minded local civil society and international human rights organisations, including PEN International, as amici — or friends of the court — in the matter.

The amicus coalition, represented by the FXI Law Clinic, instructed Advocate Steven Budlender to prepare argument on the contestation of the constitutional validity of criminal defamation. In making this argument reference was made to the case of Nevanji Madanhire & Nqaba Matshazi vs Attorney-General of Zimbabwe, in which case the Constitutional Court struck down the offence of criminal defamation, finding that it is “not reasonably justifiable in a democratic society”, as it is “a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons“.

The amici coalition highlighted the excessive nature of criminal defamation when a remedial civil (delictual) action for defamation of character exists as recourse for those who have valid basis for instituting cases for defamation. Criminal defamation is a disproportionate sanction when there exists less restrictive means with which to achieve the purpose of curbing slanderous speech. The central question really is does the crime of defamation have a place in our law and indeed our democracy?

It could not be left out in argument the deterrent effect on free speech; specifically with regards to the media. The amici coalition emphasised the chilling effect such a crime is capable of having on the media; the thought alone of the possibility of having to withstand, arrest, trial and possible conviction undoubtedly will lead to self-censorship and ultimately impact the public at large limiting access to information.

The prosecuting authority maintains in its argument that criminal defamation remains the only means by which to impose sanction of speech that exceeds the boundaries as set out in the constitution, therefore still having a place in society. Judgement has been reserved and we now eagerly await the outcome of the court on the matter.

The amicus coalition against criminal defamation maintains that the South African judicial system should align itself with the global stance on decriminalisation of defamation. This cases avails the opportunity for South Africa to support the efforts in the region and around the world to in to advance freedom of expression and we look forward to a positive outcome.