An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Patricia de Lille is a brave politicians but, let’s face it, she is not the sharpest tool in the shed. Last month the
Denting her freedom loving image, she called for urgent implementation of legislation that would regulate Internet blogging, “where members of the public can with impunity slander and defame individuals and organisations they do not like.” She is upset because blogging:
allows anonymous individuals to post slanderous and defamatory comments with impunity about anyone they choose, without the legal consequences they would face in other more reputable print and electronic media. … ‘Because the problem is that we couldn’t trace the author of the defamatory statements, we will also ask the NIA to investigate.
She was on about this because one of the defamatory statements was made about Simon Grindrod, the somewhat surly, boyish looking, leader of the Independent Democrats in the
Of course, it is not clear how this legislation will actually change anything. At the moment anyone who has been defamed can theoretically take the person who defamed him or her to court and can claim damages from that person and force the person to apologise. This is in line with the view that the right to freedom of expression must be balanced against the right to human dignity and must sometimes yield to the right to human dignity.
In practice, it is rather difficult to bring a successful defamation case. If one is poor one has no hope in hell of ever successfully bringing such a case on one’s own steam. It would cost hundreds of thousands of
The sad reality is that in
But what De Lille discovered most recently was, of course, that even if one is rich (by South African standards) and has a large ego (as Simon Grindrod evidently has), it would not always be that easy to bring a successful defamation case. One must find the person who made the statements, pay lawyers to draw up papers and prepare a winnable case based on defamation law now tempered by requirements of freedom of expression. And even when one is able to do so, the person who defamed you might be indigent – in which case it would seem pointless to bring the case at all.
I imagine that most people who Blog anonymously would not have deep pockets and would therefore not make good targets for defamation actions. When issuing her statement Ms Einstein forgot that one cannot really legislate against the difficulties of litigation. She also forgot that there are many ways of spreading anonymous rumours about someone – the Blogosphere is merely one way of doing so.
To call for legislation to regulate Blogging because she could not find the person who defamed simple Simon seems at best naive. At worst it looks like a typical knee-jerk politicians response to a much broader issue around access to justice.
To then refer the matter to the National Intelligence Agency is laughable. How on earth can defaming a minor politician in the Cape Town City Council have anything to do with National Intelligence?
One thing is sure, legislation will not stop people from defaming others – especially not people who are in the public eye. By lashing out like that, Ms De Lille is showing that she talks before she thinks. Come to think of it, that might mean that she will go far in politics. Maybe she can become our new Minister of Correctional Services?BACK TO TOP