Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
23 May 2007

De Lille no Ms Einstein

Patricia de Lille is a brave politicians but, let’s face it, she is not the sharpest tool in the shed. Last month the Constitutional Court rapped her over the knuckles for revealing personal details about HIV positive women, so she should have realized that she would be ridiculed for complaining about horrible people who defamed her sidekick, Simon Grindrod (pictured). But that is exactly what she did this week.

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 Cape Town city council.

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 Rand and would require quite a thick skin – just ask Ronald Suresh Roberts. De Lille would not have been successfully sued if the poor women who sued her was not represented by the Aids Law Project.

The sad reality is that in South Africa the defamation law is really there so that rich people with large egos can sue other rich people with fast tongues.

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?

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