Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.
If Ronald Suresh Roberts had sued the Sunday Times before 2002, he might well have won his defamation case. Now he has not only lost his case but is reportedly also saddled with a legal bill of about 1 Million Rand.
In 2002 the Constitutional Court endorsed the inexplicable about turn of the Supreme Court of Appeal (that’s a story for another day) who suddenly in the Bogoshi judgment decided that the defense of reasonableness was also available to the media in defamation cases.
The CC was heavily criticized because, it was said, it would have been better to extend the frontiers of freedom of expression and that placing a duty on the media to act reasonably when publishing defamatory statements placed to heavy a burden on them. Such a requirement would continue to have a chilling effect on journalists and would inhibit free speech, it was argued.
What was required, many of us argued, was merely to place a duty on a publication not to deliberately publish defamatory statement about anyone. Only where a publication acted in bad faith, should they be held liable, we said.
The CC argued that the freedom of expression had to be balanced against the right to human dignity of the person being defamed and that to require a newspaper to act in a reasonable way would allow an appropriate balance between the interest of society and the interest of the individual.
The Roberts judgment seems to suggest that the CC was not far off the mark. In this case a self-important windbag tried to use the defamation law to get back at a newspaper who published unflattering views about him – but he lost.
He was also ordered to pay the cost of the opposing legal team. It is a devastating outcome for him and for all other windbags thinking of suing themselves out of trouble.
This case will have a chilling effect not on journalists but on defamation actions. It is good news for journalists and for media companies.
Of course, Mr Roberts was a special kind of plaintiff because once he took the stand, he really seemed to confirm to all – including the acting judge – that he really was even more unlikeable than the Sunday Times had suggested. But his case might just have shown that in future it would be more difficult to win a defamation case if you are a public figure with a problematic character.
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