Using law to bankrupt media outlets and curb media freedom

By Vuyisile Hlatshwayo

When the Supreme Court of eSwatini recently dismissed the Times of Swaziland (now Times of Eswatini) appeal against a E100 000 compensation for a defamatory story based on court documents and interviews, this shows that the media is under siege in eSwatini. 

In August this year, the Supreme Court upheld the High Court ruling in a defamation lawsuit in favour of senior police officer, Clement Sihlongonyane, against African Echo, the publisher of the Times of Eswatini. The newspaper had been found guilty of defamation for reporting the alleged forgery of an original Will of his late father at the Master’s Office.

Way back in May 2012, the Times reported this story focusing on what transpired between the complainant and his relatives concerning the protracted dispute over the still unwind up estate of their late father Sibonangaye Mathambo Langwenya. It relied on information from affidavits and interviews in accordance with the standard journalism practice. 

The nub of the story was finger-pointing between the complainant and his relatives concerning the authenticity of the deceased’s Will lodged with the Master of the High Court. The former told then Times court reporter, Welcome Dlamini, that the latter had stolen their late father’s original Will from the Master’s Office file in order to dispute its authenticity because it excluded them from being beneficiaries whilst making him the beneficiary. When confronted, the siblings, who were backed by the deceased’s two wives, accused the complainant of having colluded with a Master’s Office ex-employee to steal the original Will from the file and replaced it with a ‘fake’ photocopy which made him a beneficiary because he was excluded.

Clement filed a lawsuit against the newspaper, claiming E1 000 000 for damages. This was, however, reduced by the High Court to E100 000 in its ruling. He ignored that it reported words of the parties contained in court documents. Ultimately, the court found the Times guilty of portraying the senior police officer as dishonest and a fraudster who stole his father’s Will. 

It found the newspaper wanting in verification of facts which is the ethical journalism principle. Its failure to verify or ascertain the facts of the matter from the plaintiff was taken as a proof of malice by the court. 

In defence, the Times argued that the matter was already in the public domain as it was part of court proceedings. It also advanced the argument that it was discharging its duty of disseminating information to the public which had a right to receive it. But all that was of no avail.

Disregarding the concept of privileged occasion, the judges dismissed its appeal.  Information gleaned from the book titled The Law of Delict in Southern Africa, this appeal should have succeeded if the court considered the defence of privileged occasion protecting both true and untrue statements. This emphasises circumstances in which the law recognises that free flow of information is more important than a person’s reputation. 

According to the privilege, the public interest demands the courts not to impede freedom of expression, even when that expression consists of defamatory or untrue statements and it does not matter whether they are statements of fact or opinion. This defence of ‘privilege’ is applicable by factoring the circumstances in which the statement is made. It makes it necessary for a statement to be relevant to such an occasion before a person can claim defence.

Viewed as the courts’ trend to bankrupt media houses, the judges used previous judgments of  high-profile defamation cases to determine the quantum of his damages. This  trend was set in 2014, when the supreme court ordered the Times to pay the unprecedented amount of E550 000 to former senate president Gelane Simelane-Zwane, who had sued the newspaper for questioning her paternity and claim to the chieftaincy of the ko-Ntshingila area. Other defamation cases include:

• South African-based gospel artist Sipho Makhabane sued the Observer after it published an opinion piece questioning his Christian values. In January 2017 the supreme court awarded him E300 000. 

• The Observer was also successfully sued by medical doctor-cum-businessman Futhi Dlamini over a story about a dispute relating to his father’s estate. Dr Dlamini won damages of E200 000 when the supreme court dismissed the newspaper’s appeal in 2018.

• The Observer’s former managing director, Rev Alpheous Nxumalo, sued the paper over a report relating to his HIV status and won E250 000 in the supreme court in June.

• In 2020, the court ordered the Times to pay E350 000 to the deputy speaker of parliament, Phila Buthelezi, and E175 000 to assistant master of the court Ceb’sile Ngwenya for defaming them by intruding on their privacy. 

Many view this year’s ruling as muzzling media freedom in the country. Anton Harber, executive director of Campaign for Free Expression (CFE), absolves the Times of crime of defamation. He laments that this judgement threatens to put a serious brake on regular reporting of such cases. He sees it as an assault on the work of journalists, the right to media freedom and the right of the public to access such information.

“It shows little understanding of how journalism works and makes unrealistic expectations of the onus that rests on journalists to verify their information. The newspaper appears to have written a balanced story, based largely on affidavits and court records, as is often the case. This is standard journalism practice,” notes Harber. 

Outspoken editor of The Nation magazine, Bheki Makhubu shares the same sentiments. He says it is clear that the courts are bullying the Times and the media in general. He recalls how impeached Judge Mpendulo Simelane said media freedom is a fallacy in their 2014 contempt of court case with slain human rights lawyer Thulani Rudolf Maseko.

“These courts will punish the media for anything. In our contempt of court judgment with Thulani Maseko a judicial officer said  the media must be dealt with. The media is being bullied continuously. It’s clear that we’re not doing anything to defend ourselves. But all I’m saying is that it’s our fault,” he complains.

Limkokwing University of Creative Technology (LUCT) journalism lecturer, Khulekani Nene also decries the continuation of harsh judgments against the media. He is dumbstruck that this judgment removes the immunity of court reporters under absolute privilege. 

“It’s more scarer this time around as a journalist because I can still be sued for reporting on court proceedings or court papers. It’s sad that the more these judgments come, they instil fear in our journalists. I think it’s high time media stakeholders come together to discuss how they can deal with this. If this continues there’ll come a time whereby there’ll be nothing else to write. Anything you write will be liable to defamation,” he laments.

Independent News proprietor, Mfanasibili Sihlongonyane expresses deep concern that currently the courts are muzzling freedom of eSwatini media. He points out that recent court judgments favour the plaintiffs at the expense of public interest. This is despite that the public needs to be informed to make informed choices on their daily lives. 

“If journalists cannot write about court matters using information from court papers, what are they going to write. If the court finds you guilty for doing your work, it’s a bad thing. We should condemn it and appeal to the judiciary to prioritise public interest,” he appeals.

Interviewed legal scholar, who preferred anonymity, argues that the Supreme Court misdirected itself by ignoring the Times’ defence as the words complained of were contents of affidavits filed in court in related matters where they were extracted from. He argues that the article reporting on court proceedings cannot be  defamatory because it merely restates what is already in the public domain which cannot amount to publication. 

“The Supreme Court might have misdirected itself on law if it considered a court file misinformation. There’s no contention about the source document except the manner of reportage. Furthermore, the article was published by the appellant in discharge of its duty to disseminate information to the public which had a right to receive it. When interpreted in context this judgment might appear to be a warning shot to muzzle the press on defamation claims,” he says.

He reveals that the judgment is premised on a policy decision to curtail media leaks of court files, which denigrates the integrity of litigation process. With public trust deficit of the Master’s Office, it also seeks to restore the tainted integrity of the Master’s Office grappling with mismanagement of estates.

The scholar contends that the two competing rights of freedom of expression and dignity must be balanced against each other on case-by-case basis so that the relevant facts will determine which right ought to prevail in the circumstances. He cautions that “freedom of expression is not absolute, but neither is the right to dignity, and it cannot be said that the right to dignity will automatically prevail over the right to freedom of expression. The opposite is also true. The facts of the case, the parties involved, the surrounding circumstances and the rights at play will dictate which right will find superior status in the circumstances.” 

Who will save media freedom from the mounting defamation claims in a country with ineffective media bodies?