‘Can the press afford to criticise the rich, famous and influential?’
In defending ourselves against the suit of Dr Robert Hall we canvassed our rights to free speech and equality before the law extensively in court. We argued that these rights arise as a logical consequence of democracy, our newly established form of government. If the ultimate power, the ultimate right to decide, is vested in the people, then the people must have the ultimate right to information and an exchange of opinion.
In addition, South Africa’s new Constitution in fact explicitly purports to guarantee freedom of the Press. But, in the end, the judgement in the Hall case made no mention – and apparently took no account – of either.
In fact, on the first day of the trial already, before having heard any evidence in the case, the Judge, Mr Justice J J Conradie, ruled that he intended to apply the reactionary terms of the Appeal Court’s infamous 1993 judgement in Neethling vs Max du Preez (the Vrye Weekblad case – see noses 6&7).
Subsequently, the court frequently intervened to discourage or disallow evidence or argument directed at raising the issue of the rights and role of the press in a democracy. Because of noseWEEK’s lack of funds, we did not have the legal weight necessary to resist these interventions and force the issue. We could not afford to call the eminent expert witnesses we had hoped to call to testify on the function and practice of a free press. So, instead, we were forced to meet the absurd onus of proof imposed on the press by hostile judges of another era. It took seven long and costly weeks in court to do so.
To justify a single news report in nose14, which amounted to some critical and mildly humorous social comment prompted by Revenue and Police actions against Dr Hall, a man who for years has actively promoted himself in the media as a politically influential celebrity. The court put the press to the task of, in effect, conducting a massive and complex criminal prosecution.
Our courts have yet to take account of the fact that newspaper journalism is simply a mass exchange of information – of necessity, mostly hearsay information – observations and opinions amongst laymen. And that ordinary people – and the media they employ – take part in this exchange by right as citizens of a democracy.
In the process of compiling a newspaper, an editor has to make scores of almost instant “judgements” concerning the truth and public interest – the newsworthiness – of articles prepared for his newspaper each day. A newspaper editor could not possibly apply the procedures applied in a court of law to arrive at these judgements.
Readers understand the difference between a newspaper report and a Supreme Court judgement. In fact, they tend to treat the former with too much scepticism, and the latter with too little.
Newspaper reports are a passing, fallible indication of what may, at that moment, be of interest to ordinary citizens. Readers are free to read them, disagree with them, ignore or simply forget them. Court judgements, on the other hand, serve a different, more formal purpose. Confronted with a court judgement, a citizen dare not ignore it. Court judgements are, therefore, supposed to be of a much higher quality.
The courts certainly take a lot longer to arrive at a judgement than it takes a newspaper editor to arrive at the many judgements he must make in a single day. And whether the quality of the court judgements justifies the vast difference in cost – and the wait of years – is increasingly the subject of serious debate amongst intelligent people.
South Africa’s Supreme Courts (with very rare exceptions) still refuse to acknowledge that the press has rights and a special function in a large, open, democratic society. In the apartheid era, judges of the Appeal Court were able to exploit the parallels easily to be found between the laws that were applied to protect the class-based oligarchy that ruled in Britain through the 19th and early 20th Century, to introduce similar rulings to protect the racial oligarchy that ruled in South Africa until only three years ago.
Anything which might empower the masses – and newspapers, if they contain information and alternative opinions, would normally tend to do so – will always be treated with suspicion by the ruling class. Judges, quite naturally seeing themselves as members of that class, will tend not to acknowledge a special role for the press and, as a matter of principle, treat the press with the utmost suspicion.
So, if we wished to prove our own innocence of legal wrongdoing in publishing something critical of Dr Hall, we had to prove him guilty, with first-hand evidence obtained from all corners of the globe, of tax evasion, fraud, currency and exchange control contraventions, contraventions of the Immigration Act, forgery and uttering, and perjury – and then prove that he still owed various debts, both here and abroad.
In addition, it was deemed advisable to prove that most of his claims to an illustrious academic career and fame as an inventor, from which he derived his influence, were largely false. His counsel then argued that our evidence was impermissible, claiming that, if 19th century English law is to apply as South Africa’s common law, then the fact that a man has a reputation is all that matters, not whether it is genuine or was legitimately come by.
To dispute the more extravagant aspects of Hall’s reputation involved examining more than 50 000 pages of documents obtained from his auditors, thousands more pages from his bankers, his former attorneys, the Reserve Bank, the Department of Home Affairs and the Police. Before court records, obtained at great expense from America, could be used in evidence here, a special court application was required which took half a day to argue and cost several thousands of rands to prepare.
In order to introduce Dr Hall’s own financial records into evidence, we were required to summon to court and lead the evidence of seven bank managers and officials, two attorneys and an accountant. Half a dozen journalists from various newspapers had to be brought to court to confirm reports that they had written about Dr Hall.
To present and process the case required the full attention for two months of ten professional people, each with five or more years of academic training and years of professional experience. This was in addition to the several months spent in preparation. It cost noseWEEK and the Argus nearly R1,5 million, and Dr Hall the same again, in legal fees. This does not take account of our lost income and lost editions of our publication. And, of course, it leaves out of the reckoning the cost of a judge and courtroom provided by the taxpayer; expensive manpower and facilities which should have been better utilised dealing with the huge backlog of desperate cases.
Despite its conservative attitude, the Court was persuaded to make, if only indirectly, one important advance: the judgement expands the range of people about whom the South African press may now lawfully report and comment critically, without the press infringing rights to privacy and incurring liability for damages.
Earlier judgements had held that the press is only free to publish reports defamatory of individuals when reporting court proceedings and judgements, or if reporting about politicians or public officials. In the noseWEEK judgement, Mr Justice Conradie has now held that any person may, by his actions, "“hrow away the shield of privacy to the same extent as a public figure or politician”, adding of the Plaintiff: “He cannot strut on the public stage and then be heard to say that it is against the public interest to be told what kind of a man he really is.” In the end, the outcome of the case was less a credit to the law, than a measure of the lengths to which the two publications were prepared to go – and could afford to go – to prove the truth and legitimacy of their reports. And of the Judge’s extraordinary ability and stamina to handle such a mass of information and still arrive at a fair judgement. The outcome of the case could easily have been the reverse, had it not been for the intervention of the Freedom of Expression Institute’s Media Defence Fund.
Thus, while the judge would ultimately find that Dr Hall’s public image was “the result of a carefully contrived and sustained deception” and that he had litigated against the press “with a psychopathic ruthlessness as to the outcome”, the case could very easily have ended badly for the press.
Dr Hall was not obliged to testify that he had been defamed – he did not bother to testify in the case at all – nor did he claim that our reports were false. The law of defamation, as it stands, assumes these things against the press on his behalf.
Having been presumed guilty by the law, the extent and complexity of the evidence which noseWEEK was obliged to produce to prove its innocence was such that all its funds had been exhausted even before the trial began in March last year. The Media Defence Fund of the Freedom of Expression Institute was fortunately able to respond to an urgent appeal for help, and was able to raise R70 000 for legal assistance three days before the trial began. Without the FXI’s assistance, noseWEEK would have been obliged to abandon its case and the court would, as the law stands, have been obliged to find in Hall’s favour and to order us to pay his costs which, alone, given the seniority of the representation he could afford, were enough to bankrupt us.
Two weeks into the trial, when the court adjourned for a long recess, the defence case had hardly begun – and our funds were again exhausted. In the following months, despite encouraging indications from leading newspaper editors, efforts to persuade the mainstream South African press to help fund noseWEEK’s defence were unanimously rebuffed by the Newspaper Press Union. Again the FXI made urgent approaches to its sponsors and, only days before the trial recommenced in August, succeeded in raising another R180 000 – half the amount our lawyers had estimated would be required.
This assistance at least enabled noseWEEK to acquire the backing of a new attorney, and the services of new junior counsel to represent the publishing company (a legal requirement). Both agreed to a reduced rate.
As the new legal team had had too little time to master the vast and complex documentation, it was deemed advisable for me, as first defendant in my personal capacity, to conduct my own defence for the remainder of the trial. (While they are likely to be at a disadvantage, individuals are allowed to represent themselves in court). With increasing logistical and legal input from the FXI-funded legal team, I was able to carry the defence case to its successful conclusion.
The more elaborate defence prepared by the Weekend Argus is estimated to have cost in excess of R900 000. This despite the fact that noseWEEK, as first and second defendants, took the brunt of the defence and led all but two of the witnesses.
All this to defend a single report!
The case has, once again, illustrated how the current laws of defamation, as peculiarly applied to the media, are a factor which must seriously inhibit the development of media diversity in South Africa and discourage investigative journalism of any real relevance. The prohibitive cost of mounting a defence in terms of existing law could, in itself, amount to a denial of the press freedom ostensibly guaranteed in the Constitution of South Africa.
Ironically, the current legal position – and concomitant costs – might favour the large established media: A single court case can wipe out a small competitor, and discourage new entrants and investors: Simply stand back and let the legal system do the dirty work. A commitment to democracy and press freedom does not necessarily make commercial sense to corporate newspaper management, particularly to those fully occupied in trying to achieve short term marketing goals and maximum advertising income. For them lip service is good enough – and cheaper. I cannot say that this thought did not cross my mind when I was informed of the NPU’s unanimous decision not to help fund our defence.
But, after it all, yes, we are older and wiser. And, yes, we will do it all again if we have to – only better. And how knows, maybe one day a judge will read the Constitution and decide to give the Press its due.
We have done a deal with Dr Hall which has entailed considerable changes to this issue which would, otherwise, have appeared weeks ago. The reasons for the deal and its terms are apparent from the agreement which is reproduced here. As far as Dr Hall personally is concerned, we have made our point. But as regards the professionals – accountants, lawyers, bankers, government officials and the Police – who featured in the case, see future issues of noseWEEK!
The report – which appears as our lead story on page 5 – on the extraordinary claims and admissions made by South Africa’s former head of Military Intelligence at a secret meeting in America – arises from the evidence led in a related court case.
It remains for me to thank the many who so generously gave us moral and financial support: the scores of readers who telephoned and wrote to express good wishes, my media colleagues who came to testify at court without charge or complaint, or simply came to raise the flag; The SA Union of Journalists; Star editor Peter Sullivan who lobbied for donors; Die Burger, who alone of the press not actually directly involved in the case, thought the issues sufficiently important to justify regular reports on the progress of the trial.
The settlement agreement:
IN THE SUPREME COURT OF SOUTH AFRICA
CAPE OF GOOD HOPE PROVINCIAL DIVISION
In the case of
DR ROBERT M HALL, Plaintiff
CHAUCER PUBLICATIONS cc,
ARGUS HOLDINGS LTD and others,
Whereas judgement in the above matter was awarded in favour of the Defendants and Plaintiff was ordered to pay the Defendants’ costs on an attorney and client scale; and whereas the Defendants’ Bills of Cost are due for taxation; and whereas various ancilliary matters involving the Plaintiff and other parties are currently still pending before the courts; and whereas the Plaintiff, Dr Hall, has approached the First and Second Defendants and their attorneys and proposed an arrangement whereby payment of a substantial part of their costs would be made in settlement of their claims on certain terms and conditions.
Defendants have consulted all the parties involved in their defence, who are in agreement that the alternative would be for Defendants to pursue Dr Hall in the courts for their costs, probably involving extensive and costly further litigation.
In view of the fact, further, that defendants have successfully asserted their right to publish by obtaining judgement in their favour, and that all the evidence and the judgement in the case are public record which is available to anyone who wishes to avail themselves of it. It has now been agreed between the parties that
1. The plaintiff, Dr Hall, concedes the judgement of Mr Justic J J Conradie, and will no longer petition the Appeal Court for leave to appeal against that decision or will withdraw the petition if it has been lodged. The Plaintiff undertakes not to enter into any polemic concerning the Defendants’ publication or the merits of this case.
2. First and Second Defendants will not republish the evidence led in the case relating to the personal affairs of Dr Hall, except as it may be proven to be relevant to any future newsworthy conduct by him. Publication as stated above includes syndication or interviews.
3. Should either party be in breach of these undertakings, the other party will no longer be bound by this agreement.
4. It is recorded that, concurrent herewith, in a separate agreement with the Defendants, various payments in settlement of the Defendants’ costs will be made, which payments will include R236 300,50 as partial reimbursement to the Media Defence Fund of the Freedom of Expression Institute who advanced these funds for the First and Second Defendants’ defence. These payments will constitute all of the Plaintiff’s obligations as agreed.
7 February 1997
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