Nelson Mandela Metropolitan University vs The Herald

Complainant: Nelson Mandela Metropolitan University

Lodged by:  MC Botha

Article: NMMU granted gag order on ex-student – Varsity acts over defamatory statements by Israeli

Author of article: Lee-Anne Butler

Date: 12 November 2014

Respondent: The Herald

Complaint

NMMU is complaining about an article published in The Herald on 2 October 2014, headlined NMMU granted gag order on ex-student – Varsity acts over defamatory statements by Israeli.

NMMU complains that:

  • the article re-published defamatory and unverified statements made by Mr Alexander Matveyeff (59), a former student at NMMU, against the university – compounding the damage already done to its good name;
  • it was not given an opportunity to respond to the defamatory statements;
  • statements reported in the story were not in the public interest and those allegations were factually incorrect; and
  • the newspaper was damaging the university’s reputation and integrity further by inviting SMS comments from the public.

The story

The story, written by Lee-Anne Butler, was a report on court proceedings which NMMU had launched against Matveyeff, in order to interdict him from making defamatory comments in respect of the NMMU. The university and senior staff members reportedly claimed that Matveyeff’s actions “stemmed from the fact that he was not admitted for his PhD”.

Included in court papers was a series of e-mails in which Matveyeff wrote to NMMU vice-chancellor Prof Derrick Swartz, which he had also sent to a wide audience (including political parties, church organisations etc.), stating that the university was discriminating against black academics. The story cited the percentage of black people in senior positions, which allegedly amounted to 9%.

Butler also reported that the court ordered Matveyeff to stop making, distributing or publishing any future allegations of a vindictive or defamatory nature regarding the university or any of its functionaries or employees, either directly or indirectly.

The article then proceeded to quote some of the defamatory statements, such as allegations relating to racism and about the NMMU supposedly having failed in its duties towards the public.

The arguments

The NMMU complains that the newspaper re-published “some of the defamatory remarks made by Matveyeff and which formed the basis of the Order being granted”. It argues that it regards the publication by The Herald of these statements as defamatory in its own right, and that the newspaper could not contend that it was merely repeating what Matveyeff had said.

The university says it appears to be common cause that, at the time of publication, the newspaper was aware that the High Court had already interdicted Matveyeff from making defamatory statements and that a final judgment was due to be handed down seven days after the story had been published.

The institution argues: “Despite knowledge that a court had already interdicted the publication by Matveyeff of defamatory statements the Herald nevertheless proceeded to publish the very same defamatory remarks under the guise of accurately reporting the statements by Matveyeff. The publication of the Article is no less defamatory and damaging to the NMMU than the initial publication by Matveyeff.”

The NMMU adds that Matveyeff’s defamatory statements were untrue and that the newspaper had made no effort to establish the veracity of the allegations in question.

It refers in this regard to a judgment by the Supreme Court of Appeal in Tsedu & Others vs. Lekota & Another (2009), where Nugent J A held the following:

“A newspaper that publishes a defamatory statement that has been made by another is as much the publisher of the defamation as the originator is. Moreover it will be no defence for the newspaper to say that what was published was merely repetition. For while the truth of this statement (if it is published for the public benefit) provides a defence to an action of defamation, the defence will succeed only if it is shown that the defamation itself is true, not merely it is true that the statement was made.”

The NMMU also complains that the:

  • invitation to the public to respond by SMS (which would presumably be published) exacerbates the matter;
  • newspaper did not ask it for comment prior to publication; and
  • story was not in the public interest.
The Herald replies that this matter is not about whether the comments made by Matveyeff are defamatory or not. The newspaper says it is prepared to assume for present purposes that the comments are defamatory (and the remainder of this submission proceeds from the supposition that the comments are defamatory). However, this matter is about a far narrower issue: that is, whether the newspaper has a recognised and legitimate defence to justify the publication of the defamatory comments.

The publication submits it was within its rights to publish the article in question, and in particular the remarks made by Matveyeff, on the basis that the article is protected by qualified privilege (in relation to reporting on court proceedings).

“In South African law, it is not unlawful to publish a defamatory statement that presents a fair and accurate account of the court proceedings. The underlying basis of this immunity is to enable persons who are not in a position to follow the court proceedings to be informed by the media about the manner in which justice is administered. This immunity therefore rests on a foundation of public interest as well as the principle of open justice.”

For example: In relation to the principle of open justice, in S v Mamabolo (E TV and others Intervening) 2001 (3) SA 409 (CC), at paragraph 29, Kriegler J (in whose judgment the majority concurred) stated as follows:

“Indeed the ostensible tension between freedom of expression and protection of the reputation of the judicial process ought not to be exaggerated. Since time immemorial and in many divergent cultures it has been accepted that the business of adjudication concerns not only the immediate litigants, but is a matter of public concern which, for its credibility, is done in the open where all can see” Of course this openness seems to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective: so that the people can discuss, endorse, criticize, applaud or castigate the conduct of their courts. And, ultimately, such free and frank debates about judicial proceedings serve more than one vital public purpose. Self-evidently such informed and vocal public scrutiny promotes impartiality, accessibility and effectiveness, three of the important aspiration attributes prescribed for the judiciary by the Constitution”. (Emphasis added.)

The defence of qualified privilege was applied in Benson v Robinson & Co (Pty) Ltd 1967 (1) SA 420 (A), where the court demonstrated the balancing exercise which the defence encapsulates in the following remarks: “the interests of the public to be informed of the public proceedings of authorities or bodies entrusted with public duties outweighs the personal right of any individual who may be defamed during the course of a debate.” (Emphasis added.)

In Kingswell v Robinson, Kingswell v Argus Co Ltd 1913 WLD 129, the court held that privilege did not extend to the publication of a summons or indictment except in so far as such documents formed part of judicial proceedings in open court. Accordingly, a court document will only be open to publication once the court has had sight of such document. The court further stated that the privilege is not dependent on both parties being heard by the court and attaches whether the document has been read in open court or not. On the basis of this case, therefore, the judge must have had sight of such document prior to its publication.

 

 

The Herald also says the right to freedom of expression in terms of Section 16 of the Constitution is a significant right that is foundational to democracy. Indeed, it is the means by which members of the public are kept aware of matters of public interest and importance and the right accordingly facilitates a responsible citizenry. Court reporting and the principle of open justice have, moreover, been held to ensure accountability, transparency and ultimately fair proceedings.

The newspaper argues that, based on the principles set out above, the crisp question is: Was the article a fair and accurate account of the court proceedings?

It replies in the affirmative, and notes that the NMMU itself acknowledges in its complaint that the story was correct.

In conclusion, The Herald says the Judge expressly recorded in the court order that the order was granted “[h]aving heard Advocate Bloem and Advocate Gajjar, Counsel for the Applicant and having read the documents filed of record”.

“It follows that qualified privilege would attach to reports of the proceedings as well as any of the documents filed of record and The Herald was plainly therefore entitled to report on and quote from the documents, including any remarks in the papers which were alleged to be defamatory. In this regard we record that each of the defamatory quotes included in the article formed part of the documents in the court record for the proceedings on 23 September 2014.”

The Herald argues that if I were to find in favour of the NMMU in this matter, it would have a “stultifying effect on court reporting”. Notwithstanding that a complainant were to accept that an article gave an accurate and fair presentation of the issues and relief presented in the court proceedings, the press would be unable to report on the proceedings for fear of a complaint to the Press Council being brought against them.

“As noted above, this is the very purpose for which the defence of qualified privilege exists.”

My considerations

I note that the:

  • NMMU does not complain about accuracy, but merely about the (re-)publication of defamatory statements made by Matveyeff; and
  • newspaper does not deny that the statements in question were defamatory.

The only question on my table is whether the newspaper was justified in mentioning the defamatory statements made by Matveyeff, as that is the crux of the complaint.

Of course, the NMMU is correct in stating that the repetition of defamation is also defamation. This general statement is not in dispute.

However, in this case the reporting was on a court case, which (as Webber Wentzel correctly argues) enjoys qualified privilege – if that was not the case, the press would not have been able to report matters that are in the public interest (and also not, for example, everything that is said in Parliament).

I also take into account that the story did need some context, which the details of Matveyeff’s allegations provided.

It is noteworthy that the NMMU had a chance to materially respond to The Herald’s response, but chose not to do so.

In this regard I am specifically referring to the:

  • following sentence by Webber Wentzel: “In South African law, it is not unlawful to publish a defamatory statement that presents a fair and accurate account of the court proceedings. The underlying basis of this immunity is to enable persons who are not in a position to follow the court proceedings to be informed by the media about the manner in which justice is administered. This immunity therefore rests on a foundation of public interest as well as the principle of open justice”; and
  • examples of verdicts in relevant court cases, provided by the newspaper.

Moreover, the fact that The Herald was aware at the time of publication that the High Court had already interdicted Matveyeff from making defamatory statements (and that a final judgment was due to be handed down seven days after the story had been published) is neither here nor there – the newspaper still had a right to report on the essence of the matter.

I also endorse the newspaper’s argument about freedom of expression (in terms of Section 16 of the Constitution, which is also cited in the Press Code).

As far as the other elements of the complaint are concerned, I am of the following opinion:

  • It was not the newspaper’s duty or indeed mandate to establish whether Matveyeff’s allegations were true or not;
  • The newspaper was not obliged to ask the NMMU for comment – in court reporting, it is not common practice for a publication to do so;
  • The NMMU’s statement that the story was not in the public interest is rather baffling; and
  • Nothing prohibits the newspaper from asking the public what it thinks about this matter.

Finding

The complaint is dismissed.

Appeal

Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.

Johan Retief

Press Ombudsman