Media law developments in the third quarter of 2021

I haven’t posted anything for a while and this is an update post to share some of my recent pieces in the media, and other developments

At the beginning of July this year, the Constitutional Court handed down its decision in the CR17 case – where President Ramaphosa  successfully challenged the Public Protector’s report where she found he had acted unlawfully in relation to donations made to his CR17 election campaign. We acted for amaBhungane, who was interested in the case not because it thought the Public Protector’s report was correct but because it argued that if the Executive Ethics Code did not require disclosure of donations made to internal political campaigns, it was unconstitutional.  In the piece I authored with Lavanya Pillay, we analyse the Con Court’s decision – available here  – which held that the Full Bench of the High Court ought to have considered amaBhungane’s constitutional challenge, having found that the Code did not require disclosure by Mr Ramaphosa.  You can read our Daily Maverick analysis, ‘To disclose or not to disclose”, here.  The Full Bench of the High Court acted swiftly in re-enrolling amaBhungane’s application for hearing: the application was heard on 7 September 2021. Judgement awaited.

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Ramos takes on Independent Newspapers – lessons in co-regulation and accountability

posted in Uncategorized on by

At the end of May, Justice Raylene Keightley, in the Johannesburg High Court, handed down a defamation judgment in favour of my client, Maria Ramos against Independent Newspapers.  We brought a motion on her behalf to vindicate her name, after an Independent editorial said she “fixed the rand.”

Astonishingly, Independent defended the claim, even though it was given an opportunity to retract and make amends before litigation.

I penned a piece in the Daily Maverick here, discussing the case also from the perspective of Independent’s withdrawal from the Press Council, which regulates all of the other major major print and online media players in South Africa.  I used to be the Independent’s lawyer before its ownership changed, and so the victory is a bitter-sweet one.  But as I always tell my publisher clients, if you have erred, fess up swiftly and make amends.   Independent has not appealed and complied with the court order.

I reproduce my piece below.

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When David met Judge Goliath – SLAPPs in SA law

posted in Censorship, Defamation, Freedom of expression, Media law, Musings on Media on by

A partner of mine at Webber Wentzel, Odette Geldenhuys (who works in the pro bono unit) and I recently wrote a piece in the Sunday Times on the unprecedented introduction of a SLAPP defence in a case decided by the Western Cape High Court on 9 February 2021.  We act for the six defendants in the case, who are alleging that the case is a classical SLAPP lawsuit.  You can read the case here.  It has made waves around the country.

Here’s our original piece:

In a groundbreaking judgment,  Deputy Judge President Patricia Goliath of the Western Cape High Court recognised that defendants may in principle raise a SLAPP defence in defamation cases. SLAPP stands for Strategic Litigation Against Public Participation; and it refers to meritless or exaggerated lawsuits intended to intimidate civil society advocates, human rights defenders, journalists, academics, individuals and organisations acting in the public interest.

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The spy who notified me: Six-love to amaBhungane in the RICA Constitutional Court case

posted in Access to information, amaBhungane, Bulk surveillance, Freedom of expression, Media law, Musings on Media, National security, RICA, Surveillance on by

I wrote a piece on the seminal victory for amaBhungane in its RICA and bulk surveillance challenge for Daily Maverick – published here  The case itself is available here and the High Court’s decision (which was essentially upheld) can be read here

It’s also available on amaBhungane’s website here

Lavanya Pillay from my team and I acted for amaBhungane and Sam Sole, assisted by three fantastic counsel – Steven Budlender SC, Stuart Scott and Itumeleng Phalane.

Here’s my piece.  I think my original suggested headline was nice (the subs didn’t) – The spy who notified me (post-surveillance notification has been carved into our law).

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Manuel v Malema in the Supreme Court of Appeal

posted in Defamation, Disinformation, Fact v opinion, Fair comment, Fake news, Freedom of expression, Media law, Musings on Media, Reasonableness defence on by

The Supreme Court of Appeal handed down a significant (and lengthy) judgment on defamation law on 17 December 2020, in the defamation case brought by Trevor Manuel against the Economic Freedom Fighters.  You can read the judgment here

In short, the SCA held that the EFF had unlawfully defamed Manuel (ie they published a defamatory media statement alleging he as corrupt and nepotistic without any legal basis at all), and granted Manuel declaratory and interdictory relief.  The SCA referred the issue of whether the EFF should apologise to Manuel, and the quantum of damages, for oral hearing.

I wrote a piece in Daily Maverick a few days after the judgment: read it here . I also reproduce it below – as my students know, it’s always nice to be able to quote Shakespeare.

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