Cele loses ‘shoot to kill’ defamation case

I wrote this article about defamation allegations against the Sowetan newspaper

On 14 February 2013 Judge Kathree-Setiloane handed down judgment dismissing a claim by former National Police Commissioner, Bheki Cele, for damages of R200,000.00 for defamation, alternatively for an infringement of his dignity, stemming from the publication in Sowetan newspaper of two articles relating to his now infamous “shoot to kill” statements.

Cele sued Avusa Media Limited (now Times Media Limited), the owner and publisher of Sowetan, for the 2007 publication of two articles entitled “Aim for the head” and “Eight dead in 10 days of crime war“; as well as a digitally manipulated photograph that depicted Cele as a character from the Wild West, with the caption “Police must aim for the head“. At the time that the articles were published, Cele was the KwaZulu-Natal MEC for Transport, Community Safety and Liaison.

During his testimony, Cele denied that he had used the words “shoot to kill”. He did, however, admit to making other statements that were similar, including “aim for the head” and police should “use deadly force”. Judge Kathree-Setiloane found Cele’s denial that he had used the words “shoot to kill” implausible and held that, on a balance of probabilities, he had made this statement.

The Court adopted a contextual approach to the interpretation of the articles and held that that the ordinary, reasonable reader would understand Cele’s statements to mean that he was taking a “no nonsense stance on violent crime” and would not understand the articles to mean that Cele had “murderous intent”.

Judge Kathree-Setiloane re-emphasised the long-standing principal that where a defamatory statement can be understood to have more than one meaning, the one being defamatory and the other not, the Court must adopt the non-defamatory meaning of the statement.

Cele further argued that the manipulated image portrayed him as a “gun-touting man” and as a movie star rather than a politician taking a serious stance on crime. He also argued that readers would have perceived the manipulated image as a real photograph of him. He argued that on this basis the image was defamatory of him, or alternatively infringed his right to dignity.

The Court disagreed and held that a reasonable person would not consider the image to be a real picture of Cele as the clothing and gun holster worn by the character in the photograph were clearly not modern and resembled clothing worn by sheriffs in the Wild West. It was also held that that this image would be understood as a portrayal of officialdom, represented by Cele taking a tough stance against violent crime. Judge Kathree-Setiloane accordingly ruled that the image was not defamatory.

As regards Cele’s argument that the image infringed his dignity, the Court confirmed that a two-stage test must be applied. This includes a subjective evaluation of the hurt feelings of the plaintiff and an objective evaluation of whether an ordinary reasonable person in the position of the plaintiff would feel insulted and/ or hurt by the image.

The Court concluded that not only was Cele’s insistence that the image was subjectively hurtful disingenuous, but that the reasonable politician in Cele’s position would not have found the image injurious. In dismissing the claim, the Court reaffirmed that satire is an important form of expression and social commentary, and that the use of Cele’s photograph without his permission was not unlawful as it was used to comment on issues that are manifestly in the public interest.

The judgment is the first of its kind in our law to consider a claim by a politician in relation to a manipulated and/ or satirical image. The Court ruled that there was no difference between the manipulated photograph and a cartoon of Cele. The same principles applied in the judgment will undoubtedly be applied in cases involving political cartoons.

The judgment serves as an important reminder that politicians, while not expected to endure every infringement of their rights, must tolerate criticism by the public concerning their public utterances and that the Courts will protect the right of the public and the media to engage in satirical commentary on issues of public interest.

Cele has applied for leave to appeal.

The Webber Wentzel Media team represented Times Media in this matter.