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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Manuel v Malema in the Supreme Court of Appeal

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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Season 1 of media law podcasts now complete: Publish responsibly

All five of our media law podcasts have now been uploaded. You will find episode 5 here.

It is one of my favourites. To properly understand the case we discuss – where two veteran journalists sued the Economic Freedom Fighters (EFF), and won – you need to go back over 30 years. My guests are the journalists who brought the case – Thandeka Gqubule-Mbeki and Prof Anton Harber, accused by the EFF of being Stratcom agents. Read the case before you listen to the podcast here.

For the full season 1 podcasts, you can find links in my blogs below. Or if you prefer, search for “Webber Wentzel Legal Insights” wherever you get your podcasts (Apple, Google, Spotify). You will find them easily (and other interesting podcasts from Webber Wentzel, eg the impact of COVID19 on the tech sector). You can access the Spotify podcasts here.

Are some politicians scandalising the court?

In recent weeks, following the Al-Bashir scandal, some of our most powerful politicians have made provocative statements highly critical of aspects of our judiciary.

It is now notorious that the government is alleged to have breached a clear court order: that Al-Bashir not be allowed to leave South Africa until such time as the court had rendered its final ruling in the case. (For a good summary of this low point in our constitutional history, see this Mail & Guardian article and the Johannesburg Bar Council’s media release on the issue).

Gwede Mantashe, the Secretary General of the ruling party, never one to mince his words, got the ball rolling on 21 June 2015, saying to the television programme Carte Blanche:

“There is a drive in sections of the judiciary to create chaos for governance. And we know, that if it doesn’t happen in the Western Cape High Court it will happen in the Northern Gauteng. Those are the two benches where you always see that the narrative is totally negative and create a contradiction.”

SA Communist Party secretary and Minister for Higher Education and Training, Blade Nzimande, quickly followed suite stating on 7 July 2015 that the judiciary was interfering with the state through its overreaching judgments (see News24 article).

In the same week it was also reported that Minister of Police Nkosinathi Nhleko had allegedly made a statement previously that “some elements of the judiciary meet with characters to produce certain judgments.” (see EWN article).

These statements led to an unprecedented show of force by the leaders of our judiciary, which released a statement on 8 July 2015 emphasizing the importance of respecting court orders and taking issue with what they called “general gratuitous criticism” and “repeated and unfounded criticism of the Judiciary.” Continue reading →

Democratic Alliance v African National Congress – The Nkandla SMS case

Ben Winks and I penned an article for the Mail & Guardian last week on the Constitutional Court’s complex and important case involving the DA’s pre-election SMS. You can read the case here.

Our M & G article, “SMS ruling muddies the waters”, is here.

You’ll see we argue that the minority judgment of Zondo J is right on the facts (so the ANC should have won), and the concurring majority judgment of Van der Westhuizen J is right in principle. We love the writing and sentiments expressed in the majority judgment of Cameron, Froneman and Khampepe JJ, but we think they got the case wrong on the facts. However, there are some important and welcome implications of the majority judgment for media law, which I’ll explore in a later blog.