Saturday, July 21, 2007

Judge errs in gagging Mail and Guardian, but truth reavealed

If the SABC internal audit report is to be believed, the head of the SABC’s legal services, Mafika Sihlali, is a fraudster and a thief of the most brazen kind. It is clearly in the public interest that such explosive allegations made by the most credible of institutions – the SABC internal auditing committee – be aired in public.

After all, we pay our TV licenses and have a right to know about serious, credible allegations of theft and fraud at the public broadcaster. However, Judge Lettie Molopa, of the Pretoria High Court disagrees. In the early hours of Saturday morning she granted an interdict against the Mail and Guardian prohibiting it from publishing details of the internal report.

She argued that Mr. Sihlali did not have sufficient time to respond to the allegations made in the report. Focusing on the potential harmful effect of publication on Sihlali she said: “No doubt once the article is published it will definitely destroy the applicant.” She said it was “just and equitable” to interdict the Mail and Guardian.

I find the logic of the learned judge, well, spectacularly flawed.

It is true that the findings in the internal audit report is damning, as it contains recommendations that Mr. Sihlali should be criminally prosecuted for theft and fraud. If the findings of the report are correct, Mr. Sihlali should surely also be barred from ever acting as an attorney again. The report finds prima facie evidence that Sihlali has defrauded the SABC of almost 2 million Rand. The fraud allegedly started only 3 weeks after he started working at the SABC.

He did this by allegedly irregularly outsourcing work to his own law firm, charging double for VAT, claiming double payments for work and giving work to his friends.

Troubling also is the fact that the Head of the SABC, Dali Mpofu (called a compulsive, sophisticated liar by Winnie Mandela in 1992) shares directorships with Sihlali in nine different companies, which are active in financial services, advisory services and mining. In addition, SABC chairperson Eddie Funde and Pearl Luthuli, the head of SABC3, share a directorship with him on Onetel, a publicly listed telecommunications company.

So far neither Mpofu or the SABC Board has taken any action against Sihlali despite the existence of the report. This seems fishy in the extreme.

In this context the judgment from the High Court seems deeply troubling. It seems to me not to have taken into account or misinterpreting the recent judgment of the Supreme Court of Appeal in Midi Television (Pty) Ltd vs National Directorate of Public Prosecutions.

In that case Judge Nugent argued that a publication could only be gagged if the prejudice that the publication might cause is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then the court would not gag a paper unless it believes that the disadvantage of curtailing the free flow of information outweighs its advantage.

In making that evaluation the court will not only consider the interests of the newspaper but, more important, the interests of every individual in having access to information. The interest of the public to know would be even more important where the state is trying to stop the publication of embarrassing information and where they would not be able to show that the publication would infringe any of the other rights in the Constitution.

In this case, Judge Molopa decided that the interest of one person – a servant of the people working for the public broadcaster who have been convincingly implicated in criminal activity – should weigh heavier that the interest of the 45 million South Africans who have a right to know how their TV licence fees and taxes are spent and how the public broadcaster deals with corruption in its midst.

This she could only do by not giving any weight to the interest of the 45 million ordinary South Africans and giving far too much weight to one (relatively important, politically connected and influential) person’s interests. It seems to me that this judgment shows a troubling contempt for the masses of the people and our Constitution, and a surprising loyalty to rich, well-connected elites.

It is profoundly in the public interest (and in the interest of democracy) for the M&G to publish such serious allegations. Mr. Sihlali could have been given the opportunity to respond to the allegations next week, but at some point surely the information would become known and he would suffer the consequences. The mere existence of the report hurts his reputation - the Mail and Guardian is merely reporting on facts but are now punished for this by the Judge. To give an interdict now only postpones the inevitable publication of the allegations that Mr. Sihlali is a crook. Why interdict the paper after it was printed except to teach the Mail and Guardian a lesson?

If Mr. Sihlali did not want to have his reputation destroyed, he should not have acted in a way that provided prima facie evidence of criminal activity to the audit committee. It is not for a judge to protect the actions of such a public servant from public scrutiny, because it sends a signal that the judge does not respect freedom of the media and thinks that the media did something wrong by exposing the credible findings of theft and fraud.

This seems to suggest that the Judge is untransformed and that she has not internalised the values of openness and freedom enshrined in the Constitution. It would be a good thing to send her on a crash course to familiarise herself with the values of the Bill of Rights. I, for one, would be happy to assist if she was at all interested in learning more about the Bill of Rights.


gerhard said...

To suggest this kind of behaviour from a judge is due to lack of training is a joke, right?

Pierre de Vos said...

I was saying this only halfway with my tongue in cheek. What I mean is that many lawyers and judges may know much about the black letter law, but are to some extent prisoners of their culture and religion and thus often have not internalised the progressive values contained in the Bill of Rights. They need to be educated about these values as espoused by the Constitutional Court. In that sense the lack of training to all judges about the transformative nature of the Bill of Rights is a big problem and leads to unenlightened decisions like this one.

Anonymous said...

I'm not sure i entirely agree with you. I am totally in favour of free speech and think these pre-publication interdicts the courts have been doling out are ridiculous. But this one seems different to me. The court did not say "You cannot publish because of the content of the article" (ala Oilgate, Muslim cartoons etc), it said "You cannot publish because you have not given this man a chance to respond to the allegations against him". The idea that you should be able to comment on serious allegations against you before they are published seems perfectly in line with constiutional values. The M&G can publish next week. The M&G loses because other papers will publish first so it cannot break the full story, so it suffers financially. But i don't think it is a serious blow to free speech or to the public's right to know that we have to wait a few days for the information so that information we do get is fair and based on both sides of the story. So, i think you are bit unfair on the judge.

Pierre de Vos said...

Anonymous, the judge said that Mr. Sihlali did not get sufficient time to study the report and give comment. But he was given 6 hours, so this is a bit of a dubious reason.

But my real point is that pre-publication interdicts should almost always be unacceptable if the information is of great public importance. Where courts grant an interdict like in this case, it will have a chilling effect on the media to uncover corruption and report on it because those who are exposed will be emboldened to seek protection from courts. Newspapers will be scared because they will lose lots of money when interdicts are granted and they have to redo some pages of the paper or they distribute their paper later than usual.

That is why judges should be careful to grant such interdicts which are used to "punish" newspapers like the M&G. In this case the fact that Mr Sihlali was "only given 6 hours to respond to an article seems to me a rather frivolous reason fro granting an interdict that so drastically limits the freedom of the media and our right to know.

Anonymous said...

Thanks for your reply!!

I hear your point and i agree that pre-publication bans should almost always be inappropriate. But I don't think this particular ban would discourage would reporting because all it is only telling the M&G to wait. I guess the M&G is in a particularly bad position because they only publish weekly, but that can hardly affect teh reasonableness of the time given to respond.

On the fact that he was only given 6 hours - i haven't read the judgment, but i heard somewhere that he was also only given the report 6 hours before and the report is 200 pages so that might be the reason. Anyway, while there may well be room for disagreement as to whether this particular time was 'reasonable' (and you may well be right that it was), i am more concerned whether in principle the failure to give a reasonable opportunity to reply is a cause for a temporary interdict. Because i don't think it will have any impact on the extent or quality of reporting that is produced and because it seems to be a fundamental principle of fairness that you should be entitled to a reply, i think it is a sufficient reason to delay (not prohibit) publication. Unlike you, i don't see the decision as 'punishing' the M&G, but simply making sure they act fairly.

Anonymous said...

The judge was out getting a jelly donut (or two) the day Freedom of the Press and Free Speech was discussed in lectures.

The little thieving conniving maggot had all the time he needed to respond during the SABC's internal inquiry. Why should he be granted MORE time?

Nuh uh. No more time for maggots.

Anonymous said...

Richard, I think you are prejudging the issue. Isn't the whole point of giving a person an opportunity to respond so that we can decide whether they are in fact thieving maggots? Maybe the report is biased or false or misleading and he can explain why. Probably not, and he's probably as guilty as sin. But i don't think that just because one side of the story paints a person as a thieving maggot we can prevent them from fairly presenting their side of the story which may paint a very different picture. Then, when we do call him a thieving maggot we can do so justifiably and with all the facts in front of us.

Also, i don't think the fact that he was given an opportunity to respond during the inquiry is necessarily enough as the report may improperly or inadequately represent his side of the story. Of course, the report may be entirely fair, but absolutely nothing is lost by giving him a fair chance to reply. Unless of course you are conducting a witch hunt (or is that a maggot hunt?) which is more concerned with finding him guilty than finding the truth. That is not to say that it the evidence isn't pretty damning, but give him a chance to come up with whatever excuses he can.

Anonymous said...

It's not up to us to decide anything, actually. The Mail & Guardian reported on a factual incident. The maggot was found guilty by an internal SABC inquiry. Whether or not that inquiry was correct or flawed is irrelevant. What is relevant is that it happened. Reporting news is reporting what happened.

We don't need to hear anything from the party who was found guilty. If he desires to comment, he may do so, but it is completely unnecessary and irrelevant to the story of what happened.

You say nothing is lost, but I say everything is lost if we allow judges to prevent the Press from doing its job of reporting factually what is happening.

The only issue to decide is whether the M&G is permitted to publish the findings of internal SABC inquiries.

Everything else is irrelevant.