Freedom of expression: Scandal not defamation

Mtyhopo v South African Municipal Workers Union National Provident Fund (CCT 48/15) [2015] ZACC 32 (1 October 2015) per Cameron J [unanimous]

Today the Constitutional Court allowed an appeal and unanimously held that the appellant and his group were entitled to feel aggrieved about a payment of R800 000 and they were entitled to regard it as a scandal. They challenged the Fund to account more fully for what had happened to the money. Their grievance ‘embroiled’ the Fund in the scandal. The statement in The Herald’s article that the Fund “was embroiled in a scandal in which R800 000 was allegedly stolen” was true and not defamatory. Even if it was not factual it was a comment or opinion that appellant was entitled to hold and express. That meant that the Fund was never entitled to an interdict.

The Constitutional Court overturned this unreported judgement of the High Court: South African Municipal Workers Union, National Provident Fund v Mtyhopo (1247/2013) [2014] ZAECGHC 48 (12 June 2014) per Tshiki J.

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GilesFiles on October 16, 2015 at 4:01 pm

Read the latest Comment by Prof Darcy du Toit: When freedom of speech can get costly published by LexisNexis in IR Network [subscription required].

Excerpts

The central issue before the Constitutional Court was whether Mr Mtyhopo’s quoted statements were indeed defamatory; for, if they were not, the dispute fell away. And the court found that they were not. The test for defamation is whether a statement “is likely to injure the good esteem in which [the plaintiff] is held by the reasonable or average person to whom it had been published” (para 30). Even if the statement regarding the Adjudicator’s ruling was misleading, it was held, the criticism it implied was of the bargaining council and not of the Fund.

As for the “scandal claim”, the court found, the Fund in its response to the Adjudicator had confirmed that R800 000 was improperly paid to a trustee who was then removed from the board. “This”, Cameron J said, “is a scandal”. But no less scandalous than what the Fund had admitted, the court went on, is what it had left unsaid – for example. “[w]ho was the trustee? How did he or she manage to procure the payment into a personal account? What processes and procedures of the Fund were so deficient that a major life insurer … wrongly paid such a big sum to an individual board member? Was the money ever recovered from the trustee? Was a criminal charge ever laid? Was the trustee ever prosecuted? If so, what was the outcome?” (para 39) – and so on.
. . . .

The result was that the court did not need to pronounce on the issue of freedom of speech. It confirmed that statements reflecting badly on others are not defamatory if they are true and if their publication is in the public interest. And even if they are not factually accurate, they will still be permissible if they reflect a comment or opinion which the person making it “was entitled to hold and to express” (para 42).

This is precisely where freedom of speech comes in. Labour market institutions, and their proper functioning, are extremely important to the economy and society. Exposing shortcomings or wrongdoing on the part of officials is certainly in the public interest. But freedom to discuss their extent and express opinions on what is right or wrong is crucial in holding institutions to account. In our increasingly litigious society, institutions and officials aggrieved at criticism to which their conduct gives rise would do well to bear this in mind before seeking to silence their critics by means of legal action – as the SAMWU Provident Fund’s management discovered to its cost.

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Freedom of expression: Scandal not defamation

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