South African High Court prohibits the publication of Kerzner Unauthorised

Prior restraint seen as a blow against freedom of expression

Facts
Sol Kerzner, Anneline Kriel-Bacon and Sun International South Africa Ltd ('the applicants') sought an urgent interdict against Jonathan Ball Publishers (Pty) Ltd and Allan Greenblo ('the respondents') in the Witwatersrand Local Division of the High Court. Greenblo is the author of Kerzner Unauthorised , an unauthorised biography of Kerzner. The applicants contended that publication of the book would harm Kerzner's and Sun International's business interests, would infringe Kerzner's and Kriel-Bacon's reputation and would contravene s 12 of the Divorce Act.

The Decision
The respondents resisted the application on several grounds: first, that Sol Kerzner was 'public figure' and as such the court would be justified in giving primacy to the right to freedom of expression over the public figure's rights to privacy and reputation unless there was evidence of malice in the words complained of. Flemming DJP made short shrift of this argument, which is highly favoured by American courts. He held that if the plaintiff in a defamation action could justifiably be called a public figure, this was nevertheless "only a pointer in a rough manner to one aspect of considering whether private rights have to yield… It is all a matter of striking a balance and not a matter of 'forfeiture' according to labels" (at 13-14).

The next argument of the respondents concerned the impact of the South African Constitution, Act 108 of 1996 ('the 1996 Constitution') on the common law of defamation in general, and prior restraints in particular. Flemming DJP adopted a cautious approach to the impact of the 1996 Constitution on the common law: "A principle of the common law and the manner in which it is applied remains unchanged unless adequate reason arises from the [1996] Constitution to require cessation, modification or amplification. This test was not satisfied here such as to require courts to deviate from the common law on, inter alia, the balancing of two conflicting rights, like reputation and expression." Indeed, "[n]othing in the [1996] Constitution indicates that the balancing process which courts undertook in the past [is] no longer acceptable, or is now regarded as unfair, or should change" (at 15-16).

Flemming DJP expressly rejected the approach adopted by Cameron J in Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) that the plaintiff suing for defamation in cases where the allegedly offensive statement relates to political activity bears the onus of proving that the defendant's action was unlawful. His Lordship then focused on the impact of the 1996 Constitution on the interdict remedy that traditionally avails a plaintiff in the position of Kerzner et al. Rejecting the American jurisprudence which clothes prior restraints with a heavy presumption of unconstitutionality (see eg Near v Minnesota 283 US 696 (1930), New York Times Co v The United States 403 US 713 (1971)), the court held that the 1996 Constitution has had no impact on the common law position that allows courts to grant interdicts to prevent the publication of defamatory matter.

The court also considered whether s12 of the Divorce Act, which prohibits the publication of information that comes to light in the course of a divorce action, would be breached by publication of the book. Greenblo had allegedly included the particulars of the Kerzner and Kriel-Bacon divorce in the book. The respondents argued that s12 of the Divorce Act unduly tilted the balance between reputation and expression in favour of reputation, thus infringing the protection of expression in the 1996 Constitution. Not true, said the judge, personality rights were also given protection in the 1996 Constitution, (eg. s10 (dignity) and s14 (privacy)) Applying the common law to the positions of the three applicants the judge found that the respondents could not justify the defamatory statements targeted at Kriel-Bacon by relying on the traditional defences of truth for the public benefit or fair comment.

The statements made about Kerzner, specifically about his involvement in the Comores as part of an alleged 'back-scratching agreement' with the former South African government and his augmentation of the salary of a former Bophuthatswana finance minister, were also not saved by the defences of truth in the public interest or fair comment. An interdict was competent to protect Kerzner's business interests as "there is a risk that gaming licences are refused because of a 'bad reputation' " (at 34). Similar considerations applied to Sun International, which, the judge seemed to accept, is tainted in the book by association with Kerzner.

Commentary
The Kerzner judgement is a serious blow against freedom of expression. Flemming DJP seems to be swimming against the liberal tide favouring freedom of expression. As Plewman JA said in Hix Networking Technologies v System Publishers (Pty) Ltd & another 1997 (1) SA 383 (A): "To the extent to which it may be suggested that there have been cases in which [there is] a tendency to unduly restrict the freedom of the press to publish… such cases must… reflect an incorrect weighting of the countervailing interests of the parties… freedom of speech is a right not to be overridden lightly" (at 401E-F, 402C-D).

It is respectfully submitted that Flemming DJP's pronouncements, especially in relation to the impact of the 1996 Constitution (or the lack thereof) on the law of defamation, represent a dangerous precedent. His judgement robs the law of defamation of a proper, nuanced interpretation of freedom of expression which creates primacy for political expression. If the objectionable statements concern political activity, then the 1996 Constitution sanctions a robust protection of expression, even at the expense of reputation (cf Holomisa (supra), Gardener v Whitaker 1995 (2) SA 672 (E)). In the specific context of prior restraint, it is urged that Flemming DJP should have been guided by the case of Mandela v Falati 1995 (1) SA 251 (W), where an interim interdict which sought to restrain allegedly defamatory statements was refused on the basis that the criticism of politicians should be free and robust (at 260C-D).

Flemming DJP himself found that Kerzner Unauthorised is a politically-laden book that seeks, at least in part, to explore the relationship between apartheid and business (at 8). This should have been sufficient for the book to qualify as political expression which deserves heightened protection. There would thus be no defamation to interdict, unless Greenblo acted unreasonably. Section 12 of the Divorce Act should also be read against the importance of political expression. To the extent that s12 prohibits the dissemination of information that qualifies as political expression, (arguably the situation in Kerzner), it is submitted that the section can no longer stand.

Dario Milo
Candidate Attorney, and Part-Time Lecturer in Law, Wits University