(FXI/IFEX) – On 19 August 2002, FXI released a press statement expressing deep concern about the Johannesburg High Court’s 15 August decision to ban a biography written by former journalist Allan Greenblo on the life and dealings of businessman Sol Kerzner. This is the second time that the High Court has slapped a ban on […]
(FXI/IFEX) – On 19 August 2002, FXI released a press statement expressing deep concern about the Johannesburg High Court’s 15 August decision to ban a biography written by former journalist Allan Greenblo on the life and dealings of businessman Sol Kerzner.
This is the second time that the High Court has slapped a ban on the publication, distribution and marketing of the biography. In December 1997, the court issued an interdict against the publication of the first manuscript, allegedly because its contents were deemed libelous. Essentially, the court has twice made orders censoring the prior publication of information, contrary to the constitutional tenets of freedom of expression and media freedom.
Sol Kerzner, a former proprietor of Sun International Hotels, has contended that the allegations made in the biography regarding his business dealings with the apartheid government, certain leaders of the former black “independent homelands” and the Comoros government are defamatory and injurious to his reputation.
FXI argued that though freedom of expression must be construed in the context of other fundamental rights, the judgment fails to acknowledge the growing body of jurisprudence that ordains the cardinal value of free expression. The judgment also flies in the face of contemporary judicial opinion and practice, which favors a careful striking of the balance between the right to freedom of expression and other basic values such as the right to dignity and privacy.
FXI noted that the judgment further renders meaningless the eloquent words of the Constitutional Court in the case of the South African National Defence Union v Minister of Defence and Another, that “â¦individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.”
Furthermore, the court’s decision fails to give any cognisance to the nuanced approach developed by the Supreme Court of Appeal in the case of The National Media Ltd v Bogoshi, and accepted by the Constitutional Court in the case of Fred Khumalo and Others v Holomisa. As a result of these cases, it has now been firmly established that a publisher need not in all circumstances establish the truthfulness of material alleged to be defamatory, as long as the publication of such information is reasonable and in the public interest. The judge’s decision is clearly out of step with the practice that is currently evolving and finding favor with the courts of higher jurisdiction in this country.
FXI argued that whereas the judiciary is the custodian of people’s basic rights, the court has failed dismally in this instance to protect and advance the right to freedom of expression, which is an essential constituent of South Africa’s young democracy. On the contrary, the judge has chosen to sacrifice a justifiable and fundamental constitutional right at the altar of private business interests and claim to a good name.
FXI noted that it is extremely disturbed by the precedents set by the court, which means that the right of the public to be informed about the previous activities of certain individuals is outweighed supposedly by the need to protect their reputation. In the case of Kerzner, his dealings are matters of political and historical significance and need to be brought to the public domain. As the organisation has stated before, it views this banning as a serious blow against freedom of expression and a further demonstration of the growing trend by public and private institutions to censor information.
In the circumstances, FXI noted its great disappointment with the judge’s ruling, because he has failed to appreciate that since the book deals partly with the relationship between business and apartheid, it ought to qualify as political expression and should therefore have attracted heightened protection. Kerzner is a public figure and though his right to dignity must be respected, his right to privacy is undoubtedly diminished.
With all due respect to the independence and integrity of the judiciary, FXI argued that the judgment must be decried as retrogressive, improper and uncalled for in the present democratic ethos in which we seek to build an open, robust and critically informed society. The judgment should not be allowed to stand and must be subjected to review, particularly with regard to its constitutionality.
