On Friday, 28 May 2021, the Johannesburg high court declared that certain statements made about Ms Maria Ramos in print publication and other media platforms of the Independent Media are defamatory. The court ordered Independent Media to apologise to Ms Maria Ramos and retract those statements within 24 hours of the judgment.
The Independent Media did.
Despite some reservations about the correctness in law of the judgment, pragmatism has trumped the urge to assert on appeal and develop defamation jurisprudence in South Africa. In this short note, I set out some of those reservations about the judgment.
Often a judgment does not tell the whole story. This is to be expected because a Judge will recount only those issues of law (and fact) that s/he considers relevant for purposes of the judgment, sometimes much to the chagrin of Counsel (both on the losing and winning side) who may have wished the court to deal frontally with a specific question of law that the court has decided not to address.
Perhaps a complete set of heads of argument by both sides will help the reader appreciate the full story behind the judgment. So, I provide a link to them below.
Here are some of my reservations about the judgment. As a lawyer interested in the clarity and consistency in the application of law, it is my fervent hope that a suitable case will come along, before long, in which some of these issues will be addressed frontally.
I share these for discussion by lawyers and non-lawyers alike, in the hope that we can all help understanding and development of this seemingly fraught area of South African law which, in my view, seems hardly settled. To that end, I urge readers to read the judgment and the heads of argument (links appear above) filed by both parties, and then consider the merits of the points raised below.
First, while Justice Keightley is with respect correct in identifying the issue in this case as being “the lawful balance to be struck” between media freedom, on the one hand, and human dignity and reputation, on the other, was the Learned Judge correct in finding that the human dignity and reputation of Ms Ramos trumps media freedom on the undisputed facts in this case? This question arises particularly because Ms Ramos does not deny that, despite the impugned statements made in the opinion piece about her and in numerous other media publications unconnected to the respondents, she continues to enjoy the fruits of her reputation and agency in the corporate environment, both locally and internationally. In the circumstances, should Justice Keightley not have found that the reputation of Ms Ramos has not been harmed by the impugned statements on the undisputed facts of this case?
Second, is Justice Keightley correct in finding that “the statement need not be false” in order to found defamation? Does this finding not render otiose one of the defences to a defamation claim, namely, that the statement must be both true and in the public interest? Indeed, the Learned Judge finds, rightly, in paragraph 72, that “[t]hisdefencerequirestherespondentstoestablishnotonlythatthestatementsweretruebutalsothattheirpublication was in the public interest” and in paragraph 74 that “[t]he respondents must establish that the sting of the statements is true”. In the circumstances, should Justice Keightley not have found that for a statement to found defamation it must be false? After all, as the Learned Judge has found, “Defamation is the wrongful and intentional publication of a defamatory statement concerning the plaintiff”. Publication of a statement cannot in law be “wrongful” if the statement is true and its publication in the public interest. So, should the Learned Judge not have so found?
Third, while Justice Keightley is with respect correct in positing that “[i]f the defamatory meaning is more probable than the other, the defamatory meaning will have been established as a matter of fact. If the non-defamatory meaning is more probable, then the plaintiff will have failed to satisfy the onus she bears”, is the Leaned Judge correct in finding that the defamatory meaning has been established as a matter of fact on the undisputed facts of this case? Having decided that “[t]he article itself does not give any background to what was meant by the “rand fixing” or “fixing of the rand” to which it referred [and that] [f]or that context we have to look outside the article”, should the Learned Judge not have found that the non-defamatory meaning was more probable than the defamatory meaning on the facts of this case and in the broader context to be found “outside the article”?
Fourth, having decided that “we have to look outside the article” in order to find the context in which the phrases “rand fixing” and “fixing of the rand” are used in the article, is Justice Keightley correct in confining her gaze for context in the article, as expressed in the finding: “There is no express indication in the article that it is about corporate responsibility or accountability, as the respondents aver. Nor can this meaning be implied”? Is this finding not at odds with the context that, on the Learned Judge’s own finding, is to be found “outside the article” for purposes of arriving at the meaning that a reasonable reader of ordinary intelligence would ascribe to the article, especially having regard to other publications in other media about the same issue in relation to Ms Ramos? It is clear from those other publications (which a reasonable reader of ordinary intelligence will have seen and read) that Ms Ramos has been implicated not in her personal capacity but in her representative capacity as Chief Executive of Absa Bank. In these circumstances, should the Learned Judge not have found, consistent with her earlier finding, that the full context of the meaning is to be found “outside the article”, and consequentially avoided the exercise of a painstaking analysis of the article, phrase-by-phrase, word-by-word, in order to arrive at a conclusion that the article bears a defamatory meaning? The Learned Judge’s finding of a defamatory meaning is founded entirely and exclusively on her analysis of the article, shorn of the context provided by material “outside the article”. Is this not a clear misdirection and incorrect application of the law as articulated by the Learned Judge herself?
Fifth, is Justice Keightley correct in finding that, on the respondents’ version of the meaning of the article in relation to her representative capacity, “[a]ttheveryleastthestatementsmeanthatwhileshewasatthehelmofAbsashefailedinherexecutivedutiesbycreatingaclimatewhererandfixingcouldtakeplace”? This finding is with respect entirely without factual or legal foundation. Does vicarious liability, or liability that attaches to a chief executive for the conduct of her corporation, require “creating a climate [for wrongdoing]”?
Sixth, is Justice Keightley correct in dismissing the respondents’ defence of “truth and public interest” of publication of the statement that Ms Ramos should be charged but won’t be? The Learned Judge says the respondents must justify why Ms Ramos should be charged, and that pointing to “criminal charges” laid in 2016 by a political party does not prove the truth of the statement that she will not be charged or prosecuted while deserving to be. Does dismissing the defence on the ground that “the criminal charges laid against Ms Ramos have political origins” seem rational? Does that do anything to gainsay the truth of the statement that Ms Ramos faces “criminal charges” (as the Learned Judge puts it) for which she has not been prosecuted? Is the fact that these “criminal charges” were laid by a political party, for whatever reason, a relevant consideration? In the circumstances, should the Learned Judge not have found that the statement that Ms Ramos will not be charged or prosecuted despite deserving such prosecution rings true, and that its publication is in the public interest by virtue of her public persona and appointment to a position in Anglo-Gold Ashanti that Justice Keightley herself finds is “of public interest”?
Seventh, is Justice Keightley correct in speculating that the reason for Ms Ramos not being charged or prosecuted following the criminal complaint laid against her in 2016 is that “the charges are politically motivated, without substantive criminal merit”? Does this speculation have any foundation in fact or law? The Supreme Court of Appeal has already ruled that motive is irrelevant in the making of a decision to prosecute. The Learned Judge does not know why the prosecuting authority has not prosecuted Ms Ramos following that 2016 criminal complaint. Is it not reasonable for the respondents to conclude from that failure by the prosecuting authority that Ms Ramos enjoys protection from prosecution? In the circumstances, should the Learned Judge not have found that the statement in the opinion piece, “In any other country Ramos would have been charged with treason or corruption, but she won’t be. Rather, she’ll be appointed to chair more boards” is not without justification? On the undisputed facts, Ms Ramos has indeed been appointed to numerous boards following the breaking of the news that her bank was involved in rand fixing.
Eighth, is the basis on which Justice Keightley dismissed the “fair comment” defence good in law? The Learned Judge dismissed the defence on the ground that there is no evidence that the facts relied upon and which have been in the public domain since 2016, 2017 and 2019 were widely published and that the reasonable reader of ordinary intelligence would remember them. Is this not a speculative basis for dismissing the defence? How would the Learned Judge know that the reasonable reader of ordinary intelligence does not remember what s/he has read in the media over these 5 years? By what standard and basis in fact can the Learned Judge reasonably reach the conclusion that news that has been in the public domain over 5 years has not been widely publicised? Should the Learned Judge not have found that these extraneous facts provide proper context for the “fair comment” defence, as she in fact does find in relation to ascertaining the meaning of the article when she says one must “look outside the article” for context?
Ninth, is Justice Keightley correct in finding that “[t]he fact that Ms Ramos has not been prosecuted factually cannot be ascribed to her donation to the President’s campaign”? Where is the factual basis for this finding? In light of the undisputed fact that Ms Ramos has still not been prosecuted following a criminal complaint laid against her in 2016 (which the Learned Judge improperly dismisses as “politically motivated”), is it not reasonable for the respondents to take the view (and express it in the public interest) that Ms Ramos’ contribution to the President’s election campaign in 2017 may be one of the reasons she has not been prosecuted for what the Learned Judge terms “criminal charges”? In the circumstances, should the Learned Judge not have found that the respondents’ comment that the substantial donation by Ms Ramos to the President’s election campaign could be a factor in her being spared prosecution reasonably qualifies as fair comment?
Tenth, is Justice Keightley correct in finding that the “reasonable publication” defence is not open to the respondents simply because they do not assert the truth of the statement that Ms Ramos personally fixed the rand? Does the finding not ignore Supreme Court of Appeal authority by which it is bound, namely, that a media defendant is entitled to publish a statement even if that statement is false and defamatory, “provided that upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time”?In the circumstances, should the Learned Judge not have found that the circumstances and time in which the article was published – the appointment of Ms Ramos as Chairman of Anglo-Gold Ashanti within a few years of a criminal complaint being laid against her, her substantial donation to the President’s election campaign, her other high profile appointments notwithstanding pending “criminal charges”, her alleged role in the rand fixing scandal that has been in the public domain for years, her public apology, reportedly, “for her role” in the rand fixing scandal, and her escaping prosecution on the 2016 “criminal charges” and possibly also on the rand fixing scandal – justify publication of the article in the manner it was published? Is the Learned Judge’s finding in dismissing the respondents’ “reasonable publication” defence not inconsistent with her own dictum in the following terms:
“Ms Ramos is a public figure, both politically, through her having held prominent positions in public sector, and financially, through her positions in the private sector. The article appeared at the time that Ms Ramos was appointed to chair the AGA board. An editorial piece on her appointment was timely…”
Can the fact that the article offered commentary beyond just her appointment on that occasion reasonably be said to detract from the reasonableness of the publication at that time and in those circumstances?
Eleventh, is Justice Keightley correct in finding that Ms Ramos is entitled to a declaratory order in relation to reputational harm? It is clear from her own evidence and from the Learned Judge’s own findings that Ms Ramos has not suffered any reputational harm as a result of publication of the article as she has been, and continues to be, appointed to high positions in the corporate sector both locally and internationally. Should the Learned Judge not have so found?
Twelfth, is Justice Keightley correct in finding that Ms Ramos is entitled to a final interdict in the circumstances of this case? Ms Ramos has failed to show either actual harm or harm reasonably apprehended. Her appointment despite her alleged reputational harm is testimony to this. Should the Learned Judge not have found that she is not entitled to a final interdict?
In all these circumstances, is it not fair to assert that the Learned Judge erred in law and that there is a reasonable prospect that another court would come to a different conclusion, particularly on the constitutional question of the “lawful balance to be struck” in the factual circumstances of this case between media freedom on matters of public interest, on the one hand, and the reputation of a self-confessed public figure, on the other? The determination of that issue in this application is of vital constitutional importance and so the High Court cannot be the final arbiter of this. Reliance would be placed on the Constitutional Court’s authority that the Constitutional Court has final jurisdiction in the determination of questions of this sort, and that it has yet to pronounce definitively on this question.