Mthembi-Mahanyele v Mail & Guardian Ltd and Another (054/2003) [2004] ZASCA 67; [2004] 3 All SA 511 (SCA) (2 August 2004)

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 054/2003
Reportable
In the matter between
SANKIE MTHEMBI-MAHANYELE Appellant
and
MAIL & GUARDIAN LIMITED First Respondent
PHILIP VAN NIEKERK Second Respondent
CORAM: HOWIE P, MPATI DP, MTHIYANE, LEWIS JJA,
PONNAN AJA
HEARD: 7 May 2004
DELIVERED: 2 August 2004
Summary: Defamation of a cabinet minister by implying that she was
corrupt: cabinet ministers do have locus standi to sue for defamation;
but publication found to be both justifiable (lawful) and reasonable in all
the circumstances; defamation thus not actionable; appeal dismissed
with costs.
JUDGMENT
LEWIS JA
2
[1] ‘SANKIE MTHEMBI-MAHANYELE
Minister of Housing
Grade: F
Why is she still in the Cabinet? She has shown she cannot deliver in one of
our key delivery ministries. Her award of a massive housing contract to a
close friend and her sacking of her fo rmer director general, Billy Cobbett,
continue to haunt the public perception of her (my emphasis).
Prognosis: A coupé on the gravy train would do nicely, thank you very much.’
This is the wording of a ‘report card’ in respect of the then Minister
of Housing, the appellant in th is matter, written and published by
the first respondent, a weekly new spaper (referred to as ‘the M &
G’), late in December 1998. The second respondent, Mr Philip van
Niekerk, was then the editor of the paper. The statement was part
of a general ‘report card’ grading and commenting on the work of
all members of the cabinet in 1997. The grade ‘F ’ was stated to
mean: ‘Pathetic. A fail. Jump before you are pushed’.
[2] The appellant sued for defamati on, asserting that the words
in the report that I have emphasi sed were defamatory of her. She
claimed damages in the sum of R3m. At the trial the appellant did
not persist in asserting that the words relating to the dismissal of
Mr Cobbett were defamatory, but rested her case on the
publication of the words that sh e had awarded ‘a massive housing
contract to a close friend’.
3
[3] The appellant alleged that th e words complained of signified
that she was a person of base moral standard; that she was
dishonest, and would thus dish onestly award a massive housing
contract to a close friend; that she was incompetent and unable to
deliver as a minister; and was not w orthy of holding public office.
She pleaded that the respondents had acted recklessly, not caring
whether the contents were true; and that they took no reasonable
steps to establish whether the statement made was true.
[4] The respondents pleaded that as a member of Cabinet, the
appellant had no locus standi to sue for damages for defamation;
that the words did not convey a defamatory meaning; that the
words were at least substantially t rue; and that it was in the public
interest that the facts were publis hed. In so far as the statement
constituted the expression of an opinion, that opinion was alleged
to be honestly held and expressed in good fait h. In the alternative
the respondents pleaded that publication of the statement was
protected by qualified privilege in that they were members of the
press which is both bound and entitl ed to make available to the
public information, opinions and cr iticisms about every aspect of
political activity, in the public in terest. Further, they asserted, s 16
of the Constitution expressly p rotects the right of freedom of
4
expression (including freedom of the press ) such that the
statement was published in the exer cise of a duty to inform the
public. A further alternative plea was that the statement was
published reasonably (without neglig ence) and in the genuine and
reasonable belief that it was true.
[5] The trial court (Joffe J in the Johannesburg High Court)
found for the respondents, refusing the action on the basis that the
appellant, as a cabinet minister, did not have locus standi to sue
for defamation where the statemen t complained of related to the
performance of her work as a member of government and was
made without malice. The court found also that the words were not
defamatory of the appellant since the reader of the M & G report
card would already have been fam iliar with the allegations that
were made in respect of the award of the housing contract and that
the appellant’s reputation had already been ta rnished. There had
been a great deal of publicity accorded to the matter by many
South African newspapers, and the M & G in particular had
undertaken an investigation and had published a number of
articles during 1997 calling for an explanation of the award.
[6] The appellant appeals against th e decision of the trial court
with its leave. At issue in t he appeal is the bal ancing of two
5
fundamental rights, both prot ected by the common law and
enshrined in the Constitution: freedom of expression, on the one
hand and dignity, including the right to protect one’s reputation, on
the other. Should one right, in certain circumstances, prevail over
the other? In particular, when d ealing with freedom of expression
in a political context (politic al speech) should a member of
government’s right to protect h er reputation be eclipsed by the
need for robust criticism and comment in a democratic state where
the public’s right to be informed, and to free debate, is vital?
THE BACKGROUND
[7] Before turning to the respecti ve allegations of the appellant
and the defences raised by the re spondents, an explanation of the
background to the making of the st atement is required. In January
1997, when the appellant was the National Minister of Housing, the
Mpumalanga Housing Board (‘the B oard’) purported to award a
contract for the construction of houses to Motheo Construction
(Pty) Ltd (‘Motheo’). Some 10 50 0 houses were to be built at a
total cost of R190 million. At the time when the Board made the
decision to award the contrac t Motheo had not yet been
incorporated. It was registered only in February 1997, and the
sole director was Dr Thandi Nd lovu. The contract was formally
executed in March of that year. The National Housing Board was
6
ostensibly represented by Mr Sa ths Moodley who was the chair of
the Board; the Mpumalanga Department of Local Government was
represented by its chief director, Mr B S Ngwenya; and Motheo
was represented by Ndlovu.
[8] Ndlovu claimed to be a close friend of the appellant. They
became acquainted with one ano ther when exiled from South
Africa during the years of the liberation struggle. The appellant
does not deny that they are frie nds. Ndlovu’s sister, Granny
Seape, worked for Nedcor Bank Lt d. Nedcor had entered into an
agency contract with the various parties to the Motheo contract. It
was represented by one Kevin Gibb. Ms Seape was Gibb’s
assistant.
[9] Towards the end of April 1997, Mr Billy Cobbett, then the
Director-General of the national department of housing, who had
previously had misgivings about the award of the contract, was
informed that Gibb had been suspended by Nedcor. He became
concerned about the whole enter prise and immediately referred
the matter to the Auditor-General, asking him to investigate and to
undertake a forensic audit. Cobbett then contacted the appellant to
advise her of Gibb’s suspension. He told her that he had referred
the contract to the Auditor-General. He requested her not to attend
7
the public launch of the Mot heo project, due to take place the
following day. The appellant did not accede to Cobbett’s request.
[10] On 25 April – the day of the launch – Cobbett wrote a
memorandum to the appellant. He recorded the history of his
discussions with Gibb at the b eginning of 1997. Gibb, on being
appointed to his position at Nedcor, had conceived plans for the
rapid delivery of low-cost hous ing in rural areas. Cobbett had
agreed to facilitate the flow of funds from the national department
to Motheo in order to ensure the bui lding of the houses in a period
of ten months. However, at a meeting in March with various
officials from the relevant bodi es in Mpumalanga, including
Ngwenya, Cobbett had ascertained t hat the province’s funds were
heavily overcommitted. It could no t afford the cost of the Motheo
contract. Cobbett had agreed, however, to attempt to devise a plan
to channel other funding to th e project, but could not commit
national funds to it. Despite th is, Cobbett recorded, the appellant
had phoned him a week before the Motheo launch and had
reported complaints that he was blocking funds for the project.
[11] Of most concern to Cobb ett was that he discovered that
national funding had been committe d to Motheo in January 1997,
before Motheo was incorporated. In addition, he complained,
8
Motheo had a share capital of on ly R400; it had not ever built a
house; the housing contract was one of the largest ever entered
into by the state; Ndlovu’s sister, Seape, worked for a party to the
contract, Nedcor; and the other di rector of Motheo was a member
of the provincial housing board. Moreover, the contract committed
national funds without the authority so to do, and in Cobbett’s view,
contravened proper subsidy pr ocedures. For these reasons,
Cobbett stated that he had refe rred the matter to the Auditor-
General.
[12] On 5 May 1997 Cobbett’s a ppointment as Director-General
was terminated. The appellant ma de a statement to the press to
the effect that Cobbett had resi gned. He denied this, claiming that
he had been fired. It is not necessary to deal with this dispute save
to say that documents admitted in the court below indicate that he
had indeed been dismissed. The dispute became public and much
was made of it in the press. In one of the first reports carried by the
M & G, written by Stefaans B rummer, Mungo Soggot (a journalist
who had investigated the Motheo pr oject, and who testified at the
trial) and Peta Thornycroft, the he adline read: ‘Why minister axed
her housing boss’. The byline re ad: ‘Joe Slovo’s handpicked
Director General, Billy Cobbe tt, asked the auditor general to
investigate a R185-million housi ng project in Mpumalanga – and
9
lost his job’. The report referred to Ndlovu’s friendship with the
appellant and to the fact that her sister had w orked for Nedcor,
under Gibb. It also referred to a st atement by Ndlovu that the
appellant was her ‘mentor’.
[13] Other newspapers also ca rried reports on the Motheo
project, on the appellant’s relati onship with Ndlovu and on the
firing of Billy Cobbett. They a re far too numerous to discuss in
detail and there is no reason to do so. Suffice it to say that all
questioned the dismissal of C obbett and many mentioned the
appellant’s friendship with Ndlo vu. There was editorial comment
too. In the Sowetan (26 May 19 97) the editorial mentioned the
allegation that the appellant ha d dismissed Cobbe tt after he had
expressed ‘unhappiness’ in respect of the award of a contract to a
friend. It stated: ‘there appears to be prima facie evidence pointing
to nepotism and lack of transpa rency in the housing tender system
that can be tested only by a commission of inquiry’.
[14] Business Day and the Citiz en, for example, reported on 29
May that the appellant had claimed that it was at her request that
Cobbett had referred the Motheo contract to t he Auditor-General
for investigation. And in Parlia ment she was directly accused of
nepotism – a charge reported in several papers subsequently.
10
Indeed, the Sowetan of 3 June 1997 published a cartoon about the
Motheo affair, depicting a house of cards, one of which, at the
bottom, is labelled ‘Sankie’s nepotism’.
[15] The press pointed out too that what the appellant had said in
Parliament (that she had encou raged Cobbett to refer the Motheo
contract to the Auditor-General) was in conflict with statements she
had previously made to the pre ss. Business Day commented in
this regard (30 May 1 997) that she was guilt y of an ‘astonishing
reinterpretation of ev ents surrounding the de al involving her
personal friend, Thandi Ndlo vu’. There were calls for an
explanation as to Cobbett’s position. Business Day of 7 July stated
that the public ‘had not been told who lied – Cobbett or the Minister
– about the circumstances of his departure’.
[16] Reporters of the M & G wrot e on 30 May that there was a
‘web of cozy relationships spanning central government, provincial
government and the private sect or’. The report referred in this
regard to the friendship of the a ppellant and Ndlovu, the ‘close
working relationship’ between the appellant and Gibb, and the fact
that Ndlovu’s sister worked for Gibb at Nedcor. It reported that Mr
Barney Mthombeni, a member of t he Board at the time when the
11
contract was awarded, had subseq uently become a director of
Motheo and as a result had been dismissed from the Board.
[17] The Auditor-General filed his report on 28 August 1997. He
found that there were many irregularities attendant on the award of
the housing contract to Motheo, and recommended the
appointment of a commission of inquiry to investigate the
allegations about the relationshi ps between the appellant and her
friends who might have benefited improperly. The terms of the
report were widely publicised, and the press called for answers to
questions relating to the appellant’s integrity.
[18] A provincial commission of inqui ry was set up by the Premier
of Mpumalanga in September 1997. It was chaired by Mr H R
Dreyer. The terms of reference we re limited to the role of the
provincial authorities in the aw ard of the Motheo contract. The
commission was not mandated to i nquire into the appellant’s role
in the award of the c ontract and indeed did no t do so. It examined
the procedures followed by the provincial authorities, and
concluded that there had been numerous irregularities. Among
these was that when the Board resol ved to award the contract to
the then non-existent company , the Board was not quorate, and
there was some confusion as to its membership. The minutes
12
reflected people present at the m eeting who were not members of
the Board, and the attendance regi ster did not tally with the
minutes.
[19] Various role players gave evidence to the commission.
Moodley told the commission that the province was interested only
in an ‘emerging developer’, and that he had been given the names
of Motheo and Ndlovu by Gibb. Ho wever, there was no competitor
in the field. Moodley said that Motheo’s lack of track record was
not relevant. What was import ant was that the company was
headed by a woman who was inte rested in rural housing. Gibb
confirmed in his evidence that Ndlovu’s name had come from him,
as the representative of the financial backer of the project, Nedcor.
There had been no evaluation done of Motheo after he had
proposed Ndlovu. The evidence wa s widely covered by the press.
At the same time, the refusal of the national government to appoint
a commission with power to inquire into the appellant’s role was
widely criticised. A report of B eeld on 14 October 1997 referred to
the evidence of a Mr Piet du Plessis, the Mpumalanga Director of
Housing, who had apparently said th at the province’s officials had
been comforted by the fact that the appellant had herself ‘driven’
the Motheo project, and had bee n personally involved. The same
report did, however, state that t he appellant had previously denied
13
any involvement, and had refused to comment when evidence was
given to the Dreyer Commission.
[20] Cobbett’s evidence before the commission was also widely
reported. On 23 October 1997 The Star carried a report entitled
‘Ex-housing chief says he was fired because he queried deal’. The
subheading read: ‘Inquiries about Mpumalanga’s acceptance of
R198-million tender by unknown cont ractor with no money led to
loss of job’. The report referred to Cobbett’s statement that he had
‘hit a panic button’ when he had h eard of Gibb’s suspension by
Nedcor, and had contacted Ng wenya, who made conflicting
statements to him about whether t he contract was to be funded by
Nedcor. He was reported to have said that he had advised the
appellant not to participate in the launch of the Motheo project
because of his concerns. ‘She chose to ignore me’ he said. ‘I
subsequently lost my job for q uestioning the proceedings and the
sequence of how the tender wa s awarded.’ Similar reports were
published by other newspapers. The commission itself did not deal
with the appellant’s role since it was outside its terms of reference.
[21] The Dreyer commission report was filed on 4 November
1997. It reported, as I have said, several irregularities in the award
of the Motheo contract, but stre ssed that it was not mandated to
14
inquire into the involvement of the appellant and the national
department. Again, there were numerous press reports dealing
with the commission’s findings and the mystery still shrouding the
appellant’s involvement with Motheo.
[22] The Public Protector, who wa s also asked to investigate the
matter, produced an inconclusive report. It appears that only
Cobbett had been questioned and the Member of Parliament who
had called for the investigation h ad failed to produce any evidence
to substantiate her complaint. In any event, the report was made
only in January 1999. By the en d of 1998 it was clear that the
Motheo project had failed. A re port in the Sunday Times on 13
September 1998 claimed that on ly two families had been housed.
The report was entitled ‘The village of rubble and broken dreams’.
It referred back to the relations hips between the appellant, Gibb
and Ndlovu, and to the dismissal of Cobbett.
[23] It is against this background that the report card that is
alleged to be defamatory of the appellant was published in
December 1998. The author was Mr Howard Barrell, then the
political editor of the M & G. Such report cards had been a feature
of the M & G for a number of year s. Barrell gave evidence that it
was an important feature on wh ich he worked hard. Because it
15
was written for the last edition of the M & G for eac h year, it would
have a shelf-life longer than that of the usual edition – the following
year’s first edition would be pub lished only in the second week of
January. It was also anticipat ed that readers would pay more
attention to the feature than they would to a standard article simply
because, over the Christmas holiday period, they would have more
time to read. The report cards were also written in a tone
appropriate to the festive season: they were, according to Barrell
and Soggott, who gave evidence for the M & G, ‘irreverent, snappy
and robust’ accounts of the views of the M & G on the performance
of all cabinet ministers through the year under review. They both
testified that the report cards did not refer to any new information:
they did no more than comment on facts already in the public
domain.
[24] As I have earlier indicated, the trial court found that the
appellant did not, as a cabinet minister, have locus standi to sue
for defamation of her when the words complained of related to the
performance of her work. It found also that the words did not have
defamatory effect. I shall deal first with whether the words were
defamatory.
WERE THE WORDS COMPLAINED OF DEFAMATORY ?
16
[25] The test for determin ing whether words published are
defamatory is to ask whether a ‘reasonable person of ordinary
intelligence might reasonably understand the words . . . to convey
a meaning defamatory of the plainti ff. . . . The test is an objective
one. In the absence of an i nnuendo, the reasonable person of
ordinary intelligence is taken to understand the words alleged to be
defamatory in their natural and ordinary meaning. In determining
this natural and ordinary meaning t he Court must take account not
only of what the words expressly say, but also of what they imply’
(per Corbett CJ in Argus Printing and Publishing Co Ltd v
Esselen’s Estate1).
[26] One must have regard also, however, to what the ordinary
reader of the particular publicat ion would understand from the
words complained of. A clear statem ent of this principle is to be
found in Channing v South African Financial Gazette Ltd2 a
passage relied on by Joffe J in the court below. In Channing
Colman J said, with reference to the locus classicus in point,
Johnson v Rand Daily Mails Ltd:3
‘From these and other authorities it em erges that the ordinary reader is a
“reasonable”, “right-thinking” person, of average education and normal
intelligence; he is not a man of “mo rbid and suspicious mind”, nor is he

1 1994 (2) SA 1 (A) at 20E-G.
2 1966 (3) SA 470 (W) at 474A-C.
17
“super-critical” or abnormally sensitive; and he must be assumed to have read
the articles as articles in newspapers are usually read. For that assumption
authority is to be found in Basner v Trigger 1945 AD 22 at pp 35-6. It is no
doubt fair to impute to t he ordinary reader of the South African Financial
Gazette a somewhat higher standard of education and intelligence and a
greater interest in and understanding of financial matters than newspaper
readers in general have. But this, I thin k, is clear: one may not impute to him,
for the purposes of this inquiry, the training or the habits of mind of a lawyer.’
[27] The first question to be as ked then is what the ordinary
reader of the M & G would hav e understood when reading the
statement ‘Her award of a massive housing contract to a close
friend . . . continue[s] to haunt the public perception of her’. The
appellant’s complaint is that the statement indicates that she
actually awarded the contract to Motheo whereas she did not. It
was the Mpumalanga Housing Board, she contended, that had the
authority to conclude such contracts and that did in fact enter into
the housing contract with Motheo. Is the appellant correct that the
reader of the M & G would have understood the statement to mean
that she had been directly resp onsible for the award? Or as
intelligent, well-informed readers would they have understood that
the contract was awarded by the provincial housing authorities?
The reference to ‘her award’ might well be understood to mean no

3 1928 AD 190.
18
more than that she was the per son overall in charge of the
allocation of funds for housi ng. But the reference to the award to a
close friend implies more than that: it suggests that she had
influenced the authorities who in fact concluded the contract to
make the award to her friend in circumstances where such an
award would not otherwise have be en made. That is an allegation
of corruption, no matter whether it took the form of influencing
people or making the award directly.
[28] In my view, therefore, the ordinary reader would have
understood these words to mean th at the appellant was guilty of
corrupt behaviour. S he had been responsible f or the award of a
contract, directly or indirectly, that was tainted by corruption in that
a contract had been concluded with a close friend of hers, and the
circumstances were such that th e contract would not have been
concluded but for the relationsh ip. The words are in my view
defamatory of the appellant. They convey to the ordinary reader of
the report card that the appellant was corrupt.
[29] The court below concluded, as indicated earlier, that even if
the words were defamatory, they di d not have ‘defamatory effect’.
Joffe J accepted the evidence of Barrell and S oggott that the
readers of the M & G were ‘the most educated group of newspaper
19
readers in the country’. Barrell te stified that the average reader
would be a critical thinker, who read several newspapers and
listened to radio and television b roadcasts. He or she would thus
be well-informed about the political issues of the day. The
controversy about the Motheo pr oject, and the questions raised
about the appellant’s involvement in it, would have been familiar to
those who read the report card. They would not have learned
anything new from it. The court stated:4
‘The context in which they [the readers of the M & G] w ould have read the
report card was therefore one in which the public perception of the plaintiff
was already tarnished. The content of the report card cannot be relied upon to
show that plaintiff’s reputation was reduced in the estimation of right-thinking
readers of the Mail and Guar dian and in the result is defamatory. To the
contrary, the damage had been done long before the report card appeared’.
[30] The appellant argues that th e conclusion is wrong in this
respect. She asserts, first, that the allegation that she had made
the award to Motheo was made for th e first time in the report card.
Previous publications had b een highly critical of her, had
questioned whether there was nepot ism (cronyism) in the award
but had not asserted that she had been pers onally responsible for
the award of the contract to Mo theo. And, second, even if such
allegations had previously been made, and were in the public

4 Para 50.
20
domain, this could not alter the defamatory impact of the
statement. It does not lessen its defamatory content.
[31] The finding that the words complained of had no defamatory
effect in that they did not cause the readers of the M & G to have a
lesser opinion of the appellant is , in my view, not correct. The
logical consequence of this reasoning is that the more a plaintiff is
defamed the less likely it is th at he or she will have an action.
Dario Milo states:5
‘[T]he causation requirement has not received the attention of the courts
because, once the plaintiff proves that defamatory material has been
published, there is a pr esumption of damage to reputation (see Jonathan
Burchell Personality Rights and Fr eedom of Expression: The Modern Actio
Injuriarum’ (1998) p 204. What Joffe J [in the court below] appears to be
saying . . . is that, given the context of previous media attention and the target
audience, the report card wa s not defamatory. But this seems absurd: taken
to its logical conclusion, it means that the more def amatory articles that are
published about the plaintiff, the better t he chances for the publisher of a later
article escaping liability on the ground that his article is not defamatory, given
what came before.’
The author suggests that the extent to which a plaintiff’s reputation
has already been tarnished should be taken in to account only in
assessing the quantum of damages to be awarded. I agree.
21
[32] But that is not the end of the inquiry as to the actionability of
the defamation, for there are seve ral defences to the action raised
by the respondents. I shall deal fi rst with the question whether
cabinet ministers, and indeed public officials and politicians, are
deprived, by virtue of their stat us or role in government, of the
protection normally afforded to individuals by the law of
defamation. I shall then cons ider whether, even if a cabinet
minister is not precluded merely by virtue of his or her status from
claiming damages for defamation, there is nonetheless a special
defence attaching to comment or information about members of
government: that is, whether polit ical speech is to be treated
differently. This is not a ques tion that has come squarely before
this court since the seminal decision in National Media Ltd v
Bogoshi.6 But that case, as I shall s how, suggests that as a matter
of public policy there may be a defence that the making of
defamatory statements about members of government is justifiable
in all the circumstances: that greater latitude may be allowed in
publishing information about members of government, in so far as
the performance of their work is concerned, than is the case with
private individuals. And last ly I shall consider whether the
respondents’ conduct was reasonable in all the circumstances.

5 (2003) 120 SALJ 282 p 289.
22
THE RIGHT OF A C ABINET MINISTER TO CLAIM DAMAGES
FOR DEFAMATION
[33] This case, as I have m entioned, raises fundamental
questions about the balance between the right to dignity, including
reputation, and the right to freedom of expression. Both rights are
now given special protection in the Bill of Rights. Should a class of
people (members of government) lose the right to the protection of
their dignity and reputation in the interest of public information and
debate? In what follows I shall for convenience refer generally to
cabinet ministers. But that should not be taken to mean that other
members of government, or parliament arians or officials of state –
representatives of government gen erally – are to be treated
differently.
[34] The court below concluded in effect that the appellant had
forfeited her right to claim dam ages for defamation because there
should be a general immunity in so far as criticism and reporting of
a cabinet minister’s performance of her work (po litical speech) is
concerned. The starting point for the learned judge in answering
this question was the seminal case in 1946, Die Spoorbond v

6 1998 (4) SA 1196 (SCA).
23
South African Railways; Van He erden v South African Railways .7
This court held that the Crown (the respondent being an arm of
government) cannot s ue for damages for de famatory statements
that had allegedly injured its rep utation. Watermeyer CJ, for the
majority, stated:8
‘[T]he Crown’s main function is that of Government and its reputation or good
name is not a frail thing connected with or attached to the actions of the
individuals who temporarily direct or manage some particular one of the many
activities in which the Government engages, such as the railways or the Post
Office; it is not something which can su ffer injury by reason of the publication
in the Union of defamator y statements as to the m anner in which one of its
activities is carried on. Its reputation is a far more robust and universal thing
which seems to me to be invulnerable to attacks of this nature. . . .
If the defamatory statem ents are false and malicious and cause actual
damage or loss to the Administrati on then, maybe, such loss can be
recovered, but the action would not be one based on an injury to the
reputation of the Crown, but upon a wrong done which causes loss.’
[35] In a concurring judgment Schr einer JA set out more fully the
rationale for the decision. He said:9
‘[I]t seems to me that considerati ons of fairness and convenience are, on
balance, distinctly against the recognition of a right in t he Crown to sue the
subject in a defamation action to protect that reputation. The normal means by
which the Crown protects itself against attacks upon its management of the

7 1946 AD 999.
8 At 1009.
24
country’s affairs is political action and not litigation, and it would, I think, be
unfortunate if that practice were altered. At present certain kinds of criticism of
those who manage the State’s affairs may lead to criminal prosecutions, while
if the criticism consists of defamatory utterances against individual servants of
the State actions for defamation will lie at their suit. But subject to the risk of
these sanctions and to the possible furt her risk, . . . of being sued by the
Crown for injurious falsehood, any subjec t is free to express his opinion upon
the management of the country’s affairs without fear of legal consequences. I
have no doubt that it woul d involve a serious interference with the free
expression of opinion hitherto enjoyed in this country if the wealth of the State,
derived from the State’s subjects, c ould be used to launch against those
subjects actions for defamation because they have, falsely and unfairly it may
be, criticised or condemned the management of the country.’
[36] This passage was cited and approved by Lord Keith in the
Court of Appeal in Derbyshire CC V Times Newspapers Ltd .10
There the court held that a lo cal authority could not sue for
defamation when its administration was the subject of defamatory
remarks. The court also cited New York Times v Sullivan 11 which
had approved the decision in City of Chicago v Tribune Co12 where
it was held that the city itself could not sue for libel. Lord Keith
stated in Derbyshire CC:13

9 At 1012-13.
10 [1993] 1 All ER 1011 at 1019d-1020c.
11 (1964) 376 US 254.
12 (1923) 307 Ill 595.
13 At 1018f-h.
25
‘While these decisions were related most directly to the provisions of the
American Constitution concerned with se curing freedom of speech, the public
interest considerations which underlaid them are no less valid in this country.
What has been described as “the chilling effe ct” induced by the threat of civil
actions for libel is very important. Quit e often the facts wh ich would justify a
defamatory publication are known to be true, but admissible evidence capable
of proving those facts is not available. This ma y prevent the publication of
matters which it is very desirable to make public.’
[37] Spoorbond, it was found by the court below, had stood the
test of time. But is a distinct ion to be drawn between members of
government acting as a corporate body, and individual members of
government singled out for their conduct? In South African
Associated Newspapers Ltd v Estate Pelser14 the court found such
a distinction. It held that the then Minister of Justice could claim
damages for defamation where t he executive of government, of
which he was a member, was accu sed of lack of concern for
justice. Although the minister was not named, the court concluded
that if criticism was not confined to any policy or decision, but dealt
with the motives underlying the policy or the decision, then the
reasonable reader would attribute that motive to individuals. If
unlawful or immoral conduct was im puted to an individual minister

14 1975 (4) SA 797 (A).
26
then he was entitled to sue. Spoorbond did not preclude an action
by an individual in these circumstances. Wessels JA stated:15
‘I might add that, in my opinion, it cannot be said that the reput ation of an
individual Minister has those “robust and universal” characteristics which, in
the case of the Governm ent (as a separate entity), render it invulnerable to
criticism of a defamatory nature. His reputation is , indeed, a “frail thing”,
capable of suffering injury by the public ation of defamatory matter regarding
his conduct in the management of State affairs.’
[38] The decision in Estate Pelser has met with much criticism. It
is not necessary to deal with it all here. The principal difficulty with
it is the potential chilling effect on freedom of speec h to which the
decision gives rise. Joffe J in t he court below cons idered that the
distinction between cabinet ministers collectively and individually is
not tenable. ‘After all, government at its highest form comprises a
collective of individuals, being the cabinet.’16
[39] P Q R Boberg, in 1975 Annual Survey of South African Law
in his comment on Estate Pelser,17 argued that a distinction should
be drawn between the case w here a member of government is
defamed by reason of his or her association with the policies or
decisions of the government, a nd that where the defamation

15 At 808B-D.
16 Para 32.
17 Pages 194-6.
27
relates to purely personal matters. Dario Milo 18 in criticising the
decision of the court below, takes the view that Estate Pelser was
simply wrongly decided on the fa cts. The court should have held,
he argues, that the words did not refer explicitly to the minister.
‘The solution to the probl ematic precedent created by Estate Pelser should
not be for the law to be radically altered to non-suit a plaintiff by mere dint of
the fact that he or she is a member of the cabinet. Rather, when confronted
with a general criticism of the gover nment or a governmental department,
courts should be loath to regard this as an attack upon individual members of
the government.’
I agree that Estate Pelser was incorrectly de cided on the facts.
The article about the then minister had not referred to him, nor any
individual, expressly. It was critic al of government itself and fell to
be decided on the Spoorbond principle.
[40] The criticisms made by the appellant and by Milo of Joffe J’s
decision to deny a cabinet minister locus standi to sue for
defamation when the words complained of relate to performance of
work as a cabinet minister are , with respect, well-founded. A
blanket immunity for defaming ca binet ministers would undermine
the protection of dignity. It woul d give the public, and the media in
particular, a licence to publish defamatory material unless the
plaintiff can prove malice. In elevating freedom of expression

18 (2003) 120 SALJ 282.
28
above dignity in this way the de cision simply goes too far. A
balance must be struck. That there is no hiera rchy of the rights
protected by the Constitution is affirmed by the Constitutional
Court in Khumalo v Holomisa.19
[41] O’ Regan J said in Khumalo:20
‘In a democratic society, then, the mass media play a role of undeniable
importance. They bear an obligation to provide citizens both with information
and with a platform for the exchange of ideas which is crucial to the
development of a democratic culture. As primary agents of the dissemination
of information and ideas, they are, inevitably, extremely powerful institutions in
a democracy and they have a constituti onal duty to act with vigour, courage,
integrity and responsibility. The manner in which the media carry out their
constitutional mandate will have a signi ficant impact on the development of
our democratic society. If the medi a are scrupulous and reliable in the
performance of their constitutional obl igations, they will invigorate and
strengthen our fledgling democracy. If t hey vacillate in the performance of
their duties, the constitutional goals wi ll be imperilled. The Constitution thus
asserts and protects the media in the per formance of their obligations to the
broader society, principally through the provisions of s 16.
However, although freedom of ex pression is fundamental to our
democratic society, it is not a paramount value. It must be construed in the
context of the other values enshrined in our Constitution. In particular, the
values of human dignity, freedom and equality. . . .

19 2002 (5) SA 401 (CC).
20 Paras 24-28, footnotes omitted.
29
It has long been recognised in democratic societies that the law of defamation
lies at the intersection of the fr eedom of speech and the protection of
reputation or good name. . . .
Under our new constitutional order, t he recognition and protection of human
dignity is a foundational constitutional value. . . .
The value of human dignity in our C onstitution therefore values both the
personal sense of self-worth as well as the public's estimation of the worth or
value of an individual. . . .
The law of defamation seeks to protect the legitimate interest
individuals have in their r eputation. To this end, ther efore, it is one of the
aspects of our law which supports t he protection of t he value of human
dignity. When considering the consti tutionality of the law of defamation,
therefore, we need to as k whether an appropriate balance is struck between
the protection of freedom of expression on the one hand, and the value of
human dignity on the other.’
[42] The decision of the court below in denying to a cabinet
minister locus standi to claim damages for defamation is, with
respect, incorrect. It does not give sufficient weight to the right to
dignity and to not having one’s reputation unlawfully harmed. It
elevates freedom of expression abo ve that of dignity when there is
not, and there should not be, a hierar chy of rights. It denies to a
class of people the ability to prot ect their reputations, save where
defamatory statements are made with malice.
30
[43] How then is the balance betwe en the right to dignity and the
right to freedom of expression in a democratic state to be struck
when dealing with ‘political spee ch’? I consider that the proper
approach to finding the appropriate ba lance is to recognise that, in
particular circumstances, the public ation of defamatory statements
about a cabinet minister (or an y member of government) may be
justifiable (reasonable) in t he particular circumstances and
therefore not unlawful.
JUSTIFIABLE PUBLICATION
[44] In National Media Ltd v Bogoshi 21 this court held that in an
action against the pres s for defamation a defenda nt is entitled to
raise ‘reasonable publication’ as a defence. The publication of
defamatory statements will not be unlawful if ‘upon a consideration
of all the circumstances of the case, it is found to have been
reasonable to publish the particular fa cts in the particular way and
at a particular time’.22 ‘Publication in the press of false defamatory
statements of fact will be regarded as lawf ul if, in all the
circumstances of the case it is found to be reasonable; . . . .
protection is only afforded to the publication of material in which
the public has an intere st (ie which it is in the public interest to
make known as distinct from material which is interesting to the

21 1998 ((4) SA 1196 (SCA).
31
public – Financial Mail (Pty) Ltd v Sage Holdings Ltd & another . .
. .’23
I consider it preferable to use t he term ‘justifiable’ rather than
‘reasonable’, but only in order to avoid possible confusion between
inquiries as to unlawfulness and as to negligence. However, the
terms are in this context generally interchangeable.
[45] The decision in Bogoshi relates both to t he fault element of
the delict of defamation and to t he element of unlaw fulness. In so
far as fault is concerned, the usual rule is that one will be liable for
defamation only if one has animus injuriandi – the intention to
harm the reputation of the plaintiff. But in a series of cases in this
court (culminating in Pakendorf v De Flamingh 24) it was held that
strict liability (liability without fault) should be imposed on the
press. Bogoshi held those cases to have been incorrectly decided
and introduced a requirement, in so far as the press is concerned,
of reasonable publication. The focus in Bogoshi was thus the
question of fault (negligence as oppos ed to strict liability). But the
court dealt also with the policy co nsiderations that generally have

22 At 1212G-H.
23 1993 (2) SA 451 (A). The passage from Bogoshi is at 1212A-C.
24 1982 (3) SA 146 (A).
32
an impact on the lawfulness of conduct.25 In introducing a defence
of reasonable publication in the law of defamation, the court in
Bogoshi considered that the devel opment was in accordance with
the common law; and that the common law in this regard was
compatible with the interi m Constitution then in force. 26 Hefer JA
said in this regard: ‘The ultimate question is whether what I hold to
be the common law achieves a proper balance between the right
to protect one’s reputation and freedom of the press, viewing these
interests as constitutional values. I believe it does.’27
[46] The press will thus not be held liable for the publication of
defamatory material where it can show that it has been
reasonable in publishing the material. Accordingly, the form of fault
in defamation actions against th e press is neg ligence rather than
intention to harm.
[47] However, fault need not be in issue at all if in the particular
circumstances anterior inquiry show s that the publication is lawful
because it is justifiable. Bogoshi indicates that the reasonableness
of the publication might also justify it. In appropriate cases, a
defendant should not be held liable where publication is justifiable

25 See the comment on Bogoshi in Jonathan Burchell Personality Rights and Freedom of
Expression: The Modern Actio Injuriarum pp 224-6.
26 At 1216E-F and 1217F-H.
27 At 1217F-H.
33
in the circumstances – where t he publisher reasonably believes
that the information published is true. The publication in such
circumstances is not unlawful. Political speech might, depending
upon the context, be lawful even when false provided that its
publication is reasonable. (See in this regard the test for
reasonableness in Bogoshi28 cited above.) This is not a test for
negligence: it determines whet her, on grounds of policy, a
defamatory statement should no t be actionable because it is
justifiably made in the circumstances.
[48] There are a number of traditional defences to an action for
defamation. In Argus Printing and Publishi ng Co Ltd v Esselen’s
Estate29 Corbett CJ explained the reasons underlying the standard
defences thus:
‘I agree, and I firmly believe, that freedom of expression and of the
press are potent and indispensable instruments for the creation and
maintenance of a democratic so ciety, but it is trite that such freedom is not,
and cannot be permitted to be, totally unr estrained. The law does not allow
the unjustified savaging of an individu al's reputation. The right of free
expression enjoyed by all persons, includ ing the press, must yield to the
individual's right, which is just as im portant, not to be unlawfully defamed. I
emphasise the word ''unlawfully'' for, in striving to achieve an equitable
balance between the right to speak your mind and the right not to be harmed

28 At 1212A-C.
29 1994 (2) SA 1 (A).
34
by what another says about you, the law has devised a num ber of defences,
such as fair comment, justificati on (ie truth and public benefit) and privilege,
which if successfully invoked render la wful the publication of matter which is
prima facie defamatory.’
[49] Hefer JA in Bogoshi30 took the view that the list of defences
is not closed. Rather than citing instances of special defences
formulated over the years, the co urt looked at the question of
unlawfulness from the vantage point of policy and principle:
‘But it is hardly necessary to add that the defences available to a defendant in
a defamation action do not constitute a numerus clausus . In our law the
lawfulness of a harmful ac t or omission is determined by the application of a
general criterion of reasonableness bas ed on considerations of fairness,
morality, policy and the Cour t's perception of the legal convictions of the
community. In accordance with this criterion Rumpff CJ indicated in O'Malley's
case [Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 (3) SA 394 (A)] at
402fin-403A that it is the task of the Court to determine in each case whether
public and legal policy requires the par ticular publication to be regarded as
lawful.’
[50] In Holomisa v Argus Newspapers Ltd ,31 in a judgment
presciently foreshadowing Bogoshi as regards the av ailability of a
defence based on absence of negli gence, Cameron J held that a
defamatory statement ‘which rela tes to “free and fair political

30 At 1204C-E. See also the comment in Bogoshi at 1209A-B on Corbett CJ’s approach to
defences.
35
activity” is constitutionally prot ected, even if false, unless the
plaintiff shows that, in all the ci rcumstances of its publication, it
was unreasonably made’. This statement was endorsed in Bogoshi
save in so far as the incidence of the onus is concerned. The court
in Holomisa did not, however, consider it correct to import into our
law the so-called Sullivan principle ( New York Times Co v
Sullivan)32 that defendant press members will not be liable for
defamatory statements m ade of public figures unless the plaintiff
can show that the statement was ma de with actual malice. Such a
principle would give far too little protection to the right to dignity.
The approach preferred in both Holomisa and Bogoshi is that of
reasonable publication. Jonathan Burchell Personality Rights and
Freedom of Expression: T he Modern Actio Injuriarum ’,33
commenting on Bogoshi writes: ‘The test of reasonableness or
public (legal) policy is a supple criterion which can ensure that the
law of delict is able to meet the needs of a changing society. . . .
The accommodation of freedom of expression under the
unlawfulness inquiry is now firm ly acknowledged by the Supreme
Court of Appeal.’

31 1996 (2) SA 588 (W) at 618E-F.
32 376 US 254 (1964).
33 Page 208.
36
[51] The considerations to be taken into account in assessing the
justifiability of the publication of defamatory materi al (by the press
in particular) are described by Hefer JA in Bogoshi as follows:34
‘But, we must not forget that it is the right, and indeed a vi tal function, of the
press to make available to the community information and criticism about
every aspect of public, political, soci al and economic activity and thus to
contribute to the formation of public opinion (Prof JC van der Walt in
Gedenkbundel: HL Swanepoel at 68). The press and t he rest of the media
provide the means by which useful , and sometimes vital, information about
the daily affairs of the nation is convey ed to its citizens – from the highest to
the lowest ranks (Strauss, Strydom and Van der Walt Mediareg 4th ed at 43).
Conversely, the press often becomes the voice of the people – their means to
convey their concerns to their fe llow citizens, to officialdom and to
government. To describe adequat ely what all this entails, I can do no better
than to quote a passage from the as yet unreported j udgment of the English
Court of Appeal in Reynolds v Times Newspapers Ltd and Others delivered
on 8 July 1998. It reads as follows:
“We do not for an instant doubt t hat the common convenience and
welfare of a modern plural democracy such as ours are best served by an
ample flow of information to the pub lic concerning, and by vigorous public
discussion of matters of public interest to the community. By that we mean
matters relating to the public life of t he community and those who take part in
it, including within the expression ''public life'' activities such as the conduct of
government and political life, elections . . . and public administration, but we
use the expression more widely than tha t, to embrace matt ers such as (for

34 At 1209H-I.
37
instance) the governance of public bodies, institut ions and companies which
give rise to a public interest in discl osure, but excluding matters which are
personal and private, such t hat there is no public interest in their disclosure.
Recognition that the common conveni ence and welfare of society are best
served in this way is a modern democ ratic imperative which the law must
accept. In differing ways and to some what differing extents the law has
recognised this imperative, in the Un ited States, Australia, New Zealand and
elsewhere, as also in the jurisp rudence of the European Court of Human
Rights. . . . As it is the task of the news media to inform the public and engage
in public discussion of matters of public interest, so is that to be recognised
as its duty. The cases cited show a cceptance of such a duty, even where
publication is by a newspaper to the pub lic at large. . . . We have no doubt
that the public also have an interest to receive information on matters of public
interest to the community. . . .” ‘
[52] In deciding in Bogoshi that Pakendorf (above) had been
incorrectly decided, and that publication by the press of
defamatory statements would not be regarded as unlawful if, upon
a consideration of all the circumstances, it was found to have been
reasonable to have published the fact s in the particular way at the
particular time,35 this court did not expre ssly hold that there is any
specific defence relating to politic al speech. Nonetheless this court
did approve a number of decisions in other jurisdictions that have

35 At 1212G-H.
38
held political speech to be in a s pecial category. Those cases are
discussed below.
[53] The question that arises in this case, however, is whether
special principles should be invoked to protect the press, or for that
matter individuals, when they ma ke defamatory statements about
a member of government. The Reynolds decision in the Court of
Appeal (referred to by Hefer JA in Bogoshi) was confirmed by the
House of Lords. 36 I refer to the House of Lords decision as
Reynolds 2. The House of Lords declined to recognise a special
defence of political speech. It di ffered in this regard from the
Australian High Court decision in Lange v Australian Broadcasting
Corporation37 (a case approved by Hefer JA in Bogoshi), finding
that the common law should not deve lop ‘political information’ as a
generic category of information the publication of which attracts a
qualified privilege irrespective of the circumstances. So too,
decisions elsewhere in the Commonwealth ( Theophanous v
Herald & Weekly Times Ltd and Another, 38 Stephens and Others v
West Australian Newspapers Ltd39) were considered in Reynolds 2
not to reflect the English law. And in Lange v J B Atkinson and

36 [1999] 4 All ER 609 (HL); [2001] 2 AC 127.The references that follow are to the All ER.
37 (1997) 189 CLR 520.
38 (1994-1995) 182 CLR 104.
39 (1994-1995) 182 CLR 211.
39
another (New Zealand) 40 the Privy Council pointed out that in the
Reynolds decision of the Court of Appeal the approach of the
Australian and New Zealand courts to political speech had been
rejected.
[54] Lord Nicholls said in Lange v J B Atkinson ,41 commenting on
his earlier speech in Reynolds 2, that a different, simpler approach
had been followed in that case: whether a publication is in the
public interest (that is, whether th ere is a duty to publish to the
intended recipients) ‘depends up on the circumstances, including
the nature of the matter published and its source or status’.
[55] Since Lange v J B Atkinson had been decided by the New
Zealand Court of Appeal before the decision of the House of Lords
had been handed down in Reynolds 2, the Privy Council referred
the matter back to the Court of A ppeal for further hearing in the
light of the recently-enunciated English approach. Lord Nicholls
pointed out, however,42 that ‘one feature of all the judgments, New
Zealand, Australian and English, stands out with conspicuous
clarity: the recognition that st riking a balance between freedom of
expression and protection of reputation calls for a value judgment

40 [1999] UKPC 46. It is of interest that the decisions of the House of Lords in Reynolds and
of the Privy Council in Lange v Atkinson were handed down on the same day, and that the
same law lords sat in both cases.
41 Above, para 15.
40
which depends upon local politic al and social conditions. These
conditions include matters such as the responsibility and
vulnerability of the press’ (my emphasis). For that reason the court
considered it inappropriate to det ermine the matter: the courts of
New Zealand, it said, were ‘b etter placed to assess the
requirements of the public interes t in New Zealand’ than was the
Privy Council.43
[56] The House of Lords in Reynolds 2 considered that the
common law principle of qua lified privilege, based on a
consideration of all the circumstances of the publication, enables a
court to give appropriate weight to the importance of freedom of
expression. Essentially what wa s to be considered was whether
the public had a right to know the particular information. The case
related to statements about the plaintiff, formerly the Prime
Minister of Ireland. He had in e ffect been called a liar (the article
concerned was entitled ‘Why a fi b too far proved fatal for the
political career of Ireland’s peacemaker and Mr Fixit’). Although the
information published a bout the plaintiff was undoubtedly in the
public interest, publication had taken place without giving the

42 Para 16.
43 The New Zealand Court of Appeal confirmed its earlier decision in Lange: [2003] NZLR
385. It considered that qualified privilege did extend to political speech, which constituted a
particular class, and that the law in England was different in this regard. The judgment is one
written by the full court. Reasonableness of the publication is not the test to be used,
however. Gratuitous slurs on politicians would be actionable because the privilege had been
41
plaintiff any opportunity to explain his conduct. The court held that
qualified privilege therefore did not a ttach to the publication in the
circumstances.
[57] The House of Lords thus declined to recognise a ‘new
category of occasion when priv ilege derives from the subject
matter alone: political information’. 44 Political information, Lord
Nicholls held, adopting the Australian definition in Lange (above) is
‘information, opinion and argum ents concerning government and
political matters that affect’ th e public. However, despite the
rejection of a special category of privilege in the form of political
information, Lord Nicholls did ma ke it clear th at established
categories of qualified privi lege are not exhaustive. Such
categories are ‘no more than applications, in particular
circumstances, of the underlying principle of public policy’.45 That
court did recognise, however, that in different jurisdictions different
considerations might come into operation.46
[58] In Australia and New Zealand, as I have indicated, political
speech has been recognis ed as being in a different class because
of constitutional cons iderations. Brennan CJ in Lange v Australian

abused, and not because the publisher had acted unreasonably. The essential test is the
interest in making the statement, and the interest in receiving it.
44 At 621e-g.
45 At 616e-f.
42
Broadcasting Corporation (above, not approved in Reynolds 2)
speaking for the court held that each member of the ‘Australian
community’ has an interest in bot h disseminating and receiving
information and opinions conc erning government and political
matters that affect Australians . ‘The duty to disseminate such
information is simply the correlativ e of the interest in receiving it.
The common convenience and welf are of Australian society are
advanced by discussion . . . ab out government and political
matters. The interest that eac h member of the Australian
community has in such a discus sion extends the categories of
qualified privilege.’ The finding was based largely on the
requirements of the Australian Commonwealth Constitution, and is
subject to the qualification that publication must be reasonable in
order to protect the reputations of those defamed.
[59] The High Court of Australia in Lange approved the decisions
in Theophanous v Herald & Weekly Times and Stephens v West
Australian Newspapers Ltd (above, also discussed and not
followed in Reynolds 2 ). In both those ca ses the courts had
recognised a special category of qualified privil ege in respect of
political information dissemi nated in the press. In Theophanous it
was held that the Commonwealth Constitution allowed the

46 See also the speech of Lord Steyn at 630g-j.
43
publication of material discussing government and political
matters, and of information conc erning members of Parliament
which relates to the performance of their duties as members of
Parliament; and in relation to the suitability of persons for office as
Parliamentarians. Publication would not be actionable if the
defendant proved that it was unaw are of the falsity of the
publication; it did not publish th e material recklessly, not caring
whether it was false; and the publication was reasonable in the
circumstances.
[60] The High Court in Lange adopted the approach to the
interest in receiving political information formulated by McHugh J in
Stephens:
47
‘In the last decade of the twentieth century, the quality of life and the freedom
of the ordinary individual in Australia are highly d ependent on the exercise of
functions and powers vested in public representatives and officials by a vast
legal and bureaucratic apparatus funded by public moneys. How, when, why
and where those functions and powers are or are not exercised are matters
that are of real and legitimate intere st to every member of the community.
Information concerning the exercise of those functions and powers is of vital
concern to the community. So is the performance of the public representatives
and officials who are invest ed with them. It follows in my opinion that the
general public has a legitimate interest in receiving information concerning
matters relevant to the exercise of public functions and powers vested in
44
public representatives and officials. Moreover, a narrow view should not be
taken of the matters about which t he general public has an interest in
receiving information. With the increasi ng integration of the social, economic
and political life of Australia, it is difficu lt to contend that the exercise or failure
to exercise public functions or powers at any particular level of government or
administration, or in any part of the count ry, is not of relev ant interest to the
public of Australia generally.’
[61] Of particular importance in this matter is the approach to
reasonableness enunciated by Brennan CJ in Lange.48
‘Whether the making of a publication was reasonable must depend upon all
the circumstances of the case. But, as a general rule, a defendant’s conduct
in publishing material giving rise to a defamatory im putation will not be
reasonable unless the def endant had reasonable grounds for believing that
the imputation was true, t ook proper steps, so far as they were reasonably
open, to verify the accura cy of the material and did not believe the imputation
to be untrue. Furthermore, the defendant’s conduct will not be reasonable
unless the defendant has sought a res ponse from the person defamed and
published the response made (if any) exc ept in cases where the seeking or
publication of a response wa s not practicable or it was unnecessary to give
the plaintiff an opportunity to respond.’
[62] This passage was approved by Hefer JA in Bogoshi.49 The
court there held (contra Holomisa, above) that the defendant bears

47 (1994-1995) 182 CLR 211 at 264.
48 (1997) 189 CLR 520 at 574.
49 At 1211F-H.
45
the onus of proving rea sonableness. In the inquiry as to the
reasonableness of the publication, account must be taken of the
tone of the publication – whether there is an unnec essary sting
attached; the nature of the inf ormation published; the reliability of
the source; and steps taken to verify the information. 50 These
questions relate both to unlawfulness (the unnecessary sting or the
gravamen of the statement) and to fault – negligence – (steps
taken to verify the information). But the inquiries inevitably overlap.
[63] That political informat ion or speech should be treated
differently, and members of go vernment expected to be more
vulnerable to robust criticism, is also the view of the European
Court of Human Rights in Lingens v Austria51 affirmed by that court
also in Oberschlick v Austria52. The court said in Lingens:
‘The limits of acceptable criticism ar e accordingly wider as regards a
politician as such than as regards a pr ivate individual. Unlik e the latter, the
former inevitably and knowingly lays hims elf open to close scrutiny of every
word and deed by both journalists and the public at large, and he must
consequently display a greater degree of tolerance. No doubt Article 10(2) [of
the European Convention of Human Rights] enables the reputation of others –
that is to say, of all i ndividuals – to be protected, and this protection extends
to politicians too, even when they are not acting in their private capacity; but in

50 At 1212H-J.
51 (1986) 8 EHRR 407 (para 42).
52 (1991) 19 EHRR 389 (para 59).
46
such cases the requirements of such protection have to be weighed in relation
to the interests of open discussion of political issues.’
This dictum was approved by Lord Steyn in Reynolds 2.53
[64] In my view, the reasons advanced in Lange and Lingens, as
well as those underlying the decision in Spoorbond, for recognizing
that the defamation of govern ment and members of government
might be justifiable in certain ci rcumstances, and thus lawful, are
compelling. They require that t here be a special defence attaching
to political information, such that the publication of defamatory
matter in circumstances where it is justifiable (reasonable) is not
actionable.
[65] Freedom of expression in polit ical discourse is necessary to
hold members of government accountable to the public. And some
latitude must be allowed in order to allow robust and frank
comment in the interest of keep ing members of society informed
about what government doe s. Errors of fact should be tolerated,
provided that statements are p ublished justifiably and reasonably:
that is with the reasonable be lief that the statements made are
true. Accountability is of the essenc e of a democratic state: it is
one of the founding values expressed in s 1(d) of our Constitution:

53 At 635e-j.
47
‘Universal adult suffrage, a national common voters roll, regular elections and
a multi-party system of democratic government, to ensure accountability,
responsiveness and openness’ (my emphasis).
And see further s 92(3)(a) read with s 195 (1)(a) to (f) and s 195(2)
of the Constitution which govern the basic values and principles of
public administration. In Holomisa Cameron J said:54
‘Our constitutional structure s eeks to nurture open and accountable
democracy. Partly to that end, it encourages and protects free speech and
expression, including that practised by the media. If the protection the
Constitution affords is to have substanc e , t h e r e m u s t i n m y v i e w b e s o m e
protection for erroneous stat ements of defamatory fact, at least in the area of
“free and fair political activity”.’
[66] This court has in several cases recently, when dealing with
the Aquilian action for damage inf licted negligently, stressed the
importance of the state’s accountability to the public in finding state
action to be unlawful. See, in particular, Minister of Safety and
Security v Van Duivenboden;55 Van Eeden v Minister of Safety and
Security;56 Premier, Western Cape v Faircape Property
Developers (Pty) Ltd ;57 Minister of Safety and Security v
Hamilton;58 and Minister of Safety and Security and another v

54 At 616I-J.
55 2002 (6) SA 431 (SCA).
56 2003 (1) SA 389 (SCA).
57 2003 (6) SA 13 (SCA).
58 2004 (2) SA 216 (SCA).
48
Carmichele.59 See also the decision of the Constitutional Court in
Carmichele v Minister of Safety and Security 60 on wrongfulness in
the law of delict in the light of c onstitutional values. The state, and
its representatives, by virtue of the duties imposed upon them by
the Constitution, are accountable to the public. The public has the
right to know what the officials of the state do in discharge of their
duties. And the public is entitled to call on such officials, or
members of government, to explai n their conduct. When they fail
to do so, without justification, they must bear the criticism and
comment that their conduct attrac ts, provided of co urse that it is
warranted in the circumstances and not actuated by malice.
[67] That does not mean that th ere should be a licence to publish
untrue statements about politicians . They too have the right to
protect their dignity and their reputations.61 As Burchell puts it:62
‘There are limits to freedom of political comment, especially in regard to
aspects of the private lives of polit icians that do not impinge on political
competence. Politicians or public figures do not simply have to endure every
infringement of their pers onality rights as a price fo r entering the political or
public arena, although they do have to be more resilient to slings and arrows
than non-political, private mortals.’

59 2004 (3) SA 305 (SCA).
60 2001 (4) SA 938 (CC).
61 See Burchell op cit p 229. ‘It has for many years been accepted that greater latitude must
be given to freedom of expression on political matters. However, although politicians may, in
one sense, be fair game for criticism, it is not completely open season in the political veld.’
62 Loc cit.
49
[68] But where publication is justifiable in the circumstances the
defendant will not be held liable. Ju stifiability is to be determined
by having regard to all relevant circumstances, including the
interest of the public in being in formed; the manner of publication;
the tone of the material published; the extent of public concern in
the information; the reliability of the source; the steps taken to
verify the truth of the information (this factor would play an
important role too in considering the distinct question whether
there was negligence on the part of the press, assuming that the
publication was found to be defam atory); and whether the person
defamed has been given the oppo rtunity to comment on the
statement before publication. In ca ses where information is crucial
to the public, and is urgent, it may be justifiable to publish without
giving an opportunity to comment.
[69] Was the publication of the M & G report card in respect of
the appellant justifiable in all th e circumstances, such that the
respondents may invoke the defence of justifiable political speech?
The executive authority of the Repu blic is vested in the President
who exercises it ‘together with the other members of the cabinet’ (s
85 of the Constitution). Members of the cabinet are accountable
both collectively and individually to Parliament for the exercise of
50
their powers and the performance of their functions (s 92(2)). They
are also tasked with the attainm ent of an accountable public
administration. They must ac t in accordance with policy as
determined by the cabinet. Ca binet ministers thus represent
government at the highest level. Freedom to discuss and criticise
government – the country’s affa irs – must include the freedom to
discuss the conduct of individual cabinet ministers. The M & G,
and all the other newsp apers and media that commented on and
criticised the conduct of the appellant were entitled, indeed
obliged, to do so. Was the statem ent that ‘her award of a massive
housing contract to a close friend’ in keeping with that right and
duty, or did it go too far?
[70] Earlier in the judgment I se t out at length some of the
statements made about the appella nt and the Motheo project. A
reading of them shows that the press, including the M & G,
repeatedly called for an explanati on from the appellant of a
contract awarded under her auspices as National Minister of
Housing. It is common cause that the contract was concluded
without the necessary procedu res having been followed. The
Board that purported to award it was not quorate when the
decision to make the award was taken. The company to which it
was awarded did not yet exist, le t alone have any track record of
51
building houses. The person (Gibb of Nedcor) who had undertaken
to fund the project in part was, to the knowledge of the appellant,
under suspicion. The Auditor-Gene ral reported adversely on the
contract, as did the Dreyer commission of inquiry. The press called
for explanations from the appellant , especially as to why she had
fired Mr Cobbett, and received no response. They called for an
inquiry that would focus on her rol e in the award to Motheo. There
was no response. They knew she wa s in overall charge of housing
nationwide63 and could and should have stopped the contract at
the outset. The call for a co mmission of inquiry had been
dismissed. There was no point in again seeking a response from
the appellant. She had stated publicly more than once that she had
had nothing to do with the award.
[71] There was also no point in asking Moodley or Gibb about the
role of the appellant in the whole affair: their evidence to the
Dreyer commission and their public statements pointed to the
prospect of another denial. Yet the obvious question was how Gibb
had come to know of Ndlovu. In the light of all the information
about the links and friendships be tween the appellant and Ndlovu,
the appellant and Gibb, and Ndlo vu’s sister (Seape, who worked
for Gibb at Nedcor) and Gibb, it was reasonable for the M & G to

63 Housing is one of the areas of concurrent national and provincial legislative competence:
52
believe that the appellant had in fluenced the choice of Motheo,
Ndlovu’s company, as the housi ng developer. And it could not
have been expected of the M & G to hold its own commission of
inquiry. The respondents’ publication of the defamatory statement
was, in all the circumstances, justifiable.
REASONABLE PUBLICATION
[72] As to the reasonableness of the respondent’s belief and the
issue of fault, much of what ha s been said above is relevant here
too. It must also be remem bered that the ques tion now is not:
was the appellant’s involvement in the choice of Motheo (Ndlovu)
the only reasonable infe rence (as it would be for liability in a
criminal case), or the most probabl e inference (as for liability in a
civil case)? It is simply: was it a reasonable inference for the
respondent to draw given, in part icular, all the press reportage and
the Dreyer report?
[73] The essential question at the time, as I have said, was who,
in late 1996 or early January 1997, selected Ndlovu, the close
friend of the appellant, and the intended director of a company yet
to be formed, which had neithe r financial capacity, nor any
experience in, nor knowledge of the construction industry?

schedule 4 of the Constitution.
53
Mpumalanga province did not have the funds to expend on the
project. It was dependent on the choice of developer being made
by the supposed financial backer, Nedcor, or the national ministry.
Nedcor’s later rejection of Gi bb’s initiatives and Cobbett’s
disapproval of the entire scheme reasonably show that the choice
of Ndlovu must have come not f rom them, but from an ostensibly
initially authorised Nedcor operativ e (Gibbs or Ndlovu’s sister) or
from someone in the ministry. Given the links between
Gibb, Seape, Ndlovu and the appellant, it was reasonable to infer
that Ndlovu’s name would not hav e come from Gibb alone. The
obvious inference to be drawn was that Gibb knew that the name
that he suggested would be acce ptable to the ministry. But
whether the name came from Gibb or Ndlovu herself, or from her
sister Seape, ultimately authoritat ive ministerial acceptance, in the
absence of Cobbett’s involvement, was obtainable from only one
person. That was the appella nt. She had already recorded a
denial of involvement and nobod y could expose her to cross-
examination or interrogation in any available form of inquiry. It
was also reasonable to conclude that any other informants either
did not know enough to answer the question, or would not alter the
stance, supportive of the appe llant’s denial, which they had
already made public in the press or before the Dreyer commission.
54
[74] The tone of the report card was undoubtedly irreverent. It
was critical of the performance of all members of government,
even those to whom it awarded ‘g ood grades’. It was an overall
assessment of performance ov er the year under review. It
assumed knowledge of political ev ents over the year. It did not
purport to convey new informatio n. And it relied on the myriad of
reports made in a multitu de of papers over the course of the year,
all calling for an explanation from the appellant herself of the
Motheo contract. Admittedly what wa s said was stated to be fact,
not opinion, but it nevertheless was clearly proff ered as political
criticism. And it conc erned the actions of a pub lic figure in relation
to a major political talking-poin t. Thus even if the report were to
have conveyed the impression t hat the appellant had personally
made the award and signed the contract, the conduct of the writer
and the editor, the second respo ndent, was reasonable in all the
circumstances.
CONCLUSION
[75] Accordingly I find that t he publication of the defamatory
article was not unlawful, because it was justifiable in all the
circumstances, and that it wa s not negligent. The report card
constituted political speech that wa s justified and re asonable in all
the circumstances. The defamation is thus not actionable.
55
[76] It is thus not necessary to consider the respondents’ further
arguments in relation to the int roduction of new remedies (the
amende honorable – apology in suitable form to the plaintiff, and
setting the facts straight – or a substantial reduction in the award
of damages) for politician plainti ffs, as a means of achieving an
appropriate balance between the com peting rights of freedom of
speech and dignity.
[77] The appeal is dismissed wi th costs including those
occasioned by the employment of two counsel.
C H Lewis
Judge of Appeal
Concur: Howie P
56
PONNAN AJA (concurring in the order of Lewis JA, but for
different reason):
[78] An ostensibly easy question, first articulated by Lord Atkin in
Sim v Stretch64 and adopted repeatedly by our courts, namely, ' ...
would the words [complained of] tend to lower the plaintiff in the
estimation of right thinking mem bers of society ge nerally ...', is a
salutary starting point. The answer it yields, is, in my view decisive
of the present appeal.
[79] The test is an objective on e. The standard is the ordinary
reader with no legal training or ot her special discipline, variously
described as a ‘reasonable’, ‘right thinking’ individual of ‘average
education’ and ‘normal intelligence’. It is through the eyes of such
a person who is not ‘super-critica l’ or possessed of a ‘morbid or
suspicious mind’ that I must read the report card.
[80] The ordinary reader of the M & G, so we are told, is ' ...
highly educated, informed and critical'. It is someone who keeps
abreast of current affairs by reading an assortment of newspapers,
listening to the radio and viewing te levision. It would thus be fair to
impute to such a person a higher standard of education and
intelligence and a greater interest in and understanding of national

64 [1936] 2 All ER 1237 (HL)
57
affairs than newspaper readers in general in this country. (see
Channing v South African Financial Gazette & others 1966 (3) SA
470 at 474A.) But, it is clear th at one may not impute to such a
reader, for the purposes of this enquiry, the training or habits of the
mind of a lawyer.
[81] ‘In an era when rebellion for it s own sake is the fashion and
revisionism its intellectual st yle, values which used to be
taken for granted are r e-appraised so frequently and
ferociously that to identify the "right-thinking", and to
postulate some general accord among them, is a difficult
enough task in a homogeneous community. The problems
are compounded enormously in a mixed country like South
Africa, with its variety of races, cultures, languages and
religions, and its wide social and economic differences. No
single group has a monopoly of such a society's "right-
thinking" members, and th e "mythical consensus" must
encompass them all. Subjec tivity inevitably intrudes
whenever this is sought. A Judge would doubtless hesitate
to see himself as the epitome of all "right-thinking" persons,
or to say so at any rate. He is seldom lik ely, on the other
hand, to attribute to the "right-thinking" a viewpoint sharply in
conflict with his own. More often he decides what he
58
personally thinks is right, and then imputes it to the
paragons. To others, however, the tenets thus decreed may
seem merely the innate prejudices of the group or class from
which he has sprung. That they indeed are is the danger
against which he must guard.'
(Per Didcott J in Demmers v Wyllie & others 1978 (4) SA (D) 629
A-D.)
[82] The Minister's complaint in this matter is a very narrow one, it
is that she did not award the housing contract to Motheo. The
award of the contract had been made by the Mpumalanga Housing
Board, accordingly, so it was argued, the repor t card should not
have attributed it to her. The logical startin g point is whether the
words complained of convey the defamatory meaning which the
plaintiff seeks to place on them. Properly understo od, so it was
submitted, the reference to 'her' award of the contract carried with
it an imputation of ‘cor rupt nepotism’, implying as it did, that she
had awarded a lucrative contract to a close friend. That, according
to the Minister’s counsel, was th e meaning to be attributed to the
report card.
[83] It is indeed so that the Minist er did not award the contract to
Motheo. Nor could she. It wa s after all a provincial housing
59
contract which had been award ed by the provincial housing
authority. Readers of the M & G w ould have known that. In that
context they would have underst ood the reference to 'her award',
not as her having personally aw arded the contract, but, as her
possibly having influenced the award of the contract.
[84] There was a widely held pub lic perception that the Minister
had used her influence to secure a lucrative contract for a close
friend. Cartoons, caricatures and editorials accompanied lead
articles in national, daily and weekly newspapers. Vivid journalese
was employed to describe the Mo theo scandal as it came to be
known, which dominated the print media for a protracted period
prior to the publication of the re port card by M & G. The report
card, it bears noting, was a 'snappy', 'irreverent' and ‘robust’
assessment of the performance of cabinet ministers during the
year under review. It di d not purport to add anything to what was
described in the evidence as the then ‘prevailing political folklore’.
Readers of the M & G would not have attached any significance to
the reference 'her award' instead of the more apt 'the award'.
[85] It is fair to say, that there wa s at that time a public perception
created by the extensive reportage, long before the publication of
the report card, that the Mini ster may indeed have been guilty of
60
nepotism. Those allegations had repeatedly been made in the
media amidst strident calls for a full, fair and proper inquiry into her
role in the scandal. Not only did those calls go unanswered, but
the Minister's evasive and cont radictory responses did little to
erode that perception. Properly understood, the words complained
of were no more than a reference to the role she had played in the
matter as revealed by the information already in the public domain.
Views already shaped by the preceding avalanche of publicity
would not have been altered by t he report card. The report card
was intended to be allusive rather than specific. It was evidently
designed for entertainment rather t han instruction. It sought to be
irreverent rather than info rmative. So construed, although the
matter is by no means free f rom doubt, the Minister was not
disparaged by the words complained of.
86] In Pienaar & another v Argus Printing and Publishing Co Ltd
1956 (4) SA 310 (W) at 318 Ludorf J sa id ‘… The Courts must not
avoid the reality that in South Af rica political matters are usually
discussed in forthright term s. Strong epithets are used and
accusations come readily to the tongue. I think, too, that, the public
and readers that debate po litical matters are aware of this.’ Those
sentiments assume heightened si gnificance in a fledgling
democracy such as ours struggling to rid itself of its securocratic
61
and censorious past. The Minist er has been too sensitive about
the report card. She is in her own right a pub lic figure who at the
relevant time was entrusted with a key national por tfolio. The true
enquiry relates to the manner in which the report card would have
been understood by t hose readers of it whose reactions are
relevant to the action. In my view , it cannot be said that to those
readers it bore a defamatory mean ing. It follows that the report
card was not defamatory of the Minister.
[87] I accordingly concur, albeit for different reasons, in the order
proposed in paragraph 77 of the ju dgment of Lewis JA. I also
express my concurrence with paragr aphs 33 to 42 of my Sister's
judgment.
V M PONNAN
ACTING JUDGE OF APPEAL
62
MTHIYANE JA (dissenting):
[88] I have read the judgments of my colleagues Lewis JA and
Ponnan AJA and regret that I am unable to agree with either’s
conclusion. In what follows I set out my approach to the matter.
[89] The appellant, then the National Minister of Housing,
instituted a defamation action in the Johannesburg High Court
against the first and second respondents. The action arose out of a
statement in a ‘report card’ published in the Mail and Guardian of
24 December 1998. The statement read:
‘Why is she still in cabinet? She has shown sh e cannot deliver in
one of the key delivery ministries. Her award of a massive housing
contract to a close friend and the sacking of former Director-
General, Billy Cobbett, continue to haunt the public perception of
her.’
[90] The appellant relied on only t hat portion of the statement
which accused her of having aw arded a massive building contract
to a close friend. The appellant pl eaded that the said statement, in
the context of the ‘report c ard’, was per se defamatory and
published animo injuriandi. In the alternative, she alleged that the
63
statement was intended and unders tood by readers of the ‘report
card’ and by the general public to mean, inter alia, that she:
‘(a) is of a base moral standard;
(b) is a dishonest person and t hat she would dishonestly award
a massive housing contract to
a close friend of hers;
(c) is incompetent and is unable to deliver as a minister;
(d) is not worthy of holding public office.’
[91] The appellant alleged furthe r that, in publishing the
statement:
‘(a) the defendants were reckless in that they did not care
whether the contents were true or false;
(b) they took no reasonable steps to establish and/or to
investigate the truth of the allegations contained in the article; and
(c) the defendants failed to ensure that enquiries were directed
to the plaintiff and/or that a response was sought from the plaintiff.’
[92] In their plea the respondents denied that the statement, in
the context of the re port card, was defamatory of the plaintiff or
that it conveyed the meaning attr ibuted to it by the appellant. They
also raised other defences: rea sonableness, qualified privilege,
and the defence of truth and public benefit.
64
[93] The appellant’s action was dismissed by the court a quo
(Joffe J) on two grounds: first, that as a cabinet minister the
appellant had no locus standi to sue for defamation, and secondly,
that she had not been defamed because by the time the statement
was published, her reputation h ad already been ta rnished by the
past reportage on the Motheo cont ract. The learned judge found
that the context in which the readers of the Mail and Guardian
would have read the ‘report card ’, was one in which the public
perception of the appellant wa s already tarnished and the damage
done. The issues relating to the other defences were not
addressed in the judgment.
[94] The appeal raises four questions : first, whether a cabinet
minister has a right in law to sue for defamation. Secondly,
whether or not the statement was defamatory of the appellant, in
the context of the re portage of a year an d a half on a scandal
concerning the award of the housi ng contract which was found to
be irregular in several respects. Thirdly, whether or not in the
circumstances of this case, t he conduct of t he respondents fell
within the scope of the reasonab leness defence (or remedy) set
out in National Media Limited v Bogoshi. 65 Fourthly, whether this

65 1998 (4) SA 1196 (SCA) at 1212 H – 1213 A-C.
65
court should develop the common law in order to provide for a
defence that would p rotect both the maker and publisher of the
defamatory statement as well as the victim of the defamation.
[95] The accusation that the appellant awarded the Motheo
contract to a close friend was unpr oven. With that, the defence of
truth and public benefit, in my view, fell by the wayside. I deal fully
with this aspect later in the judgment. During argument in the
appeal before us, counsel for the respondent was constrained to
submit that the defence of t ruth and public benefit was legally
suspect. That approach, it seems to me, in the context of the
present matter, was informed by the very nature of the defence
contemplated in Bogoshi. It is meant to protect publication of an
untrue statement (not a true stat ement), in circumstances where
there is no fault (or unreasonableness) on the part of the maker or
publisher. In the absen ce of proof, the ac cusation against the
appellant must, in my view, be approached on the ba sis that it is
untrue.
[96] I deal first with the question whether the appellant, as a
cabinet minister, has locus standi to sue for defamation. The
respondents contend that the appellant lacks locus standi to sue .
They submitted that the decision in Die Spoorbond and Another v
66
South African Railways 66 to the effect that the state cannot claim
damages for defamation for injury to its reputation, should be
extended to cabinet ministers so as to preclude them from suing
for defamation. In developing his argument counsel for the
respondents stressed the need to protect the freedom of every
person to comment, without inhi bition, on the management and
conduct of the country’s affairs to avoid the chilling effect of
defamation actions by cabinet mi nisters. For this submission
reliance was placed on the judg ment of the House of Lords in
Derbyshire County Council v Times Newspapers Ltd and Others 67
where the principles laid down in Spoorbond were followed and
extended to local authorities - in the case in question to the
Derbyshire County Council. Coun sel urged that the decision in
South African Associated News papers Ltd and Another v Estate
Pelser,68 where this court declined to extend the Spoorbond rule to
actions for defamation by cabi net ministers, should not be
followed.
[97] There is a lot to be said for co unsel’s criticism of the decision
in Pelser. The facts in that case w ere briefly the following: two
persons, one white and the other bl ack, were sentenced to death
for the same crime. The State P resident (as the head of the state

66 1946 AD 190.
67
was then called) granted a reprieve to the wh ite murderer but not
to the black one. The blac k man was executed. The Sunday
Times, a newspaper published by t he first defendant in that case,
printed an article in which the la te Professor B arend van Niekerk
was quoted as having remarked:
‘The execution of [the black man] mu st fill all South Africans with
shame.’
For reasons that are difficult to comprehend the court rejected the
argument by Mr SW Kentridge SC, for the newspaper publisher,
that the above statement was, on its correct interpretation, not
capable of being read as defamatory of Minister Pelser. I agree
with Lewis JA that Pelser was wrongly decided on the facts.
[98] I do not agree with the submis sion that the principle in
Spoorbond should be extended and t hat cabinet mi nisters should
be barred from suing for defamati on. In my view, that approach
would undermine the protection of an individual’s right to dignity,
which includes reputation, and el evate the right to freedom of
expression above the right to reputation. Under our law the right to
reputation equally enjoys prot ection. The ‘recognition and
protection of human dignity is a foundational constitutional value,’
and the right to human dignity en trenched in the Constitution

67 [1993] 1 All ER 1011 (HL).
68
‘values both the personal sens e of self-worth as well as the
public’s estimation of the w orth or value of an individual.’ 69 Even
though the right to reputat ion is not protected eo nomine as a
fundamental right, it is considered to be part of the right to respect
for, and protection of, the dignity of an individual, which is
protected by s 10 of the Constitution. 70 It is therefore crucial to
strike a fair balance between the right to freedom of expression, 71
and the right to dignity 72 and reputation, so t hat one right is not
accorded more value than the other . The tension between the two
competing constitutional rights has, for now, been resolved
adequately in defamation matters by the application of the
principles laid down in Bogoshi.73
[99] In my view, ministers of state, as everybody else, are not
above criticism in relation to the execution of their duties as
members of government – and su ch criticism is indeed a good
thing for purposes of public deb ate and discussion in an open and
democratic society. In fact the end-of-the-year ‘report card’ devised
by the respondents, properly utiliz ed, might prove to be a useful
exercise to encourage members of government to keep their wits

68 1975 (4) SA 797 (A).
69 See Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) at paras 26 and 27.
70 See Lawsa (1) par 270.
71 Protected under s 16 of the Constitution.
72 “ “ s 10 of the Constitution.
73 See Khumalo at para 39.
69
about them on issues of publ ic concern. But unchecked,
unjustifiable imputations of dishonesty detract from a proper
exercise of the right to freedom of expression and disrupt the
balance referred to in para 98 a bove. I consider fair reporting and
the retention by a cabinet minister of the right to sue, not to be
strange bed fellows. They can eas ily subsist side by side, without
the right to freedom of expres sion being compromised. In my
judgment, the appellant does have locus standi to sue for
defamation.
[100] I now turn to the effect of the past reportage on the
appellant’s claim. The court a quo held that the appellant failed to
establish that she had been defam ed because by the time the
‘report card’ was published, damage had already been done. This
finding is supported by the respondents.
[102] I do not agree. The test whethe r the appellant’s reputation
was lowered in the estimation of right thinking readers is an
objective one. The question in the present matter is how the
reasonable reader of the Mail and Guardian would have
understood the statement in the ‘rep ort card’, in the context and
against the background it was publ ished. The test envisages that
the words in the statem ent are to be construed ‘in their context’,
70
and the meaning thereof determined by reference to ‘what they
would convey to ordinary reasonable persons, having regard to the
sort of people to whom the words were or were likely to be
published.’74 I do not see the relevance of the dictum of Didcott J in
Demmers v Wylie and Others ,75 referred to by my colleague,
Ponnan AJA (para 81) in his judgm ent, in the context of the
present matter. In that par t of the judgment in Demmers, Didcott J
was dealing with the diffi culties associated with identifying a ‘right-
thinking reader’ in a non-homog enous community such as ours.
No such problem is encountered in the present matter. The right-
thinking reader we are concerned with is the ordinary reader of the
Mail and Guardian. The issue before us is what the statement in
the ‘report card’ would have co nveyed to that reader, having
regard to the above test.
[103] In my view, the conclusion reached by the court a quo on the
effect of the past reportage is flawed in two respects: first, it
ignores the fact that the allegati on that the appellant had awarded
the contract to Motheo was a novel statement. Secondly, any
perspective earlier held of t he appellant by readers of that
reportage, could not have been caused by a belief that she had

74 Johnson v Beckett and Another 1992 (1) SA 762 (A) at 773 B-D; Johnson v Rand Daily
Mails 1928 AD 190 at 204; Channing v SA Financial Gazette Ltd and Others 1966 (3) SA 470
(W) at 474 A–C; Botha en ‘n Ander v Marais 1974 (1) SA 44 (A) at 48 D-F.
75 1978 (4) SA 619 (DCLD) at 629 A-B.
71
indeed made such an award, as no assertion of such a fact had
ever been made.
[104] Mr Howard Barrell, the writer of the ‘report card’, testified that
readers of the Mail and Guardian were on the whole the most
educated group of newspaper readers in the country. He described
the typical reader as ‘a highly educated, informed and critical
individual’, who probably reads three or four di fferent newspapers
and regularly listens to the radi o and watches television. The
readers of the Mail and Guardian, he said, base their judgments on
the information they receive from a variety of s ources and do not
uncritically accept what they read.
[105] In my view, that type of r eader would have realized that the
avalanche of past reportage conveyed no more than a suspicion of
nepotism, and that the reportage cr ied out for an investigation to
establish the appellant’s involvem ent, if any, in the award of the
Motheo contract. That class of reader, given his or her ability to
discern and analyse, is not likely to have accepted the past
reportage as asserting that the Motheo contract had been awarded
by the appellant or that she had pl ayed a role in the award of the
contract.
72
[106] But, when the report of 24 December 1998 appeared,
suggesting that the a ppellant had awarded the contract, it seems
to me that the reader, in c onsidering the new information
objectively (as a right-thinkin g reader), would have compared it
with what had been gleaned from th e earlier reportage, and would
have been led to conclude that th e appellant had in fact done what
was alleged: that t he report meant that s he had influenced the
process of awarding the contract or played a role in its award to a
close friend because the ‘report card’ now says so (something not
stated previously). Although th e average reader of the Mail and
Guardian would have been aware that the award of housing
contracts was a provincial compet ency, he or she was now being
told pointedly that the appellant had caused the contract to be
awarded. From this latest st atement the reader would have
concluded that the Mail and G uardian was now in possession of
information that linked the Minist er directly with the nepotistic
award of the contract. This, beca use even the ear lier reportage of
the Mail and Guardian, and i ndeed other newspapers, had not
carried a story that linked the appell ant directly to the award of the
Motheo contract. As all the oth er newspapers had done, the Mail
and Guardian had simply raised qu estions calling for answers. It is
true, as stated by Lewis JA (para 23), that Barrell and Soggot,
called as witnesses for the respondents, maintained that the report
73
card did not refer to any new in formation. But when Barrell, in
particular, was challenged by counsel for the ap pellant to point to
any prior media statement, if any, implicating the appellant in the
award of the contract, he was unable to do so.
[107] In my view, the latest statem ent was novel and lowered the
appellant’s reputation in the eyes of the right thinking reader of the
newspaper. I consider the earlier r eportage to be relevant to the
assessment of quantum rather than as a complete defence to the
defamation action. It is one thing to say that a pe rson has a bad
reputation, but quite another to conc lude or imply that such person
has none at all to protect – which is the effect of the finding of the
court a quo in so far as the appellant is concerned. Even in cases
where a person’s reputation has sunk to its lowest ebb, that factor
does not constitute a complete defence.76
[108] Although the earlier reportage was critical and sometimes
strident, in the present matter it never included an allegation that,
whether directly or indirectly , the appellant had awarded the
contract to Motheo. In my view, previous defamations (even of an
identical kind) cannot and do not render what wa s defamatory to
be not defamatory. The relevance of earlier defamations is
74
confined to the topic of damages, where it would be a factor to be
contextualized in the cours e of an assessment of quantum. The
statement in my colleague, Ponnan AJA’s judgment (para 84), that
there was ‘a widely held public perception that the Minister had
used her influence to secure a lu crative contract for a close friend’
is, in my view, not borne out by the facts nor by the past reportage.
On the contrary, the past report age merely raised suspicion and
called for answers.
[109] The proposition that the appella nt awarded, or caused the
contract to be awarded, is unpr oven. The respondents did not
attempt to adduce evidence to es tablish that fact. Instead Barrell,
in his evidence, was driven to as sert that an inference was to be
drawn from a range of surrounding circumstances. When Barrell
was invited to substantiate his accusation (that the appellant had
awarded the Motheo contra ct) during cross-examination, he stood
by his bare assertion and, rath er than provide proof, challenged
counsel and said: ‘[P]lease eliminate my conclusion, please prove
me wrong’. I agree with Lewis JA (para 28), that the ordinary
reader of the Mail and Guardian would have understood the words
complained of to mean that the plaintiff was guilty of corrupt
behaviour. Such serious accusati on cannot, in my view, be

76 Cf Grobbelaar v News Group Newspapers Ltd and Another 2002 (4) All ER 732 (HL) at 733
75
regarded as mere political criticism. In my view, that conclusion
was reached without any factual ba sis. Accordingly, having failed
to show that the allegations are true, the respondents can only
escape liability if their conduc t in publishing the defamatory
statement, can be brought within the Bogoshi defence.
[110] In Bogoshi77 Hefer JA said:
‘[T]he publication in the press of false defamatory allegations of
fact will not be regarded as unlawful if, upon a consideration of all
the circumstances of the case, it is found to have been reasonable
to publish the particular facts in a particular way and at a particular
time. It is for the respondents to prove all the facts on which they
rely to show that the public ation was reasonabl e and that they
were not negligent.’78
Dealing with how the test was to be applied Hefer JA continued:
‘In considering the reasonableness of the publication account must
obviously be taken of the nature, extent and tone of the
allegations. We know, for instance, that greater latitude is usually
allowed in respect of political discussion ( Pienaar and Another v
Argus Printing and Publishing Co Ltd 1956 (4) SA 310 (W) at 318
C-E), and that the tone in which a newspaper article is written , or
the way in which it is present ed, sometimes provides additional,

(f) - (g).
76
and perhaps unnecessa ry, sting. What will also figure prominently
is the nature of the information on which the allegations were
based and the reliability of their source , as well as the steps taken
to verify the information . Ultimately there can be no justification for
the publication of untruths, and members of the press should not
be left with the impression that they had a licence to lower the
standards of care which must be observed before defamatory
matter is published in a newspaper . Professor Visser is correct in
saying (1982 THRHR 340) that a high degree of circumspection
must be expected of editors and their editorial staff on account of
the nature of their occupat ion; particularly, I w ould add, in the light
of the powerful position of the p ress and the credibility which it
enjoys amongst large sect ions of the community . (Münchener
Kommentar zum Bürgerlichen Gesetzbu ch vol 5 at 1679.) I have
mentioned some of the relevan t matters; others, such as the
opportunity given to the person concerned to res pond, and the
need to publish before establishing the truth in a positive manner ,
also come to mind.’79 [Emphasis added].
[111] In the statement complained of the appellant is accused of
awarding the contract to a clos e friend. None of the guidelines
suggested in Bogoshi was followed by th e respondents before

77 at 1212G.
77
publishing the offending statemen t. The appellant was not offered
an opportunity to respond to the allegations. I agree, though, with
Lewis JA, that it may not have been necessary to offer her such an
opportunity in view of her repeated denial that she had anything to
do with the awarding the contract to Motheo. But, what of the other
role players? The respondents could have checked with Cobbett or
the members of the Provincial H ousing Board, in particular its
Chairman, Mr Saths Moodley, w hether the appellant had been
involved in the awarding of the contract. No attempt was made to
interview either Cobbett or Moodley or the Mpumalanga Director of
Housing, Mr Piet Du Plessis ( or any other Board me mber) for their
impressions. The remarks by Du Pl essis (referred to in para 19 of
Lewis JA’s judgment) that he understood the project to have been
‘driven by the Minister’, which were accorded prominence in the
press when he testified before the Dreyer commission, were
intended to exculpate himself and should not have been taken at
face value. In any event, th e said remarks did not assert
knowledge that the appellant had indeed made herself culpably
involved. Barrell was, in his ow n words, not even aware of the
context in which Du Plessis made his remarks. Had Cobbett been
interviewed Du Plessis’ allegations would have been shown to be
false because, on the evidence on record, there is no reason to

78 See Bogoshi at 1215 I.
78
believe that Cobbett himself woul d have said that the appellant
was involved in the award of th e contract to Motheo. This is
fortified by what Cobbett told the Public Protector. According to the
Public Protector’s report to Parlia ment, Cobbett said that he had
no reason to believe that the appe llant had been involved in the
award of the contract. In her judgment Lewis JA (para 22) says
that the Public Prot ector produced an inconc lusive report. In the
light of what I have said above, I am not certain in what respects
the report was inconclusive.
[112] The respondents could easily ha ve checked these facts but
failed to do so. There is no suggestion that they were under
pressure to meet any deadline. Barre ll testified that he had worked
on the ‘report card’ for some time. There is no suggestion that
Cobbett and the members of the Provincial Housing Board, in
particular, its Chairperson, Mr Sa ths Moodley, were not available
and accessible to the respondents , nor that they would not have
been able to throw light on whet her the appellant had played any
role in the award of the contract. Lewis JA (para 71) concludes that
there was no point in seeking furt her information from Mr Moodley
or Mr Gibb about the role of the appellant in the whole affair,
because their evidence to the D reyer Commission and their public

79 See Bogoshi at 1212 H-J – 1213A-C.
79
statements pointed to the pros pect of another denial. This
conclusion, together with the ot her factors mentioned in paras 70
and 71, have led Lewis JA to conclude further that it was
reasonable for the Mail and Guardian to believe that the appellant
had influenced the choice of Mot heo, Ndlovu’s company, as the
housing developer. The suggestion, it seems to me, is that where
the press does not get a response to its calls for an inquiry into
allegations about the conduct of a cabinet minister which might, if
true, amount to corrupt behaviour, and it (the press) believes that
the answers it would receive from persons who ca n throw light on
the issue would not be to its sati sfaction, or would not confirm a
suspicion of corrupt behaviour, it would be reas onable for the
press to publish false assertions which are defamatory of such
cabinet minister. Not only would th is suggestion enable the press
to ignore the requirements f or reasonableness set out in Bogoshi,
but it would, in my view, also lead to abuse.
[113] When the story broke in May 1997 the appellant dealt with
the matter fully in Parliament. S he made it clear that she did not
interfere in the provincial proce ss of awarding contracts and did
not sit on the Provin cial Housing Board. 80 She added that she did
not even live in Mpumalanga. In her judgment Lewis JA (para 71)
80
raises some concern about the relat ionships between the plaintiff
and the various role players in Mot heo. I am not certain how these
relationships could provide a basi s for the conclusion by the Mail
and Guardian, that the appellant had influenced the choice of
Ndlovu’s company. The degree of contact between the Motheo
players and the appellant was no t materially different to their
contact with Cobbett. From the appellant’s public statements in
Parliament81 it is clear that her cont act with certain business and
political people was unavoidable. But, as the appellant pointed out
this did not mean that they were now, because they were
acquainted with her, disqualified from tendering for contracts. The
rhetorical question posed by Lewis JA as to how Gibb came to
know Ndlovu seems to me, at best for the respondents, to be
neutral. In any event Ndlovu’s si ster, Seape, worked for Gibb at
Nedcor. I have not been able to find anything in the record to
suggest that it was the appellant who brought the two together. So
also is the case of the other links and relationships which appear
to cause my colleague some concern.
[114] Not only did the respondents fail to consider all the facts
known to them, they chose to rel y on certain selected facts which
were consistent with (but not conclusive of) the proposition

80 See Debates of National Assembly (Hansard), First Session – Second Session – Second
81
favoured by them, and ignored the re st. They ignored the fact that
Cobbett never suggested that the plaintiff acted nepotistically and
that the formal proc ess of awarding tender s had no place for the
role of the appellant. Nowhere is it even suggested how the
appellant would have influenced t he choice of Motheo as the
housing developer when th ere was no competitor in the field. The
National Ministry was not involved in the evaluation, selection and
awarding of contracts – a fact whic h resulted in a material distance
between the Ministry and the Prov incial decision-makers. The
respondents also overlooked the fa ct that the failure by the
Provincial Housing Board to follo w the guidelines and the gross
irregularities it perpetrated, were not demonstrated to be at the
instance of the appellant. The appe llant’s public statements on the
question, for example in Parliament, where she put her perspective
of the relationship with the Mo theo players, were totally ignored.
Neither Barrell nor the second respondent read or had regard to
Hansard (especially where the mini ster made a public statement
on these issues82).
[115] In certain instances the respon dents plainly distorted facts to
fit in with the view they had f ormed of the appellant. For example,
they distorted the meaning of C obbett’s letter to imply that the

Parliament, column 3468 (Thursday 29 May 1997).
82
appellant had expressed her ow n opinion that Cobbett was
blocking funds, when, on a prop er reading, her remarks were
understood by Cobbett to be a report to him of criticism by others.
In his letter to the appellant Cobbett wrote:
‘As you will recall, you [referring to the appellant] phoned me in my
car on the night of the 17 th April, saying that you had received a
complaint from Mpumalanga that I was obstructive and ‘blocking’
the funds. I indicated my belief in the correctness of my approach,
and that of my officials, but undertook to keep the issue alive.’
Nowhere does Cobbett say it was the appellant who accused him
of blocking the funds, as stated by Barrell in his evidence-in-chief.
All the appellant did was to relay this complaint to Cobbett.
[116] The ipse dixit of Barrell that his own opinion of the appellant
as having awarded the c ontract to her friend was also held by
others, is unsupported even by the slightest corroboration. In
contrast, other press articles say no more than that deeper
investigation would be appropriate. In my view, the respondents
could never have held a reasona ble belief that the appellant had
influenced the award of the c ontract to Motheo. They have
accordingly failed to bring themselves within the Bogoshi defence.

81 See Hansard Column 3465-3466.
83
[117] In her judgment, Lewis JA deals extensively with the
question whether special principles should be invoked to protect
the publisher of defamatory statements about members of
government. In Holomisa v Argus Newspapers Ltd 83 Cameron J
held that a defamatory statement which relates to free and fair
political activity is constitutiona lly protected, even if false, unless
the plaintiff shows that, in all the circumstances of its publication, it
was unreasonably made. E xcept for placing the onus on the
defendant to prove reasonableness, I consider that the same view
was expressed by Hefer JA in Bogoshi, although in the latter case
the court was not dealing with s o-called political speech. I agree
with Lewis JA (in para 64) that pu blication of political information
which is defamatory in circumst ances where it is justifiable
(reasonable) is not actionable. Alth ough this court has hitherto not
dealt with the practical workings of the defence of reasonableness
in political speech, I do not, howev er, consider this to be a special
defence outside of or in addition to what was said in Holomisa84
and ultimately endorsed in Bogoshi.85 As it was stated in Bogoshi
(see para 110 above) ‘greater latitude is usually allowed in respect
of political discussion’. With such recognition, political speech is, in

82 Ibid.
831996 (2) SA 588 (W).
84 Ibid.
85 at 1212 H-J.
84
my view, adequately ca tered for in the defe nce of reasonableness
introduced in Bogoshi.
[118] I turn to the fourth and final issue: whether the common law
should be developed so as to provi de for a defence that would go
beyond Bogoshi. It was submitted by co unsel for the respondent
that the proposed defence cum remedy (an order that an apology
be published) would protect both the publisher and the maker of
the defamatory statement as well as the victim, and would be cast
in the form of an order compelli ng the maker or publisher of the
statement to publish an apology.
[119] I do not think that there is an y merit in the submission. While
I can understand that a plaintiff w ho complains that he or she has
been defamed may well wish to clai m, either as his or her sole
remedy, an order that an appropri ate apology be published, or
such an order in addition to an award of damages, I do not see on
what basis a defendant, who was at all times free to publish an
apology and thereafter to plead that as a result thereof any
damage suffered by the plaint iff had either been completely
eliminated or at least substant ially reduced, but has not done so,
can rely in a case such as t he present, on the new ‘defence’ for
which counsel for the respondents contended.
85
[120] In my view the appellant’s claim should have succeeded on
the merits. I would consequently allow the appeal with costs.
[121] In view of the fact that this is a minority judgment, I do not
consider it necessary to deal with the question of quantum of
damages.
__________________
KK MTHIYANE
JUDGE OF APPEAL
CONCUR: MPATI DP