The Status Of Criminal Defamation In South Africa

This article discusses the elements of defamation and how our domestic courts have dealt with the crimes of defamation in comparison to the rest of the world. It will further outline the South African current status with reference to the S v Motsepe 2015 (2) SACR 125 GP.

Background facts

Cecil Motsepe was a journalist at the daily newspaper the Sowetan. He was convicted in June 2013, sentenced to a fine of R10 000 or a suspended 10 month prison term wholly suspended for 5 years on certain conditions, in connection with an article he published in the Sowetan newspaper entitled “Spot the Difference. The article dealt with two sentences respectively imposed by magistrate Serfontein in the Meyerton magistrate court on a black male and white female for the same offence of drunk driving. In the article the journalist incorrectly alleged that the magistrate imposed a heavier sentence on the black male.

In reaching his conclusion, Mr. Motsepe relied on the information received from two court officials, the one known to court as Mr. Machimana, a lawyer who actually informed Mr. Motsepe that the magistrate lack consistency and in fact was biased when dealing with people of different races. Mr. Motsepe relied heavily on the information from Mr. Machimana because the proceedings were in Afrikaans and he could not properly follow what was happening. Upon receiving the information, he failed to verify it, even though there were a number of resources he could have utilized .The magistrate sued the journalist for defamation, alleging that the article was false and that it had irreversibly damaged his reputation. The appellant said that he relied on the information provided to him by Mr. Machimana as he had previously done so in the past without any repercussions and that at the time of the publication, he didn’t think the information was false and that it was in the public interest to publish the truth.

The court’s finding

The court considered the definition of criminal defamation as re-stated in the SCA case S V Hobo and concluded that the crime of defamation consists of the ”…unlawful and intentional publication of matter concerning another which tends to injure his reputation…”. The court went on to say that in order to establish whether the accused was acting unlawfully the state has to prove, beyond a reasonable doubt, that the accused knew he was acting intentionally or might possibly be acting unlawfully.

In dealing with the question whether the accused had acted intentionally and unlawfully to injure the reputation of the magistrate, the court a quo court held that the appellant was negligent in not taking further steps to verify the information he received in view of the fact that there were resources available to the appellant to utilize and ensure that the information published was correct.

The appeal court criticized the court a quo’s decision in that it was not supported by the evidence before the court, as it is not established that the appellant reconciled to the fact that the information could be wrong, instead the appellant relied on the truth of the statement and deemed it in the public interest to publish the facts. The court concluded that the court a quo failed to prove beyond reasonable doubt that the appellant had intentionally published the facts and the appeal was upheld with the conviction set aside.

A further parties to the appeal were coalitions of amici of prominent local and international organisations, advocating for the freedom of media and freedom of expression. They were granted leave to intervene in the proceedings and they brought in an application to challenge the constitutionality of criminal defamation in that it infringes on the right to freedom of expression (Constitution of the Republic of South Africa, section 16) and they submitted that the court must develop it to be in line with the constitution. In their application they requested that criminal defamation be limited to defamatory statements made by persons who are not members of the media.

They further submitted that criminal defamation is inconsistent with the constitution and amounts to an unjustified limitation in terms of the right to freedom of expression.

The amicus council further argued that the crime of defamation stifled or created a chilling effect on investigative public journalism in that it undermined the role played by the media in our democratic society.

 

The court in reaching its decision had the following reasoning:

it first emphasized the important role played by the media in our constitutional democracy. However when dealing with defamation, there is a balancing of interests between the right not to be defamed and the right to freedom of expression.

The court further held that the right to freedom of expression is not of paramount value and it must be construed in light of other rights in the constitution. The right to freedom of expression is also subject to section 36 of the Constitution.

The court also held that declaring criminal defamation unconstitutional undermines the constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. The judge further expressed his view that a criminal sanction is a drastic measure however it is counter balanced by the burden of proof placed upon the state to prove the requirements beyond a reasonable doubt.

The court further emphasized that criminalization of defamation is not inconsistent with the constitution because it will ensure that society is discouraged from the intentional publication of defamatory statements, whilst restoring the reputation of the victim.

It totally disregarded the amicus reliance on international instruments in that it does not find application in the South African context, where both the media and citizens enjoy the full benefit of the law and the constitution.

“The court concluded that even though the crime of defamation undoubtedly limits the right to freedom of expression, such limitation is reasonable in an open and democratic society and consistent with the criteria laid down in section 36 of the Constitution.”

Based on this case we see a trend where our local court has declared that criminal defamation is constitutional despite a worldwide outcry. It has totally disregarded African developments and a recent Constitutional case in Zimbabwe which set precedent and declared criminal defamation unconstitutional.

This case read together with S v Hoho demonstrates a clear indication that our court are reluctant to develop the law and is actually taking a step backward in the decriminalisation of defamation. This is a predicament which can be described as a missed opportunity, especially in light of the current bill that is being debated in Parliament to decriminalise defamation.

By Boitumelo Shongwe
boitumelo@dayson.co.za

Desperate times ask for…medical innovation.

On 26 October 2014 Gordie Howe (86), better known as “Mr Hockey” in Canadian ice hockey circles, suffered a debilitating stroke that left him bedridden and barely able to talk or eat, before suffering another stroke early in November 2014. But within days after receiving stem cell treatment he miraculously recovered to the extent that he could mobilise independently, recognise speech forms such as proverbs and idioms, interacted more and was less difficult to understand.

This is the kind of hope and hype desperately ill patients cling to when it comes to the translation of stem cell treatments. However, the treatment Howe received, the processes he followed and the availability thereof to the general population must be clarified to prevent false hope and disillusioned patients.

Howe was entered into a federally licensed and Institutionally Review Board approved clinical stem cell trial at Novastem in Mexico. Novastem is approved for conducting clinical trials for several medical conditions, including stroke, by using allogeneic stem cells manufactured by Stemedica Cell Technologies (San Diego, Califoria) as licensed distributor thereof. As part of this clinical trial Howe was injected with neural stem cells into his spinal cord to help his brain to repair damage and received mesenchymal stem cells via intravenous infusion to improve blood circulation in the brain.

It is important to note that Howe received this stem cell treatment as a participant in a clinical trial and never bought any services or products as these specific stem cell treatments are not yet FDA approved and allowed to be commercialised. In South Africa, stem cell based treatments qualify as biological medicine in terms of the Medicine Control Council’s (MCC) Guidelines for the Registration of Medicines, because the active ingredient or key excipients have been derived from living organisms or tissues, or manufactured using a biological process. Government Notice R510, Government Gazette 24727, issued in terms of Section 14(1) of the Medicines and Related Substances Control Act 101 of 1965, also requires the registration of all biological medicines before it may be sold to the public.

However, very few stem cell based treatments have been registered and authorised for sale. Reason being that due to their relative novelty in science and the difficulty in controlling their self-renewal and differentiation, stem cells and their derivatives can behave very unpredictable and has not yet proved to be safe. Animal models of many diseases do not accurately reflect human diseases and is sometimes poor predictors of immune or biological responses in humans. The safety and efficacy of stem cell treatments in humans can only be proved through long, complex and rigorous preclinical and clinical studies which often include many setbacks and failures.

But upon considering the services offered on the website of Novastem (http://www.novastem.mx) it creates the impression that they provide proven stem cell treatments for a wide range of diseases. And here is where we find the devil in the detail. Stem cell treatments can only be offered for sale when its safety and efficacy has been demonstrated after thorough clinical trials in humans and approved by the applicable regulatory body, such as the Medicines Control Council in South Africa, the US Food and Drug Administration (FDA) or the European Medicines Agency (EMEA), for treatment of specific diseases.

In the absence of proven and registered stem cell treatments offered for sale, patients are left with one of two options to undergo regulated treatments.

The first option is to take part in a clinical trial, like Howe, if the patient complies with all the inclusion criteria of the specific clinical trial. In a interview with ESPN’s Keith Olbermann, Dr Maynard Howe (no relation to Gordie Howe), CEO and vice chair of Stemedica explained that Howe underwent stem cell treatment in Mexico as opposed to the USA due to the fact that the inclusion criteria for the clinical trial in Mexico allowed Howe immediate participation, where the inclusion criteria for the USA trail required a 6 months waiting period, leaving Howe with running the risk of not surviving until then.

The International Society for Stem Cell Research’s (ISSCR) Guidelines for the Clinical Translation of Stem Cells (2008) as well as the World Medical Association’s Declaration of Helsinki – Ethical Principles for Medical Research Involving Human Subjects (Brazil, October 2013) allow for a second option in the form of medical innovation. These guidelines recommend that only in exceptional and very limited cases, clinicians may be justified in attempting unproven stem cell based interventions in a small number of their patients facing some of the most intractable diseases confronting clinicians if it, according to the clinician’s judgement, offers hope of saving life, re-establishing health or alleviating suffering.

However, where clinical trials exclusively aim to produce generalizable knowledge, medical innovations primarily aim to provide new experimental forms, which safety has not yet been proven, of clinical care that have a reasonable chance of success for individual patients with few or no acceptable medical alternatives. Thus the mere fact that a procedure is medically innovative does not qualify it as clinical research, and vice versa.

But having regard to the current unpredictability of stem cell treatments, as discussed herein above, these treatments may inadvertently violate a physician’s ethical obligation to “do no harm” by producing more injury than benefit and is medical innovation therefore subject to even stricter scientific and ethical review. The ISSCR guidelines specifically recommends that innovative stem cell based treatments may only be undertaken if a peer reviewed written plan of the treatment exists which explains the chances of success, why the proposed intervention should be attempted, the types of cells being transplanted, how the cells will be administered and a plan for clinical follow-up data collection to assess the effectiveness and adverse effects of the cell treatment. Further considering that cellular transplants will persist for many years in patients with irreversible actions, South Africa’s HPCSA’s Guidelines for Good Practice in the Conduct of Clinical Trials with Human Participants in South Africa (2006) stipulates that provision must also be made for the long term monitoring and care of patients undergoing innovative treatments.

Before consenting to such risky treatments and to ascertain the legitimacy of the purported attempts at medical innovation the ISSCR brought out a Patient Handbook on Stem Cell Therapies (2008) which briefly explains in layman’s terms what stem cells and stem cell therapy are, the whole clinical trial process and reasons for it, what information must be provided to consider giving informed consent and most importantly, what needs to be considered carefully to satisfy oneself that any proposed stem cell treatment, albeit via clinical trial or medical innovation is safe and legal. Such considerations include, amongst others, claims based on patient testimonials, multiple diseases treated with the same cells, the source of the cells and how the treatments will be administered, whether it is clearly documented and alleged claims of no risks.

It is thus advisable to consult both a stem cell specialist and biotechnology law expert before embarking on medical innovative treatments to ensure that the purported treatments are safe and legal and not founded on hype alone.

By Marietjie Botes
marietjie@dyason.co.za

Alcohol advertising from a wine label’s perspective

The colourful serpentine lines of the French painter and sculptor, Guy de Rougemont, has become the latest commissioned artwork to adorn the label of Chȃteau Mouton Rothschild’s 2011 Pauillac first growth.

wine_labelPhilippe de Rothschild has been ambitiously marketing his wines by enlisting important artists to create original designs for his wine labels, to enhance the marketing ability of his wines, since the 1920’s. Some of the well known artists include Andy Warhol, Pablo Picasso, Salvador Dali, Georges Braque, Francis Bacon, Juan Miró and Lucien Freud. This was of such importance and value to him that he brought out a completely blank label in 1993 in protest against the USA’s refusal to distribute his wines sporting the artwork by French painter, Balthus Klossowski, consisting of a line drawing of a nude woman. And as confirmation of the advertising power of this “mobile billboard” better known as the wine label, this curious situation caught the attention of wine consumers and collectors globally, resulting in enormous profits for Mouton Rothschild. (However, a rock solid history of exceptional wines obviously also helps.)

But, notwithstanding the marketing value of any wine label, it also primarily distinguishes a winemaker’s products from the products of other producers and competitors. Because the character and quality of a wine are not only determined by its varietal, but also directly by the climate, soil and location (terroir) it grows in and viticulture practices of the farmer, it is of utter importance that the origin of the grapes is indicated on the wine label to enable the consumer to make a befitting choice or to ensure that the consumer locates the correct or desired wine. In South Africa such an origin control system has been in place for years. Only if 100% of the grapes, from which the wine was made, come from the same demarcated area, may the label use the abbreviation W.O. or Wine of Origin, followed by the name of the specific production area such as Stellenbosch or Robertson.

Wine labels also serve as visual communicators, educating consumers regarding the wine’s history and heritage such as the quirky Boer & Brit labels designed by the Fanakalo team, Jan Solms and Rohan Etsebeth.

boer_and_britIn a 2011 study, conducted by Wine Intelligence, they found that a wine label is one of the most powerful ways to influence consumer perceptions of a wine. It is almost as if the beauty of the label, serving as the final finesse on any bottle, reflects the divinity of the wine inside the bottle. During a two-day forum held in Amsterdam, discussing so called “neuro marketing”, they further found that consumers of luxury goods, such as wine, are particularly influenced by pleasant colour combinations, thoughtful designs touches and a clear brand image recommending that producers and retailers, dealing with such goods, need to envelop the consumer in a complete sensory experience of the brand. An experience completely suited to the needs of a typical wine consumer, considering the importance aspects such as aroma, taste and ambience of a tasting room have on their decision to buy a wine, which experience can ultimately be summed up or revisited on the wine’s label.

The ban on alcohol advertising, proposed by the recently approved Control of Marketing of Alcoholic Beverages Bill, as well as the ominous threat of possible plain packaging regulations, similar to those contained in Australia’s Tobacco Plain Packaging Act 148 of 2011, from a wine label’s perspective, is clearly of great concern. Although very little is known about the details contained in the said Bill, it is foreseen that the culmination of the aforementioned will seriously restrict a wine consumers’ freedom of choice and also prohibit them from distinguishing wines from various demarcated regions, ultimately preventing consumers from choosing their wine of preference form a desired region. This will also leave wine producers in the dark, as wine consumers’ choices will no longer be able to guide them in consumers’ preferences and leave producers unable to profitably cater for consumers’ demands. Unable to choose a wine for its finely crafted content, consumers might fall into a habit of bargain driven buying which will have a tremendous negative financial effect on an industry already under severe economic pressure which might lead to even more exports, depriving locals of one of our country’s best home grown and produced products.

Health Minister Aaron Motsoaledi, motivates the Control of Marketing of Alcoholic Beverages Bill by saying that alcohol has been found to be a major contributing factor in the majority of motor vehicle accidents and that it has also been linked to crime and violence in South Africa. Subsequently he feels himself obliged to protect the consumers of alcohol from their self inflicted bad habits by creating a “nanny state” in which the consumer’s freedom of choice is regulated to the point of extinction. Deputy Health Minister Gwen Ramokgopa wants to extend this protection by revising the regulations for labelling of alcoholic beverages to include health warnings. Considering the ministers’ stance against alcohol and tobacco products, and the parallels often drawn between these types of products, in view of the global developments in respect of plain packaging regulations for tobacco products, it might only be a question of time before similar regulations might be imposed on packaging of alcohol products, which includes wine labels. Having touched on the parallels between alcohol and tobacco, it must be stressed that the most effective anti-smoking initiatives have been multi faceted. Similarly, the problems with alcohol abuse are complex and often alcohol abuse is a mere symptom of a much larger socio-economic illness.

In a British study evaluating the impact of picture health warnings on cigarette packets the researchers concluded that:

“There were few changes post implementation of the picture health warnings in the number of health effects recalled or participant’s perception of risk…There were no differences post implementation of the picture health warnings in the number of smokers reporting forgoing a cigarette when about to smoke one or stubbing our a cigarette because they thought about the health risk of smoking…Among young people, the impact of picture health warnings was negligible.”

Considering the mentioned “neuro marketing” element in advertising of luxury goods, such as wine, it seems that the banning of any advertising in respect of these goods might only have an effect on the educated consumer who is looking for a specific product, while such banning might have no effect at all on the bargain driven consumer, who (it seems) is also the consumer most likely to overindulge.

In principle it is unfair to judge cigarettes and wine on the same basis. Cigarettes are the only products, if used as intended by the manufacturer, that are likely to kill you, whilst wine have a wide range of proven health benefits if used moderately.

It is absurd to think that people can be legislated into responsibly consuming alcoholic beverages. Notwithstanding the State’s good intentions, it can never replace a parent’s role in educating a person into responsibility. The negative impact such legislation will have on the liquor industry, its economy, sponsorships for sport events, intellectual property rights and employment far outweighs the remote possibility it might have in combating motor vehicle accidents, criminal activity and domestic violence on its own. A balance must be struck between state protection and a consumer’s right to sovereign choice.

In context of a wine label, the intended legislation put so much more at risk than the mere advertising of an alcoholic beverage. Blind legislation in this regard might also deprive us of the valuable trademarks, proud heritage, rich history, unique terroir, colourful stories and precious art depicted on and represented by wine labels.

By
Marietjie Botes
marietjie@dyason.co.za