Nelson Mandela Metropolitan University vs. The Herald

This ruling is based on the written submissions of Mr MC Botha, on behalf the Nelson Mandela Metropolitan University (NMMU), and those of Ms Pamela Stein and Mr Stuart Scott (Webber Wentzel), for The Herald newspaper.

Complaint

NMMU is complaining about an article published in The Herald on 2 October 2014, headlined NMMU granted gag order on ex-student – Varsity acts over defamatory statements by Israeli.

NMMU complains that:

• the article re-published defamatory and unverified statements made by Mr Alexander Matveyeff (59), a former student at NMMU, against the university – compounding the damage already done to its good name;
• it was not given an opportunity to respond to the defamatory statements;
• statements reported in the story were not in the public interest and those allegations were factually incorrect; and
• the newspaper was damaging the university’s reputation and integrity further by inviting SMS comments from the public.

The story

The story, written by Lee-Anne Butler, was a report on court proceedings which NMMU had launched against Matveyeff, in order to interdict him from making defamatory comments in respect of the NMMU. The university and senior staff members reportedly claimed that Matveyeff’s actions “stemmed from the fact that he was not admitted for his PhD”.

Included in court papers was a series of e-mails in which Matveyeff wrote to NMMU vice-chancellor Prof Derrick Swartz, which he had also sent to a wide audience (including political parties, church organisations etc.), stating that the university was discriminating against black academics. The story cited the percentage of black people in senior positions, which allegedly amounted to 9%.

Butler also reported that the court ordered Matveyeff to stop making, distributing or publishing any future allegations of a vindictive or defamatory nature regarding the university or any of its functionaries or employees, either directly or indirectly.

The article then proceeded to quote some of the defamatory statements, such as allegations relating to racism and about the NMMU supposedly having failed in its duties towards the public.

The arguments

The NMMU complains that the newspaper re-published “some of the defamatory remarks made by Matveyeff and which formed the basis of the Order being granted”. It argues that it regards the publication by The Herald of these statements as defamatory in its own right, and that the newspaper could not contend that it was merely repeating what Matveyeff had said.

The university says it appears to be common cause that, at the time of publication, the newspaper was aware that the High Court had already interdicted Matveyeff from making defamatory statements and that a final judgment was due to be handed down seven days after the story had been published.

The institution argues: “Despite knowledge that a court had already interdicted the publication by Matveyeff of defamatory statements the Herald nevertheless proceeded to publish the very same defamatory remarks under the guise of accurately reporting the statements by Matveyeff. The publication of the Article is no less defamatory and damaging to the NMMU than the initial publication by Matveyeff.”

The NMMU adds that Matveyeff’s defamatory statements were untrue and that the newspaper had made no effort to establish the veracity of the allegations in question.

It refers in this regard to a judgment by the Supreme Court of Appeal in Tsedu & Others vs. Lekota & Another (2009), where Nugent J A held the following:

“A newspaper that publishes a defamatory statement that has been made by another is as much the publisher of the defamation as the originator is. Moreover it will be no defence for the newspaper to say that what was published was merely repetition. For while the truth of this statement (if it is published for the public benefit) provides a defence to an action of defamation, the defence will succeed only if it is shown that the defamation itself is true, not merely it is true that the statement was made.”

The NMMU also complains that the:

• invitation to the public to respond by SMS (which would presumably be published) exacerbates the matter;
• newspaper did not ask it for comment prior to publication; and
• story was not in the public interest.

My considerations

I note that the:

• NMMU does not complain about accuracy, but merely about the (re-)publication of defamatory statements made by Matveyeff; and
• newspaper does not deny that the statements in question were defamatory.

The only question on my table is whether the newspaper was justified in mentioning the defamatory statements made by Matveyeff, as that is the crux of the complaint.

Of course, the NMMU is correct in stating that the repetition of defamation is also defamation. This general statement is not in dispute.

However, in this case the reporting was on a court case, which (as Webber Wentzel correctly argues) enjoys qualified privilege – if that was not the case, the press would not have been able to report matters that are in the public interest (and also not, for example, everything that is said in Parliament).

I also take into account that the story did need some context, which the details of Matveyeff’s allegations provided.

It is noteworthy that the NMMU had a chance to materially respond to The Herald’s response, but chose not to do so.

In this regard I am specifically referring to the:

• following sentence by Webber Wentzel: “In South African law, it is not unlawful to publish a defamatory statement that presents a fair and accurate account of the court proceedings. The underlying basis of this immunity is to enable persons who are not in a position to follow the court proceedings to be informed by the media about the manner in which justice is administered. This immunity therefore rests on a foundation of public interest as well as the principle of open justice”; and
• examples of verdicts in relevant court cases, provided by the newspaper.

Moreover, the fact that The Herald was aware at the time of publication that the High Court had already interdicted Matveyeff from making defamatory statements (and that a final judgment was due to be handed down seven days after the story had been published) is neither here nor there – the newspaper still had a right to report on the essence of the matter.

I also endorse the newspaper’s argument about freedom of expression (in terms of Section 16 of the Constitution, which is also cited in the Press Code).

As far as the other elements of the complaint are concerned, I am of the following opinion:

• It was not the newspaper’s duty or indeed mandate to establish whether Matveyeff’s allegations were true or not;
• The newspaper was not obliged to ask the NMMU for comment – in court reporting, it is not common practice for a publication to do so;
• The NMMU’s statement that the story was not in the public interest is rather baffling; and
• Nothing prohibits the newspaper from asking the public what it thinks about this matter.

Finding

The complaint is dismissed.

Appeal

Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Press Ombudsman