On 28 May the Supreme Court of Appeal delivered judgment in the case of Independent Newspaper Holdings Ltd and three others v Walleed Suliman. Mr Suliman had been awarded damages of R90 000 for defamation and affront to his dignity and R10 000 for invasion of his privacy by the Cape High Court. The action arose from two news reports published by the Cape Times newspaper in August 1998 in the wake of the bombing of the Planet Hollywood restaurant at the Waterfront in Cape Town. The reports and an accompanying photograph conveyed that Mr Suliman, a member of Pagad, had been arrested and detained for questioning on suspicion of being involved in the bombing as he was about to fly from South Africa to Egypt. In fact he was released after questioning without being charged and without having to appear in court.
The Supreme Court of Appeal confirmed the trial court’s finding that it was defamatory to publish that a named person was suspected of committing a serious crime and that a concomitant affront to dignity was involved. The court also confirmed by a majority the trial court’s finding that, in the particular circumstances of the case, it was not in the public interest to disclose the identity and publish a photograph of Mr Suliman when he was merely a suspect, had not been charged and had made no appearance in court. However, the majority of the court reversed the trial court’s finding that some errors of fact in the reports rendered the defamatory aspects of the reports untrue. It did so because the errors related to peripheral facts which had no bearing on the defamatory aspects of the reports and could not be said to have rendered the defamatory aspects untrue. It held that they were true. However, as truth alone is not a defence in South African law, if liability was to be avoided, it had to be shown that publication of the truth (if defamatory) was in the public interest. That had not been shown.
The Supreme Court of Appeal refused to lay down that premature disclosure of the identity of a suspect by the media will always be actionable and emphasised that there may be circumstances in which the disclosure will be in the public interest. But, generally speaking, it was not in the public interest. In reaching this conclusion the court had to weigh the conflicting constitutional and common law rights of reputation, dignity and privacy on the one hand, and on the other, the constitutional right to freedom of expression, freedom of the press and its right to impart information to the public. It stressed that none of these rights, all of which are constitutionally entrenched, is entitled to be permanently prioritised over the others and that which rights should be accorded greater weight would have to be judged in the light of the particular circumstances attending a given case.
The court overturned the trial court’s award of R10 000 for invasion of privacy on the ground that no invasions of privacy were involved in the public acts of arresting and detaining Mr Suliman and that the disclosure of the other facts complained of were too harmless and trivial to justify according a remedy in law.
The basis upon which the trial judge had assessed the damages for defamation and affront to dignity had been that defamatory aspects of the reports had been untrue and that those allegations had been recklessly made. Those findings had been found to be wrong so that the damages had to be reassessed. In doing so, the Supreme Court of appeal took into account the serious nature of the defamation and the extensive publicity it received but tempered these considerations with the fact that by the time the reports were published Mr Suliman had already been named in national television broadcasts as a suspect, that many readers of the reports would have already been aware of the allegation, that the context of the reports in which the defamatory allegations occurred was strongly sympathetic to Mr Suliman, that the defamatory aspect of the reports were true, and that, most importantly, the reports made it clear that there was no evidence linking him to the bombing. In the circumstances the court considered that an award of R50 000,00 would be appropriate.
As both sides had achieved a significant measure of success on appeal (the defendants had succeeded in having the award for invasion of privacy set aside and the award for defamation and affront to dignity substantially reduced; the plaintiff had succeeded in warding off the defendant’s attempt to have the entire judgment in his favour set aside), the parties were each ordered to pay their own costs of appeal. The costs of the applications for leave to appeal in the trial court and the Supreme Court of Appeal were ordered to be paid by Mr Suliman.
The costs order relating to the trial in the High Court and which was predominantly in favour of Mr Suliman was left undisturbed.