In 2021, Independent Media which owns various newspaper titles in South Africa published a series of damaging articles that peddled unfounded and spurious allegations of corruption and misconduct by Akani Retirement Fund Administrators.
Now that the Johannesburg High Court has ruled in favour of Akani, laying bare Independent Media’s biased and unfounded reporting on the issue, we hope that this will serve as a media lesson for other South African media houses that it is important to report fairly and to verify information before publishing to avoid unwarranted defamation damages.
I welcome the ruling by the Johannesburg High Court Judge Shanaaz Mia which was handed down on March 9. Judge Shanaaz Mia ordered Independent Media to permanently remove defamatory articles and social media posts first published in November 2021.
The newspaper and online media group was also ordered to issue an apology within two days of the order while the court will later make a determination of damages. In a major victory for us, Independent Media was also directed to pay Akani’s legal costs for up to two counsels.
As Akani, we believe that this judgment is important in setting acceptable standards for the publishing of potentially damaging and defamatory information. The judgment also sets the lengths to which journalists must go to verify information as well as the opportunity that must be afforded to implicated parties to respond.
We hope that other media houses will take note of the judgment and adhere to best standards of media ethics. Akani took the legal action against Independent Media, its then editor-in-chief Aneez Salie, Durban-based Daily News editor Ayanda Mdluli, and journalist Thabo Makwakwa of Insight Factor, an X news platform aligned to Independent Media.
The judgement confirms that the allegations are unfounded, malicious and were published contrary to the code of ethics, which journalists are required to honour. Moreover, the respondents failed to comply with their obligations to verify the information. Through this failure, the newspaper group actually spread harmful and injurious allegations instead of being factual, truthful and honest.
For our part, Akani sought a final relief that “includes a declarator that the statements are defamatory and unlawful, final interdictory relief against [the possibility of] republication, and ancillary relief relating to an apology and retraction and a determination that the respondents are liable for damages to be determined later.”
Independent Media had argued that its use of the word “alleged” in front of damaging allegations “would not cause a reasonable reader to conclude that criminal conduct is attributed to the applicants.”
I counter argued against this, stressing that this line of reasoning is merely a fig leaf argument, which would give media platforms the right to publish the most egregious, unsubstantiated claims and hide behind the word “alleged”.
Relying on a precedent set by the Constitutional Court, the Johannesburg High Court cited the Le Roux v Dey case which states that: “The plaintiff does not have to establish every one of these elements [of defamation, including liability damages] to succeed. All the plaintiff has to prove at the outset is the publication of defamatory matter concerning himself or herself.”
This judgement makes it clear that the onus to prove defamatory allegations now fully rests with the accuser, i.e. Independent Media or publication concerned, rather than the accused.
I avered that Makwakwa made a casual, rushed request for comment at short notice, clearly after the story was already written. This goes against the principles of fair comment and reasonable efforts to afford the right of reply.
A rushed request for comment by Independent Media was simply
unacceptable and we hope all media houses take note of this and desist from this practice.
The judgement stresses that Akani “disputes that a fair or reasonable opportunity to respond was provided” and contends the publication was rushed.
The ruling further stated that even where the subject matter may be of public interest, reasonable publication requires care commensurate with the gravity of the allegations. Allegations of corruption and fraud demand demonstrable verification steps and a meaningful opportunity to comment, further stated the ruling.
The court also found that “the steps taken to verify the information did not afford the applicants an opportunity to respond.” Subsequently, there was no urgency and Makwakwa sought merely to get the information published first.
In the absence of according an opportunity to respond, it is not clear how [Makwakwa deduced] that [his] source was reliable, with the judgement further
emphasising that allegations of fraud are harmful to the applicants. Therefore, the conduct by Independent Newspaper as respondents in the case was not reasonable and is unlawful.
On the demand for a retraction and an apology, the court noted that this is linked to application for damages, which will be determined separately but noted that “having found the statements are defamatory and unreasonable, a compelled apology or retraction is appropriate.”
The judge noted that they would need the evidence for damages in full at the appropriate stage but for now the [defamatory nature of the] publication is not disputed hence the conclusion that the publication of the stories was unlawful. It was concluded that as applicants Akani is entitled to part of the relief we were seeking with reference to a retraction and apology.
Independent Media was accordingly ordered to permanently remove the
offending articles and tweets within two (2) days of the order being granted and are interdicted from republishing.
As Akani we are satisfied with this outcome and look forward to the court determining damages to underline the seriousness of this matter.
Written by Zamani Letjane, Group Chairman of Akani Group of Companies with interests in retirement fund administration, property investments, and financial services.