“It will be a sad day for our democracy in general and our press in particular if this office finds against a newspaper that publishes people’s opinions that are indeed protected by the [Press] Code,” he said in dismissing the complaint.
“The mere fact that Armsa complained about this issue is worrying.” Armsa’s complaint was about a letter by Nathan Cheiman which was published in The Times on September 3 headlined “Not fit to judge, sentence”.
The Sunday Times had reported about a number of magistrates who were under investigation for breaking rather than applying the law. Armsa argued that Cheiman’s letter demonstrated “deliberate disregard” for the context of comment from justice department spokesman Mthunzi Mhaga in the Sunday Times report.
According to Armsa: “The contents of this article [letter] also constitute an unfounded generalisation reflecting negatively on the professional integrity of judicial officers and reveal a total ignorance of the process of judicial appointments”.
The Times responded that the “article” was in fact a letter, and was clearly marked as a letter. “South African courts have repeatedly endorsed a ruling by chief justice Innes, almost 100 years ago, that fair comment does not have to be impartial or well-balanced in order to be protected as fair comment…,” the newspaper responded.
It also cited remarks by Justice Edwin Cameron in the defamation case of former Ekurhuleni police chief Robert McBride versus The Citizen in 2011. “In fact, fair means merely that the opinion must be one that a fair person, however extreme, might honestly hold, even if the views are extravagant, exaggerated, or even prejudiced.”
By definition, fair opinion needed to be relevant to the facts on which it was based, without disclosing malice. The Times argued: “We submit that our publication of the letter is amply protected by this definition [and], that there has been no breach of the Press Code”.
Retief believed that Cheiman’s omission of the context of Mhaga’s comment in the Sunday Times article was immaterial. “The argument by The Times regarding fair comment is flawless,” he said.
The Armsa complaint was dismissed. Retief has yet to rule on a related complaint against the Sunday Times.