Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Mixed Outcome
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The Johannesburg High Court in South Africa held that an article published by Independent Media (Pty) Ltd accusing a prominent businesswoman of currency manipulation was defamatory. The article had been published after the businesswoman had been appointed to a mining company’s board, and referred to prior conduct of a bank of which she had been chief executive and politically-motivated criminal charges laid against her. The Court held that accusing an individual of criminal conduct was defamatory per se and that – even if the article was interpreted as meaning that the businesswoman had not personally committed currency manipulation – the publisher of the article had no valid defence. The businesswoman was forced to bring this case before court rather than the press ombudsman – part of the Press Council of South Africa – because Independent Media withdrew from the Press Council, the only major media entity that is not part of the Council. The Court ordered the removal of the article within 24 hours from all online and social media platforms, in addition to the publication of an apology in print and online.
On December 9, 2019, The Star, a newspaper based in Johannesburg, South Africa, and owned by Independent Media (Pty) Ltd, published an article on its leader editorial page questioning the appointment of Maria Ramos, a South African businesswoman, to the board of private mining company, AngloGold Ashanti. Ramos had previously served as the Director General of the National Treasury and had been group chief executive of South African bank, ABSA. The article made various accusations against Ramos, accusing her of currency manipulation – saying she had “not accounted for fixing the rand [the South African currency]”, being guilty of corruption and treason and referred to a donation that Ramos had made to the campaign of national president, Cyril Ramaphosa, in the race for the leadership of the ruling African National Congress political party and said that “[i]n any other country Ramos would have been charged with treason or corruption, but she won’t be” [para. 8]. It also made reference to historical controversies at ABSA from before Ramos was an employee there. The online version of the article had the headline “Ramos was never charged for fixing the rand but keeps getting rewarded with top jobs” [para. 8].
The article was also shared on the newspaper’s Twitter and Facebook accounts: it had been retweeted 355 times, quoted 81 times and liked 620 times on Twitter; and had had 29 reactions, 20 comments and 7 shares on Facebook. The editor of the newspaper, Sifiso Mahlangu, accepted that “the views and opinions expressed in the article are his own” even though his name was not attached as a byline to the article on the editorial pages [para. 10].
The article did not provide any context for why it accused Ramos of “fixing the rand”. In the court application Ramos had referred to a statement issued by the South African Competition Commission on February 15, 2017, announcing that it was referring a case of “price fixing and market allocation in the trading of foreign currency pairs” against various South African banks – including ABSA – to the Competition Tribunal for prosecution [para. 13]. Ramos was the ABSA group chief executive when the statement was made but not when banks commenced with their collusion, in 2007. After the Competition Commission’s announcement, on February 21, 2017, Ramos had issued an apology on behalf of ABSA and said that those responsible for the collusive activity would be held accountable. Ramos, as group chief executive, had not been involved in any day-to-day running of the currency trading business unit. In 2016, the political party Black First Land First (BLF) had laid criminal charges against Ramos and other business leaders, but Ramos was never charged with any crime by the national police.
On December 17, 2020, Ramos sent Independent Media a letter of demand, identifying the statements in the article that were false. Independent Media did not respond to the letter, and Ramos brought a case of defamation against Independent Newspapers, Mahlangu and Independent Online (the online publisher of The Star). Ramos sought a declarator that the article’s statement were “defamatory, false and unlawful” and an interdict prohibiting the further publication or re-publication of the article and any statement accusing her of “fixing the rand” [para. 31]. She also sought an order directing Independent Media to remove the article from the online website, and to publish an apology and retraction.
Judge Keightley delivered the judgment of the South Gauteng High Court. The Court characterized the central question before it as the “lawful balance to be struck between these two competing sets of rights”, of the protection of dignity and reputation and of media freedom [para. 7]. It was required to determine whether the article was defamatory and whether Independent Media had any defence to its publication.
Ramos submitted that the article was defamatory as the “reasonable reader would understand [it] to mean (either expressly or by implication)” that she was personally guilty of currency manipulation, corruption and treason [para. 19]. She argued, in the alternative, that the reasonable reader would think there were grounds for her to face criminal and disciplinary action because of unethical conduct. Ramos maintained that she had not been involved in any currency manipulation and there was no basis for suspecting her to have been involved in any criminal conduct. Ramos also submitted that a reasonable reader would interpret the article as that she had not been prosecuted because of political protection. She argued that there was no factual basis for the statements made in the article which were made with the intention to defame her. Ramos argued that she had earned her reputation through her career as a public servant and businesswoman, and that the article tarnished that reputation.
Independent Media argued that the article did not accuse Ramos of being personally involved in rand fixing but that, in her position as ABSA group chief executive, she was responsible for the bank’s conduct, and that the headline that Ramos had not been charged was a statement of fact, which, read with the article as a whole, could not lead a reasonable reader to believe that Ramos was personally involved in fixing the rand. Independent Media also said that the statement that she gets rewarded with new jobs would be read, by a reasonable reader, “as simply lamenting the lack of accountability by a Chief Executive” [para. 39.2]. The newspaper emphasized that the article was an opinion piece, on the editorial page and so indicated “the editorial stance of the editor, based on his political, social analysis” [para. 40]. It maintained that because Ramos is a public figure she must be open to scrutiny and “display a greater degree of tolerance to criticism than ordinary individuals” and added that “a reasonable reader of ordinary intelligence would understand the meaning in the ‘fraught political context’ in which it was written” and so it could not lower Ramos’s reputation [para. 40]. It also stated that “Ramos may disagree with the opinion [expressed by Independent Media that there had been no accountability], but she has no right to censor it” [para. 39.4]. Independent Media also opposed the relief sought by Ramos, arguing that prohibiting future statements would prevent them from reporting on any future corruption and treason charges against Ramos which “was tantamount to silencing the media and preventing it from fulfilling its constitutional role” [para. 33.1]. The newspaper stated similar statements had been made about Ramos since 2016 and she had not suffered any consequences of damage to reputation, and that an interdict against them would serve to muzzle them while allowing other media outlets to make similar statements about Ramos. Independent Media offered Ramos the right of reply: it argued that Ramos’s “remedy lies in using media platforms to dispute the statements she finds offensive” [para. 33.5].
The Court emphasized the importance of the right to dignity in South Africa’s constitutional framework, noting that the right “protects both the individual’s sense of self-worth as well as the individual reputation of each person”, and commented that it is the protection of a person’s reputation that is protected by the law of defamation [para. 2]. The Court also discussed the history of the right to freedom of the press in South Africa and that even before the adoption of the Constitution the courts had noted that the media had to be allowed to use “strong epithets”, quoting the Pienaar v. Argus Printing and Publishing 1956 (4) SA 310 (W) case which had said “the audiences of political speakers would dwindle if the speakers were to use the tones, terms and expression that one could expect from a lecturer at a meeting of the ladies’ agricultural union on the subject of pruning roses!” [para. 5]. After democracy, the Constitutional Court has repeatedly emphasized the “importance of ‘untrammelled’ public debate” and the Court quoted the The Citizen 1978 (Pty) Ltd v. McBride 2011 (4) SA 191 (CC) case that “it is good for democracy, good for social life and good for individuals to permit maximally open and vigorous discussion of public affairs” [para. 6].
The Court acknowledged that Independent Media had stated that its interpretation of the article was not that it was claiming that Ramos was personally responsible for currency manipulation but that she bore corporate responsibility as ABSA’s group chief executive. Because this interpretation of the article differed to the interpretation Ramos took – which was that a reasonable reader would interpret the article to mean she was personally responsible and should face criminal charges – the Court stated that it had to first determine the meaning of the article before it could assess any of Independent Media’s defences. The Court noted that the test to determine whether a statement is defamatory requires the Court to ascertain “what meaning the reasonable reader of ordinary intelligence would attribute to the statement” and that this means it does not matter what meaning the speaker intended or what meaning the actual reader took from the statement [para. 43]. In applying the test to the present case, the Court held that there was no express or implicit indication that the article concerned “corporate responsibility or accountability” because the “language is emphatically directed at Ms Ramos in her personal capacity” and that the article provides no context to the role of ABSA in the rand fixing, its historical controversies and Ramos’s position at ABSA at the relevant times. [paras. 50-52]. It added that a reasonable reader would not have made the connection between the 2017 news about the rand fixing inquiry, and this article in 2019 about Ramos and that the phrase “her actions in fixing the rand” and the description of those actions as “criminal” were clearly “pointing to individual/personal criminal accountability” [para. 58]. The Court underlined that a reasonable person is not legally trained and so would not make the distinction between criminal charges being filed against someone for their personal conduct or for their corporate responsibility, and that for the article to have created this meaning it would have had to have provided that context.
The Court held that the “defamatory nature of these statements speaks for itself” given Ramos’s position and that allegations of treason and corruption would hurt her reputation. With reference to South African jurisprudence, the Court found that allegations of criminal conduct – including corruption – and that an individual enjoys protection from prosecution are defamation per se.
However, for the sake of completeness, the Court also assessed whether the statements would have been defamatory if it had accepted Independent Media’s contention that the article did not explicitly or implicitly say that Ramos was personally involved in the currency manipulation. The Court held that even if the statements did refer to her corporate (and not personal) accountability they were still defamatory as they questioned her ability as a corporate leader. The Court placed particular emphasis on the allegation that she enjoyed political protection from prosecution, noting that “[t]his is not the kind of allegation likely to leave her reputation as a business leader intact” [para. 68].
Accordingly, the Court held that the statements were defamatory – and that the article’s position as an opinion editorial and Ramos’s position as a public figure did not mitigate against that finding.
In assessing Independent Media’s defences, the Court referred to the case of Waldis v. Von Ulmenstein 2017 (4) SA 503 (WCC), and commented that it had to apply a balancing test which “involves striking a balance between the private interests of the person defamed and the broader public interest served by the right to freedom of expression and the media” [para. 71]. The Court applied the defences to both the meaning of the article it had ascribed as well as the meaning that Independent Media maintained the article possessed. In respect of the defence of truth and in the public interest, the Court held that, because it had rejected Independent Media’s argument that the article stated that Ramos bore only corporate responsibility, this defence was not available to Independent Media. In assessing the defence’s applicability to the meaning ascribed by Independent Media, the Court stated that Independent Media had to “establish that the sting of the statements is true”, which meant that it had to demonstrate that “objectively speaking, the charges and prosecution of Ms Ramos are justified and that it is her untoward influence in political circles that is obstructing her prosecution” [paras. 74 and 76]. The Court held that the criminal charges that were laid against Ramos “have political origins” and that there are “perfectly valid alternative reasons” for why those charges had not led to a prosecution [para. 79]. The Court held that the “facts do not show that charges of corruption or treason are justified against Ms Ramos, even in her representative capacity” [para. 82]. Accordingly, the Court held that – even if Independent Media’s meaning of the article was accepted – that the defence of truth and public interest was not applicable.
The Court then assessed the applicability of the defence of fair comment and stated that there are four elements to that defence: that the defamatory statement be “a comment and not a statement of fact”; that it is fair, and so is an “honestly-held opinion”; that it is based on facts that are true; and is related to a matter of public interest [para. 84]. Here again the Court held that on the meaning it had given to the article the defence was not applicable because Independent Media had not claimed that it believed Ramos was personally responsible for “fixing the rand” and so the defamatory statements were not based on truth. Additionally, on the meaning ascribed to the article by Independent Media the Court noted that the facts of Ramos’s criminal charges and lack of prosecution did not justify the opinions raised in the article, and so the statements were “not based on facts that are substantially true” [para. 89]. In addition, the Court commented that the article itself did not provide sufficient facts on which it based its observations and dismissed Independent Media’s argument that the facts were in the public domain on the grounds that the incidents had happened years before the publication of the article.
The last defence the Court assessed was that of reasonable publication, which it noted “has been available to the media since the decision of the SCA in [National Media Ltd v.] Bogoshi” 1998 (4) SA 1196 (SCA) and which “permits a media defendant to establish that the publication of a false statement was not wrongful by proving that they reasonably believed in its truth and that it was in the public interest that it be published” [para. 95]. The Court held that as Independent Media had accepted that Ramos was not personally involved in any currency manipulation “they cannot say that they published statements to this effect … in the honest belief that they were true” which therefore “precludes the respondents from successfully establishing the defence of reasonable publication” [para. 99]. In applying the test to the meaning Independent Media ascribed to the article, the Court acknowledged that the article was “an editorial opinion piece with political overtones” and that Ramos was a political and financial public figure, but emphasized that “[t]he fact that charges were laid by a political party is not evidence of Mr Mahlangu’s honest belief that the charges are justified” and that Independent Media provided no evidence from any “reliable source” to justify their opinion that Ramos had committed corruption or treason [paras. 101 and 103]. The Court also noted that Ramos had not been given an “opportunity to comment on the defamatory statements before they were published” which the Court highlighted was “one of the relevant factors identified in Bogoshi” for a successful reasonable publication defence [para. 106]. The Court expressly stated that Mahlangu’s offer to publish Ramos’s response to the article was not relevant to this inquiry, because “an ex post facto offer to respond obviously cannot retrospectively make lawful what was from inception a defamatory and prima facie unlawful publication” [para. 106]. It added that Independent Media “did not display the standards of professional care expected of members of the media before publishing the defamatory statements” [para. 107]. The Court held that, even on Independent Media’s meaning of the article, the defence of reasonable publication was not applicable.
Accordingly, the Court held that there was no defence available to Independent Media, and that “Ramos must be found to have established a breach of her rights to dignity, her good name and her reputation” [para. 108].
In assessing the remedy, the Court accepted that Ramos was entitled to claim relief other than damages in a defamation case. The Court held that Independent Media’s argument that Ramos was not entitled to declaratory relief because the allegations had been in the public domain for five years and that Ramos’s career had not been affected appeared to “miss the point” and that the existence of previous statements (which may not have caused harm) was irrelevant to determining whether the statements in the present case were likely to cause Ramos harm [para. 114]. The Court held that as it had found the statements to be defamatory Ramos was entitled to declaratory relief and that it was not necessary for Ramos “to show actual harm to her career in order to satisfy her onus in the defamation claim where she seeks interdictory relief” and that the likelihood that allegations of corruption and treason and political protection would harm her reputation was “sufficient evidence of harm” for her to be granted the interdictory relief she sought [para. 119]. The Court rejected Independent Media’s proposed alternative remedy of offering Ramos the opportunity to respond to the article, holding that “[i]n the face of the defamation, she cannot be expected to defend her reputation, ex post facto, in the media” [para. 121].
The Court also rejected Independent Media’s argument that the relief sought was too broad as it would prohibit them making statements in future or from republishing the article, and reiterated that any order “does not prohibit the respondents from making non-impugned and non-defamatory statements in another form, provided they do not carry the same sting as that carried by the defamatory statements” [para. 125]. The Court explained that its order prohibited the making of false statements or those which implied something about Ramos. The Court noted that the harm to Ramos remains for as long as the article was available online and that although no order could prohibit media not involved in the case from publishing similar statements “once an order is granted against the respondents in this case, it would be legally foolhardy for any other media players to engage in the same or similar unlawful conduct” [para. 131].
With reference to the Constitutional Court case of Le Roux v. Dey 2011 (3) SA 274 (CC), the Court noted that an apology can be an appropriate remedy, but also recognized that in EFF v. Manuel (1) All SA 623 (SCA) the Supreme Court of Appeal had noted that no courts have “considered the question of an apology de-linked from a claim for damages” [para. 133]. The Court accepted that the court in EFF v. Manuel had stated that “whether an order for an apology should be made is inextricably bound up with the question of damages”, but commented that this applied only if both damages and an apology had been sought because the value of the damages awarded would be impacted by an order of an apology. The Court held that there was nothing preventing it from ordering an apology in the present case.
The Court concluded by noting that there is a need to balance the rights of an individual with the “public interest in safeguarding the right to freedom of expression and the press”, but also recognized that “the media has an obligation to act lawfully as the instrument through the right to freedom of the press is exercised” [para. 136]. The Court linked this to the right of the public to be informed, and commented that “[i]rresponsible reporting of false facts can be extremely damaging to democracy” [para. 136].
Accordingly, the Court held that the article was defamatory, false and unlawful and interdicted Independent Media from publishing or republishing the article or any other statements that “falsely says or implies that the Applicant, while employed as the CEO of Absa Bank, participated in fixing the rand or committed corruption or treason in relation to the fixing of the rand” [para. 138]. The Court ordered that Independent Media remove the article from its website and all Twitter and Facebook accounts within 24 hours, and to publish an apology (the text of which the Court provided) in print and online.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In applying clear legal analysis to this politically-charged case involving misinformation as an attempt to fight a political battle, the High Court reiterated that obvious false statements and innuendos were defamatory.
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