Courts are clear — Unisa bid to gag journalist had to fail

Last week, the University of South Africa (Unisa) asked the Gauteng High Court to interdict and silence a journalist before a single word of evidence had been tested. Unisa wanted Pragasen Edwin Naidu, the publisher of the education-sector outlet ednews.africa, to take down three articles about staff deaths, hospitalisations and burnout at the university, to apologise unconditionally, and to be interdicted from ever again suggesting the university bears any responsibility for what happened to its own employees.

It sought all of this on an urgent basis, having given Naidu barely a day to respond to papers it took more than a week to prepare. 

Cases such as this are becoming a familiar pattern in South Africa, where an institution stung by unflattering coverage reaches for an urgent interdict rather than a defamation trial, because an interdict can silence a story a court will only test months or years later, once the news value has evaporated and the legal bill has done its own quiet damage.

It is worth asking, plainly, what right entities such as Unisa are vindicating when it goes to court in matters such as this.

What the Constitution says

Buried in Unisa’s papers is the claim that the articles violate its dignity. This deserves scrutiny, because it is doing more work than it should. Section 10 of the Constitution says “[e]veryone has inherent dignity”. Section 8(4) extends Bill of Rights protection to juristic persons, but only “to the extent required by the nature of the right and the nature of the juristic person”.

That qualification is not a technicality; it exists precisely to stop institutions from importing rights designed to protect human beings. Roman-Dutch law has long distinguished the three interests protected by the actio iniuriarum: corpus (bodily integrity), fama (reputation, standing, good name) and dignitas, the personal, felt sense of self-worth that only a human being can possess. 

A company, a university or a government department can have a reputation. It cannot feel humiliated, ashamed or diminished, because it has no inner life to wound. This is not lawyerly hair-splitting – it is how our courts have framed the dignity interest in defamation.

In Khumalo v Holomisa, a judgment that remains seminally important in determining the issue of defamation by media publications, the Constitutional Court described the reasonable-publication defence as one that requires journalists to show respect for the individual’s interest in human dignity (dignitas). The judgment held that this is an interest that attaches to a person, not an organisation. 

A public university, staffed by thousands but possessing no mind of its own, simply is not the kind of entity the right was built for. This is, in fact, the position Naidu’s own answering affidavit adopts: that “public institutions of higher learning… do not have a constitutional right to human dignity”.

Unisa may retain an interest in its reputation, its fama, but that is a materially weaker, more defeasible interest than dignity, and one that must be weighed against, not simply asserted over, the public’s right to know.

Defence of reasonable publication

Even setting the dignity point aside, Unisa still had to overcome a defence that our law built precisely for cases such as this one. 

Because Naidu is a media defendant, he is entitled to raise the defence of reasonable publication established in National Media Ltd v Bogoshi and endorsed by the Constitutional Court in Khumalo.

This defence is not available to non-media defendants, and is one the Supreme Court of Appeal (in Bogoshi) designed specifically to stop the chilling effect that would follow if publishers could be held strictly liable every time a defamatory allegation later turned out to be unprovable. 

Under Bogoshi, publication of even a false defamatory allegation is not wrongful if, considering all the circumstances, it was reasonable to publish the particular facts in the particular way at the particular time.

Relevant considerations are: the nature, extent and tone of the allegations; the nature and reliability of the sources; the steps taken to verify the information; whether the person or institution concerned was given the opportunity to respond; and the pressing need to publish before the truth could be established beyond doubt. 

Unisa would simply not be able to argue around any of these on paper in an urgent application. It is precisely the kind of factual, evidence-tested inquiry an interdict is designed to avoid. Reaching for an interdict lets an applicant sidestep the very test the law created to protect exactly this kind of reporting.

Why Unisa tried to skip steps

There is a further reason Unisa’s papers asked the court to skip a step it is not entitled to skip. Our courts have long held that reportage on matters of serious public concern is granted greater latitude, with the burden falling on the plaintiff, not the publisher, to show that publication was unreasonable. 

In Holomisa v Argus Newspapers, the high court held that defamatory statements on matters of legitimate public interest are constitutionally protected unless the person suing can show that the publication itself was unreasonable in the circumstances.  The plaintiff carries that onus, not the journalist. 

In the context of the Unisa case under discussion, staff deaths, hospitalisations and burnout at the country’s largest public university, funded substantially by public money and answerable to Parliament, sit squarely within that category of public concern; there is no principled reason this “greater latitude” should apply to political reportage but not to reporting on the working conditions that are, quite literally, costing Unisa’s own staff their health.

If Unisa wanted to overcome that latitude, it would have had to prove unreasonableness at trial. It cannot simply assert dignity and expect a court to skip the inquiry altogether.

The remedy Unisa chose also deserves scrutiny. An interdict restraining publication is, traditionally, a prospective remedy – in other words, something sought before defamatory material is published, to prevent a harm that has not yet occurred.

Unisa’s application went further: the three articles were already in the public domain, so what was actually being sought was a mandatory order compelling their removal and a permanent prohibition on Naidu ever again linking the university to the wellbeing of its own staff.

That is a materially heavier intrusion on speech than an ordinary anticipatory interdict, which our law is cautious about granting in the first place, and it is precisely why our courts have historically been reluctant to restrain publication at all, reserving that remedy for exceptional cases – not for institutions that would simply rather not be written about.

Public sector and court processes

This case is not really about three articles. It is about whether public institutions can use the machinery of urgent court processes to do what they cannot do through argument or through the ordinary defamation defences the law affords them. 

It is, instead, an attempt to make an uncomfortable story disappear before it had even been tested. If Unisa had succeeded, every organ of state with a bruised reputation and a functioning legal budget would have a template:  file an application urgently, argue dignity, skip the Bogoshi inquiry and let the interim order do the silencing while the merits wait. 

Unisa matter struck off the roll

Ultimately, this approach did not succeed, as the court struck the matter off the roll for lacking urgency. This outcome, even though achieved on procedural grounds, is an important one for upholding and protecting media freedom. But the issues the case raises remind us of the importance of reaffirming that dignity belongs to people, that public bodies answer to the public they serve through defences that must actually be tested, and that a free press does not exist by the grace of the institutions it reports on.

Public bodies exist to be scrutinised. A university that can reach for a prior restraint every time a journalist asks uncomfortable questions about workloads, contracts or staff wellbeing does not need to win its case to succeed; it only needs to make the asking expensive and frightening enough that the next journalist doesn’t bother.

That is precisely the “chilling effect” our courts have warned against since Bogoshi, and precisely why the reasonable-publication defence and the public-interest latitude recognised in Holomisa exist in the first place – not as technicalities for a court to work around on urgent papers, but as the very balance the Constitution requires between dignity and expression. DM