Manyatshe v M & G Media Limited

During September 2006, Maanda Manyatshe, then CEO of MTN South Africa (Pty) Ltd and former CEO of SA Post Office Ltd (1999-2004), brought an urgent application in the Johannesburg High Court for an interim interdict to prevent the publication of an allegedly defamatory article in the Mail & Guardian newspaper. The article related to allegations that criminal charges had been laid against him concerning tender fraud at the Post Office involving Vision Design House. The charges, detailed in a questionnaire sent to him by journalists, alleged that Manyatshe, along with others, had manipulated tender processes and engaged in fraudulent activities to benefit Vision Design House, resulting in substandard work and inflated costs. Manyatshe denied the allegations in general terms and sought an interdict to prevent publication. Snyders J dismissed the application, finding that the respondents had established a sustainable factual foundation for defenses of truth and public benefit, and reasonable publication (the Bogoshi defense). The article was subsequently published. Despite this, Manyatshe obtained leave to appeal on the basis that the matter involved legal principles of considerable importance concerning freedom of the press and administration of justice.

• Whether the appeal was moot, given that the article had already been published, and whether it should be dismissed under section 21A of the Supreme Court Act 59 of 1959
• Whether there is a blanket ban on publication of the identity of a person facing criminal charges until that person has appeared in court
• Whether the principle in Independent Newspapers Holdings Ltd v Suliman should be extended to prevent publication of allegations that could potentially give rise to criminal prosecution
• Whether the publication would compromise the administration of justice by interfering with the appellant's rights as an accused person in a potential criminal trial
• Whether the court a quo had sufficient regard to the appellant's high public profile and the principle of ubuntu in balancing freedom of expression against dignity and reputation
• Whether costs should follow the event where a party is seeking to protect constitutional rights

The appeal was dismissed with costs, including the costs occasioned by the employment of two counsel, by virtue of section 21A of the Supreme Court Act 59 of 1959.

An appeal will be dismissed as moot under section 21A of the Supreme Court Act 59 of 1959 where the judgment would have no practical effect and the appeal does not raise important questions of law with little authority that are bound to arise again. The principle in Independent Newspapers Holdings Ltd v Suliman regarding pre-publication bans on identifying criminal suspects does not establish an immutable blanket ban and does not extend to prevent publication of the fact that criminal charges have been laid or allegations of potential criminal conduct. A pre-publication ban on grounds of prejudice to the administration of justice requires demonstrable and substantial prejudice with a real risk of occurrence, not mere conjecture or speculation. The balancing of constitutional rights to freedom of expression and press freedom against dignity, privacy and reputation is a factual exercise applying well-established principles and does not constitute a novel question of law justifying hearing a moot appeal.

The court noted that the defamatory sting in this case lay in the allegation of involvement in tender fraud, not merely in the fact that criminal charges had been laid. The court observed that an immutable rule preventing publication of any disclosure of potential criminal conduct would be untenable and in direct conflict with the vital democratic function of the press to expose corruption, dishonesty and graft. The court acknowledged that the high public profile of an individual and the values embodied in ubuntu should be taken into account in balancing freedom of expression against dignity and reputation, but noted these principles had already been well-established in jurisprudence such as Khumalo v Holomisa. The court also noted that the case was distinguishable from public interest litigation against government agencies (such as Biowatch Trust) because both parties were private entities seeking to protect their constitutional rights.

This case clarifies the application of section 21A of the Supreme Court Act regarding moot appeals, confirming that courts will only hear appeals with no practical effect where they raise important questions of law with limited authority that are bound to recur. It reinforces the narrow scope of the Suliman principle concerning pre-publication bans on identifying criminal suspects, confirming it does not extend to a blanket ban on reporting criminal charges or potential criminal conduct. The judgment emphasizes the constitutional balancing between freedom of expression/press freedom (section 16) and dignity/privacy/reputation (sections 10 and 14), and confirms that this balancing exercise involves factual determinations rather than novel legal principles. It also demonstrates the courts' reluctance to impose pre-publication restraints on the press absent clear and substantial prejudice, consistent with the democratic importance of press freedom in exposing corruption and maladministration.