The corporate law firm’s plot to silence the newspaper today will surely be a landmark case that will put freedom of expression and the association into perspective in Botswana’s democratic context.
Collins Newman, the largest law firm in Botswana is moving against one of the newest weekly media publications, seeking to interdict and prohibit it from publishing further articles it alleges are defamatory of the firm, its partners and employees on the grounds that the firm suffers potential economic loss as a result of the recent and possible future publications.
In urgent court proceedings filed in court on the 22nd April 2016 Collins and Newman Managing Partner Parks Tafa states that the firm is seeking an order prohibiting the publication by Business Weekly or any other third party directly or indirectly from publishing articles to the effect that Justice Kebonang had found Collins Newman, Parks Tafa and Rizwan Desai to have “forged documents, lied to court, obstructed the interests of Justice, abused the Courts trust and committed perjury.” The firm seeks a further interdict prohibiting the Business Weekly from interfering with its business relationship with its clients.
The impugned articles by Business Weekly covering court proceeding in the EBC Gurneys vs Bank of Botswana matter raise important constitutional and legal issues on media freedom and freedom of expression. Freedom of expression has long been held to be the cornerstone of a democratic society. It is a basic right guaranteed in law by the Constitution. Media freedom in particular has received special constitutional guarantees in the interpretation of freedom of expression throughout the World, in particular against censorship whether by government, private individuals and institutions that seek an interdict against media from publishing articles that may or may not be defamatory of those seeking the interdict.
The reports by Business Weekly ostensibly arise from Court proceedings. Court proceedings that under our Constitution must be held in public unless the parties themselves agree otherwise. In the EBC Gurneys matter there has been no such agreement. Section 10 of the Constitution holds that “(10) Except with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public”.
The Urgent Application filed by Collins and Newman, which will be heard on Wednesday this week before Justice Tafa, will call upon the Court to determine and ascertain whether the Judgment of Kebonang was accurately reported and covered by Business Weekly and therefore whether the privilege available to the media in reporting court proceedings will apply. The court will also have to have regard to the consideration that freedom of the press is not to be overridden lightly and balance this legal position with the Applicants’ countervailing right to protection of their reputation. A critical consideration, for the determination of whether to grant an interdict, in the event the Court finds the privilege does not apply will be whether there was truth and public benefit of a reasonable publication.
The Judgment of Kebonang is available to the public, what practical effect an interdict will have against the Business Weekly and or third parties remains to be seen. Similarly whether an interdict can be granted against the publication of a Court Judgment by the Business Weekly or “third parties” in a broad stroke that seeks to silence not only the publication in question but any other party or individual that may write on or critique the judgment is a factor that may weigh heavily on the matter. The determination of this aspect of the Application will have a lasting impact on the Constitutional right to freedom of expression and the right of the media to report on court proceedings. An interdict against publication is limited to the right to freedom of expression in circumstances where “the free flow of constitutionally protected expression is the rule and administrative prior classification should be the exception.” And “whether expression lies at the right’s core or margins, be it of renown or notoriety, however essential or inconsequential it may be to democracy, the right cognises an elemental truth that it is human to communicate.” The media as a public sentinel has an obligation to bring issues that impact on the public to the public’s attention. The “noble” profession of lawyering is no exception and carries the additional burden of being a profession that must be beyond reproach. Thus “in some instances, the very delay in bringing important information to the public’s attention makes inroads into the right to freedom of the press and other media”.
Unusually in this instance the relief sought is for an interdict against the further publication of articles of matters already published, how such an interdict will assist the Applicants also remains to be seen as the articles and judgment are already in the public domain. The anticipated future cases the Applicants may bring for defamation against Business Weekly will have to be decided on their own facts.
The second interdict against the Business Weekly which is being sought stems from questionnaires the publication, according to the court papers has sent to clients of Collins and Newman pertaining to the contents of Justice Kebonang’s Judgment. The application in this context has far reaching implications on Freedom of association and the right of a client to retain or cancel their mandate with a law firm.
The application will surely be a landmark determination that will put freedom of expression and association in perspective in Botswana’s democratic context.
In South Africa the constitutional Court has held in a similar application that the media should not be censored prior to publication but in the event they flaunt the rules of professional conduct they will suffer the consequences subsequently. “The mainstay of the law is to encourage lawful conduct rather than to seek to guarantee lawfulness by restricting conduct altogether … Should a publisher choose not to pursue the avenues available to gain certainty about the lawfulness of intended publication, then he must bear the risks, attendant upon the decision to publish.”
Business Weekly will be represented by Collins Chilisa of Collins Chilisa Attorneys.