Privacy, freedom of expression and Julius Malema’s failed City Press gag attempt

Dada Julius Malema

When Julius Malema learned that the City Press was about to publish details of his wealth and resources, he launched an urgent application to stop the publication from going to press. Judge Colin Lamont ruled against Malema in an judgment which seems reminiscent of the judgment against the former and late Health Minister, Judge Lamont ruled, at least in part, that being a public figure exposes you to greater scrutiny and a reduced privacy expectation. According to City Press:

Lamont – coincidentally the same judge who heard the hate speech case brought against Malema by AfriForum – also shattered the youth leader’s belief that he is a private citizen entitled to the same level of privacy “normal” South Africans enjoy.

“At present, there is a discussion in the press concerning whether or not his income justifies his expenses,” Lamont said.

“The question of Mr Malema’s income is topical and relevant. The public is entitled to have full disclosure by persons who stand in public position, and who are high-profile personalities who invite comment about themselves.”

I haven’t seen a copy of Judge Lamont’s judgment and will look out for it but Judge Jajbhay dealt with many of the issues I imagine Judge Lamont considered in his judgment in the Msimang case. In that earlier matter Judge Jajbhay wrote at length about the sorts of competing considerations I expect came into play in Malema’s case. The extract below is from Judge Jajbhay’s judgment, starting at paragraph 35.

The freedom of the press is celebrated as one of the great pillars of liberty. It is entrenched in our Constitution but it is often misunderstood. Freedom of the press does not mean that the press is free to ruin a reputation or to break a confidence, or to pollute the cause of justice or to do anything that is unlawful. However freedom of the press does mean that there should be no censorship. No unreasonable restraint should be placed on the press as to what they should publish.

As a general matter, any person is likely to feel violated, harmed and invaded by the publication of unlawfully obtained information. Any reasonable person would probably feel less concerned if their discussions of an upcoming metropolitan council election, or the state of the global economy was unlawfully intercepted and subsequently published, than that person would if their discussion of intensely private matters such as family disputes or medical records were illegally intercepted and published for a larger audience. Similarly, on the public interest side of the equation, the public will certainly be interested and accordingly benefit from discussion of matters which are clearly in the public interest.

Public interest it must be noted is a mysterious concept. Like a battered piece of string charged with elasticity, impossible to measure or weigh. The concept changes with the dawn of each new day, tempered by the facts of each case. Public interest will naturally depend on the nature of the information conveyed and on the situation of the parties involved. Public interest is central to policy debates, politics, and democracy. While it is generally acclaimed that promoting the common well-being or general welfare is constructive, there is little, if any, consensus on what exactly constitutes the public interest.

The public has the right to be informed of current news and events concerning the lives of public persons such as politicians and public officials. This right has been given express recognition in Section 16(1) (a) and (2) of the Constitution which protects the freedom of the press and other media and the freedom to receive and impart information and ideas. The public has the right to be informed not only on matters which have a direct effect on life, such as legislative enactments, and financial policy. This right may in appropriate circumstances extend to information about public figures.

The question then is who is a public figure and to what extent may such a public figure rely on his or her right to privacy to prevent publication of matter he or she would rather keep private? Here, professor McQuoid- Mason offers the following test:

“In short it is submitted that the test whether a person is a public figure should be: has he by his personality, status or conduct exposed himself to such a degree of publicity as to justify intrusion into, or a public discourse on, certain aspects of his private life? However, non-actionable intrusions on his privacy should be limited to those that are in the public interest or for the public benefit, so that unjustified prying into personal affairs, unrelated to the person’s public life, may be prevented.”

Where a person seeks publicity and consents to it, or in relevant circumstances, by the nature of the position occupied by the individual, this individual cannot object when his or her actions are publicised. This principle applies equally, in appropriate cases, where the information sought to be published has been unlawfully acquired. However, any such interference must be both reasonable and necessary. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments.

Freedom of expression includes the right to acquire information and to disseminate it. Freedom of expression enables people to contribute to debate on social and moral issues. This right is the most important driver of political discourse so essential to democracy, which in turn is a concomitant of a free society.

The City Press’ articles paint a revealing picture of Malema’s finances and his dealings with various businesspeople who allegedly make substantial contributions to Malema’s trust fund. Regardless of how this affects his political career, the judgment is a welcome contribution to the growing body of law on freedom of expression and where it intersects with privacy rights.

Image credit: Dada Julius Malema by Roy Blumenthal, licensed CC BY SA 2.0

Published by Paul Jacobson

Enthusiast, writer, Happiness Engineer at @automattic. I take photos too. Passionate about my wife, Gina and #proudDad.

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