City Press has won the battle for the freedom to print the responsibly-gathered facts.

City Press's test case victory appeal last week for press freedom in the highest court in the land has brought South Africa in line with other democracies going into the millenium .

During the past decades courts in Canada, Australia, European countries, New Zealand, the United States and, earlier this year, England which South Africa followed closely in terms of laws concerning defamation have all strengthened the role of a free press.

The judgment by Judge Joos Hefer and his fellow appeal judges has been welcomed by the media and lawyers as a watershed which also confirmed the constitutional right to freedom of expression.

Although City Press was confident of winning an action for defamation brought against the newspaper, its editor-in-chief, its printers and distributors by attorney Nthedi Morole Bogoshi on the defence of truth and public interest in the old law, the Appeal Court's judgment makes it easier to defend the action.

Under because in the old law if the court accepted the presumption of unlawfulness in the publication of defamatory material and the defendant had to prove justification.

If there were mistakes in reports that were substantially true and the paper believed the information it had painstakingly gathered was true, the court might still have found against the newspaper City Press.

City Press had pleaded truth and justification as public interest in the Bogoshi case, but had asked for an amendment in its defence in that the publication of the articles alleged to have defamed Bogoshi were not unlawful because of the protection afforded to the newspaper by the Constitution of the new South Africa.

City Press's amended defence included that City Press was unaware of any falsity in any of the nine articles written on Bogoshi and did not publish them recklessly, i.e. not caring whether the contents were true or false.

A precedent had been set in a court case in 1982 which the Appeal Court last week found had been incorrect.

City Press relied on the facts that :

The reporters who wrote the articles were well qualified and responsible journalists (Assistant editor Desmond Blow and Gauteng editor EliasMaluleke);
Bogoshi was a practising attorney;
David Sebati, who had been seriously injured, was his client and was poor;
Bogoshi, in his professional capacity, was being investigated by the Auditor-General.

The reporters took reasonable steps to establish and investigate the truth of the allegations. These steps included :

Claims pertaining to the old multilateral Motor Vehicle Accident Fund enquiries with the family of a Mr Solomon Mogotsi, who was investigating fraudulent third party claims;
enquiries with the Transvaal Law Society relating to ``touting'' for work;
investigations relating to the practice of ``touting'' in streets, hospitals, mortuaries and police stations;
Interviews and enquiries with Sebati and his family relating to Bogoshi's conduct on behalf of Sebati;
Enquiries with Mutual and General insurance pertaining to the administration of funds to which Sebati became entitled to on the settlement of his claim;
Interviews and enquiries with AJ Tsanwani, a trustee or curator who purportedly acted on behalf of Sebati;
Enquiries with the Master of the Supreme Court pertaining to the administration of funds to which Sebati had become entitled;
The obtaining and examination of a taxed bill of costs prepared by Bogoshi in relation to Bogoshi's fees for representing Sebati; Efforts to obtain powers of attorney from Sebati in order to have sight of and to examine documents pertaining to Sebati's claim.

City Press published the results of these enquiries made by the journalists, as well as Bogoshi's with Bogoshi and his response to allegations contained in the articles. City Press also published the result of an enquiry by the Transvaal Law Society.

Bogoshi had, in his personal capacity, been investigated by the Office for Serious Economic Offences. The journalists, in investigating and writing the articles, and City Press in publishing them, had complied with the standards of investigative reporting applicable in the journalistic profession.

City Press's application for an amendment to its defence that the publication of the articles were lawful and protected under the freedom of speech and expression clause in the Constitution was dismissed by the Judge President of the Transvaal Supreme Court, Frikkie Eloff, in February 1996. He said this defence was bad in law and found the Constitution should not be interpreted to alter the common law and ruled that the media could only escape liability if they could establish that what they published was true. He said it was no answer to claim the articles were published in good faith and that they concerned matters of public interest.

In his judgment last week Judge Hefer said the case in 1982 on which Eloff based his judgment was wrongly decided under common law.

He said that in Britain the British Parliament had intervened to eliminate some unacceptable consequences relating to the defamatory laws passed in 1952, yet in 1982 the South African courts had followed blindly a form that existed in England 30 years before and was found wanting.

The judge quoted a judgment in South Africa in 1995 when Judge Joffe said ``The role of the press in a democratic society cannot be understated . . . It is the function of the press to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators. The press must reveal dishonest and inept administration. It must also contribute to the exchange of ideas. It must advance communication between the governed and those who govern.''

Hefer said there was no constitutional value in false statements of fact, but that an erroneous statement of fact is nevertheless inevitable in free debate.

``All this is very true. But we must not forget that it is the right and indeed the vital function of the press to make available to the community information and criticism about every aspect of public, political social and economic activity and thus to contribute to public opinion.''

Lawyers have welcomed the fact that the ruling was made under common law, and said there was now scope for further development under constitutional law.

City Press was represented by Schalk Burger SC and Derek Spitz instructed by Hofmeyr.

With acknowledgements to Desmond Blow and the City Press.