Politicians and other public figures cannot expect the same level of privacy as private individuals. This is the feeling of legal experts as former deputy president Jacob Zuma prepares to sue various media entities for more than R63m.

The experts say public figures are more exposed to public scrutiny and are held accountable for their actions due to their high profiles. Zuma could not expect the media to publish only the facts proved in his recent rape trial, in which he was found not guilty of raping a 31-year-old HIV-positive woman.

Zuma’s action is the single biggest defamation claim by an individual in South African legal history. The highest award granted for general damages was to Reeva Foreman in the 1980s for a Style magazine article written by Lin Sampson. That amount was about R100 000, worth R300000 in today’s terms.

“Expecting the media to publish only the facts which were proved in court is not practical,” says Peter Grealy, partner at commercial law firm Webber Wentzel Bowens.

“The public has a right to information about any public figure, whether it be the head of state, a politician or a celebrity. A public figure is fair game for the media,” Grealy says, saying the media has an obligation to report to the public.

The question that arises is whether the media acted beyond the bounds of reasonableness.

Eric van den Berg, partner at Bell Dewar & Hall, says the Supreme Court of Appeal set out a new legal test recently in the case brought by former housing minister Sankie Mthembi- Mahanyele against the weekly newspaper Mail & Guardian.

In that case, Mthembi- Mahanyele launched a R3m claim against the newspaper, alleging that its “report card” on her work portrayed her as a “dishonest person” and “of base moral standard”.

Van den Berg says courts consider a number of factors in a claim of defamation. These include publishing information in the public interest, the manner and tone of publication, steps taken to verify the truth of the information and whether the person named was given an opportunity to comment before publication. In cases where information is vital to the public, it may be justifiable to publish without giving the other party an opportunity to comment, he says.

There are various defences available to the publisher.

These are: the defamatory statement is true and was published in the public interest; it was reasonable to publish the particular facts in the particular way in the particular circumstances; the publication of the statement was privileged; or the publication represented fair comment.

This does not mean, however, that politicians and public figures do not have rights to reputation. Our courts have gone to great lengths to point out that they do.

However, Blaize Vance, partner at Bell Dewar & Hall, says that public officials must be able to withstand attacks on their reputation. “The very nature of office means they must be able to withstand scrutiny,” Vance says.

The Supreme Court of Appeal has held that each case should be considered on its own facts, which should be viewed against the prevailing attitudes of the community, taking into account the content of the allegedly defamatory matter, the nature of and extent of publication, the standing of the plaintiff in society and the conduct of the defendant.

Defamation awards by courts should not be used to “teach newspapers lessons or to be punitive”, the Supreme Court of Appeal found in a case involving the Sowetan Sunday World last year.

The court upheld an appeal by the newspaper against a judgment delivered by the Pretoria High Court in which Ephraim Seima was awarded R70000 in damages for defamation. Seima featured in a gossip column (Shwashi) in the Sowetan Sunday World in which it was alleged that he had given his girlfriend at the time, well-known TV presenter Michelle Molatlou, a “hot klap” after catching her “eyeing” another man at a wedding.

The court reduced the damages to R12 000.

Anton Harber, head of the Wits School of Journalism and Media Studies in Johannesburg, says that Zuma may be making loose charges against the media — “a songwriter, a cartoonist and columnist” — which he is asking the court to qualify.

He may be running a huge risk in terms of money, many legal actions and he may damage his own reputation further.

Just as Mthembi-Mahanyele’s claim failed on grounds of reasonableness, so may Zuma’s.

With acknowledgement to Sanchia Temkin and Business Day.