An extraordinary defamation case between the eSwatini Government and the rebel Swaziland Times newspaper has been playing itself out in an Mbombela Court in Mpumulanga, South Africa.

Judgement has been reserved in a case beset by technicalities and moral issues, which in the words of Acting High Court Judge, AJ Roelefse, has been "complicated".

The Balance Between Freedom of Speech and the Right to Dignity

In the judgement, handed down on 24 September 2024 and published by the Southern African Legal Information Institute (Acting Prime Minister v Swaziland News (Pty) Ltd and Others (1643/21) [2024] ZAMPMBHC 72 (27 September 2024), Judge Roelefse says:

“This application concerns a difficult issue namely the omnipresent divide between freedom of expression, more particularly, the freedom of the press and the right to dignity and a good name.”

The focus of the trial mostly political in that the eSwatini Government was accusing the Swazi News of fomenting revolution in the Kingdom by defaming the authorities with falsehoods.’  There's a good summary here in Business Day.

But what Business Day didn’t pick up on were the references to King Mswati III's (pictured above) alleged involvement in the illegal cannabis industry.

Swaziland News editor, Martin Dlamini, who is in exile in South Africa, after being accused of being a terrorist, was represented by Gardee Godrich Associates (known for its EFF affiliation). He admitted writing the stories the court found offensive and did not respond to a request for sources.

Wild Allegations That Weren't Substantiated

According to court papers which are in the public domain, these allegations included stories that:

“eSawatini is led by a serial dealer who had no interest for the nation;  the King grabs shares from giant companies; the King demanded free shares in the cannabis farming industry and demanded bribes; the King can best be described as a dangerous dagga dealer hiding behind a COVID-19 mask; the King manipulates the law including his absolute powers to accumulate wealth through shady dealings.”

For a crazy insight into the wild world of eSwatini, see the Swaziland News' Investigations page here

Judge Roelfse found the articles in question to be clearly defamatory but the fact that a South African court was dealing with an eSwatini issue under South African constitutional law, made the case a difficult one. The King cannot sue for defamation in eSwatini but can in South Africa, but the problem was that the Acting Prime Minister could not legally speak on his behalf of the King, who should have bought the motion in person.

Case Would Have Been More Straightforward if His Majesty had Pitched in Person

Judge Roelfse said if the King were to appear in court as the juristic person, the defamation case would have been more straightforward as the acting Prime Minister could not act on his behalf in a South African court of law.

As it was, he took a dim view of the Swaziland News' coverage.

“The source of the information in the articles are not disclosed by Swaziland News. The timing of the articles coincided with the public uprising in eSwatini. No comment was sought from the eSwatini government prior to the publication of the articles. The tone of the articles was extremely critical and stated as fact. No balanced view was given,” reads the judgment .

“The articles were not independent and constituted the most severe criticism against the king and the eSwatini government. The timing of the articles, coinciding with the public uprising, was clearly aimed at or had the potential or indeed did fuel the perpetrators of the uprising and clearly sought to gain support for the dissidence,”

“Having regard to the factors to be considered in order to determine whether the articles were reasonable, I conclude they were not. To the extent that Swaziland News sought to rely, albeit not set out explicitly that the articles were reasonable, I find that the articles were unreasonable. No defence is established by Swaziland News in this regard.”

Paper Ordered to Submit Critical Stories to Government Pending Final Judgement

Roelefse granted an interim order in favour of the Minister “in order to give the eSwatini Government some measure of restricted protection” pending a final judgement. He ordered that the Swaziland News had to get comment on any stories it published about the eSwatini government and give them 72 hours to respond and to undertake to publish their comments.

The question of costs was not decided.

Reporters Without Borders in its 2022 world press freedom index ranked eSwatini 131 out of 180 countries, stating that the country prevented journalists from working freely and independently by maintaining total control over the broadcast media, infiltrating the newsroom and spying on, arresting and harassing journalists.

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