Attorney-General Advocate Prince Machaya on Wednesday refused to make further comments on a case in which he disowned an opposing affidavit bearing his name in the constitutional matter in which the Media Institute of Southern Africa (Misa) seeks to get criminal defamation struck down. The AG’s Civil Division on Monday filed a notice of opposition to the application with an affidavit that defended the law.
The affidavit, commissioned by Deputy Chief Magistrate Mr Gibson Mandaza, has a signature at the end purportedly by Adv Machaya.
However, on Tuesday night Adv Machaya said he was not aware of the opposing affidavit in question advising the reporter to talk to him the following day.
However, on Wednesday Adv Machaya refused to talk to The Herald.
“You have already written your story, so what else do you want to hear from me? I cannot talk to you,” said Adv Machaya.
Mystery surrounding the signing and filing of the affidavit deepened with Information, Media and Broadcasting Services Minister Professor Jonathan Moyo – cited as a respondent in the MISA application – saying he had not been consulted by Government lawyers and was “very surprised and disappointed to learn that opposing papers have been filed on my behalf”.
The Government, in papers purportedly filed by the AG, defended criminal defamation, arguing that “it fosters responsible journalism”.
In the papers filed with the Constitutional Court, Adv Machaya contested Misa’s bid to have Section 96 of the Criminal Law Codification Reform Act struck off from the statutes, allegedly because it was in violation of the right to freedom of expression and the media as guaranteed under Section 61 (1) and (2) of the Constitution.
Adv Machaya argued that from another angle, criminal defamation was a necessary evil.
“What Section 96 of the Criminal Code, therefore, seeks to do is to guarantee and protect the right to dignity,” he said. “It is not in violation of Section 61(1) and 61(2) of the Constitution.
“Section 96 of the Code fosters responsible journalism and ensures, therefore, that in exercising their right to freedom of expression and freedom of the media, journalists verify their facts prior to publication as being truthful.”
Criminalising defamation, Adv Machaya argued, was the best way to protect every citizen from intentional and malicious injury to character.
However, Adv Machaya said under the law in question, journalists should only be arrested where there was proof of intention to harm.
Adv Machaya said although there were civil remedies for defamation, criminal defamation appeared to be a faster route.
Meanwhile, the Constitutional Court has given the State up to 30 days to file its detailed argument to show why criminal defamation should not be struck down in a case in which former Standard journalists Nevanji Madanhire and Nqaba Matshazi were being accused of defaming Dr Munyaradzi Kereke.
The Constitutional Court last year ruled that the law was in breach of Section 20 (1) of the former Constitution (freedom of expression), but the same court did not make any declaration in relation to the new Constitution.