The Court of Appeal made an unprecedented finding in a matter not before it, when it concluded that the article by the Sunday Standard dated August 31, 2014 titled “President hit in car accident while driving alone at night,” was “false” and “patently defamatory.”
Handing down judgment at the Court of Appeal on Friday morning Brand JA stated in open court that the Court could not condone the dissemination of what he termed “fake news” and that as a result it was required to comment on the “conduct” of Outsa Mokone, the Editor of this publication. The “trumptonian” term “fake news”, condemned by media and human rights campaigners, was however not embodied in the Judgement.
The unusual step by the Court of Appeal to comment on issues that are not before it, let alone make factual and legal findings without having all the evidence, runs contrary to the established practice of court, which traditionally refuses to determine issues that are not the subject matter of the appeal.
The Court, comprising of a full panel of 5 judges had asked the Appellant’s attorney Mr. Bayford, during the hearing whether or not it would be appropriate for it to issue a statement on the “conduct of the Appellant.” In response Bayford had argued that since the question of whether the article was accurate or not and whether it was defamatory or not, were not the subject of the Appeal the court was not in a position to make such a statement.
Bayford had illustrated to the Court that the evidence before it had not been subjected to the normal requirements needed for a thorough determination of the facts. Highlighting that the evidence had only been given on affidavit and had not been tested by cross examination, Bayford emphasised that the critical evidence of Edgar Tsimane, the author of the article, was not available to the Court. Bayford argued that the evidence before the court was incomplete and that the evidence that was before it had not been subjected to the usual legal rigours.
In spite of hinting at the possibility of such as statement, and despite Bayford’s arguments the Court’s far reaching pronouncement on the “Conduct of the Appellant” came as a surprise to legal experts. The judgement did not address the concerns raised by Bayford. Three key legal issues were before the court for determination, impacting on the rights of individuals and the public as a whole, namely, whether the Warrant of Arrest for Outsa Mokone had been lawfully issued; whether Mokone had been denied legal representation and finally whether Sedition violated against the right of freedom of expression.
The Court found that the Warrant of Arrest against Mokone was unlawful and that as a result, there was no need for it to consider whether Sedition laws violated Section 12 of the Constitution. The Court ruled, in addition, that since other findings could be made that did not involve a constitutional interpretation it would not make a determination on the constitutionality of Sedition. The Penal Code, the court held, requires the State to charge Mokone within 6 months and since the State had not done so, it is unlikely that it would do so in the future.