South Africa's Biggest University Wins an Interim Order Barring a Comedian's Future Sketches Mocking Its Law Graduates

South Africa's largest university has gone to court over a comedy series that mocks its law graduates, and it has won an interim order against the comedian.

On November 11 a Pretoria High Court judge granted the University of South Africa, known as Unisa, an urgent interim order against Doctor Che Lenyehelo, a content creator whose comic series "Lawyers from Unisa be like" has built a big following online. The sketches mock a hapless lawyer who studied at the university. Unisa told the court the videos defame the university and the lawyers it produces. Judge MPN Mbongwe ordered them taken down within 24 hours of the order being served on him. Pending the final hearing, the comedian may post nothing similar that pins professional failings on lawyers because they hold a Unisa degree. He was also ordered to pay Unisa's costs of the urgent stage, with fees for two counsel allowed where the university briefed two.

That order goes further than a takedown. Removing a video already online is a familiar remedy in defamation cases. Forbidding a whole category of future sketches, before any court has finally decided that a single frame was defamatory, is a restraint on work that has not been written yet. The judge made no final finding. That question returns in a second phase of the case, on a date still to be set through the registrar. Until then, the named videos must stay down.

Unisa is a public university and the biggest in the country by enrolment, with hundreds of thousands of students. Institutions that live on public money and public trust should have thicker skins than private citizens, since scrutiny comes with the territory. A satirist who exaggerates a stereotype about a university's graduates is taking part in the oldest kind of public commentary there is. Viewers of a sketch about a bumbling lawyer generally know they are watching a gag, and few would take it for a finding about legal education.

South Africa's own highest court once understood this better than the university does now. In 2005 the Constitutional Court heard the case of a company that printed T-shirts mocking Carling Black Label, recasting the famous beer label as "Black Labour" and "White Guilt". South African Breweries had won an interdict in the High Court and kept it on appeal. The Constitutional Court threw it out without a dissent. Justice Albie Sachs opened his separate concurring judgment with a question: "Does the law have a sense of humour?" The main judgment, by Justice Dikgang Moseneke, warned courts against letting the protection of famous trademarks, which he noted are "usually controlled by powerful financial interests," turn into a monopoly over expression.

That case turned on trademark law, and this one turns on defamation. Lawyers will say the two run on different tracks, and they have a point. The instinct of 2005 still applies. When a large and powerful body is mocked by a lone performer, a court should demand a great deal before it silences the performer, and it should demand even more before it tells him what he may say next.

The Constitution sets the baseline. Section 16 guarantees freedom of expression and names "freedom of artistic creativity" among its parts. The exclusions listed in the section are propaganda for war and two forms of incitement. A sketch about a bumbling attorney falls under none of them. Reputation matters under South African law, and defamation remains a real wrong. Still, the traditional remedy for a disliked joke has been a better joke or a shrug.

Unisa has been in and around court with its critics repeatedly this year. In January it welcomed a ruling, in a case brought by a parliamentary committee chairman, that barred one critic from repeating a claim about a security tender which the court found false. In February it welcomed judgments in applications it had brought itself against three people, whose statements about the university and its management it called lies. Whatever the merits of those disputes, they concerned statements presented as fact, which a court can test and a defendant can try to prove. Comedy sits in a different place. A caricature makes no factual claim, so there is nothing in it for a defendant to prove true. Pursuing a comedian with the same legal tools used against people accused of spreading falsehoods treats laughter as a species of lying.

News of the order spread across South African social media within two days, and plenty of commenters sided with the university, including at least one self-described Unisa law graduate. They are entitled to find the sketches unfunny. Many people with degrees from famous schools have endured jokes about them for generations and survived.

The better course for a university proud of its law faculty was always available. It could point to its alumni, Nelson Mandela among them, and let the work of the lawyers it trains answer the caricature. Instead it brought an urgent application and won costs against a comedian, and it now holds a court order covering sketches he has not yet made. A university that teaches constitutional law ought to see why that sits badly with the Constitution it teaches.