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[2016] ZAWCHC 59
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Muller v Independent Newspapers (Pty) Ltd and Another (A462/2014) [2016] ZAWCHC 59 (4 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.: A462/2014
DATE:
4 MAY 2016
In
the appeal between:
CLIVE
MULLER
......................................................................................................................
Applicant
And
INDEPENDENT
NEWSPAPERS (PTY)
LTD
...........................................................
First
Respondent
(1st
Def a quo)
ALLIED
MEDIA DISTRIBUTORS (PTY)
LTD
...........................................
Second
Defendant a quo
KARL
BROPHY
.......................................................................................................
Second
Respondent
(3rd
Def a quo)
JUDGMENT
WEDNESDAY
4 MAY 2016
SCHIPPERS
J:
[1]
This is an appeal, with leave from the
trial court, against its order in terms of which it dismissed with
costs a claim by the appellant
(“the plaintiff”) for
R1 000 000 for defamation. The plaintiff is a warrant
officer in the South African
Police Service (SAPS). At the time
of the incident he was an inspector. The claim arises from the
publication on 19 January
2007 of an article in the “DAILY
VOICE” newspaper (“the newspaper”), owned and
published by the first respondent
(“the defendant”).
The second respondent is the former editor of the newspaper.
The action against the
third respondent was withdrawn pursuant to an
exception that the plaintiff’s particulars of claim were vague
and embarrassing
in relation to the third respondent.
[2]
The article, written by Ms Lauren Kansley
(“the reporter”), is printed across two pages of the
newspaper under the caption,
“EXCLUSIVE: ANGRY CAPE BAR OWNER
CLAIMS SMOOR DRONK OFFICERS BARGED IN AND BULLIED STAFF”.
The main heading,
which appears in the centre of the article in a
much larger font than the caption, reads: “LAW AND DISORDER -
Drunk cops
crash Flats party plek”. The article describes
what happened when police officers called at an establishment known
as the Chilli Bar (“the bar”) in Southfield, Western
Cape. It states that they were drunk and looking for a fight;
and that the owners of the bar were ignored when they lodged a
complaint about the officers’ conduct at Dieprivier police
station.
[3]
The plaintiff’s case is that the
content of the article is untrue and defamatory. He alleges
that it contains photographs
clearly depicting his face; and that
these photographs refer to him as the cop in uniform getting out of
hand. The particulars
of claim list 14 statements in the
article which the plaintiff says concern him and are libellous.
These include the following:
that drunk cops came into the bar,
bullied staff and the “
smoor
dronk
” cops did not have a
warrant; that “the two cops are in hot water for behaving like
dronkgat
party animals”; that “the cops were looking for a fight …
looking for booze”; that “both policeman
looked drunk …
They must have had a nip of something in the van and came looking for
more”; and that “the drunk
cops eventually arrived back
at the cop shop”.
[4]
The plaintiff says that when read in the
context of the article as a whole and with reference to the
photographs of him, the statements
are
per
se
defamatory. Alternatively,
they were intended and understood by the readers of the article to
mean that the plaintiff is
dishonest and corrupt, inter alia, in the
following respects: he was disorderly whilst in police uniform; he
consumed alcohol and
was intoxicated whilst on duty; he unlawfully
used force on members of the public and has no regard for the law,
although employed
to uphold the law; he abused his authority; and he
wanted to obtain alcohol unlawfully.
[5]
The defendant sought to justify publication
of the article on the grounds that the plaintiff was not identified
in it nor the photographs
which form part of it; the article was true
and in the public interest; and the publication of the article was
reasonable in the
circumstances.
Background
[6]
The events giving rise to this action took
place at the bar on 17 January 2007 at about 2:30 am. The basic facts
are largely common
ground or not disputed.
[7]
The plaintiff testified that he and
Constable Njele (“Njele”) were on patrol in a police
vehicle in the Southfield area
when he noticed a white Nissan Sentra
parked illegally and which looked suspicious, near the bar. He
stopped behind the Sentra
and upon investigation discovered that its
licence had expired. He asked the occupants of the Sentra who
the driver was.
They said he was in a dilapidated building
known as the Southern Lodge. The plaintiff went to the Southern
Lodge. Nobody
was there. He returned to the Sentra and
asked Njele to remain with its occupants. The plaintiff then
went to the bar,
which was still open, to find out how long the
Sentra had been parked outside and who had driven it.
[8]
The plaintiff, in full uniform, entered the
bar through a side door which was ajar. He had never been to
the bar before.
The manager, Mr Marlon Naicker (“Naicker”),
saw the plaintiff and said “djy”! The plaintiff
said
that he was deeply offended by this and told Naicker that that
was not the way to address a police officer. Naicker abruptly
asked what he wanted and said that the plaintiff could not enter
through the side door. The plaintiff replied that he was
a
police official and wanted to gather information. He said that
Naicker came up to him in an aggressive manner, at which
the
plaintiff put his foot over the threshold. At that point
Naicker was joined by others. They started pushing the
plaintiff around, one of them fiercely. The plaintiff told the
person who pushed him that he had assaulted a police officer
and
would be arrested. That person ran into the bar. Njele
saw the commotion and went to the plaintiff who asked him
to call for
backup.
[9]
Subsequently numerous other members of the
SAPS, including officers in uniform, arrived on the scene and went
into the bar.
None of these police officers were drunk.
The plaintiff testified that he did not enter the bar; he and Njele
remained outside.
The plaintiff said that he tried to speak to
the owner of the bar, Mr Sonny Naidoo (“Naidoo”), who had
arrived later,
but he swore at the plaintiff and was totally hostile.
[10]
The plaintiff also said that he did not
drink during the course of his shift. Indeed, the plaintiff does not
consume alcohol at
all.
[11]
After the incident at the bar, the owner of
the Sentra arrived. The plaintiff gave him a stern warning and told
him to go home and
park the vehicle, but did not allow him to
transport its occupants in an unlicensed vehicle. The plaintiff
and Njele took
them to Ottery where they live. They returned to
Dieprivier police station where Naidoo, his mother and Naicker were
speaking
to Warrant Officer Van Der Walt (“Van Der Walt”).
They alleged that the plaintiff was drunk and that Van Der Walt
should take him to a district surgeon for a blood sample. The
plaintiff was willing to do this. Captain Eugenia Jacobs
was
then called at home to come to the police station. When she
arrived Captain Jacobs inspected the plaintiff, and spoke
to Naidoo,
his mother and Naicker. She also spoke to the district surgeon,
Dr Theron, who apparently refused to come to the
police station
because it is not procedure for blood to be drawn from an officer on
duty, unless he is involved in drunken driving.
The plaintiff
said that he waited at the police station because Naidoo was going to
get his own doctor to take a blood sample,
to which the plaintiff had
agreed. That however did not happen. After waiting for 1½
hours the plaintiff left, after
completing a shift of 13½
hours. Naidoo also lodged a complaint of intimidation against
the plaintiff.
[12]
The next day, i.e. 20 January 2007, one of
the plaintiff’s colleagues (whom he could not remember) told
him that photographs
of him were in the newspaper. He bought the
newspaper and said that when he saw the photographs he was both sad
and livid. He
consulted his ex-branch commander, Captain Le
Roux (“Le Roux”), a friend and confidant. The
plaintiff said he
cried as he showed Le Roux the photographs.
[13]
Van Der Walt a police officer of some 22
years’ standing, and the shift commander on 17 January 2007,
testified that Victoria
Road, where the club is located, is a hotspot
- there is a high occurrence of crime in that vicinity.
[14]
Van Der Walt confirmed the plaintiff’s
version as to what happened at the police station when Naidoo, his
mother and Naicker
made a complaint. They alleged that the
police officers were drunk and wanted them to be breathalysed.
Van Der Walt
testified that he does not drink at all and would notice
if somebody around him did. He said that the plaintiff does not
consume alcohol and that he had never detected alcohol on him.
He was adamant that there were no grounds to open a case of
drunken
driving against the plaintiff. He confirmed that he had
contacted the district surgeon who informed him that blood
was drawn
only in drunken driving cases. He also contacted Legal Services
of the SAPS and was informed that police officers
could not be forced
to have their blood drawn. He confirmed that Captain Jacobs
spoke to the plaintiff, Naidoo and Njele,
in close proximity to them;
and that the plaintiff left his shift at 6:05 am. Van Der Walt
said that he took down Naidoo’s
statement regarding the
intimidation complaint. Although he did not believe that the
case would go anywhere, he accepted
the complaint because he was of
the view that the police had nothing to hide. The intimidation
charge was subsequently withdrawn.
[15]
Van Der Walt testified that on 17 January
2007 at 2 am and again at 3 am, he and the plaintiff had inspected
the cells; that the
plaintiff had not been drinking; and that the
occurrence book shows that at 4 am the plaintiff and Njele had
inspected the cells.
He said that Njele’s condition was
the same as when he had passed Njele to go out on inspection - he did
not detect any liquor.
He said that he may not have seen
Njele’s boots untied, but would not have looked at his boots
again after the first inspection.
Van Der Walt said that if
Njele’s shirt was unbuttoned or his belt unbuckled, he would
definitely have picked that up.
[16]
Van Der Walt said that he read the article
when it was published. It stunned and shocked him. The
reference to the plaintiff
being drunk and disorderly was hard to
swallow and totally out of character: that is not the person he
knows, given the plaintiff’s
involvement with victims of
domestic violence, and his training of students and personnel.
On this score his evidence was
neither challenged nor contradicted.
[17]
The plaintiff’s wife testified that
they were married for 22 years and that they have three children, two
adult sons and a
daughter who at the time, was 10 years old and in
grade 4. She said that the plaintiff is a devoted police
officer
whose first priority is his work. She confirmed that
the plaintiff does not drink and that there is no alcohol in their
home.
She said that what was stated in the article was not true
because her husband does not drink. She described her reaction
to the article as follows:
“
My
reaksie was ek was baie kwaad en hartseer omdat iemand so iets van my
man kan skryf in die koerant en hulle ken hom nie eers
nie.”
The
trial court’s findings
[18]
The trial court held that the following
issues had to be decided. First,
whether
the article was defamatory of, or concerned the plaintiff.
Second, if so, whether the article was true or substantially
true and
for the public benefit. And third, in the event of the article
not being true and for the public benefit, whether
its publication
was reasonable in the circumstances.
[19]
The trial court decided only the first
issue against the plaintiff. Its findings may be summarised as
follows. The article
contained two strips of five photographs each
under the caption, “SMOOR DRONK OFFICERS BARGED IN AND BULLIED
STAFF”.
Although the plaintiff’s face appears in
four of the photographs, they are deeply faded and the plaintiff
cannot be
identified “without scrutiny”. The
article refers to “policemen” and not a single police
officer.
The police officer is not identified by name, race,
rank or police station. Further, the plaintiff is not identified in
the article.
The court found that only a member of the public
with “particular and special knowledge” that the
plaintiff was
one of the two officers initially present at the bar,
would have been able to identify him. It held that no member of
the
public could reasonably associate any of the remarks made about
any individual police officer in the article with the plaintiff.
The
plaintiff failed to provide a witness who, independently and without
being pre-cognized by the plaintiff, had seen the
article and was
able to identify him from the photographs and associate the plaintiff
with the conduct complained of in the article.
[20]
The court concluded that the only inference
that could be drawn was that the reasonable reader would regard the
article as condemnation
of the conduct of several police officers
during the incident in question. The reader would not draw the
inference that the
individual complained of in the article is the
plaintiff. The court held that the plaintiff failed to show
that he had been
defamed in the article. The court considered
it unnecessary to deal with the other defences raised.
[21]
Defamation
is the unlawful publication,
animo
iniuriandi
,
of a defamatory statement concerning the plaintiff.
[1]
[22]
The first question then is whether the
trial court was correct in holding that the article was not of and
concerning the plaintiff.
Put differently, was there
publication of a defamatory statement about the plaintiff?
Publication
[23]
Defamation
is aimed at the protection of a person’s reputation i.e. the
public estimation of the worth or value of a person
as opposed to the
individual’s personal sense of self-worth or self-esteem.
Therefore an essential element of the delict
is that the defamatory
statement must be published to some person or persons other than the
one defamed. The editor and publisher
of a newspaper circulated
generally may be liable for defamatory statements appearing in it.
In
Bogoshi
the principle that the media are strictly liable was overruled.
[2]
The SCA however held that media defendants will be held liable unless
they were not negligent in the circumstances of the
case.
[3]
Once publication is established, the plaintiff must prove that the
publication can be attributed to the defendant. Publication
will be attributed to the defendant if it knew and or could
reasonably have expected that an outsider would take cognisance of
the defamation.
[4]
[24]
There is no question that the defendant
published the article. It is common ground that the newspaper is
widely distributed in South
Africa, more specifically in the Western
Cape; and broadly read by the general public, including the
plaintiff’s employers
and fellow employees. The evidence
also shows that the newspaper is read by the plaintiff’s
friends and family.
[25]
The next question is whether the article is
defamatory.
Is
the article defamatory?
[26]
The
question whether a statement in its ordinary meaning or
per
se
is defamatory, involves a two-stage inquiry. The first is to
establish the natural or ordinary meaning of the statement;
and the
second, whether that meaning is defamatory.
[5]
[27]
The plaintiff contends that statements in
the article, including those made with reference to the photographs,
are defamatory of
him, as set out above.
[28]
In my view, the article when read as a
whole, is
per se
defamatory. A reasonable person of ordinary intelligence might
reasonably understand the words concerned to convey a meaning
defamatory of the police officers referred to in the article.
The article portrays police officers as being drunk, disorderly
and
dishonest whilst on duty, with no regard for the law or the rights of
citizens. It assails the moral character of law
enforcement
officers. The defamatory statements in the article would
generally lower the police officers in the estimation
of
right-thinking members of society.
[29]
The next issue is whether the words
complained of and the photographs in the article apply to the
plaintiff.
Does
the article refer to the plaintiff?
[30]
In
every case a plaintiff must allege that the words complained of (and
in this case that the photographs showing a uniformed cop
getting out
of hand) apply to him personally.
[6]
[31]
The
test whether a statement refers to the plaintiff is objective: would
the ordinary reasonable man to whom the statement was published
be
likely to understand the statement in its context to refer to the
plaintiff?
[7]
[32]
The
reference to the plaintiff either by name or distinguished by
specific individual indications must be clearly established, and
where the plaintiff is not referred to by name the averment in the
declaration must sufficiently set out the basis upon which it
is
claimed that he is referred to in the alleged defamatory
statement.
[8]
However
the matter of proof cannot be excluded merely because the plaintiff
was not mentioned by name. If the words are defamatory,
it is
competent for the plaintiff to prove that in the circumstances in
which they were uttered, they were intended by the speaker,
and must
have been understood by those who heard and read them, to apply to
the plaintiff.
[9]
[33]
The plaintiff pleaded that the article
contains photographs of him (2 strips of five photographs, 10 in
total) in which his face
is clearly depicted and contains the
following caption between the 2 strips: “CAUGHT OUT: The
footage shows a uniformed cop
getting out of hand”. The
person in the photograph is in uniform.
[34]
The defendant argued that the plaintiff
could be identified only from 10 grainy photographs (of which seven
are blurred) showing
a person wearing a police uniform.
However, the person’s face is blurred and in partial darkness.
It contends
that there is nothing striking or distinctive about the
person in the photographs and that they could potentially depict many
persons.
[35]
The defendant is mistaken. At least
three of the photographs clearly show the plaintiff. Apart from
this, Van der Walt
and Le Roux testified that the photographs depict
the plaintiff. In addition the evidence is that the plaintiff
had a distinctive
“Jonah Lomu” hairstyle, as the
photographs show. Further, a reasonable reader would
undoubtedly associate the
person in the photographs as being one of:
(a) the “
smoordronk
officers” who “barged in and bullied staff”; (b)
the “uniformed cop getting out of hand”; or (c)
one of
the drunk cops who crashed the bar. The reasonable reader would
also associate the police officer in the photographs
as one of the
persons who behaved “like
dronkgat
party animals”, and who was drunk and disorderly whilst on
duty, referred to in the article.
[36]
For the above reasons, it is beyond
question that the article is about the plaintiff and how he behaved
at the bar. In my
respectful opinion, the trial court erred in
holding that the reasonable reader would not conclude that the
individual complained
of in the article is the plaintiff.
[37]
The next issue is whether the defence of
truth in the public interest is sustainable.
Truth
and Public Benefit
[38]
It
is lawful to publish a defamatory statement which is true, provided
that the publication is for the public benefit.
[10]
As a general principle, it is for the public benefit that the truth
about the character or conduct of individuals should
be known.
[11]
A defendant who relies on this defence must plead and prove that the
defamatory statement is substantially true. The
gist of the
defamation or the “sting of the charge” - that the
plaintiff was drunk and disorderly whilst on duty, with
no regard for
the law - must be proved.
[12]
The fact that there is some exaggeration in the language used does
not deprive the defence of its effect.
[13]
[39]
The
public have a legitimate interest in the manner in which police
officers carry out their duties. Indeed, the Constitution
requires the police to prevent, combat and investigate crime;
maintain public order; protect and secure the inhabitants of the
Republic and their property; and uphold and enforce the law.
[14]
Similarly, the
South African Police Service Act 68 of 1995
states that the functions of the police include ensuring the safety
and security of all persons and property in the national territory;
and upholding and safeguarding the fundamental rights of every
person.
[40]
For these reasons, the defendant submitted
that the public had a legitimate interest in the publication of an
article which truthfully
detailed drunken and disorderly conduct on
the part of uniformed police officers on duty. The allegations,
it says, are claims
made by the bar staff and owner as truth and thus
it was entitled to convey this in the public interest, and publish an
article
about the police failing to fulfil their duties.
[41]
These submissions cannot be accepted. They
are insupportable on the evidence.
[42]
To
begin with, there is simply no evidence showing that the plaintiff or
any other officer was drunk, let alone “
smoordronk
”,
to the contrary. The “HAT Verklarende Handwoordeboek van
die Afrikaanse Taal”
[15]
defines “
smoordronk
”
as “
baie
dronk
”
or “
papdronk
”.
Put differently, the article states that the police officers were as
drunk as lords. The uncontroverted
evidence is that the
plaintiff does not consume any alcohol; that in 1995 he decided to
stop drinking alcohol after his close friend
was shot and killed at a
shebeen; and that he does not, and never had, a problem with alcohol,
neither is he a reformed alcoholic.
[43]
The plaintiff was subjected to rigorous
cross-examination on this aspect. It was even put to him -
quite wrongly - that the
article suggests that he had gone back to a
situation where he might have had a drink or two with friends.
Instead, the article
conveys the message and was understood by the
reasonable reader to mean that the plaintiff was drunk and disorderly
whilst on duty,
that he had no regard for the law or the rights of
citizens, that he bullied staff at the bar and that he had alcohol in
the police
van and came looking for more. It states in terms,
that “the two cops are now in hot water for behaving like
dronkgat
party animals.”
[44]
The evidence however demonstrates that the
plaintiff was not drunk on duty and that the article was defamatory,
as appears from
the plaintiff’s denial that he had gone back to
drinking with friends:
Defendant’s
counsel: “Mr Muller, if you wish this court to believe
that one of the bases upon which you are so
traumatically aggrieved
about the article is that the article - in fact, one of the bases
upon which you’ve claimed a million
rand from the Daily Voice
on the basis of the alleged defamation is that the article suggests
that you’ve gone back to a
situation where you might have a
drink or two with a couple of mates. With respect that is an
unbelievable proposition, Mr
Muller. Nobody could possibly be
offended or feel that they are defamed by an allegation or an
imputation that one has returned
to a situation where one simply sits
around and has a couple of drinks with people. What is your
comment on that? --- Judge,
the report itself, the content says
“drunk cop bullies staff”. They depict me as a
drunkard, as unruly, as a
person who have (sic) no respect or regard
for the law and that is quite the opposite. That is what I have a
grieve (sic) for and
the fact that they also compare me to a corrupt
drunk policeman … punished for his crimes and was found guilty
of an offence.
That is what I am aggrieved about and also the
fact that … there is liquor involved. As the advocate
says, my
friends and family who know me, including my godparents,
would believe that … which was contrary to the values they
taught
me.”
…
Mr
Muller, your wasting of an hour was very convenient if you are under
the influence of alcohol at the time and if you wanted to
avoid a
test of your blood. --- I was not drinking when I came on duty. I
did not drink while executing my duties. Never
in that whole shift’s
time that I was working did I consume one drop of alcohol.”
[45]
The plaintiff’s evidence that he was
not drunk on duty was confirmed by Van der Walt. He testified
that he inspected
the plaintiff and Njele before they commenced duty
on the night in question. There was no sign that either the
plaintiff
or Njele had been drinking. The inspection was recorded in
the Occurrence Book held at the police station. Upon his return
to the station, Van der Walt also did a cell inspection together with
the plaintiff. He said that the plaintiff’s condition
was
exactly the same as earlier that evening, and that he did not detect
any sign of liquor. As to the suggestion that Njele
was drunk
on duty because his bootlaces were untied, and his shirt was
unbuttoned and his belt unbuckled, Van der Walt testified
that he
would definitely have picked that up. He said that Njele’s
pants would not have remained in place with his
firearm hanging on it
if his belt had been unbuckled.
[46]
Then there is the incident at the police
station when Naidoo and his mother claimed that the police officers
were drunk and wanted
them to be breathalysed and their blood drawn.
Van der Walt contacted the district surgeon and was informed that
blood was
drawn only in cases of drunken driving. It was put to
Van der Walt that he should have informed the district surgeon that
somebody had driven the police vehicle to the station. He
responded that there were no signs that either the plaintiff or
Njele
were drunk to justify their blood being drawn. Despite this,
the plaintiff was willing to have his blood drawn by the
district
surgeon. He even waited for 1½ hours for Naidoo to get
his own doctor to draw the plaintiff’s blood.
That is not
the reaction of a drunk officer on duty. Further, Captain
Jacobs, the commanding officer who was called to the
police station,
spoke to the plaintiff and Njele whilst in close proximity of them.
If they “both reeked of alcohol”,
as the article states,
it is highly unlikely that she would not have any taken steps to
institute disciplinary proceedings against
them.
[47]
Brown’s evidence that the police
officers were drunk has no logical or evidentiary basis.
Indeed, he said that he could
not smell alcohol on the plaintiff’s
breath, although they were nearly face to face. Aside from
this, the factors referred
to by Brown and Naicker, such as the
plaintiff’s insistence upon entering the premises, taking
offence at Naicker’s
disrespectful tone, and being
argumentative, uncooperative and provocative, are not in the
circumstances any indication of drunken
or disorderly behaviour.
Naicker too, said that he could not smell any alcohol on the
plaintiff’s breath. Indeed, he
testified that he did not
inform the reporter that the police officers “reeked of
alcohol”. And the video recording
which Brown had made of
the events did not show drunken and disorderly behaviour on the part
of the police officers.
[48]
Moreover, both Brown and Naicker denied
having told the reporter that the police officers behaved “like
dronkgat
party animals” or were “
smoordronk
”.
Naicker also denied having said that “they must have had a nip
of something in the van and came looking for
more”. In
fact, both of them deny the essence of the defamatory statements
published in the article.
[49]
What all of this shows is that the article
was substantially untrue: none of the police officers who attended
the bar were drunk;
neither did they behave in a drunken or
disorderly way. They certainly did not “crash [a] party”
venue or behave
like “
dronkgat
party animals”. Consequently, publication of the article
was not in the public interest.
[50]
The defendant has thus failed to establish
the defence of truth and public benefit.
[51]
The defendant’s plea of fair comment
may be dealt with briefly.
Fair
comment
[52]
It
is lawful to publish a defamatory statement which is fair comment on
facts that are true and matters of public interest.
[16]
The requirements for the defence of fair comment are these: the
defamatory statement must amount to comment or opinion as
opposed to
a statement of fact; the facts on which the comment is based must be
true and clearly indicated in the document containing
the defamatory
statement; and the comment must relate to a matter of public interest
and be fair.
[17]
[53]
The
defence of fair comment cannot succeed in this case because the facts
upon which the comment is based are in substance untrue.
[18]
The
failure to prove any essential element of the defence is fatal,
however “fair” in the ordinary sense the language
might
be.
[19]
[54]
Finally, the defendant pleaded that
publication of the article was objectively reasonable.
Reasonableness
[55]
In
Bogoshi
the SCA accepted that publication in the press of a defamatory
statement may be lawful if, considering all the circumstances of
the
case, it was reasonable to publish the particular facts in the
particular way and at the particular time.
[20]
In considering the reasonableness of the publication, the
nature, extent and tone of the allegations must be taken into
account. So too, the nature of the information on which the
allegations were based, the reliability of their source, the steps
taken to verify the information, the opportunity given to the person
concerned to respond and the need to publish before establishing
the
truth in a positive manner. The list is not exhaustive.
[21]
[56]
The
SCA however made it clear that there can be no justification for the
publication of untruths, and members of the press may not
lower the
standards of care which must be observed before defamatory matter is
published in a newspaper. A high degree of
cautiousness is
expected of editors and editorial staff on account of the nature of
their occupation, particularly in light of
the powerful position of
the press and the credibility it enjoys amongst large sections of the
community.
[22]
[57]
The
Constitutional Court confirmed this approach in
Khumalo
,
[23]
holding that the defence of reasonableness strikes a balance between
the constitutional interests of plaintiffs and defendants.
O’Regan J said:
“
[T]he
defence of reasonableness … permits a publisher who can
establish truth in the public benefit to do so and avoid liability.
But if publisher cannot establish the truth, or finds it
disproportionately expensive or difficult to do so, the publisher may
show that in all the circumstances the publication was reasonable.
In determining whether publication was reasonable, a court
will
have regard to the individual’s interest in protecting his or
her reputation in the context of the constitutional commitment
to
human dignity. It will also have regard to the individual’s
interest in privacy. In that regard, there can be no
doubt that
persons in public office have a diminished right to privacy, though
of course the right to dignity persists. It
will also have
regard to the crucial role played by the press in fostering a
transparent and open democracy. The defence of reasonable
publication
avoids, therefore, a winner-takes-all result and establishes a proper
balance between freedom of expression and the
value of human dignity.
Moreover, the defence of reasonable publication will encourage
editors and journalists to act with
due care and respect for the
individual interest in human dignity prior to publishing defamatory
material, without precluding them
from publishing such material when
it is reasonable to do so.”
[24]
[58]
The defendant contends that the information
given to the reporter related to a matter of public interest, namely
abuse of police
authority which affected the local community.
The newspaper, so it was submitted, had an obligation to provide the
community
with information such as police excesses; the information
came from persons who had direct knowledge of the incident and video
footage to substantiate their allegations; the reporter took steps to
verify and establish the reliability of her information by
interviewing Naicker, Naidoo and his mother, and Brown. Then it
was submitted that the article made it clear that its contents
were
not being presented as facts verified by the newspaper, but as
allegations which were being made by the bar owner and staff
against
the police; and that the police were afforded an opportunity to
respond and confirmed the allegation that a charge had
been laid.
[59]
These submissions however do not bear
scrutiny.
[60]
The sting of the defamation contained in
the article when read as a whole is not the abuse of police
authority, but drunk and disorderly
cops behaving badly, with no
regard for the law or the rights of citizens. That much is
clear from the main caption “LAW
AND DISORDER” and the
reference in the article to “
smoordronk
”
officers barging in and bullying staff; “drunk cops”
crashing the bar and behaving “like
dronkgat
party animals”; the caption which states “CAUGHT OUT: The
footage shows a uniformed cop getting out of hand”;
that both
police officers “reeked of alcohol” and that they “must
have had a nip of something in the van and
came looking for more”.
[61]
In my view, the publication of the article
was unreasonable in the circumstances. Whilst it is true that a
newspaper has an
obligation to inform the community of police
excesses, in this case the article impugned the character, competence
and integrity
of the plaintiff himself, and consequently, infringed
his right to dignity. This is particularly so having regard to
the
fact that it was established in evidence that the plaintiff does
not drink alcohol at all; the nature, extent and tone of the
allegations;
and the fact that the plaintiff was not given an
opportunity to respond to the claim that he was one of the officers
alleged to
be “
smoordronk
”
and behaving like a “
dronkgat
”
party animal.
[62]
The submission that the article was not
presented as facts verified by the newspaper, but as allegations made
by the bar owner and
staff of the police, is insupportable on the
evidence. Both Brown and Naicker denied having told the
reporter that “
smoordronk
”
officers had barged in and bullied staff. They also testified
that they were not responsible for the main caption;
the heading,
“Drunk cops crash Flats party plek”; or the statements
that the cops had behaved like “
dronkgat
”
party animals, had alcohol in the police van and came looking for
more, and both officers reeked of alcohol. Naicker
also denied
having told the reporter about “the cops’ rowdy
behaviour”.
[63]
Finally, the claim that the police were
given an opportunity to respond has no evidentiary basis. The
reporter interviewed
Naidoo and his mother. Therefore she knew
or must have known of the events that took place at the police
station, more specifically
that both Van der Walt and the plaintiff
were adamant that the plaintiff was not drunk, and that he was
willing to have his blood
drawn. She would have established
this, had she simply contacted them. The inference is
irresistible that the reporter
did not contact the plaintiff or Van
der Walt, or for that matter Captain Jacobs, because it would have
destroyed the sting of
the article. It is therefore not
surprising that neither Naidoo nor his mother were called to testify
on behalf of the defendant,
despite the fact that in August 2007,
securing their attendance was the reason advanced for a postponement
of the trial.
[64]
It follows that the defence of
reasonableness of the publication must fail.
Damages
[65]
The
successful plaintiff in a defamation action is entitled to an award
of general damages to compensate for injured feelings and
for the
hurt to his or her dignity and reputation.
[25]
The factors the court may take into account include the nature of the
defamatory statement; the reputation, character and
conduct of the
plaintiff; the nature and extent of the publication; and the motives
and conduct of the defendant.
[26]
[66]
As already stated, the article depicts the
plaintiff as a drunk and disorderly police officer with scant regard
for the law or the
rights of citizens.
[67]
To most people, their good reputation is to
be valued and safeguarded above all. A good reputation is
closely related to the
innate worth and dignity of the individual.
[68]
The evidence discloses that the plaintiff’s
career and reputation mean everything to him. His attainment of
the rank
of Warrant Officer in the police force did not come easily.
His family abandoned him when he was 4 years old. He lived
on
the streets in Elsies River until he was 10, when he was adopted by a
pastor and his wife. The plaintiff testified that
from the day
his foster parents had taken him in, he decided that he was going to
make them proud and not do anything to disappoint
them. He said
that they knew about the article but in the interim both had passed
away without knowing the real truth about
it.
[69]
The plaintiff fortunately rose above his
historical disadvantage and adverse circumstances. He
matriculated in 1986 and joined
the police force. At the time
of the trial he had 25 years’ service. He received
numerous awards and citations.
For example, in September 1999
the plaintiff received a certificate of appreciation for unselfish
dedication and sacrifice in promoting
the ideals of the Area Board
West Metropole of the SAPS. In December 1999 he received the
SAPS medal for 10 years of faithful
service and exemplary conduct
from the State President. In 1999 and for a period of five
years thereafter, the plaintiff
served as a trainer and mentor for
students coming directly from the police college to police stations.
In 2003 he received
a certificate of achievement as the best
achiever on the Community Service Centre (CSC) course. In 2008
the plaintiff was
awarded a certificate for his dedication and
commitment to serving the community of Dieprivier, by the Community
Police Forum and
the Station Commissioner, after he led the
investigation and made a breakthrough in taking down a housebreaking
syndicate plaguing
the Southern Suburbs in Cape Town.
[70]
The plaintiff testified that when he saw
the article, he was both sad and livid and all kinds of thoughts went
through his mind.
He considered going after the person who had
taken the photographs, but said that his love for his career and, as
he put it, the
consequences of doing something foolish, prevented him
from acting impulsively. He decided to discuss the article with
Captain
Le Roux, his former branch commander.
[71]
Le Roux described the plaintiff as a very
positive person, eager to learn. He said that he had never seen
the plaintiff consume
alcohol. When he saw the article, he
recognised the plaintiff in the photographs. As to the
reference in the article
that the plaintiff (one of the officers),
was allegedly drunk on duty, barged into the bar and bullied patrons,
Le Roux said that
he could not believe it. He had nominated the
plaintiff for the award of detective of the year for the Western
Cape, because
of the plaintiff’s eagerness to learn, his work
ethic and the hours he put in. Le Roux’s nomination was
accepted:
the plaintiff was awarded a certificate as the most
deserving Crime Investigation Officer in the Western Province, which
includes
the West and East Metropoles.
[72]
As regards the extent of the publication,
the newspaper was widely distributed. The defendants have
admitted that 68 270 copies
were sold on the day in question, 1000 of
which were sold in George and the remainder on the Cape Flats in the
Western Cape.
For all practical purposes, the newspaper was
sold in or near the area in which the plaintiff grew up and served as
a police officer.
[73]
As
to the defendant’s conduct and motives, it failed to establish
the truth of the allegations which were published of and
concerning
the plaintiff. Far from being a “gossip item”, the
article was presented as a clear indictment of
the plaintiff in his
capacity as a police officer. The article attributed serious
professional misconduct to him and brought
him into public scandal.
Even the last sentence was in keeping with the thrust of the article
- drunk cops behaving badly.
It states that according to a
police spokesman, a case of intimidation was being investigated.
That charge was later withdrawn.
The defendants did not tender
any evidence of attempts to obtain the plaintiff’s version of
events or the true facts from
the police, in particular, from Van der
Walt. In this regard the dictum of Cory J in
Hill
[27]
is instructive:
“
The
law of defamation is essentially aimed at the prohibition of the
publication of injurous false statements. It is the means
by
which the individual may protect his or her reputation which may well
be the most distinguishing feature of his or her character,
personality
and,
perhaps, identity. I simply cannot see that the law of
defamation is unduly restrictive or inhibiting. Surely it
is
not requiring too much of individuals that they ascertain the truth
of the allegations they publish? The law of defamation
provides
for the defences of fair comment and of qualified privilege in
appropriate cases. Those who publish statements should
assume a
reasonable level of responsibility.”
[28]
[74]
A further factor which should be taken into
account in the assessment of damages, in my view, is the conduct of
the defendant.
At no time did the defendant tender an apology
or offer a retraction, although an apology or a retraction cannot
completely undo
the harm done or the hurt caused. It
refused to make any concession when it was obvious that it should do
so.
It refused to acknowledge that the plaintiff was
identifiable by the photographs in the article. The reporter
obviously must
have known this after her interviews with Brown,
Naicker, Naidoo and his mother. In its argument on damages it
persisted
in its stance that only persons close to the appellant
would have been aware that he was one of the policeman implicated in
the
incident at the bar. Its stance is that the plaintiff “is
not entitled to the reputation of an honest man”, simply
because his evidence was inconsistent in one immaterial aspect
relating to his entrance into the bar.
[75]
The
SCA in
Mogale
[29]
noted that awards in defamation cases do not serve a punitive
function and generally are not substantial. However, the amount
of damages depends on the facts of the specific case and, in my view,
in the particular circumstances of this case, there is little
to be
gained from a comparison of awards in defamation cases.
[76]
The plaintiff asks for damages in the sum
of R 250 000. In all the circumstances, having regard to the
seriousness of the defamation
and its impact on the plaintiff, I
consider that an award of damages in an amount of R 70 000 is
appropriate.
[77]
What
remains is the question of costs. The trial court did not make
an order that costs should be paid on the Magistrate’s
Court
scale. The defendants certainly did not ask for such an order
and they cannot now argue that costs should be on that
scale.
In addition, the cases say that in a defamation suit the court must
have a greater discretion as to the scale of costs,
because at the
issue of summons, the plaintiff does not have precise materials for
estimating the case, as a plaintiff in other
cases. The true
test as to whether High Court costs or Magistrate’s Court costs
should be given is how the case appeared
to the plaintiff at the
issue of summons. Factors which should be taken into account
when deciding whether the plaintiff
was justified in bringing the
action in the High Court include the following. Individual
reasonable men may hold different
views as to the extent of the
injury suffered and thus fairly wide allowance should be made for
this. When summons is issued,
the individual plaintiff to some
extent is the judge in his own cause as regards the extent of his
injury. The plaintiff
often does not know the nature of the
defence at the issue of summons. A defence pleaded eg
privilege, may raise difficult
questions of law and such cases have
gone right up to the Appellate Division.
[30]
[78]
In
this case the defamation was serious and I do not think that when
summons was issued, the plaintiff was unreasonable in assessing
his
damages in excess of the jurisdiction of the Magistrate’s
Court. Aside from this, the case involved issues of law
of
considerable difficulty.
[31]
[79]
For these reasons costs should be awarded
on the High Court scale.
[80]
I would make the following order:
(a)
The appeal is upheld with costs.
(b)
The order of the trial court is set aside
and replaced with the following order:
“
Judgment
is granted in favour of the plaintiff for R 70 000 and costs on
the High Court scale.”
SCHIPPERS
J
DESAI
J:
[81]
I agree. It is so ordered.
DESAI
J
NDITA
J:
[82]
I agree.
NDITA
J
[1]
WA
Joubert
et
al
(eds) The Law of South Africa (2
nd
ed 2005) Vol 7 p 230 para 234.
[2]
National
Media Ltd v Bogoshi
1998 (4) SA 1196
(SCA) at 1214F-I.
[3]
Ibid
.
[4]
See
LAWSA
op
cit
n 1 p 233 para 236 and the authorities there collected.
[5]
See
LAWSA
op
cit
n 4 p 235 para 237.
[6]
Goodall
v Hoogendoorn Ltd
1929 AD 11
at 15, per Innes CJ.
[7]
See
LAWSA
op
cit
n 4 p 240 para 243.
[8]
Spendiff
v East London Daily Dispatch, Ltd
1929 EDL 113
at 132.
[9]
Hertzog
v Ward
1912 AD 62
at 70.
[10]
See
LAWSA
op
cit
n 4 p 245 para 247.
[11]
See
LAWSA
op
cit
n 4 p 245 para 247.
[12]
Johnson
v Rand Daily Mail
1928 AD 190
at 205-207.; See also LAWSA P 245 para 247 and the
authorities
collected in footnote 3.
[13]
Johnson
n
12
ibid;
Independent Newspaper Holdings Ltd v Suliman
[2004] 3 All SA 137
(SCA) at 154e-
155e.
[14]
Section
205
(3) of Act 108 of 1996.
[15]
FF
Odendal and RH Gouws (eds) 4
th
ed 2000 p 1029.
[16]
See
LAWSA
op
cit
n 4 p 253 para 253.
[17]
See
LAWSA
op
cit
n 4 p 253 para 253.
[18]
Crawford
n 18 above at 114.
[19]
Crawford
n
18 above at 114.
[20]
National
Media Ltd and Others v Bogoshi
1998 (4) SA 1196
(SCA) at 1212G.
[21]
Bogoshi
n 20 at 1212H-I; 1213B-C.
[22]
Bogoshi
n
20 at 1212J-1213B.
[23]
Khumalo
v Holomisa and Others
[2002] ZACC 12
;
2002 (5) SA 401
(CC) para 43.
[24]
Bogoshi
n 20 at 1213
[25]
See
LAWSA
op
cit
n 4 p 260 para 260.
[26]
See
LAWSA
op
cit
n 4 p 260 para 260 and the authorities there collected.
[27]
Hill
[1995] 2 SCR 1130.
[28]
Para
137
[29]
Mogale
and Others v Seima
2008 (5) SA 637
(SCA) at paras 9-12, 18.
[30]
Van
der Merwe v Schraader
1953 (2) SA 339
(EDLD) at 342A-343E, approved in
Greeff
v
Raubenheimer
en ‘n Ander
1976 (3) SA 37
(A)
at 44F.
[31]
Hassen
v Post Newspapers (Pty) Ltd and Others
1965 (3) SA 562
(WLD) at 577H;
Le
Roux and Others v Dey
2010
(4) SA 210
(SCA) para 50;
Le
Roux and Others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as
Amici
Curiae
)
2011 (3) SA 274
(CC) para 204.