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[2016] ZAWCHC 201
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Waldis and Another v Van Ulmenstein (7513/2016) [2016] ZAWCHC 201; 2017 (4) SA 503 (WCC) (21 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO
: 7513/2016
DATE
:
21 NOVEMBER 2016
In
the matter between:
DANIEL
MARTIN WALDIS AND
ANOTHER
Applicant
and
CHRISTINE IRENE FREIIA
VAN
ULMENSTEIN
Respondent
JUDGMENT
DAVIS,
J
This
matter began as an urgent application for an order that respondent
remove a blog post which appeared in July 2015. Applicant
also seeks
the suppression of further publications and statements which are
alleged by the applicants to be defamatory of them
in circumstances
where they had been widely published already. Respondent
maintains that the statements are true and that
they are made in the
public interest or constitute a fair comment about a public figure
concerning a public health matter of considerable
importance.
The
relief now sought is final in effect and has to be treated
accordingly. Hence it is not sought pending the outcome of
any
other relief. The way the matter was argued before me was on
the basis that a final interdict was sought by the applicants.
2
The
second applicant produces chocolate, allegedly from a firm of Swiss
Lindt chocolate. It claims that it has established
itself as a
premium supplier of chocolate in the local market and that it has
done so for a number of years, not only in the Western
Cape but also
in other parts of South Africa. First applicant is the founder
of second applicant, and although he does not
own any shares in the
second applicant and is not a director thereof, he is involved in the
management of the business and appears
to be “the face”
of the business.
Respondent
is a blog writer and restaurant reviewer, and writes generally about
tourism, restaurants and wine in terms of an internet
link
www.whalecottage.com
.
Respondent claims that her blog focuses predominantly on restaurants
and the tourism industry with a clear focus on the
Cape Town and
Winelands area.
3
In
July 2015 an article appeared in Noseweek magazine, accusing the
second applicant of incorrect claims concerning the quality
of its
chocolates. The article focused primarily on the allegation
that the chocolate which was claimed to be sugar-free
was not so.
A related complaint by consumers concerned apparent incorrect
information on the labelling of the chocolates
which were produced by
second respondent.
On
23 July 2015 respondent posted an article, following upon the
Noseweek publication, which applicant avers contained defamatory
remarks about the first applicant directly and, as a consequence,
against second applicant both directly and indirectly.
To the
extent that it is relevant to these proceedings the article reads
thus:
“
One
cannot get more notorious than being featured in Noseweek ... and to
have a Facebook group created about one’s business.
Such
a “honour” has been bestowed upon Daniel Waldis, owner of
Le Chocolatier, who has operated in Franschoek, now
in Stellenbosch
and with a factory in Paarl. His claims on the Le Chocolatier
chocolate slab range have been misleading and
even life threatening
to diabetics ... Initially chocolates were made in the Le
Chocolatier Restaurant in Franschoek but
a space next door became
available and the chocolates were made there with a retail outlet
selling chocolates too. He had
a short-lived partnership with
the current owners of African Chocolate Dreams who had brought their
4
chocolate
making machine with them but they disappeared overnight and opened
their own shop on Main Road. Waldis continued selling
a large range
of chocolate truffles, supposedly made elsewhere but I recognised one
of my favourites made Tomes in the V &
A Waterfront, insisted
that they were all handmade by his staff ... In the meantime I
received an increasing number of calls
from business persons who had
found the Le Chocolatier on my blog and calling me when they could
not get through to them.
I would go there for coffee and the
staff would tell me that there was a technical problem which they had
reported to Telkom.
Then I received more calls and they were
from the company which leased the point of sale machine to Waldis and
was not paid I was
told. More and more debt seekers called me
to find Waldis... Noseweek quotes Debbie Logan, an organic
product retailer
in Johannesburg, who has been outspoken in her
criticism of the product range and Waldis’s business practice.
The “organic”
certified claim supposedly issued by a
Swiss company was found to be “a fraud”. She
visited Waldis in Paarl in
May. She discovered that Waldis
imported chocolate bars from overseas, remaking them into slabs,
making his handmade claim
fraudulent too! It is clear that
Waldis is a fraud
5
continuously
looking for business opportunities to make money at the expense and
even the health of consumers.”
In
the light of this blog, applicants contend that the article of
respondent was not properly checked for factual inaccuracies,
was
totally wrong and was intended to cause the applicants harm.
Applicants submit further that the article is a clear attempt
to
portray the applicants as a person and a company that, in the case of
the former, is dishonest and the latter as a company that
was acting
fraudulently. Both intentionally do not comply with the
applicable laws and regulations regulating the industry
and the
former is a person who is a fugitive from the authorities in
Switzerland.
Mr
Montzinger
, on behalf of applicant, submitted that none of
these portrayals are either true nor could be substantiated and were
set out only
with the intention to defame and to cause the applicants
harm. In his view, the portrayal further infringed on both
applicant’s
rights to privacy and the second applicant’s
right to take part in the day to day commercial intercourse without
fear of
being unfairly defamed.
Mr
Brink
who
appeared on behalf of the respondent, contended, by contrast, that
the evidence on the record established that consumers had
complained
about the mislabelling
6
of
the chocolate. Noseweek printed an article in July 2015
in which it was reported that the applicants had lied about
the sugar
content of their chocolate. The first applicant contacted the
editor and told him something that he chose not to
disclose to the
Court, even though it was pertinently raised in answer. It is
not disclosed, and nothing he said to the editor
of Noseweek was such
that the editor believed that a retraction of the article was
necessary.
The
applicants had put up various defences which were designed to show
that their chocolate was sugar-free, correctly labelled and
not the
subject of any criminal investigation. Attached to the
answering papers is a final report, as it is headed, generated
by
AgriFood Technology Station at the Faculty of Applied Sciences at
Cape Peninsula University of Technology. To the extent
relevant, it reads thus:
“
Determination
of Sucrose in dark chocolate ...
The
sample was received on the 2
nd
of March 2015 and stored at
room temperature prior to analysis. A standard in-house laboratory
method was employed for total of
sugar analysis and referenced
against AOAC accredited method ... Sucrose analysis results for
the sample supplied results
on average of duplicate determinations.
Analysis Sucrose (G) value (per 100g) 0.34”
7
The
other point of reference is that the company name, that is second
respondent, is set out in the final report and the contact
person is
indicated to be Daniel Waldis.
The
second document is attached to the founding affidavit, from the Cape
Winelands District Municipality. The header is:
“
Inspection
conducted in terms of
Section 82
of the
National Health Act 2003
...
and Section 11 of the Foodstuffs, Cosmetics and Disinfectants Act
1972 ... regulations relating to the powers and duties of
inspectors
and analysts conducting inspections and analyses of foodstuffs and at
food premises. Inspection report Le Chocolatier
unit for
Oosterland Street, Paarl ...”
The
report then reads:
“
During
an inspection conducted on the abovementioned premises on 2015-07-15
the following was found; the whole floor is properly
tiled as
requested, the general hygiene was satisfactory during the
inspection, new labels were changed in line with the conditions
stipulated in the regulations governing the label and advertising
foodstuffs ... of 1 March 2010.”
8
The
third document attached to the founding papers was generated by the
South African Police Service. It is dated the 7
th
December 2015, and, to the extent relevant, reads thus:
“
SAPS
Stellenbosch opened an enquiry in June 2015 after Mr Waldis from Le
Chocolatier Stellenbosch contacted this office. We
investigated
social media claims about the sugar content in Le Chocolatier’s
sugar-free chocolates after conducting microchem
lab in Cape Town.
It turned out that the lab technologists could not confirm that the
certificate shown in social media that
27% sugar and 11% fat was Le
Chocolatier’s chocolates tested and therefore she named the
test as chocolate. Further
we investigated this test was
ordered and paid for from a company called Superfoods which also
supplied the questioned dubious
sample (sic).”
To
this respondent contends as follows: the first document was a report
performed on “dark chocolate” that shows a sucrose
level
of 0.34. Respondent points out that the report did not state
what chocolate was tested. In reply, the first applicant
does
not even claim that it was second applicant’s chocolate that
was tested. Mr Brink submitted that it was clear
that the
respondent’s objection in this particular connection had been
accurate; that is, the test was not performed on the
applicant’s
chocolates.
9
He
speculated that it may have been a competitor’s chocolate which
had been tested. The second document, that is from
the
municipality, revealed that the chocolates were now correctly
labelled. In Mr Brink’s view, consideration of this
letter showed that it carried little weight at all. How would
an inspection conducted “on the abovementioned premises
in
2015-07-15” have been able to determine whether the labelling
was correct? In Mr Brink’s view it could be
inferred that
the inspector was shown a previous document. Respondent pointed
out that what could be ascertained from this
report is that at some
point the chocolate had been mislabelled for the report contains the
following sentence:
“
The
new labels have changed in line with the conditions stipulated in the
regulations ...”
In
reply, it was stated that this document “clearly proves the
fact that although the second applicant was not obliged to
indicate
the sugar level contents the labels were in any event adjusted to
reflect the contents”. In Mr Brink’s
view this
particular contention is not supported by the contents of the letter
generated from the Municipality.
10
Turning
to the letter from SAPS, which states that first applicant opened a
criminal investigation of allegations against himself,
there were two
aspects in Mr Brink’s view, which needed comment. Firstly, the
report on which the applicants rely was framed
as dark chocolate and,
secondly, in answer the respondent challenges applicants to state how
this letter was generated, which challenge
was ignored.
In
Mr Brink’s view it was fair to describe the documents as having
been wholly discredited in answer and not having been rehabilitated
in reply.
DEFENCES
Much
of the dispute turned on the various defences which had been offered
by respondent. Mr
Montzinger
submitted that none of
these were sustainable if considered against the law and the facts as
I have set them out. To summarise:
respondent contended that
statements of fact in the article were
bona fide
, true and in
the public interest. Secondly, respondent contended that the
contents of the article constituted fair comment.
According to
Mr
Montzinger
, on the facts and the law as it stands at
present neither of these defences could be sustained.
11
GENERAL
PRINCIPLES REGARDING DEFAMATION
In
the light of this background, and of these contentions, I turn to
deal, albeit briefly, with the general principles relating
to the law
of defamation. It is trite law that defamation is defined as
the wrongful and intentional publication of defamatory
words or
conduct that refers to a plaintiff. See
Loubser
et
al
Law of Delict
at 340. In
Khumalo v
Holomisa
2002(5) SA 401 (CC) at para 18, the Constitutional Court
said:
“
The
common law elements in the delict of defamation are:
(a)
The wrongful; and
(b)
Intentional (c) publication of (d) a
defamatory statement/statements concerning the plaintiff”
Once
a plaintiff establishes that a defendant has published a defamatory
statement concerning himself/herself it is presumed that
this
publication is both wrongful and intentional. A defendant
wishing to avoid liability for defamation must raise
a defence
which rebuts either the requirement of wrongfulness or intention.
12
The
general test for wrongfulness is based upon the
boni
mores
or the
legal convictions of the community. This means that the
infringement of the complainant’s reputation should not
only
have taken place but be objectively unreasonable. See
Neethling
et al
Law of Personality
at 135. The application of the
boni
mores
test involves an
ex
post facto
balancing of the interests
of the plaintiff and the defendant in the specific circumstances of
this case in order to determine
whether the infringement of the
former’s interests was reasonable.
In
this balancing process the conflict between the defendant’s
freedom of expression and the plaintiff’s right to a
good name
demands resolution. See
National
Media Ltd v Bogoshi
1998(4) SA 1196
(SCA) 1207. See also
Jonathan
Burchell
Personality
Rights
at 179. In
Mtembi-Mahanyele v Mail & Guardian
2004(6) SA 329 (SCA) the Court affirmed the principle that the test
for determining whether the words in respect of which there
is a
complaint of defamation is whether a reasonable person with ordinary
intelligence might reasonably understand the words concerned
to
convey a meaning which is defamatory of the litigant concerned.
See para 25.
13
Mr
Montzinger
submitted that once shown to be defamatory, the
defence could not be restricted to whether the words were true but
whether they
were I the public interest. A distinction has been
drawn between “what is interesting to the public” as
opposed
to “what is in the public interest”. See
Bogoshi
,
supra
at 1208. There is a question
relating to defamation which requires further development. In
an extremely relevant article
on the question of defamation Professor
Anton Fagan criticised the judgment of the Constitutional Court in
Le
Roux and Others v Day
(Freedom of
Expression Institute
and
Restorative Justice Centre as
Amici Curiae
) 2011(3) SCA 274
(CC), in “The Constitutional Court loses its (and our) sense of
humour : Le Roux v Day”
2011 (128) SALJ 395.
Before
a court arrives at its analysis of the justifications raised by
respondent, it should pay heed to Professor Fagan’s
article
because, contrary to the approach of the Constitutional Court and, in
particular the majority judgment in
Le Roux v Day
,
supra,
Fagan
correctly invokes the approach to speech developed
by
John Searle Speech Acts
: An essay in the Philosophy
of Language (1969) in which a distinction is drawn between various
forms of speech and, in particular,
the emphasis upon the importance
of what Searle refers to as speech with illocutionary force.
See also
John Searle and Daniel van der Veken
Foundations
Illocutionary Logic
(1985) in which this concept is developed
extensively. See also Peter Tiersma ‘The language of
defamation’
1988 (66)
Texas Law Review
303).
14
Briefly,
utterances with a propositional content but no illocutionary force
cannot be defamatory. In other words, the point
made is that to
defame someone is to make probable one or more of a particular set of
consequences by performing conduct of a particular
kind or nature.
(Fagan at 602). Expressed differently, speech must contains a
specific form of assertion before it can be
regarded for the purposes
of the law as being defamatory.
The
concept of illocutionary force must be distinguished from its
propositional content as in the former case, the illocutionary
force
connotes the effect of the words which the speaker intended to
convey. As
Searle
supra
writes “often in
actual speech situations, the context will make it clear what the
illocutionary force of the utterances are
without its being necessary
to make the appropriate explicit illocutionary force indicator”.
The
relevance of this recource to the theory of language will become
clear presently in this judgment. Suffice to say: sadly
the
philosophy of language does not appear either to be part of South
African legal education nor of the conceptional approach
to
defamation by lawyers dealing with this question.
With
this context, I must now refer to the issue of the defences which are
adopted by the respondent in an attempt to stave off
the order which
was sought by applicants.
14
STATEMENT
IS
BONA FIDE
TRUE AND IN THE PUBLIC INTEREST
Mr
Montzinger
submitted that, from the papers it was evident that
the respondent’s blog was not based upon original research but
was premised
on information obtained from articles and other
sources. The respondent had not tendered any evidence to the
effect that
any of her claims in the offending article were true and
to what extent the repost was to the benefit of the public. In
his
view, the issue of truthfulness of the factual allegations had to
be decided in favour of the applicants. He further submitted
on
the strength of
Mahomed v Kassim
1973 (2) SA 1
(RA) at 9, that
public benefit “lies in the telling the public of something of
which they were ignorant but something which
it was in their interest
to know, if they already knew it, it hardly seems that their
reputation can be of value.”
Mr
Montzinger
submitted that when the respondent’s answering affidavit was
considered, it justified the conclusion that even on her version,
there was no need for the article to be in the public domain, since
the information was “already out there”.
16
With
regard to the defence of fair comment, Mr
Montzinger
submitted
that, if the Court should reject the claim that the contents of the
article were in the public interest, the ground of
fair comment must
also fail as one of the requirements thereof was that the matter
should be in the public interest.
In
Mr
Montzinger’s
view the entire range of defences raised
by respondent fell within the ambit of
Willis, J
, as he then
was, described in
Heroldt v Wills
2013(2) SA 530 (GSJ) at para
27. In this case the respondent was the author of a pasting on
Facebook which gave rise to the
litigation. It read, to the
extent relevant:
“
Letter
to WH for public consumption”
(WH
was the applicant in the matter.) Included in the posting was the
following passage:
“
I
wonder too what happened to the person who I counted as a best friend
for 15 years and how this behaviour is justified.
Remember I
see the broken-hearted faces of your girls every day. Should we
blame the alcohol, the drugs, the church, or are
there more reasons
to not have to take responsibility for the consequences of your own
behaviour? But mostly I wonder whether
when you look in the
mirror in your drunken testosterone haze you still see a man.”
17
The
applicant, in this case, complained that the posting portrayed him as
a father who did not provide financially for his family,
a father who
would rather go out drinking than caring for his family and a person
who had a clear problem with both drugs and alcohol.
Willis,
J
dealt with the question of
respondent’s defences at paras 27-29:
“
In
our law it’s not good enough as a defence to, or a ground of
justification for defamation that the published words may
be true.
It must also be to the public benefit or in the public interest
that they are published. The distinction must
always be kept
between what is interesting to the public as opposed to what is in
the public interest domain. The Courts
do not pander to
prurience. I am satisfied that it is neither in the public
benefit or in the public interest that the words
in respect of which
the applicant has been published, even if it is accepted that they
are true. The next defence which needs
to be considered is that
of fair comment. In
Crawford v
Albu
it was held that in order to
qualify as “fair comment” the comment
18
must
be based on facts expressly stated or clearly indicated and admitted
or proved to be true. When a defence to or a ground
of
justification for defamation is raised in motion court proceedings
the assessment of facts differs from that set out in Plascon-Evans
Paints Limited ...The respondent having raised the defence of fair
comment bears a burden of rebuttal. This burden presents
the
respondent with an insuperable difficulty in the present case.
She has been unable to justify her posting. Furthermore
malice
or improper motive by the perpetrator of the comment also acts to
defeat the defence of fair comment. The background
to the
posting together with the words themselves indicates that the
respondent acted out of malice when she posted the offending
comments.”
In
contrast the facts upon which this judgment was based, Mr Brink
submitted that, given the requirements for a final interdict,
the
question arose in this case as to the injury actually committed or
reasonably apprehended. He noted that on the record in the
present
dispute the applicant hoped “that the matter would blow over”.
Thereafter “it had become apparent that
the article is still
causing major damage to the reputation of second applicant as well as
my personal name” and that “recently
(he) lost a
potential customer of well over R4million after the customer made use
of the Google search engine to obtain more information.
19
First
applicant also avers that the injury to himself was that he was
portrayed as dishonest and fraudulent.
When
dealing with these defences and their application as a whole, the
analysis must be considered within the broader context of
freedom of
expression. Long ago, in the dark days of apartheid,
Rumpff,
JA
(as he then was) said in
Publications Control Board v
William Heineman Ltd and Others
1965(4) SA 137(A) at 160:
“
The
freedom of speech – which includes the freedom to print –
is a facet of civilisation which always presents two well-known
inherent traits. The one consisted the constant desire by some
to abuse it, the other is an inclination of those who want
to protect
it to repress more than is necessary. The latter is also
fraught with danger, it is based on intolerance and is
a symptom of
the primitive urgent in mankind to prohibit that with which one does
not agree. When a Court of law is called
upon to decide whether
liberty should be repressed - in this case the freedom to publish the
story - it should be anxious to steer
a course as close to the
preservation of liberty as possible, and to do so because freedom of
speech is a hard won and precious
asset, yet easily lost.”
20
This
dictum
was written a very long time ago and within the context
of a repressive and racist regime, when section 16 of the Republic
South
Africa Constitution Act 108 of 1996 was not even a glint in the
political eye. This section provides
inter alia
that
everyone has the right to freedom of expression which includes (a)
freedom of the press and other media and (b) freedom to
receive or
impart information or ideas. Following the advert of the
constitutional dispensation section 16 holds considerable
importance. In
Democratic Alliance v African National
Congress and Another
2015(2) SA 232 CC, the Court though dealing
with an overtly political statement I should add, said:
“
Political
life in democratic South Africa has seldom mean polite, orderly and
restrained. It has also been loud, rowdy and
fractious.
That is not a bad thing. Within the boundaries the Constitution
sets it is good for democracy, good for
social life and good for
individuals to permit as much open and vigorous discussion of public
affairs as is possible.”
para 133.
21
Similarly
in
Islamic Unity Convention of Independent Broadcasting Authority
and Others
2002(4) SA 294 (CC) at para 28, the Court made the
point that it is not just that which is already tolerable that must
be tolerated
“but also ... those that offend, shock or disturb
... Such are the demands that pluralism, tolerance and
broadmindedness
without which there is no democratic society.
EVALUATION
In
the light of the debate concerning both the defamatory quality of the
statements contained in the blog and the defences raised,
it is
important to turn to the evaluation of this case within the prism of
the prevailing constitutional imperative.
Much
of the debate concerned the view that as others have “injured/harmed”
the applicants prior to this publication,
no defence recognised in
our law was available to respondent. The question arises to
whether this particular submission by
the applicants is sufficient to
ensure that neither of the defences raised can be invoked in this
case. Let me turn briefly
therefore to deal with the two
defences.
22
TRUTH
AND PUBLIC INTEREST
Prima
facie
wrongfulness of a defendant’s
conduct will be rebutted if he or she proves that the defamatory
remarks are true and in the
public interest. The defendant need
only prove that the remarks are substantially and not literally true;
that is the sting
of the charge is true. See Laubscher
2003
Stellenbosch Law Review
364.
What is in the public interest will of course depend on
the convictions of the community (the so-called
boni
mores
) and in this regard, “the
time, the manner and the occasion of the publication” does play
an important role.
See
Independent
Newspaper Holdings Limited v Suliman
[2006] 3 SA 137
(SCA) at para 47.
It
is also so that past transgressions should not be raised up after a
long lapse of time. See
Kent v Republic and Press (Pty) Ltd
1994(4) SA 261 (E) at 265. This of course is sufficient, in my
view, to suggest that if something is recently in the public
domain,
the fact that it is already present, does not mean that the defence
of truth and public interest cannot be invoked.
FAIR
COMMENT
23
Prima
facie
wrongfulness of defamatory
publication may also be rebutted if a defendant proves that the
defamation forms part of fair comment
or facts that are true and in
the public interest. This requires the establishment of four
issues:
(1) the defamation must
amount to comment and not to the assertion of an independent fact;
(2) the comment must be
fair;
(3) the facts on which the
comment is based must be true; and
(4)
these facts must be in the public interest.
I
return now to the implication of statements possessed of
illocutionary force which becomes particularly important. Even
if a court is not prepared to invoke this concept in the notion of
what constitutes defamation, it surely must apply in the application
of the two defences to which I have made reference.
In
my view, there can be no doubt that chocolates which claim to be
diabetically friendly and are not in fact so falls within the
scope
of the public interest, particularly because, as the respondent has
submitted, this claim holds major concerns for diabetics
who purchase
chocolates which do not comport with its diabetically friendly claim;
that is chocolates that are sugar-free.
To suggest further that
these issues are not ones which fall directly within the domain of
truth and public interest or fair comment
would be significantly
reduce the scope of consumer journalism. As a matter of course
consumer journalism raises
24
questions
such as one which is central to this case, namely whether a
particular foodstuff or other product is in accordance
with its
claims. There is little doubt that the issue of the nature of
the chocolates which are produced by the second applicant
is of
considerable public importance and commendably has been raised in a
number of publications.
Furthermore,
in this case persistent allegations about a product that is not what
it purports to be surely remains of public interest
and importance,
notwithstanding that the allegations have been made previously.
On
either of the defences the respondent has raised a justifiable
defence save for certain sentences which appear within the blog;
that
is sentences which have illocutionary force and which are assertions
of a kind which have the defamatory meaning as averred
by the
applicant. Only these statements should fall within the scope
of the law of defamation.
The
interesting question is what relief should now be granted. This
case has the added difference from the traditional dispute
which
faces Courts, which deal with the publication
25
of
a report in a newspaper or similar written publication. The
reason is that when dealing with a blog or other form of internet
publication, the offending passages can be deleted, leaving the
balance of the report in the public domain precisely because the
balance of the report does not breach the law of defamation and can
be preserved, pursuant to a commitment to freedom of speech.
I
accept that it might be argued that some people have saved the
earlier report on a computer, but they are not before this Court
and
this problem was never pleaded nor argued.
Accordingly,
in dealing with an internet publication, a different form of relief
is available under the circumstances.
Before
I grant the order which follows upon this reasoning I should add that
the attempt by the applicants to invoke the approach
adopted by
Willis, J
in
Herholdt v Wills
to which I have referred, cannot succeed. In that case what was
placed on Facebook were personal statements which was not
in the
public interest, and which were clearly directed adversely at an
individual. The question as to what possible interest
other
than prurience of members of the public could be shown in these
statements was not only raised by the learned judge but correctly,
in my view, he rejected the defences to find in favour of the
applicant. This is an entirely different case from the
factual matrix this Court. Central to this case is a product
which, it is alleged, does not stand up to the (illegible) claims
made on its behalf.
26
The
evidence put up by the applicants in justification, in particular the
report regarding the sucrose levels is exquisitely vague.
There is no basis by which it can be concluded that this constituted
a testing of the product’s claim to be diabetically
friendly.
The report by the municipality indicates that there was incorrect
labelling at some point, which necessitated a
relabeling. The
report by the South African Police Service is almost incomprehensible
and has absolutely no particular role
to play in the evaluation of
this case. Therefore absent two small passages, to which I
shall refer, there is no basis by
which this blog falls foul of our
law of defamation.
COSTS
There
is one other issue which I must deal with before setting out the
order, and that is the question of costs.
It
appears that the blog post was published in July 2015.
Applicants threatened an interim application in October 2015.
Notwithstanding this threat, a final launch occurred many months
later, that is on the 5
th
of May 2016, with the idea that it be heard on the 9
th
of May 2016. The matter did not enjoy a judicial audience until
the 12
th
of
27
May
2016. By then the respondent had employed counsel and an
attorney. On the 12
th
of May the matter was
postponed to a date in August 2016 with no interim relief and costs
to stand over. What happened is
that bringing the application
with no working days notice after a ten month delay was effectively,
in my view, an abuse of an urgent
procedure. Accordingly the
costs of the 12
th
of May 2016 must be awarded to
respondent. Given the finding to which I come I do not propose
to award any costs beyond this
issue.
In
light thereof the following order is made:
The
respondent is ordered to remove the following sentences form the
article titled “Daniel Walders Le Chocolatier chocolate
claims
are fraudulent and life threatening” from the website
www.whalecottage.com
or any other website or social media platform on which it might have
been published.
In
the first paragraph the sentence “his claims on the Le
Chocolatier chocolate slab range have been misleading and even
life
threatening to diabetics.”
In
the final paragraph of the article the line “it is clear that
Waldis is a fraud continuously looking for business opportunities
to
make money at the expense and even the health of consumers”.
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Respondent
is to be awarded the costs of the wasted hearing on 12 May 2016.
There is no other award as to costs.
DAVIS,
J