About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 167
|
|
Mdlekeza v Gallie (15490/2020) [2021] ZAWCHC 167; 2021 (4) SA 531 (WCC) (20 April 2021)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No:
15490/2020
Before
the Hon. Ms Justice Slingers
Hearing:
9 and 10 March 2021
Judgment
Delivered:
20 April 2021
In
the matter between:
MALIZOLE
DANIEL
MDLEKEZA
Applicant
and
MEGAN
GALLIE
Respondent
JUDGMENT
SLINGERS
J
[1]
On 23 June 2020
the University of Cape Town
(“UCT”)
published an article on the applicant which was intended to promote
his profile and views in respect of student development and
to boost
his consulting business. Secondly, the article was intended to
help raise awareness and funds to establish a bursary
fund for black
actuarial science students. On 24 June 2020 UCT posted the
following tweet through its Twitter account:
‘
UCT’s first black
South African actuarial science lecturer, Malizole Mdlekeza, said
formal and informal mentorship programmes
play a crucial role in
students’ development.’
[2]
Following this,
the respondent published the following tweets about the applicant on
her twitter account on 24 June 2020:
(i)
‘
Tsi, I got
sexually assaulted by this guy in 2012. He locked me in his
house in Plattekloof and tried to force himself on
me.
Thankfully I fought my out and ran to the neighbours and got them to
call my mom and the police got fetch me. He
refused to open
when they arrived. Sies.’ (
sic)
(ii)
‘
Lol, he
offered me a lift home because we were going in the same direction
and I had met him through mutual friends. He drove
past my stop
and straight to his house. Soze ndimlibale.’
(iii)
‘
We2.
Come what may from this. I really couldn’t care less.
I really have been quiet about this for way too
long.’
[3]
The respondent
tagged UCT and in her tweet.
[4]
On 4 August 2020
the applicant caused correspondence to be sent to the respondent
requesting a retraction of and an apology for
the offending tweets.
On 20 October 2020 a further letter was sent to the respondent
requesting that she remove the tweets
and apologise by close of
business on 22 October 2020. Neither letter received a response
from the respondent. On or
about 23 October 2020 the applicant
instituted application proceedings against the respondent wherein he
sought an order:
(i)
directing the
respondent to delete the above statements from her twitter account
within 24 hours;
(ii)
directing the
respondent to, within 24 hours publish and pin an apology pertaining
to the applicant on her twitter account keeping
it active at all
times, allowing comments and retweets for at least 30 continuous
days;
(iii)
finding the respondent
liable to pay the applicant’s damages of R200 000.00,
which the applicant, in turn, would pay
to a charity of his choosing;
alternatively for the question of liability and/or quantum to be
referred to oral evidence; and
(iv)
directing the
respondent to pay the applicant’s costs on an attorney client
scale, including the cost of counsel.
[5]
The respondent
instituted a counterclaim against the applicant wherein she claimed
an amount of R250 000.00 for pain and suffering
in the form of
severe shock, grief and suffering.
THE COUNTERCLAIM
[6]
Although the
respondent’s tweets recorded her alleged sexual assault as
having occurred in 2012, she conceded that it occurred
in 2014.
Her counterclaim was instituted on 23 November 2020, as part of her
defence in response to the applicant’s
claim against her.
[7]
Given that a
period of six years had transpired between the alleged incident and
the institution of the counterclaim, the applicant
challenged that
the respondent’s claim had prescribed.
[8]
Section 11
of
the
Prescription Act 68 of 1969
provides as follows:
‘
Periods
of prescription of debts
The
periods of prescription of debts shall be the following:
(a)
thirty years in respect of-
(i)
any
debt secured by mortgage bond;
(ii)
any
judgment debt;
(iii)
any
debt in respect of any taxation imposed or levied by or under any
law;
(iv)
any
debt owed to the State in respect of any share of the profits,
royalties or any similar consideration payable in respect of
the
right to mine minerals or other substances;
(b)
fifteen
years in respect of any debt owed to the State and arising out of an
advance or loan of money or a sale or lease of land
by the State to
the debtor, unless a longer period applies in respect of the debt in
question in terms of paragraph (a);
(c)
six
years in respect of a debt arising from a bill of exchange or other
negotiable instrument or from a notarial contract, unless
a longer
period applies in respect of the debt in question in terms of
paragraph
(a)
or
(b)
;
(d)
save
where an Act of Parliament provides otherwise, three years in
respect of any other debt.
[9]
In
Truter
and Another v Deysel
[2006] ZASCA 16
;
2006
(4) SA 168
(SCA), the Supreme Court of Appeal held that in respect of
claims based on delict, prescription begins to run from when the
creditor
has knowledge, or is deemed to have knowledge, of the entire
set of facts which he/she has to prove in order to succeed with his
claim against the debtor. Based on the respondent’s
answering affidavit,
[1]
the respondent had knowledge of the entire set of facts required to
prove her claim against the applicant in 2014. Therefore,
prescription would have commenced running in 2014, with the claim
expiring in 2017.
[10]
The Prescription
in Civil and Criminal Matters (Sexual Offences) Amendment Act 15 of
2020
(“Act 15
of 2020”)
that came into operation on 23 December 2020 amended
section 12(4)
of
the
Prescription Act to
read as follows:
‘
Prescription shall not
commence to run in respect of a debt that is based on the alleged
commission of (a)any sexual offence in
terms of the common law or a
statute; and (b)offences as provided for in
sections 4
,
5
,
6
,
7
and
8
(1) and involvement in these offences as provided for in
section 10
of the Prevention and Combating of Trafficking in Persons Act, 2013,
during the time in which the creditor is unable to institute
proceedings because of his or her mental or intellectual disability,
disorder or incapacity, or because of any other factor that
the court
may deem appropriate.’
[11]
The rule of law
dictates that the amendment effected by Act 15 of 2020 would only be
applicable to future matters and would not
apply retrospectively.
[2]
Therefore, as the respondent’s counterclaim was instituted
before the commencement of Act 15 of 2020, the amended
section 12(4)
of the
Prescription Act would
not be applicable thereto.
[12]
However, even if
the amended
section 12(4)
of the
Prescription Act was
applicable to
the respondent’s counterclaim, it would not have prevented the
prescription thereof as the papers filed on
record offer no
explanation nor any reasons why the respondent’s claim was
instituted six years after the alleged incident
giving rise thereto.
The court is, therefore, left without any explanation why the
counterclaim was not pursued sooner and
is left with the distinct
impression that had the applicant not instituted his claim against
the respondent, she would not have
proceeded with her claim against
him.
[13]
Consequently,
the applicant’s challenge that the respondent’s
counter-claim had prescribed was upheld and the counterclaim
was
dismissed with costs on 9 March 2021.
THE DEFAMATION CLAIM
[14]
On 25 November
2020 Hockey AJ granted an order directing the respondent to delete
the impugned statements within 24 hours.
However, the deletion
was not to be construed as an admission of liability by the
respondent. The remainder of the relief
claimed was postponed
to the semi-urgent roll on 1 February 2021. On 1 February 2021
the matter was postponed to 9 February
2021. On 9 February
2021, the matter was postponed to 9 March 2021 with the following
issues being referred to oral evidence:
(i)
in respect of the
applicant, the question of the truth of the statements published
about him by the respondent on Twitter on 24
June 2020;
(ii)
in the event that
the applicant’s points
in
limine
are not
upheld and the respondent’s counterclaim against the applicant
is not dismissed, the effect of the applicant’s
conduct on the
night in question on the respondent’s emotional and
psychological well-being; and
(iii)
the quantum of the
damages claimed. In respect of the respondent, this is
conditional on the applicant’s points
in
limine
not being
upheld and the court finding that she had a valid counterclaim
against the applicant.
[15]
The applicant
provided oral evidence in respect of the truth of the statements
published about him and the quantum claimed.
Initially the
respondent indicated that in addition to herself, she would be
calling a further two witnesses to give evidence in
respect to the
truth of the statements published. However, it transpired that
only the respondent testified in this regard.
THE
LAW
[16]
Before a
statement or image can be considered defamatory, it must have caused
probable impairment to the claimant’s reputation.
[3]
In determining whether or not a publication is defamatory, and
therefore
prima
facie
wrongful,
the court is required to undertake a two stage inquiry.
[4]
Firstly, the court has to determine the meaning of the publication.
In so doing, an objective test is applied and the
question is posed
what would a reasonable person of ordinary intelligence understand by
the publication, this would include what
a reasonable person may
imply from the publication. Secondly, the court has to
determine whether or not the meaning is defamatory.
In this
regard consideration is given to the manner and circumstances of the
publication in determining whether or not the publication
was
calculated to convey a libelas imputation
[5]
.
[17]
The message
conveyed by the plain wording of the tweets is that the applicant was
guilty of sexual assault. Secondly, it implies
that he is
sexual predator in that his attack on the respondent was
premeditated. The appellant had offered the respondent
a lift
which he used to get her to his house where he deprived her of her
freedom by preventing her from leaving the premises by
locking the
door in order to perpetrate a sexual assault on her.
[18]
The
respondent elected to publish the statements in the medium of social
media and described the incident in such terms as to convey
an
exaggerated version of events.
[19]
To be accused
of sexual assault and to be identified as a sexual predator in such
manner and circumstances can only be defamatory,
especially since at
the time of publishing this tweet the respondent had not pursued any
criminal charges or any other steps against
the applicant for a
period of six years. The manner and circumstances in which the
respondent elected to publish her tweets
served to accuse and convict
the applicant in the realm of social media without affording him an
opportunity of defending himself
or of challenging the allegations
against him.
[20]
It is trite
that there 5 elements to defamation. These are the (i)wrongful
(ii)intentional (iii)publication (iv)of a defamatory
statement
(v)concerning the applicant.
[6]
[21]
The applicant
need only establish, at the outset, the publication of a defamatory
matter concerning him. Once this is established,
it is presumed
that the statement was both wrongful and intentional. A
respondent will then have to set up a defence excluding
either
wrongfulness or intent to escape liability.
[7]
[22]
The
respondent testified that she thought about the content of the tweet
and drafted it in such a manner that it could be accommodated
within
the limited characters offered by tweeting. Thereafter, she
shared the draft with her friends in whose company she
was and asked
their advice in respect of whether or not she should post the tweet.
This included a friend who was a lawyer,
who informed her that there
could be consequences following the publication of the tweet.
After considering the matter, the
respondent proceeded to post the
tweets. Therefore, it is clear that the publication of the
tweet was intentional.
[23]
I turn now to
examine whether or not the tweet was wrongful. In doing so I
will examine the evidence given by the respondent.
[24]
The
respondent testified that she knew the applicant through mutual
acquaintances and that she had met him once before encountering
him
at the bar ‘
Neighbourhood’
on the night in question
.
She was with her
friends and he was with his. Her taxi was scheduled to leave at
21h30 and as she still had to walk to the
taxi rank she intended to
leave at 21h15. When she walked over to her friends to greet,
her friend known as Siya suggested
that the applicant lift her home
as he would be going in the same direction. The applicant
agreed to this proposal and as
they were all leaving the bar, he
suggested to her that they have one more drink at the bar. The
respondent agreed to this
proposal and the two of them proceeded to
have 1, 2, 3 shots of tequila. On the way home the applicant
missed the first turnoff
to her home. When this was pointed out
to him, he indicated that he would take the next one. However,
he missed that
turnoff as well. The applicant became insistent
that the respondent have another drink at his house, whereafter he
would
take her home, notwithstanding her insistence that she wanted
to be taken home. When they arrived at the applicant’s
residence he opened her car door and tugged her out and proceeded
inside. He closed and locked the door behind him, however
the
locking of the door appeared to be part of the action of closing the
door and not that he locked the door to prevent her from
leaving.
The applicant proceeded to the kitchen, grabbed a bottle of Jameson
and proceeded to drink from the bottle.
He then approached her
and tried to forcefully kiss her and pull her closer to him.
She managed to shrug him off her and
managed to get to the door which
she unlocked and then proceeded to run to the neighbour to ask him to
call the police and her
mother. The police arrived
approximately ten to fifteen minutes later and retrieved her bag from
the applicant through the
window as he refused to open the door for
them.
[25]
Approximately
a week after the incident she again encountered the applicant in a
social setting. Although he approached her,
she completely shut
him down. Thereafter, on a second occasion she again
encountered the applicant who waved to her.
She refused to wave
back to him.
[26]
The version
presented by the respondent in her tweets differs from her oral
evidence and does not accurately reflect what transpired.
The
applicant readily conceded that the year reflected in her tweets
incorrectly recorded the year as 2012 when it should have
been 2014.
Furthermore, it was not the applicant who offered to lift the
respondent home, on the contrary the initiative
for him to lift the
respondent came from the respondent’s friend and herself.
The respondent elected to describe the
incident in such terms to
exaggerate and embellish the events. A reasonable person of
ordinary intelligence would understand
the respondent’s tweet
to imply that the applicant had attempted to rape her and not that he
had tried to kiss her from the
contents thereof which include the
allegations that she was sexually assaulted, that she had to fight
her way out and that he had
locked her in his house. Similarly,
a reasonable person of ordinary intelligence would not understand
that the respondent’s
tweet to state that she managed to shrug
the applicant off. The wording and context of the tweet implies
that there was a
physical struggle put up by the respondent.
[27]
Based on the
respondent’s oral evidence, it cannot be said that the contents
of her tweets are truthful.
[28]
The
respondent justified her publication of the tweets on the basis that
she did so because she wanted to achieve social justice,
she wanted
to make people aware that she was sexually assaulted and what the
applicant was capable of and that she wanted an apology.
[29]
The
respondent was not clear how tweeting six years after the incident
would achieve social justice, especially within the context
that she
had not taken any steps within this period to hold the applicant
accountable for his actions. When questioned why
the respondent
elected to publish on a general social platform rather than to
contact UCT directly with her complaint and concerns
about the
applicant in light of her evidence that she wanted to achieve social
justice and to make people aware of what he was
capable of- she was
unable to provide an answer. The respondent could not rebut the
applicant’s evidence that he approached
her after the incident
to apologise (albeit for events that he recalled differently) but
that she had ignored him. On the
contrary, the respondent
conceded that when the applicant approached her after the incident,
she completely ignored him.
The respondent did not explain why
she did not demand or engage the applicant in respect of an apology
shortly after the incident
when he approached her but that six years
after the incident she was intent on obtaining an apology.
[30]
When deciding
whether or not the publication was lawful or not, the court has to
balance the constitutionally protected right of
dignity, including
the right to reputation with the right of freedom of speech.
[8]
In this balancing act, it is well-established that the onus falls on
the party who invites the court to perform this balancing
act to
establish his/her defence which in this case would be the
respondent. It is evident from the papers filed on record
and
the respondent’s oral evidence that she deemed the applicant to
be a person lacking good character and as such she determined
that he
was not entitled to have his reputation and character protected.
In her answering affidavit the respondent states
the following:
‘
In deciding whether my
tweets truly caused harm to the Applicant, the Court ought first to
consider whether the Applicant has a
character of an upstanding and
honest man that is worthy of protection and at risk of being defamed
bearing in mind the criminal
sexual assault charges against him under
number CAS 53/8/2020 at Maitland Police Station.’
[31]
It bears
mentioning that the criminal charge against the applicant was laid
during August 2020, after the respondent’s tweet
was published,
as is evident from the CAS number.
[32]
After
evaluating the papers and the oral evidence, I am of the view that
the respondent failed to discharge her onus of establishing
a defence
rendering the publication lawful. In the circumstances, I am of
the opinion that the tweets were wrongful, intentional
and of a
defamatory nature.
DAMAGES
[33]
In
determining the quantum of damages to be awarded to the applicant, I
am seized with an inherently difficult task which requires
me to make
a value judgment. In this determination, the court is cognisant
of the seriousness of the defamation, the nature
and extent of the
publication and the reputation, character and conduct of the
applicant and the motives and conduct of the respondent.
[9]
[34]
As stated
above, the respondent published that the applicant was guilty of
sexual assault and implied that he was a sexual predator.
At a
time of increased awareness of gender based violence and when the
general public is increasingly vigilant against it (rightfully
so),
the mere accusation of being guilty of sexual assault and of being a
sexual predator can ruin a person. In the circumstances,
it
cannot be denied that the defamation was materially serious.
[35]
The
respondent elected to publish the defamatory tweets on the platform
of social media. As a result hereof, the harm caused
by the
defamatory tweets are ongoing as they remain on the respondent’s
twitter feed and are continuously and repeatedly
being published,
read and commented on.
[36]
As a direct
result of the respondent’s tweets, UCT removed its original
posting promoting the applicant to the public.
The applicant
was also called in by UCT to discuss the matter. On 25 June
2020 UCT’s communication and marketing department
reported that
the allegations had been reported to the Office for Inclusivity and
Change and that UCT had made contact with the
respondent to work with
her and other relevant authorities. In fact, it was as a result
hereof that the respondent laid a
criminal charge against the
applicant. It was not done on her own initiative. The
applicant was informed that some
members of the faculty found the
allegations pertaining to him ‘
deeply
troubling’
and
an email was sent to all actuarial students offering them a range of
counselling services as some students may find the allegations
deeply
distressing. Students also expressed the view that in light of
the allegations against the applicant, they do not
wish to be
lectured by him nor do they want to take his class. The
defamatory tweets also negatively impacted on the applicant’s
consulting business causing interest therein by business and media to
cease. The story was also picked up by mainstream media
and
published in articles during June 2020, the nature and extent of the
publication and the reputation, character and conduct
of the
applicant and the motives and conduct of the respondent.
[37]
I have dealt
with the respondent’s reasons for publishing the tweet above.
Furthermore, the blasé approach of
the respondent to the
consequences of her tweets which was evident from her oral evidence
and her tweets itself cannot be ignored.
It is clear from the
respondent’s evidence that she was advised by her friends that
there would be consequences to her posting
the tweet, she
nevertheless proceeded to post same.
[38]
After taking
into account the seriousness of the defamation, the nature and extent
of the publication and the reputation, character
and conduct of the
applicant and the motives and conduct of the respondent, I am of the
view that a fair determination of damages
would be an amount of
R65 000.00.
COSTS
[39]
This matter
was originally set down for hearing on 25 November 2020. On
that day the respondent’s legal representative,
Mr Sebogodi
appeared with an instruction to only apply for a postponement and was
not properly briefed in respect of the merit
of the matter.
Although the respondent sought a postponement, she did not tender the
wasted costs occasioned thereby and
the matter was postponed to 1
February 2021.
[40]
On 28 January
2021 the respondent’s legal representatives caused
correspondence to be sent to the applicant’s legal
representatives wherein he advised that he had tested positive for
Covid-19 on 7 January 2021 and that he had a sick certificate
putting
him off duty until 27 January 2021. As a result hereof, he was
unable to prepare for the hearing nor was he able
to file the
respondent’s heads of argument and was seeking a postponement
of the matter. On the same day, the applicant’s
legal
representative advised that he would not agree to a postponement and
that a formal application for same would be required.
[41]
On 1 February
2021 Mr Sebogadi again appeared for the respondent. He advised
the court that he was merely a correspondent
in the matter on behalf
of Mr. K Kedijang and that he was again briefed to seek a
postponement. Notwithstanding the applicant’s
legal
representatives’ communication that he would not agree to a
postponement and that a formal application for a postponement
would
be required, no such application was forthcoming. The matter
was postponed to 9 February 2021 and the parties were
directed to be
ready to argue the issue of costs and to prepare a note thereon.
[42]
In the note
filed on behalf of the respondent the following is stated:
‘
The Respondent’s
legal representation is assisted by wise for Africa.org and an order
of costs against her will prejudice,
her and the interests of
justice. The order of the costs being stayed will not prejudice
either party and the Respondent
is a student and cannot afford the
legal fee.’
[43]
When the
matter was heard Mr Sebogodi was briefed to represent the
respondent. The note filed on behalf of the respondent
failed
to disclose why no formal application for a postponement was brought
nor any reasons why Mr Sebogodi could be briefed at
an earlier stage
to argue the matter. Furthermore, the submission, that the
respondent was a student and could not afford
the legal fees, was
made without any factual basis and was contradicted by the respondent
when she testified.
[44]
It is trite that
postponements are not merely for the taking
[10]
.
They have to be properly motivated and substantiated. The
respondent failed to grasp this.
[45]
In the
circumstances there is no reason why the respondent should not be
liable for the wasted costs occasioned on 25 November 2020
when the
matter was postponed to 1 February 2021. Furthermore, given the
respondent’s legal representative’s
approach evident in
his deliberate failure to bring a formal application seeking a
postponement when he knew as early as 7 January
2021 that he was
unable to prepare for the hearing on 1 February 2021 and was also
advised to do so, I deem that the wasted costs
occasioned by the
postponement on 1 February 2021 be costs
de
bonis propriis
against Mr. K Kedijang.
[46]
In the
circumstances, I find that the respondent defamed the applicant and
make the following orders:
(i)
the respondent is
directed to publish and pin the following apology on her twitter
account keeping it active at all times (i.e.
not deactivate the
account or make it private), allowing comments and retweets, for at
least 30 continuous days:
‘
On 24 June 2020, in
response to an official @UCT_News article, I posted tweets about Mr.
Mdlekeza. The contents of those tweets
were not true.
My tweets were reported on by
the mainstream media and they were widely read and retweeted.
I published these tweets with
the knowledge that they would cause harm and it was wrong of me to do
so.
I acknowledge that my tweets
caused Mr. Mdlekeza harm, in both his professional and private life.
Mr tweets have negatively
affected his ability to teach and mentor at
UCT and have negatively impacted on his professional standing as an
actuary and as
a leader in his professional field.
I apologize to Mr Mdlekeza for
my actions and the harm I have caused him.’
(ii)
the respondent is to
pay the applicant an amount of R65 000.00 within 60 days after
this order, which amount the applicant
shall pay to a charity of his
choosing;
(iii)
save for the costs
occasioned by the postponement of 1 February 2021, the respondent
shall bear the costs of this application, which
costs shall include
the costs of postponements and the costs of counsel;
(iv)
the costs occasioned
by the postponent of 1 February 2021 shall be costs
de
bonis propriis
against Mr. K Kedijang.
H
Slingers, J
20
April 2021
[1]
Paragraph 8 of the answering affidavit, pg 100 of
the record
[2]
Kaknis v Absa Bank Ltd and Another
2017 (4) SA 17
(SCA) at para 37
[3]
Le Roux and Others v Dey (Freedom of
Expression Institute and Restorative Justice Centre as Amici Curiae)
2011 (3) SA 274
(CC)
[4]
Ibid
at [48]
[5]
Ibid
[39-42]
[6]
Ibid
[84]
[7]
Ibid
[85]
[8]
Le Roux and Others v Dey (Freedom of
Expression Institute and Restorative Justice Centre as Amici Curiae)
2011 (3) SA 274
(CC) at [123]
[9]
Tsichlas v Touch Line Media (Pty) Ltd
2004 (2) SA 112
(W) at [120-121];
Mogale
and Others v Seima
(575/2004) [2005]
ZASCA101;
2008 (5) SA 637
(SCA) (14 November 2005)
[10]
National Police Service Union v Minister of
Safety and Security
[2000] ZACC15;
2000 (4) SA 1110
(CC)