THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 109/22
In the matter between:
MEDIA 24 (PTY) LTD APPELLANT
and
NKOSINATHI NHLEKO FIRST RESPONDENT
DR NONCEBO MTHEMBU SECOND RESPONDENT
Neutral citation: Media 24 (Pty) Ltd v Nhleko & Another (Case no 109/22)
[2023] ZASCA 77 (29 May 2023)
Coram: NICHOLLS, GORVEN, HUGHES and GOOSEN JJA and
UNTERHALTER AJA
Heard: This appeal was disposed of without an oral hearing in terms of
s 19(a) of the Superior Courts Act 10 of 2013.
Delivered: 29 May 2023
Summary: Civil procedure - application for leave to amend plea - dismissal
based on wrong principles of law - appeal upheld.
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ORDER
_____________________________________________________________
On appeal from: Western Cape Division of the High Court, Cape Town
(Thulare J, sitting as court of first instance):
1 The appeal is upheld.
2 The order of the high court is set aside and replaced with the following:
‘1 The applicant is granted leave to amend its plea within ten days
of this order.
2 The respondents are liable to pay the costs on an attorney client
scale.’
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JUDGMENT
_____________________________________________________________
Nicholls JA ( Gorven, Hughes and Goosen JJA and Unterhalter AJA
concurring)
[1] This appeal concerns the dismissal of an application to amend a plea.
On 27 November 2016 , Media 24 (Pty) Ltd (Media 24) published an article
on the front page of the City Press Newspaper, under the heading ‘Nhleko’s
R30 m blessing.’ The article stated that Mr Nkosinathi Nhleko (Mr Nhleko),
who was the Minister of Police at the time, had been ‘implicated for signing
off millions of rands for work done by his love interest – and for going all out
to reinstate charges against Ipid head Robert McBride.’ The love interest was
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a reference to his partner, Dr Nomcebo Mt hembu (Dr Mthembu) , who
according to the article, ‘scored more than R30 million for providing services
which the police ministry officials claim that they could have received for
free.’ The article stated that the police ministry paid R30.8 million to Indoni,
the non-profit organisation run by Dr Mthembu.
[2] Mr Nhleko and Dr Mthembu sued for defamation claiming R15 million
each, for damages which they allegedly suffered. Media 24 admitted the
publication of the article but denied the meaning attributed to it , and that it
was defamatory. In the alternative , Media 24 pleaded that it had established
the defences of (a) truth in the public interest; (b) protected comment; and
(c) reasonable publication.
[3] In response to the plea , Mr Nhleko and Dr Mthembu filed a rule 30A
notice, in terms of the uniform rules of court , objecting to the plea on the
grounds that it constituted a bare denial , it was evasive , and did not clearly
and concisely state the material facts on which Media 24 relied for its defence.
It was further alleged that the plea did not answer the point of substance and
did not comply with the uni form rules of court. I n order to address some of
the objections, Media 24 filed a notice of intention to amend its plea. Again ,
an objection was raised in which it was asserted that the proposed amendment
was an ‘elaborate lie with the sole purpose of misleading the court’ and was
an ‘insult to the integrity and intelligence’ of Mr Nhleko and Dr Mthembu. It
was contended that Media 24 had failed to jus tify statements in the article.
This led Media 24 to bring an application for leave to amend. Thi s was
opposed.
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[4] The Western Cape Division of the High Court, Cape Town (high court),
per Thulare AJ, after an extensive analysis of the pleadings and the objection,
stated that the case was premised on two points, namely the role, if any, played
by Mr Nhleko i n regard to the payment of more than R30 million , and the
payment itself. The court then went on to conclude that ‘[t]his mast of direct
involvement of [Mr Nhleko] hoisted in the article, in giving Indoni the work,
appear to have been blown away by the winds of a change of front by [Media
24] in its plea .’ The high court found that t he ‘bleeding edge’ of the article
was the payment to his love interest, whilst the ‘chase’ was the payment and
Media 24 had failed ‘to cut to the chase’.
[5] The high court gave the following order:
‘(a) Leave to effect the amendment to the Applicant’s plea on the furnish ed particulars of
amendment as envisaged in this notice of motion is not authorized.
(b) The Applicant is granted leave to make consequential adjustments to the furnished
particulars of amendment of the plea as envisaged in this notice of motion.
(c) The Applicant is granted leave to deliver its consequential adjusted particulars of
amendment of the plea within twenty (20) days of this order.
(d) The Applicant to pay the costs, including costs occasioned by any consequential
adjusted particulars of the plea.’
[6] The high court granted leave to appeal to this Court. Mr Nhleko and
Dr Mthembu have not participated in the appeal. Their attorneys, as did those
of Media 24, indicated that they had no objection to the matter being disposed
of in terms of s 19(a) of the Superior Courts Act 10 of 2013 , without an oral
hearing.
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[7] In its judgment granting leave to appeal to this Court, the high court
stated that the substantive issue was whether Media 24 could plead a bare
denial in a defamation case involving an admitted publication of an alleged
payment in the first page headline of a leading Sunday paper. It explained its
reasoning thus in paragraphs 11 and 12:
‘In my view, a bare denial should not be a form of gatekeeping by the applicant, a mass
media player in the arena of public communication. In the circumstances, there is a duty to
publicly justify a mass publication, for the applicant to remain a trusted and legitimate
source of public information and an authoritative source of information. Media 24 shoul d
not be allowed to be a fundamental problem for society by being what appears to be a
springboard and source for the scope, spread and reach of misinformation, especially
against the State or its functionaries. There is no doubt that reports about corrupt ion,
especially by our political leaders, affect the confidence of our people in the political
system and our democracy. Fake news about our democratic institutions and players are a
threat to the stability of our nation and should not be tolerated by all peace loving South
Africans and their friends.
It is necessary that it becomes clear whether Media 24 is not party of any group who thrive
on fake news for ideological purposes and the advancement of a political campaign and
agenda, as the respondents har bour. When the time to account for its headlines comes,
Media 24 cannot become voiceless in substance. Media 24 cannot be a utility that control
the view of the people [of] South Africa by facilitating what appears to be misinformation
and play dumb when c onfronted. To curb fake news and misinformation, transparency is
not only a need but a mandate. Those reported on, and those reported to, have a legitimate
expectation to the data upon which the applicant relied when it reported on the country’s
leader. This is simply because democracy envisages engaged participation by informed and
thoughtful voters. The applicant cannot evade judicial scrutiny by refusing the judicial light
to streak in its dark corner of fact checking.’
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[8] The high court misunderstood what a defendant in a defamation action
is required to plead. In the first instance, it should be understood that it is not
the article itself which has to be justified, but the defamatory statements that
are alleged to have been published. The first hurdle a defendant has to
overcome is whether the words attributed to it are defamatory, and then only
those portions of the article that are alleged to be defamatory need to be dealt
with in the plea . A defendant has no duty to plead to allegations that do not
form part of the pleaded defamation. Once a publication is shown to be
defamatory, a presumption of wrongfulness then arises and the onus is on the
defendant to rebut it by showing that it s publication was justified. A media
defendant who cannot establish the truth of a defamatory statement, may rely
on the reasonableness of the publication as a defence.1 The defendant must
allege and prove that it had reason to believe the truth of the statement and
took reasonable steps to verify its correctness. Therefore, its publication was
reasonable in the circumstances.
[9] Whether a plea constitutes an impermissible bare denial will depend
upon what averment is being dealt with. A plea to what is alleged to be
defamatory will require no more than a denial unless a special meaning or
sting is alleged. A defence of justification may require some elaboration
because where the onus rests on a party it must allege the facts on which the
defence rests.
[10] In its unamended plea, Media 24 denied that the statements had the
defamatory meaning attributed to them; alternatively it put up the justification
1 National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA); [1998] 4 All SA 347 (A).
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that the article was true or substantially true; that the publication thereof was
in the public interest; that the article was published in the good faith belief of
its truthfulness; and, that it was reasonable to do so . Media 24 was satisfied
that no more was required, but introduced the amendment in order to obviate
any interlocutory skirmishes that may arise as a result of the not ice of
objection. It therefore sought to amend its plea by amplifying the denials and
fleshing out its original plea.
[11] The high court characterised the inquiry as one in which Media 24 had
to justify the allegations in the article and whether it had run a front page story
relying on ‘ false Ministry corridor s’ gossip’ regarding an alleged payment.
The high court formulated the question thus: ‘Are you a gossip monger driving
publicity stunts o r a professional news reporter?’ 2 It concluded that from
Media 24’s plea ‘. . . one does not know if it had or did not have any money
trail to ground its truth.’ Therefore , it held that Media 24’s case was
ambiguous, vague, evasive and lacking clarity and the amended plea did not
facilitate the proper ventilation of the true dispute between the parties.
[12] Media 24 was required to plead to allegations made in the particulars
of claim. It was not obliged to verify or justify the allegations made in the
article that were not pleaded to constitute the defamation . The amended plea
made various admissions as well as providing details of the denials and the
basis for them, where appropriate . Where the particulars of claim contained
allegations which were irrelevant to the main issue, a bare denial of these was
not objectionable.
2 This was a translation in the high court judgment of the Setswana expression: ‘O Maratahele le kgotsa o
Mmegadikgang’.
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[13] Instead of focusin g on the pleaded case before it, the learned judge
based his findings on his personal interpretation of the article and what he
believed the issue should be, namely the role of the media in a democratic
society. He concluded that the judiciary has ‘a responsibility to seek solutions
which enhance a conversation, o r information exchange between equals, in
pleadings before them . . .’. This being so, ‘a bare denial should not be a form
of gate keeping a mass media player in the arena of public communication’.
To grant the amendment would therefore be ‘highly prejudicial’ to Mr Nhleko
and Dr Mthembu whose position would be made worse by the pro posed
amendment as they would be no closer to determining what role Mr Nhleko
played in facilitating the R30 million payment to Indoni.
[14] It is difficult to understand how there could be any prejudice to the
plaintiffs by the proposed plea, which merely sought to amplify the denials in
the original plea. Again, this finding was based on an incorrect understanding
of the defences to a defamation action and the nature of a plea. The allegations
concerning Mr Nhleko’s role in facilitating the payment to Indoni, are not
allegations in the particulars of claim to which Media 24 was obliged to
respond.
[15] The far reaching utterances of the high court on the role of the media
and the judiciary are completely misplaced. By pleading a bare denial to the
allegation of defamation , in these circumstances, the litigant wa s not
attempting to ‘evade judicial scrutiny’. It is at the trial that these denials will
be tested, not in the pleadings.
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[16] In coming to its conclusion to refuse the application for amendment,
the high court paid scant regard to the purpose of pleadings, which is to define
the issues between the parties. Because the primary role of pleadings is to
ensure that the real dispute between litigants is adjudicated upon, courts are
loathe to deny parties the right to amend their pleadings, sometimes right up
until judgment is granted. An exception is made when the amendment is mala
fides or will result in an injustice which cannot be cured by a costs order. 3
Thus, the power of a court to refuse amendments is confined to considerations
of prejudice or injustice to the opponent.
[17] Even where an amendment has led to the re-opening of a case, this has
been allowed where the reason was the state of the pleading rather than
deliberate conduct on the part of an applicant. 4 Prejudice has been found to
occur only in situations where the opponent is worse off th an he was at the
time of the amendment, for example the withdrawal of an admission can have
a detrimental effect in certain circumstances. The fact that an amendment may
lead to the defeat of the other party is not the type of prejudice to be taken into
account.5 Here the court refused the amendment because it did not go into
sufficient detail. That could only be a ground for objection if it fails to comply
with the rules as to pleadings or is otherwise excipiable.
3 Moolman v Estate Moolman 1927 CPD 27 at 29 . This principle has been confirmed in numerous cases
including the constitutional court in Affordable Medicines Trust and Others v Minister of Health and Another
[2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) para 9.
4 Myers v Abramson 1951(3) SA 438 (C) at 450A-B.
5 GMF Konstrakteurs EDMS (BPK) and Another v Pretoria City council 1978 (2) SA 219 (T) at 226D; [1978]
2 All SA 407 (T) at 411 ; Trans Drakensberg Bank Ltd (Under Judicial Management) v Combined
Engineering (Pty) Ltd and Another 1967 (3) SA 632 (D).
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[18] It is not for the courts to impose their views as to the true nature of the
case. It is the pleadings , and the pleadings alone , that define and determine
the issues upon which the court will adjudicate. The sole requirement of the
application for amendment was to ensure that the plea advanced encapsulates
the defence to the particulars of claim, not to the article itself. As has often
been stated by our courts, it is the facta probanda that must be pleaded, not
the facta probantia. A litigant is not required to prove its case in the pleadings,
nor to describe the evidence to be led, but to state the material facts on which
it relies and which it intends to prove at the trial.
[19] Trial courts are reminded that an adherence to the fundamental
principles of pleadings should be observed and parties should be allowed to
ventilate their case as they determine , within the bounds of these well
understood principles.
[20] It is necessary to comment on the appealability of the order. In the first
place, this order is predicated on entirely incorrect principles of law and
cannot be allowed to stand. In the second place, it is not clear whe ther the
order is enforceable or indeed what would constitute compliance with the
order. The order requires Media 24 to answer a different case from that which
was pleaded and to address all egations which were contained in the article
rather than the particulars of claim. To refuse the application to amend would
deprive Media 24 of the oppo rtunity of advancing its defence and as such
would be final in effect. Such an outcome would be entirely at odds with
parties’ right to litigate on the issues as they see them, and not those identified
by the court.
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[21] As regards the costs of the application for amendment, these are usually
borne by the applicant. In this matter , Media 24 sought punitive costs on an
attorney own client scale on the basis that the objection was reckless and
vexatious. It is evident that some of the allegations in the notice of obje ction
went beyond what is reasonably acceptable. For example, it was alleged that
the application to amend had been sought to mislead the court, the public and
the plaintiffs; that Media 24 had lied to the court and was using the amendment
to defeat the en ds of justice and was using th e rules of court as a ‘cover up’
for its unlawful conduct and ‘ dirty trick s campaign’; it was an attempt to
‘bully the plaintiffs into abandoning their claim’. The proposed amendments
were described as ‘a desperate attempt to clutch on straws’ in an attempt to
justify its unlawful conduct. These intem perate and ill -founded remarks are
deserving of censure. That they appear to have secured some unwarranted
endorsement from the high court does not render the conduct any less
problematic. In the circumstances , a punitive costs order is justified against
the respondents in the high court application . Since the respondents did not
oppose the appeal, it is appropri ate that no costs order be ma de in respect of
the appeal.
[22] The following order is made:
1 The appeal is upheld.
2 The order of the high court is set aside and replaced with the following:
‘1 The applicant is granted leave to amend its plea within ten days of this
order.
2 The respondents are liable to pay the costs on an attorney client scale.’
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________________________
C HEATON NICHOLLS JA
JUDGE OF APPEAL
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Appearances
For appellant: S Budlender SC
Instructed by: Willem De Klerk Attorneys, Johannesburg
Honey Attorneys, Bloemfontein