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[2021] ZAWCHC 273
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Booysen v Major and Another (5043/2021) [2021] ZAWCHC 273 (31 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 5043/2021
In
the matter between:
Melvin
Booysen
Applicant
And
June
Dolly
Major
Respondent
Women's
Legal Centre
Trust
Amicus Curiae
JUDGMENT
ELECTRONICALLY DELIVERED ON
30
AUGUST 2021
Baartman,
J
[1]
On
25
March
2021,
Hockey
AJ
issued
a
rule
nisi
[1]
restraining
the
respondent from
'directly
or
indirectly
posting
any
information
whatsoever regarding the applicant on any and all social media
platforms' among others. This is the return date of that
rule
nisi.
[2]
The respondent has alleged that the applicant raped her in 2002. She
went
public with her allegations in 2016. The allegations have been
in the public domain since that time. In March 2021, the respondent
posted another post that gained considerable traction and prompted
the applicant to launch the urgent application.
[3]
The applicant's version is that he has been a priest in the employ of
the Anglican Church
(the Church)
since 1998. In 2001, the
respondent was a student at the Transfiguration College in Makhanda,
training to became a priest in the
Church. The applicant accompanied
the respondent to the college to assist with settling in. Mark
Andrews, a mutual friend, also
went along. The respondent
subsequently qualified as a priest and was appointed in Cape Town.
They remained friends. In 2016, the
applicant heard from a journalist
that the respondent had laid rape charges against him. He was
shocked. On 19 April 2016, the
prosecution declined to prosecute. On
11 August 2020, the applicant learnt that the respondent had laid
charges against him with
a division of the Church charged with
investigating all forms of abuse in the Church. The applicant
understood that both parties
to the complaint had to keep all
relevant information secret until certain factual findings had been
made in the enquiry. On 12
March 2021, the applicant learnt from
'various acquaintances that there was a video on Facebook in which
the Respondent "named
me'". Despite a request to remove the
post, the respondent posted a second video in which she repeated the
allegations.
[4]
It is against that background that the applicant alleged that he has
established
a clear right as follows:
'29.
As a Priest I am in a position of trust to both the Anglican Church
of South Africa, as well as my parishioners. I am required
to provide
moral leadership and guidance and my standing in the community is
directly linked to the position that I hold. This
trust is reliant on
my good name....
32
The Respondent has been very vocal in her claims that she has been
wronged by the Church and by "a Priest" for approximately
two years. This included a protest outside the residence of the
archbishop in 2020. I believe that her decision to now publish
my
name, before a decision has been made to convene a tribunal is
malicious and intended to destroy my good name, reputation and
possibly my livelihood.
33.
I am required, in my position as a Priest, to provide pastoral care
to parishioners who have been the victims of abuse. If my
parishioners come to believe that I am in fact a rapist, I will be
unable to perform this function.
25.
I specifically deny that I ever raped or attempted to rape the
Respondent. Her claims are untruthful and clearly intended to
harm my
reputation.
37.
I submit that the Respondent is bound by canonical law and by
agreement not to post anything which breaches the confidentiality
of
the process that has been initiated by the Anglican Church.'
[5]
In his founding papers, the applicant further alleged that the posts
have
'and is causing me irreparable harm' in that:
'42.1
The spreading of false and defamatory allegations about me …it
is damaging my reputation, good
name and standing in the community;
and
42.2
The Respondent's incitement of others to re-publish the defamatory
statement is further damaging
my reputation, good name and standing
in
the
community and is humiliating me, while I remain bound by the rules
governing the process initiated by the respondent through
the
Anglican Church to maintain confidentiality until the bishop gives
permission otherwise.
42.3
The two videos posted by the Respondent on social media have been
viewed by over 18 000 people,
spreading very quickly in my community
and gaining media attention... '
[6]
The applicant further alleged that he had no 'other remedy' and that
the matter was urgent because it 'is
unlawful and is causing a
genuine disruption to my life, activities, ability to earn an income,
and the activities of my family'.
[7]
At the hearing, the respondent was unrepresented. She obtained legal
representation
after the hearing and filed her answering affidavit on
24 June 2021. The respondent's version is that the applicant raped
her in
Makhanda in 2002 when they were there to find an alternative
school for her son. She wanted to report the matter to the police but
a bishop in the Church persuaded her not to in order to protect the
Church. After her ordination, she again wanted to report the
matter;
however, this time a bishop at Table View prevented her by calling
for obedience to the 'oath of canonical obedience'.
The respondent
considered herself bound by that oath - apparently, an oath taken at
the time of becoming a priest. In 2016, the
respondent went on a
hunger strike and disclosed that the applicant had raped her. The
relationship between the respondent and
the Church became strained.
Initially, she planned to relocate to Australia, but the Church
reneged on an agreement to assist in
that process. She resigned and
ended up in a shelter.
[8]
Annexed to the respondent's affidavit is a post, dated 7 April 2017,
from
the which the following appears:
'Justice
for Rev. June Dolley Major and for All Victims/Survivors of abuse
The
Anglican Church of Southern Africa have for many years covered up the
abuse of women and boys at the hands of its clergy.
…
Today,
I take a stand for myself and for all other victims. I take a stand
for that young lady, who is an Anglican herself, who
is a beauty
therapist. A young life ruined because a clergy person took advantage
of her while she was giving him a massage. A
young life ruined. He
knows who he is, so do I.
Today,
I speak out for all Rev. Melvin Booysen's victims. There are many
women out there whom he took advantage of, not just me
, but they
are too afraid to speal out. I ask each one of them to come forward,
do not be afraid. RAPE is RAPE, even when the rapist
is a priest. For
too long male clergy are using the church to find their next victim.
…
After
my hunger strike, Archbishop Thabo silenced the whole Anglican
community in Cape Town, also with a letter. A letter that was
read
out in every church, stating that they are not to engage with me.
When
I laid criminal charges against Rev. Melvin Booysen,
the docket
disappeared. Took a long while for the statement to be taken again,
then there was a problem because somethings were
missing. I remember
phoning Grahanstown SAPS and being told that I must remember
archbishop Thabo is well loved there.
When
the detective came to see me, he told me that when he arrived at rev.
Melvin's church to take his statement, bishop Garth and
his legal
team was talking to Rev. Melvin.
The
detective told me that he worked on many rape cases and he knows that
Rev. Melvin is guilty and if it was up to him, he would
put him at
the back of the van and drive him to prison in Grahamstown.
But
it was not up to the detective. I phoned SAPS and was told that the
file came back from the courts and they decided not to proceed.
How
are rape victims and victims of domestic violence protected'
[9]
Therespondent annexed 2 further posts to her affidavit, dated 28 June
2016, from which it is apparent that she alleged that the applicant
is the cause of her pain and suffering while he continues to
be a
priest. A response post, dated 22 May 2016, reads as follows:
'Got
to church today and a letter from the archbishop [was] read about the
situation... After the letter, Fr Joshua announced Melvin
Booysen as
the accused.'
[10]
The respondent said that she had received approximately 200 messages
of support and annexed a few. One of those
provides as follows:
'Good
evening ... there are many of us who are silently supporting you and
your fight ... My parents belong to the church and years
ago Melvin
Booysen was the acting priest. He left their parish ... and was
transferred... after he had an adulterous relationship
with the
married secretary of the parish'.
[11]
I refer to one more response from which the following appears: 'Hi
June
I'm
still perplexed why parishioners who have personal experience of
Melvin Booysen's behaviour still prefer to talk about it hushed
tones. Just from listening to my immediate family it is clear that
this guy is a serial abuser and was not above letting his predatory
behaviour affect even his so-called pastoral duties. I now hear
stories of him during a visit to a sick, elderly relative displaying
complete disrespect to the ailing relative but openly flirting with
her teenage female neighbour. On another occasion loses complete
interest in a patient he was meant to come pray for as he pursues an
"attractive" young woman with complete disregard
[for] the
grieving family who invited him to the house...
The
things I hear about this guy is ghastly and in any other context
would have led to an immediate investigation at least.'
[12]
On 24 September 2016, the respondent wrote an open letter to
Archbishop Thabo Makgoba, Bishop
Garth Counsel! and all clergy in the
Church. The following appears from that letter:
'It
is 01h54 now and I cannot sleep. Today is the anniversary of my
ordination, twelve years as a deacon and eleven years as a priest.
... Twelve years later, instead of being happy at my anniversary of
my ordination, I am sad instead.
I
trusted Bishop Garth that day when we sat in his office and talked
for hours. The one day, I thought that for once he actually
heard me
and understood my pain.
…
Now,
I'm sitting in another province with complete strangers. Forced to
leave my home town in search of work. Forced to live in
a shelter
because I cannot afford a place of my own....
The
detective tells me that when he went to Rev. Melvin Booysen, that
Bishop Garth was there with a legal team. Also when he went
to the
witness the next day, Bishop Garth was there with the legal team
again.
…
I
didn't understand why everyone is quiet, why they protect Rev.
Melvin, even though he has a reputation...
I
forgive Rev. Melvin Booysen for trying to rape me. I forgive everyone
who knew I was suffering and did nothing to help me…'
[13]
On 8 March 2019, the respondent uploaded another post in which she
lamented the fact that 'the
priest who raped me, continues to
minister.' She states that she 'mentions the Applicant by stating
#RevMelvinBooysen'.
[14]
On 22 October 2019, the respondent uploaded another post in which the
applicant is referred to
as #RevMelvinBooysen; in addition, his
photograph was annexed to the post. A photograph depicting a man, but
with the face blurred,
forms part of that annexure to the
respondent's affidavit. The following appears from that post:
'South
Africa has a very high rate of Rape...
Our
communities make it that we do not report rape....
People
say she looked for it, see how she's dressed, she was drunk, she
provoked him, what was she doing in a bar or night club
or walking
around that time of night...
My
rapist, whose picture is attached, continues to minister. Communities
and the hierarchy of the Anglican Church of Southern Africa,
empowers
him.
…
I
was asked by the detective what pantie I was wearing. I was in bed,
behind a closed door, I did NOT give him the right to rape
me, my
panties has NOTHING to do with it. I was told that it is ATTEMPTED
RAPE as he did NOT EJACULATE inside of me, for years,
I believed it.
I No longer believe it, as he PENETRATED me without my consent.'
[15]
The applicant, in response to the posts put up in support of the
respondent's allegation that
the posts had been around since 2016,
and therefore that he had no basis to approach the court on an urgent
basis, said the following:
'3.1
The Respondent lists all the occasions prior to me launching this
application where she posted my name on social media, alleging
either
that I raped her or attempted to rape her, as well as various other
defamatory allegations.
3.2
The mere fact that allegations of a defamatory nature have been
posted in the public domain does not change the nature of the
posts
or the allegations.
…
9.
I submit that I have made out a case for urgency. The publications by
the Respondent were viewed and shared and every day that
the
Respondent is not interdicted to publish defamatory statements about
me, the impact of these statements multiply exponentially.
…I
became aware of allegations against me in 2016 when I was approached
by the SAPS to make a statement, which I did. I
deny that there are
"facts" to be aware of as I am not guilty of any conduct
alleged by the Respondent.
I
have not been active on
social media and have seen some newspaper articles in 2017 containing
the allegations against me, however
none of these newspapers printed
my name. I had heard there were some social media posts where the
Respondent had used my name,
but at the time I was not aware that it
was possible for me to interdict her from doing this
. When the
Respondent published her video on 12 March 2021, this attracted more
attention in social media, and impacted on me as
described in my
founding affidavit. This is the reason why I sought legal advice and
launched this application.' (own emphasis)
[16]
In his founding affidavit, the applicant alleged that he had learnt
about the complaint against
him when a journalist contacted him.
However, in reply, he said that he had become aware of the
allegations when members of the
South African Police Services
(SAPS)
contacted him. In his replying affidavit, contrary to his
founding affidavit, the applicant admitted that he was aware of the
social
media posts naming him as the respondent's rapist back in
2017. At that stage, he had seen newspaper articles referring to the
allegations but without naming him. However, he 'had heard of the
social media posts' and conveniently was vague about when this
was. I
infer from the paragraph that it was also in 2017. He did not
disclose this to the court seized with the urgent application.
Instead, he based his need for urgent relief on the more recent
posts, thereby creating the impression that he had approached court
shortly after he became aware of the posts. This is a serious act of
misleading the urgent court.
[17]
Similarly, the applicant misled the court by alleging the following:
'32
The Respondent has been
very vocal in
her claims
that she has been
wronged by the Church and by "a Priest"
for approximately two years
. This included a protest outside the
residence of the Archbishop in 2020. I believe that her decision to
now publish my name, before
a decision has even been made to convene
a tribunal is malicious and intended to destroy my good name,
reputation and possibly
my livelihood.' (my emphasis)
[18]
The applicant knew that the respondent had been 'vocal' for many
years. not two as he suggests
in the passage quoted above. The
applicant has been economical with the truth. Ms Myburg, the
applicant's counsel, submitted that
the respondent should in her
posts state that she alleges that the applicant raped her instead of
that he raped her. It is an astounding
proposition that the
alleged
rapist should have editorial rights over his alleged victim's
narrative. As indicated above, the respondent alleged that
the
applicant had raped her in 2002. Since then, she had named him, laid
charges with the SAPS and made many requests to the Church
to
intervene; she went on hunger strikes and has become a champion for
survivors of rape. As indicated
above, her
social media audience has grown from 200 to
18 000
since she first named her alleged rapist in 2016. The Church
established a unit to deal with sexual complaints from its employees
and members in 2019. The respondent lodged her complaint with that
unit in 2020, which complaint is under investigation. That process
will be completed on 14 September
2021 when
the tribunal is expected to deliver its finding. It has been a long
and tortuous road to the hearing for the respondent.
That context is
important
[2]
and also
that the applicant knew about the posts since 2017. The Women's Legal
Centre Trust was admitted as
amicus
curiae
in
this matter and made written and oral submissions from which the
following appears:
'20.
One in three women in South Africa is raped. Violence against women
remains one of
the greatest barriers to women's civil, political,
social, economic, and cultural rights. These human rights violations
prevent
women from participating in society as full and equal beings.
21.
Given the serious threat to the physical safety, bodily integrity,
dignity and
equality of women, it is unquestionably in the public
interest that women are able to speak about their experiences, create
community
and keep themselves safe from men who may be dangerous.
22.
Because of the taboo around rape, coupled with the systemic disbelief
of survivor's
account of rape, women often remain in isolation and
silence when dealing with rape. The impact of silence and isolation
on survivors
is dire and has continued long-term impact on a person's
physical, mental and sexual health.
…
28.
Current statistics indicate that almost 90% of cases which are
reported to police are not prosecuted. Only 8% of those cases
which
do end up being prosecuted, result in a conviction.
…
33.
The context of mass rape in South Africa, the structural impunity,
the culture of silencing, and the isolation in which victims
suffer,
renders the online publications of acts of gender-based violence and
the identification of their perpetrators reasonable.
A claim of
defamation therefore is unsustainable in such circumstances.
…
41.
Through online communities, however, survivors of sexual violence
have found
safe spaces to tell their truth, connect with other
survivors and receive support. Women speak about regaining strength
through
these portals. Speakers note a sense of release, lifting a
burden, and healing.
42.
Women explain the importance of creating a community of support for
other women
who are trying to find the courage to speak about what
has happened to them. Such community fortifies women's ability to
navigate
their own pain and at times, the legal system.
43.
Online discussions about rape and real stories
of people's
experiences challenge rape culture. It mitigates the normalisation of
rape, exposing the extent of abuse. Gender-based
violence destroys
women's lives. They must live forever with the violation that was
wrought upon them. Online communities create
space, at least, to
escape the isolation in which so many victims find themselves'
[19]
Through her online speak out, the respondent has gone from victim to
survivor and now uses the
platform to educate and support others. The
growth in her support base is an indication of the effect of the
South African rape
culture and the destruction it wreaks in the lives
of women, as well as the need for safe spaces to talk without being
judged.
The respondent said the following about the purpose of her
online posts:
'23.
I have also during the period 2016 to date, been actively involved in
movements and programmes to educate and protect women
and children
against abuse and expose the extent of abuse within the clergy. …I
created
the
Facebook account, Justice for Rev. June Dolley and All Victims/
Survivors of Abuse, to create a safe platform and a community
of
people to be informed about what is going on and to offer them
protection when they feel like they have no hope and are afraid
to
come forward and expose their perpetrators. I wanted a space for
women, men and children which showed them that there is no
shame in
being assaulted and that they are safe and protected. My experience
has taught me that, within the Church there are many
victims and
survivors of sexual abuse who keep quiet, because they do not feel
protected by the law and they are filled with shame
and
humiliation... I also host regular education sessions, such as
Thursdays in Black, to educate others. The reason why I have
received
so much traction and why people follow me is because I have told my
story and they can relate to me.'
[20]
Counsel for the applicant accepted the statistics referred to above
and agreed that rape
is endemic in South Africa. Nevertheless, she
persisted with the submission that the respondent should rephrase her
reference to
the applicant. The reasonable reader would arrive at the
same conclusion whether the respondent posts that the applicant is
her
rapist or whether she writes that she alleges that he raped her.
As indicated above, it would be preposterous to give the alleged
abuser editorial rights over the victim's narrative.
Discussion
[21]
The applicant approached the court on an urgent basis while
withholding relevant information.
He knew about the posts in which he
was named as the rapist in 2017. I further find it astounding that
since 2002, no member of
the Church's leadership has informed the
applicant of the respondent's persistent claims. He had to learn from
a journalist or
the SAPS about the allegations. The applicant's
version suggests gross negligence on the part of senior clergy.
However, he does
not deal with the response post, dated 22 May 2016,
referred to above which suggest that a letter in which the applicant
was named
'as the accused' was read out in church. That post belies
the allegation that members of the Church would only now view the
applicant
in a bad light.
[22]
The applicant was aware that the posts had tarnished his reputation.
He says he did not know
that he could interdict the respondent in
2017 and does not say whether he investigated the possibility. Given
the importance he
places on his reputation, I find his version
improbable. It appears as if the earlier posts had no effect on his
reputation and
his ability to do his work. The applicant also did not
inform the court that he had been suspended in December 2020 because
of
the respondent's allegations against him. Instead, he claimed that
the recent post 'has already compromised my position as a priest'.
The applicant's position as a priest was compromised by his
suspension and the enquiry that was instituted. Apparently, prior to
establishing the unit referred to above, the Church had no intention
of dealing with the applicant.
[23]
A litigant is obliged to disclose relevant information to the court.
It is correct that
a litigant may approach the court at any stage
while his or her rights are being violated. However, the litigant
must explain the
delay in approaching the court in the founding
papers as it is relevant to urgency. In the circumstances of this
matter, the applicant
has withheld information relevant to urgency
and the application stands to be dismissed on this basis alone.
[24]
I accept that the applicant has a right to have his dignity and good
name protected. However,
it is apparent that the applicant has known
for years that his reputation and good name were being tarnished
through online posting.
He is concerned that in future, the posts
will continue to cause harm. It is a legitimate concern. However, in
the circumstances
of this matter, the posts have moved from the
initial identifying of the applicant as a rapist to reporting on the
progress of
an 18-year process, among others. The irreparable harm
that the applicant fears, in the circumstances of this matter, is
non-existent
as his congregation has been discussing the issue for
many years with apparently no effect on his reputation. The outcome
of the
pending enquiry will elicit further discussion, irrespective
of the posts.
[25]
The
applicant reserved his rights to institute a defamation action. The
facts in this matter are distinguishable from those dealt
with in the
Economic Freedom Fighters matter.
[3]
This is not a case where an institution or the applicant would
continue to suffer reputational harm. As indicated above the Church's
attitude to the allegations was to try to silence the respondent.
There is no allegation that the Church is undermined in the
circumstances. Nor has the applicant, since 2016, suffered
reputational harm, therefore he ignored the publications. The
respondent,
as indicated above, has moved beyond the original posts.
Therefore, an award for damages in due course is an appropriate
remedy.
It is in that action that a court will determine whether the
posts were defamatory. In this application, the respondent has shown
that she has a defence against a claim for defamation.
[4]
The
applicant sought the following relief in the Notice of Motion:
'1.
Declaring the application to be a matter of urgency ...
2.
That the Respondent is ordered to immediately remove all posts
by
herself from all social media platforms, whether in her own name or
on any other person's name, or making use of secondary accounts,
whether in her own name or any other name, which refer to or mentions
the name of the Applicant.
3.
That the Respondent is restrained and interdicted from directly or
indirectly posting any information whatsoever regarding the Applicant
on any and all social media platforms, until such time as
the process
initiated by the Respondent and conducted under the auspices of the
Anglican Church of South Africa is concluded.
4.
Alternatively, that the Sheriff ... remove such posting from Facebook
and/or any social media site.
5.
Costs on an attorney and client scale.'
[26]
As indicated above, the relief he obtained in paragraph 3 of the
order makes no reference
to the conclusion of the Church's process.
It is convenient to repeat the relevant sections of the order:
'2.
That the Respondent is restrained and interdicted from directly or
indirectly posting any information whatsoever regarding the
Applicant
on any and all social media platforms;
3.
That the Respondent is ordered to change the Page Moderation settings
on her personal Facebook account as well as her page named Justice
for Rev. June Dolley Major and All Victims/Survivors of Abuse
to
block posts or comments containing the words "Melvin Booysen",
and to similarly block the words "Melvin Booysen"
from any
and every other social media account used by Respondent in her own
name or under a pseudonym
4.
Costs to stand over... '
[27]
The order is final in effect. The applicant made no case to restrain
any mention of his
name in the respondent's posts. As indicated
above, he merely sought to edit the use of his name. In reply, the
applicant's counsel
submitted that I should confirm the
rule nisi
in the terms set out in the Notice of Motion. The applicant did
not satisfy the requirements for the relief claimed in the Notice
of
Motion.
[28]
The proceeding pending in the Church does not prevent the respondent
from posting information
about the process. The balance of
convenience also does not favour the applicant. The posts have moved
far beyond naming him as
the respondent's rapist. More harm will be
caused to the respondent and the 8,000 who have either shared their
experiences or have
been encouraged to speak out and seek help in
respect of their own abuse. Considering the rape culture in South
Africa and in the
circumstances of this matter, where the applicant
had already been identified in 2016 as the respondent's rapist, the
order sought
is untenable.
[29]
In summary, the applicant has a satisfactory alternative remedy, the
balance of convenience
does not favour him and he has not shown a
well-grounded apprehension of irreparable harm. Since 2016 no harm
has befallen him
and the posts have moved far beyond him. The
applicant is merely seeking to exert dominance over the respondent in
light of the
progress in the complaint against him. The pending
enquiry, irrespective of the outcome, is a victory for the respondent
and those
who have supported her for 18 years.
Costs
[30]
The applicant disclosed the minimum information when he approached
the court on an urgent
basis. He was economical with the truth and
unrepentant. In reply, he said that the previous posts were
irrelevant. That behaviour
warrants a show of this court's
displeasure.
Conclusion
[31]
I, for the reasons stated above, make the following order:
(a)
The
rule nisi
is discharged.
(b)
The application is dismissed with costs on an attorney and client
scale.
(c)
Costs to include the costs that stood over on 25 March 2021.
BAARTMAN,
J
[1]
Order: '1. That the Application be treated as a matter of urgency,
and dispensing insofar as is necessary in terms of Rule 6(12)
with
the usual forms and service provided for in the Uniform Rules if
Court;
2.
That the Respondent is restrained and interdicted from directly or
indirectly posting any information whatsoever regarding
the
Applicant on any and all social media platforms;
3.
That the Respondent is ordered to change the Page Moderation setting
on her personal Facebook account as well as her page named
Justice
for Rev. June Dolley Major and for All Victims/Survivors of abuse to
block posts or comments containing the words "Melvin
Booysen",
and to similarly block the words "Melvin Booysen", from
any other social media account used by the Respondent
in her own
name or under a pseudonym;
4.
Costs of this Application to stand over;
5
A
rule nisi
be issued calling upon Respondent... to
show...why the abovementioned Interim Order should not be made
final.'
[2]
Le Roux
and others v Dey (Freedom of Expression Institute and Restorative
Justice Centre as Amici Curiae)
2011
(3) SA 274 (CC).
[3]
Economic
Freedom Fighters and others v Manuel
2021
(3) SA 425
(SCA) at para 89.
[4]
Tau v
Mashaba
2020
(5) SA 135
(SCA).