About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2011
>>
[2011] ZAGPJHC 105
|
|
Gold Reef City Theme Park (Pty) Ltd v Electronic Media Network Ltd and Another, Akani Egoli (Pty) Ltd v Electronic Media Network Ltd and Another (2007/28863, 2005/15543) [2011] ZAGPJHC 105; [2011] 3 All SA 323 (GSJ) (23 February 2011)
REPORTABLE
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE
NO: 2007/28863
DATE:23/02/2011
In
the matter between:
GOLD
REEF CITY THEME PARK (PTY)
LTD
................................................................
Plaintiff
and
ELECTRONIC
MEDIA NETWORK
LIMITED
.....................................................
First
Respondent
COMBINED
ARTISTIC PRODUCTIONS (PTY) LTD
t/a
CARTE
BLANCHE
................................................................................
..
Second Respondent
In
consolidation with :-
CASE
NO. 2005/15543
AKANI
EGOLI (PTY)
LTD
................................................................................................
Plaintiff
and
ELECTRONIC
MEDIA NETWORK
LIMITED
....................................................
First
Respondent
COMBINED
ARTISTIC PRODUCTIONS (PTY) LTD
t/a
CARTE
BLANCHE
.................................................................................
Second
Respondent
J
U D G M E N T
NICHOLLS
J
[1]
This is an action in which the plaintiff companies claim general and
special damages on the grounds that the content of a television
programme produced by the second defendant and broadcast by the first
defendant is defamatory of them.
[2]
Electronic Media Network Limited (Mnet), the first defendant, is a
national television channel which flights a programme entitled
'Carte
Blanche' on Sunday evenings at 19H00. The second defendant, Combined
Artistic Productions (Pty) Ltd, is an independent production
house
commissioned by Mnet to compile, produce and present the Carte
Blanche programme. Carte Blanche is a widely respected and
highly
acclaimed investigative journalism programme aimed at the higher
income bracket. It was broadcast to approximately 450,000
people
across the country on the Mnet channel. The first and second
defendants shall be referred to as "Mnet" and "Carte
Blanche" respectively.
[3]
On 6 March 2005 Carte Blanche anchorman, Derek Watts introduced one
of the inserts that make up the programme with the following
words:
"When parents take their children to enjoy the fun of an
amusement park, they assume the rides are safe. The last thing
on
their minds is that something may go wrong. In a Carte Blanche
investigation we reveal that parents should think twice before
heading for the rides". The insert dealt with fun rides at Gold
Reef City, an entertainment complex in Johannesburg which
includes a
casino, a theme park and an amusement park.
[4]
Akani Egoli (Pty) Ltd (Akani) owns the entire Gold Reef City complex
and runs the casino. Gold Reef City Theme Park (Pty) Ltd
(the theme
park) operates the theme and amusement park in terms of a lease
agreement it has with Akani. Both use the name "Gold
Reef City"
in the conduct of their respective businesses. Pursuant to the
programme Akani and the theme park instituted separate
legal actions.
[5]
On 29 July 2005 Akani sued Mnet and Carte Blanche, alleging that
certain statements in the context of the programme were wrongful
and
defamatory of it in that they were intended to mean that five of the
rides it operates were unsafe, alternatively the statements
were made
wrongfully and intentionally in respect of Akani to whom the
defendants owed a duty of care. Akani claimed an amount
of R200 000
in respect of general damages and an amount of R3 661 347 in respect
of special damages against the defendants jointly
and severally.
[6]
On 15 November 2007 relying on the same facts as set out in the Akani
action, the theme park sued the defendants, alleging that
these
statements were intended to mean, and did mean that the five rides
were unsafe. Alternatively, that these statements were
false and the
defendants knew them to be false and intended the theme park to
suffer damages. The theme park claimed general damages
in the sum of
R200 000 and special damages in the sum of R43 105 092 against the
defendants jointly and severally.
[7]
The plaintiffs in both instances have claimed under the actio
iniuriarum for general and special damages. The alternative claims
are based on the lex aquila. Akani relies on breach of a duty of
care; the theme park on injurious falsehood.
[8]
In both actions the defendants deny the meaning given to the
statements. In the Akani matter they plead that the statements
meant
that there was reason to be concerned about the safety of the five
rides. In the theme park matter they do not plead what
meaning they
attach to the broadcast. In the event of it being found that the
statements are defamatory, the defendants raised
two defences;
firstly truth and in the public interest and secondly what the
defendants refer to as the media or reasonableness
defence as
articulated in the Bogoshi case
1
.
[9]
In addition to these defences, it was submitted that as a matter of
law the plaintiffs, trading corporations ought not to be
entitled to
sue for defamation. If the plaintiffs can sue, it was submitted that
their claim should be limited to general damages.
There is the
further submission that if the existing common law permits a claim
for defamation under the actio iniuriarum, the
law ought to be
developed to limit the claim of such damages to non-trading
plaintiffs.
[10]
In terms of an order of court the two actions were consolidated. At
the commencement of the trial I granted an application
in terms of
Rule 33(4) of the uniform rules that separated the issues of merits
and quantum. This matter therefore proceeded on
the question of
liability only.
Background
[11]
The genesis of the programme was an email sent to Carte Blanche by
Paul Boshoff (Boshoff) on 8 February 2005, claiming that
the rides
currently used at Gold Reef City were severely cracked and unsafe.
Boshoff indicated that he had personally worked on
three of the rides
for the past year and that he was concerned about the safety of the
remaining 30 rides. He stated that he believed
that the lives of
people using the rides were in danger.
[12]
Boshoff runs a firm called Bostech Engineering Services (Bostech). He
is a technician in non-destructive testing (NDT), a method
of
detecting cracks on steel not yet visible to the naked eye. He had
made an unsolicited call to Gold Reef City in 2004 as result
of which
Bostech was commissioned to test and repair three of the rides - the
Crazy Cocopan, the Runaway Train and the Golden Loop.
In carrying out
the work Boshoff was assisted by another technician, Johannes Barnard
(Barnard).
[13]
It appears that all went smoothly with work on the first two rides
but a payment dispute arose over the Golden Loop. Bostech
was owed an
outstanding amount of R120 669 which Gold Reef City had refused to
pay, claiming that Boshoff was incentivised to create
defects where
none existed.
This
they said was evidenced by the fact that he did not itemise each
defect in his report. Boshoff accepted R49 300.46 in full
and final
settlement on 9 February 2005, the day after sending the email to
Carte Blanche. Much was made of whether this money
was due and owing
to Bostech. In my view nothing turns on this dispute except the
undeniable existence of bad blood between Boshoff
and Gold Reef City.
[14]
Boshoff, using his own words, felt "very sour towards Gold Reef
City" and admitted that the email he sent to Carte
Blanche
"might have been written in a malicious way". While
admitting that this was a factor influencing him to send
the email,
he said the primary motivation was the need to warn the public about
the dangers of the amusement park. The plaintiffs
argue that the
email contained a series of lies and that Boshoff's concerns about
safety only started when he did not get paid.
The defendants claim
these were exaggerations rather than downright lies. There can be no
doubt that Boshoff's email was to a large
extent actuated by malice.
[15]
When the email was received by Carte Blanche it was referred to Susan
Puren (Puren), a freelance journalist who had produced
several
inserts for Carte Blanche and had received international recognition,
as a top investigative journalist. Puren contacted
Boshoff to
ascertain whether he had proof of his allegations. She was provided
with some photographs from Boshoff, as well as the
Bostech reports.
The photographs displayed images of rust and severely cracked bogies.
This is the structure that attaches the
car to the tracks of a ride.
[16]
An arrangement was made for the following day for Puren to visit the
park with Boshoff's assistant, Barnard. During the visit
Puren, who
has no technical expertise, stated that she observed a general state
of bad maintenance. Much of what had been told
to her by Boshoff was
confirmed by Barnard.
[17]
After the visit Puren was authorised by George Mazarakis (Mazarakis),
the executive producer of Carte Blanche, to investigate
the story and
to produce a standard length insert of ten minutes. Soon thereafter
Puren learnt of Boshoff's payment dispute with
Gold Reef City and
questioned him about his motive in sending the email to Carte
Blanche. He admitted he had a financial motive
but Puren was
satisfied that he was genuinely concerned about the safety of the
rides. This information was relayed to Mazarakis
who saw Boshoff in
order to interrogate his motives. Mazarakis does not recall ever
meeting Boshoff although both Boshoff and Puren
stated that he did
so.
[18]
The day after her visit to the amusement park with Barnard, Puren met
with Ms Amanda van der Westhuizen, (Van der Westhuizen)
an NDT
expert, with whom Puren had worked on a previous programme. Van der
Westhuizen, on being shown the photographs said she
was shocked but
indicated that she was not the appropriate person to comment on the
safety aspects. She referred Puren to Dr Roelf
Mostert (Mostert) a
metallurgical engineer specialising in fatigue cracking who had
testified as an expert in other court cases.
Puren saw Mostert the
same day. He also expressed shock at the photographs he was shown.
Puren then arranged for Van der Westhuizen
and Mostert to join her
for a visit to Gold Reef City.
[19]
During the visit, described by Mostert as a 'site visit', Van der
Westhuizen was concerned about the general state of disrepair
and
lack of maintenance of the rides. Mostert believed that the overall
picture of neglect pointed to an inadequate standard of
asset
management integrity. He was particularly concerned about the
evidence of a cracking process which he identified as fatigue
cracking. These he felt should have been eliminated by the design.
Allowing repair work to be done at night while the rides were
operational in the day made it possible for cracks to grow to their
critical point before they were repaired. Mostert further observed
loose bolts, corrosion of paint, and a lateral swaying of the Golden
Loop while in motion.
[20]
Ms Nicole Stubbs (Stubbs), a researcher employed by the second
defendant, was assigned to research the story. Given the
circumstances
surrounding Boshoff's payment dispute with GRC, her
brief was to do a thorough investigation in an attempt to corroborate
Boshoff's
claims. As she put it she attempted "to try and almost
let the story stand alone without him". She appears to have done
a thorough job, managing to find Spencer Erling (Erling), a civil
engineer who was the director of the Southern Africa Institute
of
Steel Construction at the time and Dr Allen Mann (Mann), A UK based
structural engineer specialising in amusement park safety.
Both
expressed concern regarding the safety of the rides on the evidence
available to them.
[21]
On 14 February 2005, Stubbs contacted Gold Reef City and spoke to
Dewald Van der Walt (Van der Walt) who was the operations
manager at
the time. She mentioned that she was from Carte Blanche but did not
inform van der Walt that she was taping his conversation.
She told
him that she was investigating the safety of rides with particular
reference to an incident that had occurred at an amusement
park in
Cape Town. With regard to the safety of the rides at Gold Reef City
he told her that:
"Once
a year on all our rides ... well... most of the rides depending on
the schedule ... we perform non-destructive testing
... what that
means is we dismantle the rides all the critical parts and they get
tested with ultrasonic tests if need be they
get x-rayed to make sure
that the critical parts are still safe and in an appropriate fashion"
[22]
During the conversation with Stubbs, Van der Walt agreed to be
interviewed on camera the following day. He requested to be
provided
with a list of questions that would be covered in the interview. At
that stage, the programme was intended to be broadcast
on Sunday, 20
February 2005.
[23]
A decision was taken by van der Walt, Steven Cook ("Cook"),
the General Manager of the Theme Park, and Dr David Ashby
("Ashby")
a structural engineer who Gold Reef City used as a consultant from
time to time since 2002, to decline the
request for an interview.
[24]
On 15 February 2005 Cook wrote to Stubbs informing her that the rides
had been designed by reputable international firms. He
asserted that
the rides were compliant with the requirements of the construction
regulations under the Occupational Health and
Safety Act (OHSA) and
that he had documents to confirm regular NDT testing. Cook requested
that Carte Blanche show him the evidence
indicating that the rides
were unsafe so that an immediate investigation could be launched. No
mention was made of a possible interview
[25]
Stubbs responded on the same day and indicated that Carte Blanche was
willing to show Gold Reef City the visual evidence on
condition that
this was in the context of an on-camera interview. She informed Cook
that Carte Blanche had visual evidence of serious
structural faults
on some of the rides. Stubbs requested copies of the documents
referred to by Cook which would show that NDT
was done on all the
rides over the past few years and the contact details of Gold Reef
City's metal fatigue specialist so that
interview could be set up.
Gold Reef City did not respond to these requests. Cook wrote to
Stubbs indicating that Gold Reef City
would welcome a meeting to view
the material in Carte Blanche's possession. They requested that Carte
Blanche disclose their source
and make the material available
immediately. Stubbs proposed the following day for the on-camera
interview. She refused to disclose
her source.
[26]
Boshoff had at all times made it clear that he did not want to be
identified as the source of the story. This placed Carte
Blanche in
an invidious position. Boshoff when approached by Gold Reef City,
denied that he was the source and said that Carte
Blanche had
approached him.
[27]
Before the programme was aired, Boshoff was called to a meeting with
Ben Schutte (Schutte), who had manufactured the Golden
Loop. Schutte
was a director of the Theme Park and holder of the management
contract for the Theme Park. Puren when advised of
this, suggested
that he take his secretary as a witness. According to Boshoff his
secretary was sent out by Schutte during the
meeting to make
photocopies and while she was outside the room, Schutte offered
Boshoff a bribe to make the story "go away".
After the
meeting, Boshoff told Puren about the bribe. In cross-examination of
Boshoff the plaintiffs put it to Boshoff that he
had misunderstood
the nature of Schutte's offer at the meeting. According to the
plaintiffs, Schutte was merely trying to act as
a "mediator"
in the dispute between Gold Reef City and Boshoff.
[28]
Cook, in a letter to Carte Blanche, declined the interview on the
basis that Carte Blanche had not made their information available
in
advance. Puren proceeded to film the interviews with Mostert and van
der Westhuizen.
[29]
On 17 February 2005, Gold Reef City's lawyers sent a letter to Stubbs
recording that Carte Blanche's possession of copies of
the Bostech
reports was unlawful. They made it clear that they were aware that
Carte Blanche had approached the Department of Labour
and an
ex-employee Philip Malan (Malan). Gold Reef City reiterated that the
rides were safe and an invitation was extended to Carte
Blanche to
identify their consulting engineer so that a discussion could take
place with Gold Reef City's engineers. From that
time both Gold Reef
City, represented by Cook, and Carte Blanche, represented by
Mazarakis, communicated through their lawyers.
[30]
Carte Blanche persisted with their stance that they would only allow
the material to be viewed during an on-camera interview.
Gold Reef
City continued to request sight of the visual evidence and to
reiterate their view that "the reports of Bostech
Engineering
Services do not compomrise (sic) current evidence of unsafe rides or
structures. This interpretation of the reports
was confirmed by our
client's specialised technical consultants".
[31]
The refusal to be interviewed created a deadlock as Mazarakis would
not allow the insert to be aired without a response from
Gold Reef
City. After a two week delay Carte Blanche on 1 March 2005 finally
handed to Gold Reef City photographs, video footage
and a list of
questions regarding the safety issues raised concerning the four
rides. On 4 March 2005 Gold Reef City gave a detailed
response to the
photographs and the video footage as well as providing specific
responses to the questions.
[32]
Stubbs had in the meantime conducted a video interview with Mann. She
had sent him an email wherein she informed him that the
rides had
been repaired but enquired whether there could nonetheless still be
safety concerns. Mann's response to the email was
that cracking was
an endemic problem with rides. It was something that had to be
monitored very carefully because "if a crack
starts it
propagates very rapidly and that's extremely dangerous". He
further stated that repairing cracks is a short term
solution as they
will inevitably re-occur. A visual inspection was generally
inadequate and all welds have to be tested. Mann stated
that in the
UK rides were stopped once they have two or three cracks on them. As
he stated on the broadcast the fact that such
a large number of
cracks had been allowed to develop was indicative of an inadequate
checking and maintenance regime.
[33]
Stubbs' research for the insert was extensive. In addition to finding
Erling and Mann, she conducted internet research about
previous
accidents at Gold Reef City and other amusement parks; research on
the applicable statutory framework which governed amusement
park
rides; contact with the Department of Labour; contact with Philip
Malan (Malan) a former employee who had been wrongfully
dismissed by
Gold Reef City after raising safety questions about Shaft 13. (This
is a disused mine which is used as a tourist attraction).
[34]
Puren commenced with preparation of the offline edit as soon as she
had interviewed the experts. An offline edit is a version
of the
insert which has lower resolution and is therefore not as clear as
the final product. On 5 March 2005, the day after Gold
Reef City's
responses had been received, the offline edit was presented to
Mazarakis. The viewing took 6 - 8hours and was attended
by the
attorneys of Carte Blanche as well as Stubbs and Nkweta ,the
presenter. Stubbs was called in so that Mazarakis could interrogate
the research which had been conducted for the programme and Nkweta
was called in to verify the accuracy of what had been selected
from
the unedited footage by Puren for the offline edit.
[35]
It appears that this was a laborious process with the edit being
stopped every few seconds for revisions. On the advice of
the
attorney present, Gold Reef City's exact words were used in the
broadcast. This necessitated links being filmed that evening
to
reflect the views of Gold Reef City. As a result Mnet was requested
to allocate 20 minutes for the insert instead of the customary
10
minutes. This request was acceded to.
[36]
After working throughout the night on Saturday 5 March 2005 and into
the morning of Sunday 6 March 2006, Carte Blanche felt
that the
insert was finally ready to be broadcast on the Sunday evening.
The
Programme/Insert
[37]
What the viewers see at the commencement of the programme is a scene
of crowds of people moving in Gold Reef City's theme park
with shots
of the theme park and some of the rides. These views are accompanied
by the narrator telling the audience that "It
is a typical
Sunday morning in February this year and people are streaming through
the gates of one of South Africa's most well
known tourist spots.
They're here for a day of fun. The last thing on their minds is that
something may go wrong.... Gold Reef
City in Johannesburg is a
replica of an old mining town. It offers more than 30 fun rides and
has been open since 1986. In the
nineteen years since then, an
estimated 25 million people have come here to experience the ultimate
thrill. It is a highly successful
business- last year profits rose 36
percent to R114 million. But just how safe are these rides and what
laws are in place to protect
the public? Gold Reef City told us that
they adhere to the highest safety standards and prescriptions of the
law."
[38]
The insert is slick, hard-hitting and fast paced. Mostert and Van der
Westhuizen refer to the safety situation at the amusement
park as "a
tragedy", "a pending disaster" where "the next
step is a tragedy". In the face of Boshoff's
claim that he found
thousands of cracks, Erling and Mann are seen saying that cracks on
rides are unacceptable. This is juxtaposed
with seemingly evasive and
implausible comments from Gold Reef City.
[39]
Viewers are informed that internationally accepted norms for safety
of amusement parks are not enforced in South Africa. The
relevant
legislation in South Africa is the Occupational Health and Safety Act
of 2003 and in terms of these regulations Gold Reef
City should
ensure that that the rides are inspected by a competent person every
six months for the first two years and annually
thereafter. An
official from the Department of Labour responsible for enforcing
compliance with these regulations comes across
as an incompetent
buffoon.
Viewers are told that all 33 rides at the park were visually
inspected by the Department of Labour in the course of one
day.
[40]
The plaintiffs set out in their particulars of claim those statements
in the programme that they allege to be defamatory. These
refer to
five of the rides in the following terms:
"6.
In the programme, the following was said -
6.1
of and concerning Gold Reef City's [ride] known as
'Miner's
Revenge':
(a)
'. one of the pendulums - which appears to be balancing the act - is
rusted and cracked';
(b)
such cracking was visible to the naked eye;
(c)
the pendulum showed 'serious deterioration';
(d)
the metal tank which anchors the ride has a base which 'has been
badly maintained and is covered in a thick layer of rust and
moss,
indicating that there is a water leak in the area. In fact, 'a
constant stream of water can be seen running down the side
of the
tank' and if it were to topple over 'the ride is then influenced in
such a fashion that the balance is lost - then it could
have very bad
consequences', and this 'is a cause for concern'.
6.2
Of and concerning Gold Reef City's [ride] known as 'Crazy Cocopan'
that it did not comply 'with structural specifications'.
6.3
Of and concerning Gold Reef City's [ride] called 'Raging Rapids' :
(a)
'these broken bars and rust are concealed by the water when the ride
is operational.'
(b)
its obvious that certain pieces of metal are
missing;
6.4
Of and concerning Gold Reef City's [ride] known as the
'Golden
Loop' :
(a)
'... we found cracks on most of the cross-struts connecting the
actual track to the structure. We found cracks on the headgear
that
propels the cars over the track and the actual cars where you sit was
rusted completely';
(b)
photographs 'show new cracks in places that had previously been
repaired. These pictures formed part of an inspection report
that
[Paul's] company submitted to Gold Reef City before he was contracted
to do repairs.'
(c)
'. on the section where the cross-beams actually fits on to - what
they call the magnet cable guide -there were in excess of
200 cracks.
That's just on that area. The actual parts, cross-struts, that
connects the tracks where the wheels actually runs on,
each and every
one of them was cracked, and I do believe there's in excess of 3000
cracks on those struts, cross-struts'.
(d)
'. if a structure has got 3000 repairs on it, it has to be related to
the fatigue life of the structure';
(e)
'. the fact that the cracks have been welded and repaired several
times make the situation more dangerous'
(f)
there is concern 'about the remaining life of a structure like this.
It cannot do it any good repeatedly repairing cracks, especially
in
the same place. The granular structure of the steel actually changes
from the heat input of the welding and in the long term
multiple heat
inputs by welding doesn't do parent metal any good'.
(g)
'Any crack in any weld is unacceptable'.
(h)
'The probability of a fatigue failure is still very high, and as a
result of that you have a high rating both on the probability
of
failure and on the consequence of failure, and that results in a very
high risk.'
(i)
'The Golden Loop may be well past is sell-by date'.
(j)
'It shouldn't have been allowed to get in a state where that many
cracks were discovered'.
6.5
Of and concerning Gold Reef City's [ride] known as 'The Runaway
Train' :
(a)
'the train was allegedly kept in service while being repaired,
despite the fact that non-destructive testing had revealed that
both
the chassis of the carts and the track were riddled with cracks.'
(b)
There were a thousand cracks 'on that structure, on that track'.
(c)
People were riding on the tracks while Bostech Engineering was doing
its repairs.
(d)
If a ride had a thousand cracks on it, it is not safe to run it in
the interim.
(e)
The fact of a thousand cracks indicates 'that there isn't a regime of
proper checking'".
[41]
These statements are made by Boshoff and the defendants' experts
-Mostert, Erling, Mann and van der Westhuizen. The aforementioned,
with the exception of Dr Mann, all testified as expert witnesses for
the defendants.
Trading
corporations as defamation plaintiffs
[42]
The first issue to be determined is whether trading corporations
ought to be permitted to sue for defamation. The defendants
argued
that in the post constitutional era it is incumbent on the courts to
develop the common law to ensure that it accords with
the spirit,
purport and objects of the Bill of Rights.
[43]
The law of defamation in South Africa is based on the actio
iniuriarum in terms of which a person whose personality rights,
including reputation or fama, have been intentionally impaired by the
unlawful act of another, can claim. Under the actio iniuriarum
once
the plaintiff proves publication of a defamatory statement it has the
benefit of two presumptions namely unlawfulness and
intention2
2
.
On the other hand where a plaintiff brings an action under the lex
aquilia it bears the onus of proving not only a false representation
but knowledge of falsity, causation and intention. Therefore a
defendant sued under the lex aquilia is in a considerably better
position as there are no presumptions it has to rebut.
44]
The defendants contend that a trading corporation is fundamentally
different to a human plaintiff in that it cannot have its
feelings
hurt; it can only be injured in its pocket. It is argued that a trade
reputation is not a personality right but a proprietary
right. In the
result it should have no claim under the actio iniuriarum which is
essentially redress for an infringement of personality
rights.
[45]
Human dignity is of paramount importance in our Constitution. It must
always take precedent over freedom of expression, which
although
foundational to democracy, it is not a paramount value. Because the
law of defamation vindicates a constitutionally entrenched
right to
human dignity, it constitutes a reasonable and justifiable limitation
to freedom of expression.
3
The defendants argue that this is only applicable to the human
plaintiff; a trading corporation cannot rely on any constitutionally
entrenched right to limit the media's right to freedom of expression
as it is not a bearer of the right to human dignity.
[46]
It is submitted that apart from Caxton Ltd and Others v Reeva Forman
(Pty) Ltd
4
and the recent decision of this court in the case of SA Taxi
Securitisation (Pty) Ltd v Media 24 and Others
5
all the decisions that a trading corporation can claim damages for
defamation under the actio iniuriarum are obiter. With regard
to the
Reeva Forman decision, it is argued that Corbett CJ assumed that a
trading corporation has the right to sue for damages
and no
consideration was given to the fact that for a trading corporation,
reputation is an asset and the diminution of reputation
lessens
patrimony. It was further pointed out that with the exception of the
SA Taxi Securitisation all these cases were decided
pre-constitution.
[47]
The argument is based on the flawed premise that a trading
corporation has no reputation to be protected under the actio
iniuriarum.
For over a century our courts have recognised that
trading corporations have a personality right to fama worthy of
protection and
can sue for defamation.6
6
While it may not be identical to that of a human plaintiff, a trading
corporation does have a reputation which may be disparaged.
I do not
accept the defendants' submission that the disparagement would be
aimed at the 'rides' and not 'the person behind the
rides'.
[48]
The plaintiff in a defamation action, including a trading
corporation, does not only seek to recover economic loss but also
reparation for a wrong inflicted. I do not see how a trading
corporation's right to sue for defamation under the actio iniuriarum
would be inconsistent with the Constitution. In my view the common
law requires no development to bring it into harmony with the
spirit
purport and objects of the Bill of Rights.
Special
Damages
[49]
It was argued that should I find that trading corporations are
entitled to sue for defamation then this should be limited to
general
damages only. A compelling case was made out by the defendants for a
trading corporation's claim for loss of profit to
be restricted to a
claim under the lex aquilia.
[50]
The defendants suggested that there was authority for this
proposition without any constitutional re-invention. Since Mathews
and Others v Young
7
our courts have distinguished between "sentimental damages"
which are brought under the actio iniuriarum and "patrimonial
damages" which must be brought under the lex aquilia
8
.
[51]
In respect of loss of profit, the enormity of the awards will
certainly have a chilling effect on the freedom of expression.
In my
view this cannot serve the interests of democracy and the
disproportionality may well constitute an unjustifiable limitation
to
the right of freedom of speech. By limiting such claims to the lex
aquilia, the plaintiff is not non-suited but the onus is
shifted so
as not to burden the defendant with the presumptions of unlawfulness
and intention under the actio iniuriarum. There
seems to be ample
support for this proposition. However, the issue before me is that of
liability only. Any argument on special
damages must relate to
quantum and therefore does not form part of the enquiry before me. I
make no finding in this regard.
The
Trial
[52]
The trial was run along the lines of a classic defamation case. Once
the plaintiff had proved publication the statement concerning
the
plaintiffs, the defendants opened their case without conceding that
the statements were defamatory.
[53]
In addition to their experts, Mostert, van der Westhuizen and Erling,
the defendants called Boshoff and Barnard to testify
on the condition
of the rides and the number of cracks found. Puren and Stubbs
testified on the making of the insert. Mazarakis,
although dealing
with the production of the insert, also gave evidence of a more
general nature on ethical standards of responsible
journalism.
[54]
In rebuttal the plaintiffs called the operations manager of the theme
park at the time, van der Walt and two experts Douglas
Dadswell
("Dadswell") and Dr David Ashby ("Ashby").
Dadswell is a structural engineer from the UK and a colleague
of
Mann. Like Mann his speciality is amusement parks. He, at the request
of Gold Reef City, inspected the rides and produced a
report in
September 2005 dealing with the allegations made in the insert. Ashby
is a structural engineer who Gold Reef City has
used as a consultant
from time to time since 2004 when he was initially called in to
advise on the bogeys.
Defamatory
Meaning
[55]
Not only does the meaning of the programme impact on whether the
plaintiffs have been defamed but also on what the defendants
have to
prove as being substantially true in order to succeed on their truth
defence. If the meaning of the statements is that
the rides were
unsafe then it is common cause that Carte Blanche has to prove as a
matter of fact that as of 6 March 2005, the
rides were unsafe. If the
meaning of the statements is that there was reason to be concerned
about the safety of the rides, Carte
Blanche merely has to show that
there is a basis for this concern.
[56]
There is no dispute that the plaintiffs have the onus to prove the
defamatory meaning which they contend for, namely that the
rides were
unsafe. It is so too, that nothing in the transmission is said to be
per se defamatory.
[57]
It is the plaintiffs' case that in the context of the programme, the
impression with which the viewing public would be left,
is that the
five rides were unsafe. Gold Reef City alleges that only selective
comments were displayed on the insert and these
in such a manner that
their veracity was clearly questionable.
[58]
To say of an amusement park that its rides are unsafe would
constitute defamation. Mazarakis agreed that there could be no
allegations more damaging to an amusement park than to say of it that
its rides were unsafe. The defendants' argument is that which
the
programme intended to convey to the reasonable viewer was merely that
there was reason to be concerned about the safety of
the rides.
[59]
The plaintiffs do not rely on an innuendo but on the sting of the
statements. Accordingly they are bound by the ordinary meaning
of the
statements and not on a secondary meaning or special circumstances.
9
The meaning is not a question of law but a question fact.
10
60]
Television being a transient medium, the first impression is vitally
important. A viewer will take in the commentary and the
images
displayed without an opportunity to repeat the programme and to apply
a critical mind to the contents. In ascertaining the
meaning
attributed to the programme, the yardstick should be that of the
ordinary reasonable viewer in the context of the programme
as a
whole.
11
It can be assumed that the average viewer of Carte
Blanche
would be reasonably sophisticated and would have the ability to
understand the message that was being conveyed.
[61]
The offending statements must be seen in the context of the programme
as a whole.
12
The programme contains sensational statements such as Van der
Westhuizen stating "Tragedy, that's what's waiting" and
Mostert saying "the next step is a catastrophe... it could be
closer than we think". These statements are juxtaposed
with
visual images of the defects on some of the structures which appear
to the untrained eye to be dangerous. The insert is accompanied
by
the sight and sounds of blue sirens flashing, ambulance lights, and a
person on a stretcher being loaded into an ambulance.
In addition the
tone used by the presenter often expresses sarcasm, irony and
disbelief when referring to Gold Reef City's responses.
The viewing
public can draw little comfort from the Department of Labour's Mr
Loubser's apparent ineptitude in enforcing compliance
with safety
standards.
[62]
The overall impression on first viewing the programme immediately
alerts one to safety problems at Gold Reef City. To tell
members of
the public who may attend the amusement park that if they use the
rides they are at risk because there is reason for
them to be
concerned about their safety is a clear warning to any prudent person
not to use the rides in the amusement park. By
way of analogy there
is no difference between telling a person that an airline is unsafe,
or that by saying that there is reason
to be concerned about your
safety if he or she uses the airline.
[63]
In Skuse v Granada Television
13
the only issue to be decided was whether the meaning was defamatory.
Sir Thomas Bingham MR (as he was then) held that:
"In
the present case we must remind ourselves that this was a factual
programme, likely to appeal primarily to a seriously
minded section
of television viewers, but it was a programme which, even if watched
continuously, would have been seen only once
by viewers many of whom
may have switched on for entertainment. Its audience would not have
given it the analytical attention of
a lawyer to the meaning of a
document, an auditor to the interpretation of accounts, or an
academic to the content of a learned
article. In deciding what
impression the material complained of would have been likely to have
on the hypothetical reasonable viewer
we are entitled (if not bound)
to have regard to the impression it made on us"
[64]
In my view the plaintiffs have proved the defamatory meaning on which
they rely. There is no dispute that the statements were
made 'of and
concerning the plaintiff'. A viewing of the insert together with the
emotive commentary, only serves to instil fear
in the mind of any
reasonable viewer. The distinction between the rides being unsafe as
opposed to there being concerns about the
safety of the rides is a
distinction that would be lost on the reasonable viewer. The insert
permits only one interpretation, namely
that the rides are not safe
and that the lives of users were at risk.
[65]
Having proved the defamatory nature of the published statements, the
defendant's animus iniurandi is presumed. Likewise it
is presumed
that the publication was wrongful and unlawful. In order to escape
liability and to rebut the presumption of wrongfulness
the defendants
must prove on a balance of probabilities that the statements were
true and in the public interest, or failing that,
that the
publication thereof was reasonable.
14
Truth
and public benefit
[66]
In order to succeed with this defence, the defendants have to show
that the rides were unsafe at the time of airing the insert.
There
can be no doubt that the issue is of manifest public interest. The
question then remains whether the defendants have proved
that the
statements were true or substantially true.
[67]
Much of this trial was taken up with expert evidence of a technical
nature. Both parties complained of the bias of the other's
experts.
Gold Reef City asserted that the Carte Blanche experts were biased in
that they came to court to defend the views that
they had put forward
in the programme. Carte Blanche complained that Gold Reef City's main
expert, Ashby, was an 'embedded expert'
in that he was closely
involved with Gold Reef City to the extent that he had been their
acting general manager on occasion.
[68]
All the experts agreed that fatigue cracking in amusement park rides
was an endemic problem. A ride displaying cracks does
not necessarily
have to be scrapped but rather the cracks should be closely
monitored. None of the experts in their expert notices,
joint minute
or in their evidence were able to state that the rides as at 5 March
2005 were unsafe.
[69]
Ashby and Dadswell both wrote reports some months after the screening
of the programme. Jacobs Babtie, an international firm
for whom
Dadswell worked, was commissioned to do an external inspection. Both
Dadswell and Ashby were consistent in their evidence
that the rides
were safe and that any defect that may exist did not affect the
structural integrity of the ride. Ashby testified
that he was shown
only one crack when he inspected the entire bottom portion of the
Golden Loop
[70]
The most serious allegations are made in respect of the Golden Loop
which according to Boshoff had over 3000 cracks. What soon
became
apparent was that Boshoffs claims about the number of cracks were
wildly exaggerated and overstated. He conceded that he
had
"misspoken" when he said on the programme that there were
in excess of 3000 cross-struts on the Golden Loop and there
were
cracks in each cross-strut. The evidence of Ashby was that there were
approximately 300 cross-struts. Boshoff sought to justify
the number
of cracks by saying that when he stated he had found 3000 cracks on
the Golden Loop, he meant that he had found cracks
on every plane of
the cross-struts. By 'cracks' he was referring not only to cracks but
also to undercut and overlay as well. (Undercut
and overlay are
manufacturing defects). However Boshoff could not show a single
photograph with more than one defect on a cross-strut.
There was
nothing in his reports that supported his evidence regarding the
number of cracks on either the Golden Loop or the Runaway
train.
Barnard his assistance, testified that there "lots of
cracks"..." in the regions of hundreds".
[71]
Of the Miner's Revenge it was said that the pendulum was rusted and
the crack was so severe that "its past non-destructive
testing".
In fact the 'crack' in the pendulum was an original weld defect that
had been identified and monitored since 2001
and had not grown in
size since then. The stabilising towers which Mostert observed being
rusted with water seepage which he believed
could potentially cause
the entire ride to topple over were in fact filled with gravel. The
towers had no structural function whatsoever;
they had previously
been filled with water and used to stabilize the ride when it was a
mobile ride but since it had become a permanent
structure the towers
were in fact nothing more than what was referred to as a "build
location".
[72]
The cracks on the Crazy Cocopan were positioned on a fagade which is
purely decorative. The cracks under the ride were on a
bar which
served to retain decorative panels
[73]
The broken bars and rust on the Raging Rapids were on the underpan
which holds the water and therefore posed no structural
threat.
[74]
The allegation that both the track and the car chassis of the Runaway
Train "was riddled with cracks" having over
1000 cracks,
was unsustainable. There were in fact no cracks on the cars, only on
the mounting plate for the gearbox and the drive
plate. None of these
items were structural members, the mounting plates were replaced and
the cracks were monitored. The crack
on the mountain was of a
self-supporting structure that had in any event been repaired by the
time the programme was aired.
[75]
Mostert gave lengthy testimony regarding the inadequacy of the
inspection and maintenance regimes of the amusement park. He
said
that a rigid approach to documentation is required in order to have
good asset management. He concluded that the record keeping
was poor
and fell short of what was required by OHSA. Mostert was of the view
that once fatigue cracking is present and large cracks
are found, as
shown in the photographs, his concerns were confirmed. He believed
that there was every likelihood of fatigue cracking
being present in
a number of rides. Because the integrity management system was so
poor these cracks had not been identified. Mostert
was, however,
unable to say categorically that any of the rides were unsafe.
[76]
Van der Walt, the operations manager at the theme park had been
involved with amusement parks from an early age. He testified
that he
had five people reporting to him, a mechanical maintenance manager,
an electrical manager, a construction manager a parks
manager and a
security manager. Van der Walt denied that the inspection and
maintenance regime was inadequate. He said that during
2004/2005 Gold
Reef City was moving towards having NDT testing done once a year on
all their rides but had not implemented it due
to the prohibitive
cost.
[77]
Van der Westhuizen readily conceded that safety was not her field of
expertise which is why she had recommended Mostert to
Puren. Erling
said the sudden appearance of cracks indicated deficiencies in the
inspection regime. He based his finding that the
Golden Loop had
passed its sell-by date on the information that he had been given
that there were 3000 cracks. These witnesses
did not, in their
evidence, or in their expert notices, express the view that the rides
were unsafe. The furthest any of the experts
would go was to express
concerns regarding maintenance.
[78]
Despite the derisive comments and tone of the presenter of the insert
when dealing with Gold Reef City's written responses,
it now appears
to have been accepted that the responses insofar as they dealt with
safety issues were largely accurate. The defendants
did not seriously
contend that they had proved that the five rides were unsafe as at 6
March 2005. Instead they sought to prove
the meaning contended for by
them, namely that there were grounds for concerns regarding the
safety of the rides.
[79]
While the defendants may well have shown that the maintenance regime
of Gold Reef City left much to be desired, they certainly
did not
prove that the rides were unsafe as at 6 March 2005. In the
circumstances their defence of truth and public benefit must
fail.
Reasonable
Publication
[80]
Since Bogoshi (supra), the media may escape liability for publishing
false defamatory statements if they acted reasonably in
so doing.
This affords the media a degree of protection when reporting matters
of public interest.
The
defence is in line with many English speaking jurisdictions.
15
Absence of animus inuriandi is insufficient; an absence of negligence
is required on the part of the media.
[81]
The criteria for assessing the reasonableness of a publication are
set out in the Bogoshi judgment and developed further in
Mthembi-Mahanyele v Mail and Guardian Ltd
16
.
In the latter case it was held that fault was not an issue if the
publication was justifiable taking into consideration all relevant
circumstances. The criteria are, inter alia, the interest of the
public in being informed; the nature of the information on which
the
article was based; the reliability of the source; the steps taken to
verify the information; the opportunity given to respond;
the need to
publish before establishing the truth; the manner of the publication
and the tone of the article which can provide
an unnecessary or
additional sting.
17
[82]
The defendants argued that in assessing reasonableness, the meaning
should be that which was intended by the journalist (that
there were
concerns about safety) as opposed to that of the reasonable viewer
(that the rides were unsafe). It was contended that
I should reject
"the single meaning rule" as the Privy Council did in
Bonnick v Morris
18
.
As I understand it, the issue to be determined taking into
considerations all the facts of the case is whether the journalist
or
the television channel took all responsible steps before publishing.
This would include considering the meaning that the journalists
sought to convey and whether they could reasonably have believed that
this was the meaning that would be understood by the average
ordinary
viewer.
[83]
Our courts have cautioned against imposing an unrealistic standard on
journalists. A measure of editorial discretion is permitted.
A
practical and flexible approach should be adopted in assessing
whether the press has demonstrated responsible journalism in matters
of public interest. Some latitude is allowed for a margin of error
bearing in mind the considerable time pressures that journalists
often work under. Essentially what responsible journalism avoids is
reckless and careless damage to reputations by presenting a
fair and
balanced programme.
19
[84]
The first question that arises is whether Cart Blanche should have
been more circumspect in broadcasting the programme knowing
the
potential reputational damage it could cause. The plaintiffs argue
that the defendants were reckless, or at least negligent
in respect
of the information given to them by Boshoff. Despite knowing that
Boshoff was a suspicious source with suspect motives,
they
nonetheless uncritically accepted the facts that Boshoff gave them.
These facts were then passed on to the experts without
Carte Blanche
properly verifying them.
[85]
The evidence shows that Carte Blanche was correctly suspicious of
Boshoff's motives. They approached a variety of experts to
ascertain
if Boshoff's allegations were to be taken seriously. But instead of
interrogating his claims that there were thousands
of cracks, (over
3600 on the Golden Loop and 1000 Runaway Train) they approached
experts to confirm the consequences of such cracking.
In other words,
the experts formed their opinions based on Boshoff's allegations.
[86]
I do not accept the plaintiff's submission that Carte Blanche was
remiss in not including a structural engineer on their team
of
consulting experts.
Mann
was a structural engineer specialising in amusement parks. His
responses to the questions asked made it very clear that there
was
reason for concern. Erling, too, described himself as a structural
engineer.
[87]
Van der Westhuizen referred Puren to Mostert as an expert in safety
matters. He did not indicate that he was not qualified
to comment or
that this issue was not within his area of expertise, neither did any
of the other experts. Stubbs went to great
lengths to get experts on
metal fatigue. In the words of Mazarakis:
"Mostert
had established credentials and was used, had been used in court
before, and that in itself gave him a high degree
of credibility;
[Erling] represented an organisation which takes care of this kind of
structural engineering, and that was our
understanding, but also, as
I said earlier, we took it a step further by asking for the
international expert [Mann] who had a particular
speciality in this
area".
[88]
Carte Blanche was validly criticised for the untruthful remark that
they had managed to "track down" Boshoff thereby
creating
the impression that there were two different sources corroborating
each other when in fact Boshoff was the only source.
Puren explained
that she was not prepared to reveal her source. However, it is quite
clear from the correspondence that well before
the insert was aired
Gold Reef City was aware that Boshoff was the source and the need to
protect him was no longer necessary.
[89]
The question as to the safety of the rides was undoubtedly of a very
technical nature. In such a situation it was imperative
that Mostert
have as much information as possible at his disposal. He said in his
evidence that he had asked Puren for all relevant
documentation but
was shown only the Bostech reports.
90]
Mostert testified that he had not been informed that Boshoff's view
was that the three rides tested and repaired by him were
now safe.
Mazarakis was not aware that the rides dealt with on the programme
had been repaired by the time of the programme, let
alone that the
bogies, photographs of which featured prominently, had been scrapped
nine months prior. Mostert indicated that he
would have appreciated
an opportunity to speak with Gold Reef City's experts before the
programme was aired.
[91]
On the Friday 4 March 2005 Carte Blanche received Gold Reef City's
memorandum in response to the questions raised. Here it
was
specifically stated that there was no structural threat, the bogies
had been scrapped and that the water tank was not filled
with water
but gravel ballast. Nonetheless photographs of these items were
included in the insert.
[92]
In my view there was no justification for not giving Gold Reef City's
responses to the experts, particularly Mostert. According
to
Mazarakis and Puren they believed it was in the public interest that
the programme be aired immediately. However, almost a month
had
passed since the email from Boshoff and the parties' attorneys had
been in communication for two weeks. Puren and Mostert could
not have
seriously believed waiting another week to ensure greater accuracy
would unduly compromise public safety.
[93]
It seems that all Carte Blanche were waiting for was Gold Reef City's
response. Once they had obtained this they believed that
they were
entitled to proceed as they could then present both sides of the
story. Puren in her evidence said:
"When
I do a story or when anybody does a story of this kind, you represent
views. I had a view of Dr Mostert, I had a view
of Dr Allan Mann and
I had a view of Spencer Erling and this is the view of Gold Reef
City. I am not conducting a court case. I
don't need to have a
decision between them, a consensus of what they've seen. I represent
their viewpoints."
[94]
While this may be true of a programme of a straight factual nature,
once there was such heavy reliance on the interpretation
of
engineering defects by experts, it was, I believe, negligent not to
have afforded Mostert and the other experts the opportunity
to
comment on Gold Reef City's assertions before broadcasting on
national television. Mostert conceded that had this happened he
may
have presented his views somewhat differently. It was a serious
shortcoming not to test Gold Reef City's response. The media
is not
required to be content with having solicited a response. In certain
circumstances it is required that the response be tested
or verified
so that both sides of the story can be fairly presented.
[95]
This deficiency was exacerbated by the sensationalised tone of the
broadcast and the manner in which the explanations of Gold
Reef City
were presented by juxtaposing them next to visual or aural material
deliberately designed to cast doubt on them. Puren
became convinced
that Gold Reef City had something to hide. This was caused by
Schutte's alleged offer of a bribe and Gold Reef
City's responses to
the proposed programme which seemed to be evasive and defensive.
Mazarakis and Puren both said that they were
deeply sceptical of Gold
Reef City's views. Such scepticism, however, did not exonerate them
from fairly presenting these responses.
In fact their own suspicions
should have made them, if anything, more circumspect
[96]
It appears that during the course of the making of the programme,
Puren's role, instead of being that of a neutral observer,
was to
expose GRC for what she genuinely believed to be issues of public
safety. Having formed this view, it was incumbent upon
her as an
experienced journalist to ensure that she presented a balanced
programme. Mazarakis' concern that a response from Gold
Reef City be
obtained, was meaningless in light of the manner the responses were
portrayed in the programme as implausible, far
fetched and dishonest.
[97]
The importance of the press in a democratic society cannot be
overemphasized. The public increasingly depends on investigative
journalism to expose corruption, incompetence and other matters of
public interest. But the public should be able to accept that
what
they are informed by the press is substantially true, alternatively
there must be a good reason why they got it wrong. It
cannot serve
democracy to enable the press to publish falsehoods with impunity,
particularly when those very statements have far-reaching
and
damaging consequences for those to whom they refer.
[98]
Courts must uphold the delicate balance between freedom of the press
and the right to reputation. The Broadcasting Complaints
Commission
of South Africa has a code of conduct which states that every
journalist shall attempt to report news truthfully, accurately
and
fairly with no intentional or negligent departure from the facts by
way of distortion, exaggeration or misrepresentation, material
omissions or summarisation.
20
[99]
Taking all the above into consideration, I believe Carte Blanche
exercised due care in investigating Boshoff's by approaching
experts.
However, once having received a response to the allegations, the
experts should have been afforded an opportunity to consider
them. At
the very least the responses should have been presented in the insert
in such a manner as being worthy of proper consideration.
As
Mazarakis conceded the programme was flawed and there were certain
distortions.
[100]
Notwithstanding the degree of drama that any successful television
programme entails, it was inexcusable to produce a programme
that was
so blatantly one-sided, especially since most of the statements were
found to be untrue. I am in agreement with Mazarakis
that the insert
did not accord with the high standards that the South African public
have come to expect of Carte Blanche. I find
that the manner in which
the insert was made was neither reasonable nor justified.
In
the result I make the following order:
[1]The
insert broadcast on 6 March 2005 by the defendants is defamatory of
the plaintiffs;
[2]The
plaintiffs are entitled to such damages as they may in due course
prove;
[3]
The defendants are to pay costs of suit to date, including the
qualifying fees of experts.
C.E.
HEATON NICHOLLS
JUDGE
OF THE SOUTH GAUTENG HIGH COURT - JOHANNESBURG
Appearances:
Counsel
for the plaintiff : Adv. A. Redding SC
Adv.
J. Campell SC Adv. T. Dalrymple
Plaintiff's
Attorneys : Edward Nathan Sonnenbergs
Counsel
for the defendants : Adv. P. Louw SC
Adv.
Hofmeyr
Defendants'
Attorneys :Bieldermans Inc.
Date
of hearing :24 August - 17 September 2010;
28,
29 September 2010
Date
of Judgment : 23 February 2011
1
National
Media Ltd and Others v Bogoshi
1998(4)
SA 1196 (A)
2
Neethling
v Du Preez and Others; Neethling v The Weekly Mail and Others
1994
(1) SA 708 (A) at 764C - G;
Van
der Berg v Coopers & Lybrand Trust (Pty) Ltd and Others
2001
(2)
SA 242 (SCA) at 252B - C
3
Khumalo and Others v Holomisa
2002
(5) SA 401 (CC) @ para [25 and [26]; S
v
Makwanyane & Another
1995(3)
SA 391 (CC)
4
1990(3)
SA 547 (A)
5
Case
no 2008/ 19376 South Gauteng High Court
6
G A Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1; Die
Spoorbond and Another v
South
African Railways 1946 AD 999; Dlomo v Natal Newspapers (Pty) Ltd
1989(1) SA 945 (A); Financial Mail (Pty) Ltd v Sage Holdings
Ltd
1993 (2) SA 451 (A).
7
1922 AD 492 at 503
8
See
also:
Van Zyl v African Theatres Limited
1931 CPD 61;
Minister of Finance and Others v EBN Trading (Pty) Ltd
1998(2)
SA 319 NPD
9
Demmers v Wylie
1980
(1) SA 835 (AD)at p843-845;
National
Union of Distributive Workers v Cleghorn and Harris Ltd
1946
AD 984
10
Cozens
v Brutus
[1973]
AC 854(HL) at p 861C;
Moyna
v Secretary of State for Work and Pensions
[2003]
1 WLR 1929 HL
11
Independent
Newspapers Holdings Ltd & Others v Suliman
[2004]
3 All SA 137 (SCA) ;
Demmers
v Wylie
(supra)
12
Tsvangirai
v The Special Broadcasting Service
(2002)
NSWSC 532
13
Skuse
v Granada Television Ltd
{1996}
E.M.L.R. 276
14
MacKay
v Phillip
(1830)
1 Menz. 455 at p463;
Marais
v Richard & Ano
1981
(1) SA 1157 (AD) at p1166 G - H;
National
Media Ltd & Others v Bogoshi
(supra)
at p1202
Hardaker
v Phillips
2005
(4) SA 515 (SCA) at p524F - H (para 14)
15
(UK)
Reynolds
v Times Newspapers Ltd
(HL(E))
[2001]2 AC; (India)
Rajagopol
(R) v State
of
Tamil Naidu
(1994)
6 SCC 632, 650; (Australia)
Lange
v Australian Broadcasting Corpn
(1997)
189 CLR 520; (New Zealand)
Lange
v Atkinson
[1998]
3 NZLR 424; (Canada)
16
Mthembi-Mahanyele
v Mail and Guardian Ltd & Another
2004(6)
SA 329 (SCA)
17
Bogoshi
(supra)
1212-1213;
Mthembi-Mahanyele
v Mail and Guardian Ltd & Another
(supra)
18
Bonnick
v Morris
[2003]
AC 300 (PC); See also
Armstrong
v Times Newspapers
[2005]
EMLR 33 and
Flood
v Times Newspapers
[2010]
ELMR 33.
19
NM
& Others v Smith
[2008]
JOL 19615 (CC);
Trusco
Group International Ltd & Others v Shikongo
(SA
8/2009) [2010] NASC 6;
Tshabalala-Msimang
& Another v Makhanya & Others
2008(6)
SA 102 (W);
Jameel
v Wall Street Journal Europe Sprl
[2006]
WRL 642
20
BCCSA Code para 34