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
>>
2013
>>
[2013] ZAGPJHC 15
|

|

Cele v Avusa Media Ltd (08/10831) [2013] ZAGPJHC 15; [2013] 2 All SA 412 (GSJ) (14 February 2013)

Links to summary

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPORTABLE
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE
NO: 08/10831
DATE:14/02/2013
In
the matter between:
BHEKI
HAMILTON
CELE
.........................................................
Plaintiff
and
AVUSA
MEDIA
LIMITED
..........................................................
Defendant
J
U D G M E N T
KATHREE-SETILOANE,
J:
[1]
The plaintiff, Mr Bheki Cele, sues the defendant Avusa Media Ltd
1
for damages in the amount of R200 000 for defamation, and in the
alternative infringement of his dignity, arising from the
publication
of two articles together with a digitally altered
photograph of the plaintiff (“the altered photo image”)
which were
published by the Sowetan on 6 July 2007 and 16 July 2007,
respectively.
[2] The
defendant is the owner and publisher of the Sowetan. At the time that
the articles which form the basis of the claim were
published, the
plaintiff was a Member of the Executive Council in Kwazulu Natal
responsible for Transport, Community Safety and
Liaison. He was
subsequently appointed National Police Commissioner in July 2009, a
position which he held until he was removed
from office, by President
Jacob Zuma, on 12 June 2012.
Pursuing
defamation and dignity in the alternative
[3] Although
the plaintiff bases his claim on defamation as well as on an
infringement of his dignity, his particulars of claim
are largely
unclear in relation to which aspects relate to the defamation claim
and which to the 'dignity' claim. The two claims
have also not been
pleaded in the alternative. The particulars of claim, furthermore, do
not contain a prayer for relief in respect
of infringement of
dignity. On the contrary, the relief sought appears to be limited to
the defamation claim. The defendant raised
this at the second
pre-trial conference suggesting that the plaintiff amend his
particulars of claim. The plaintiff failed to do
so. Consequently, on
the first day of the trial, the Court directed the parties to prepare
a joint statement setting out which
aspects of the particulars of
claim relate to the defamation claim and which to the dignity claim,
as well as the defences raised
in respect of each claim. Pursuant to
the Court's direction, the parties prepared a “Statement of
Plaintiff's Claim and Defendant's
Defence” ("the joint
statement"), which was handed up to the Court. The joint
statement reveals that the plaintiff’s
defamation claim is set
out at paragraphs 15 to 20 of the particulars of claim, his dignity
claim is set out at paragraphs 12 to
14 of the particulars of claim,
and that the two claims are pursued in the alternative. The joint
statement also makes it clear
that the defamation claim is based on
the altered photo image read together with the articles of 6 July
2007 and 16 July 2007,
respectively and that the dignity claim is
based solely on the altered photo image.
[4] The
articles of 6 July 2007 and 16 July 2007, which were published in the
Sowetan, were written by Mhlaba Memela (“Memela”),
a
reporter employed by the defendant. The article of 6 July 2007 reads:
“
‘AIM
FOR THE HEAD’
Mhlaba
Memela
Black
business people in KwaZulu- Natal have been told in no uncertain
terms that they should stop “moaning about crime while
they
fail to wage a war against evil crime in society”
This
comment from Bheki Cele, KwaZulu- Natal MEC for transport, community
safety and liaison, follows an outcry from black businessmen,
who
attended the Nafcoc prayer meeting at the Umlazi Cinema, south of
Durban yesterday.
Cele
also lashed out at criminals, saying police in the province “will
shoot to kill”.
His
comments came day after crime statistics showed that KwaZulu- Natal
is heading for the shameful number one position as the most
dangerous
province.
Nafcoc
members in the province were in Umlazi as part of the project to
revamp
businesses
that were destroyed by political violence.
The
provincial Nafcoc leadership will press ahead with the project
despite its national leadership saying the provincial president
of
the federation was not a senior office bearer of the organisation.
Businessmen
in the township complained that they had now become victims of crime
in their place of work.
Previously
they were victims of political violence.
The
businessmen said they had experienced more deaths of fellow
businessmen in the past few months than ever before.
“
Crime
needs a joint effort from government and the community”.
“
Anger
will always fail to find the path to the right solution. Police need
to shoot and kill criminals”.
“
Police
must aim for the Head”
“
What
criminals are doing is brutality not crime”, said Cele.
Local
Entrepreneur Musa Hlongwane said businessmen in Umlazi were dying in
the townships because of increased crime.
“
We
work hard with the police in the area but everyday businesses are
being robbed here. Our owners are killed”.
In
his speech, ANC deputy president Jacob Zuma called on local church
leaders to help restore humanity within society”
The
front page of the 6 July 2007 edition of the Sowetan carried an
altered photo image of the plaintiff (which is described later
in the
judgment) with the caption "POLICE MUST AIM FOR THE HEAD".
The altered photo image was created by Mzi Oliphant,
an employee of
the defendant.
[5]
The article of 16 July 2007 reads:
“
Eight
dead in 10 days of crime war
_____________
Mhlaba
Memela
____________
Police
in KwaZulu- Natal have killed eight people in less than 10 days after
Bheki Cele, MEC for transport, community safety and
liaison, told
them not to hesitate and shoot to kill all criminals.
Less
than two weeks after Cele’s call, police have shot dead eight
suspects in separate incidents in the province.
Cele
lashed out at criminals, saying police in the province would shoot to
kill.
“
We
cannot allow police to be killed by criminals. Once criminals pull
their guns, police should aim for the head”, he told
a prayer
meeting at Umlazi Cinema in Durban two weeks ago.
Barely
a week later, four hijackers were shot dead in Effingham. Two ATM
bombers were killed last week, a taxi hitman was killed
and an
alleged murder and robbery kingpin, Rasta Msisi, 43, linked to the St
Tropez Restaurant attack, was shot dead.
However,
the province’s “crime war” also claimed the lives
of four policemen, who were shot dead by criminals
while on duty.
An
alleged taxi hitman known as “Inkabi” was killed in
shoot- out with police near Hammersdale in Durban.
He
was travelling with a man wanted in connection with murdering taxi
owner Bonginkosi Dladla, 40, his brother Mbeki Ngobese, 24,
six-
year- old toddler S N, her mother Amanda Ndawonde 26, and grandmother
Nokuthula Ndwawonde, 52, in Umlazi south of Durban.
Police
spokesman Superintendent Vincent Mdunge said the police’s
mandate was to create a safe environment for all citizens.
“
It’s
not our mandate or vision to kill. But there are situations which
force police to use extra power when criminals shoot
at us”, he
said.
Mdunge
confirmed that in the past few weeks police had dealt harshly with
criminals, but he denied it was a response to Cele’s
call.
He
said police had a right to protect themselves against criminals, even
if it meant shooting to kill.
Mdunge
said police had exchanged fire with taxi hitmen on the N3 near
Hammersdale and two suspects had been arrested.
“
Police
are investigating many cases of taxi killings and we cannot confirm
that they are linked to any of the recent killings”,
he said.”
The
front page of the 16 July 2007 edition of the Sowetan carried the
same altered photo image of the plaintiff, which appeared
on the
front page of the 6 July 2007 edition of the Sowetan, with the
caption:
“
POLICE
PULL THE TRIGGER
…
SHOOT
AND INJURE EIGHT CRIME SUSPECTS IN 10 DAYS
Thanks
to KwaZulu-Natal community safety and liason MEC Bheki Cele’s
‘shoot them’ order”
The
plaintiff's defamation claim
[6] The
joint statement indicates that the plaintiff's defamation claim is
set out in paragraphs 15 to 20 of the particulars of
claim. The
plaintiff does not identify the specific passages from each of the
two articles that are alleged to be defamatory.
Instead the
plaintiff pleads that the entire content of both articles as well as
the altered image are defamatory per se; alternatively,
were intended
and understood by those members of the public who read and saw them,
to mean that:
(a) the
death and killing of the persons mentioned in the article are as a
result of the statements attributable to the plaintiff;
(b) That
the plaintiff is "a person with murderous intent"; and
(c) That
the members of the police acted in the manner described in the
articles at the instance of the plaintiff.
As
contended for by the defendant, logically the meanings pleaded by the
plaintiff in paragraphs (a) and (c)
2
above can only arise from the article of 16 July 2007 and not from
the article of 6 July 2007, which plainly does not make reference
to
any deaths.
[7] The
plaintiff furthermore pleads that the articles and the altered photo
image are false, that the falsity was known or ought
reasonably to
have been known to the defendant, and that the defendant had no
reasonable grounds for believing the statements or
implications
conveyed by the articles and the altered photo image were true. The
plaintiff also pleads that the defendant acted
unreasonably in
publishing the two articles and the altered photo image of the
plaintiff. These allegations, in my view, are irrelevant
as they do
not form part of the essential elements that a plaintiff is required
to allege and prove in a defamation claim.
3
I will accordingly disregard them as they are superfluous and
meaningless in law for purposes of assessing the plaintiff's
defamation
claim.
The
defences raised
[8]
The defendant denies that the articles of 6 July 2007 and 16 July
2007 and the altered image are per se defamatory of the plaintiff
or
harmful to his dignity. In the alternative, and in the event that the
Court finds that the articles of 6 July 2007 and 16 July
2007
are defamatory, the defendant pleads fair comment and reasonable
publication in relation to the article of 16 July 2007, and

reasonable publication in relation to the article of 6 July only
4
.
In the event that the Court finds that the altered image is
defamatory, the defendant pleads fair comment and reasonable
publication,
and in the event that the court finds that the altered
image harmed the plaintiff's dignity, the defendant pleads fair
comment
and reasonable publication.
[9] The
law of defamation requires the balancing of two constitutional
rights, neither of which can be regarded as being of greater
a priori
significance: the right to reputation, which forms part of the right
to dignity, and the right to freedom of expression.
5
In Khumalo v Holomisa
6
,
which dealt in some detail with the balance to be struck between the
rights to human dignity and freedom of expression, the Constitutional

Court posed the question in the following manner:
“
The
law of defamation seeks to protect the legitimate interest
individuals have in their reputation. To this end, therefore, it
is
one of the aspects of our law which supports the protection of the
value of human dignity. When considering the constitutionality
of the
law of defamation, therefore, we need to ask whether an appropriate
balance is struck between the protection of freedom
of expression on
the one hand, and the value of human dignity on the other.”
As
restated by the Constitutional Court in Khumalo v Holomisa
7
,
the elements of an action for defamation are the wrongful and
intentional publication of a defamatory statement concerning the

plaintiff. The plaintiff is, however, not required to establish every
one of these elements in order to succeed
8
.
If the plaintiff is able to prove at the outset that there has been
publication of defamatory matter concerning him or her, it
is then
incumbent upon the defendant to raise a defence that excludes either
wrongfulness or intent. The onus on the defendant
to rebut these
presumptions is a full onus that must be discharged on a
preponderance of probabilities.
9
[10] In
a case where the plaintiff pleads that the publication is defamatory
per se, as in the present matter, a two-stage enquiry
must be
followed. This enquiry was set out in Le Roux v Dey as follows:
"Where
the plaintiff is content to rely on the proposition that the
published statement is defamatory per se, a two-stage enquiry
is
brought to bear. The first is to establish the ordinary meaning of
the statement. The second is whether that meaning is defamatory.
In
establishing the ordinary meaning, the court is not concerned with
the meaning which the maker of the statement intended to
convey. Nor
is it concerned with the meaning given to it by the persons to whom
it was published, whether or not they believed
it to be true, or
whether or not they then thought less of the plaintiff. The test to
be applied is an objective one. In accordance
with this objective
test the criterion is what meaning the reasonable reader of ordinary
intelligence would attribute to the statement.
In applying this test
it is accepted that the reasonable reader would understand the
statement in its context and that he or she
would have had regard not
only to what is expressly stated but also to what is implied.
The
reasonable reader or observer is thus a legal construct of an
individual utilised by the court to establish meaning. Because
the
test is objective, a court may not hear evidence of the sense in
which the statement was understood by the actual reader or
observer
of the statement or publication in question."
10
[11] Thus,
in determining whether a statement is defamatory, the court must
first determine the meaning of the words complained
of. This is a
question of construction and not of evidence. The enquiry is an
objective one conducted through the lens of the ordinary
reasonable
reader of the particular publication. The attributes of an ordinary
reader as first enunciated in Basner v Trigger
11
were reiterated in Channing v South African Financial Gazette Ltd
12
,
as follows:
"From
these and other authorities it emerges that the ordinary reader is a
'reasonable', 'right-thinking' person, of average
education and
normal intelligence; he is not a man of 'morbid and suspicious mind',
nor is he 'super-critical' or abnormally sensitive;
and he must be
assumed to have read the articles as articles in newspapers are
usually read."
13
[12] Once
the meaning of the words has been established, the second stage of
the test is to determine whether the meaning conveyed
is defamatory
of the plaintiff. The basic test is an objective one of whether a
reasonable person of ordinary intelligence might
reasonably
understand the words to convey a meaning that tends to lower the
plaintiff in the estimation of members of the community.
Again, the
test to be applied is that of the ordinary reasonable reader.
[13] The
context in which the publication occurred is also of critical
importance in determining whether the content of the publication
is
defamatory. In
Golding v Torch
Printing
and Publishing
14
the court held that:
"The
circumstances in which the writing was published’ do not seem
to me to be capable of exact definition. Each case
must be decided on
its own facts. The alleged defamatory words must not be considered as
it were in vacuo but as part and parcel
of the whole. …"
Our
courts have accepted that cartoons, caricatures and sketches may be
defamatory, and that in assessing whether a cartoon, caricature
or
sketch is defamatory the same two-stage test set out above is
applicable.
15
I am of the view that the same test will also apply to the digitally
altered photo image of the plaintiff, in issue, in this matter
−
which for all intents and purposes is a parodic representation or
caricature of the plaintiff.
The
6 July article
[14] The
article of 6 July 2007 is a news report published under the headline
"Aim for the Head". The article states that
the plaintiff
attended a NAFCOC prayer meeting at Umlazi Cinema in Durban at which
he addressed black businessmen from Umlazi.
The article quotes the
plaintiff as having, inter alia, made the following comments during
his speech at the meeting:
(a) Black
business people in Kwa Zulu Natal have been told in no uncertain
terms (by the plaintiff) that they should stop "moaning
about
crime while they fail to wage a war against evil crime in society."
(b) "The
plaintiff lashed out at criminals saying police in the province 'will
shoot to kill' ";
(c) "Crime
needs a joint effort from government and the community. Anger will
always fail to find the path to the right solution.
Police need to
shoot and kill all criminals. Police must aim for the head. What
criminals are doing is brutality not crime".
It
emerged during the testimony of the plaintiff that he takes issue
only with the use of the statements “shoot to kill”,
and
that “police need to shoot and kill all criminals” which
the writer of the article had attributed to him. There
is therefore a
factual dispute between the parties as to whether the said statements
quoted in the article are correct. The plaintiff
denies that he used
the words "shoot to kill". He has also denied stating that
"police need to shoot and kill all
criminals". He, however,
accepts having made the following two statements: "aim for the
head" and “use deadly
force” which were directed at
“violent criminals”. He also accepts that the sting in
the statements was that
it should be the suspect that is buried and
not the policeman.
[15] Memela,
the reporter who wrote the article, testified that he personally
attended the NAFCOC meeting at Umlazi Cinema in Durban
and that the
plaintiff uttered the statements quoted in the article during his
speech. The meeting ended at approximately 15h30
and Memela wrote and
submitted the article for publication in the Sowetan on the same day.
The defendant argues that the accuracy
of the quotation is supported
by the fact that Memela took contemporaneous notes during the
plaintiff’s speech that were
used as a basis for the article,
and that the use of these notes renders it more probable than not
that the content of the speech
was accurately recorded in the
article. In addition, it argues that since the article was written
on the same day that Memela
attended the event, he would have had a
reasonably clear recollection of the statements made by the
plaintiff.
[16] Memela,
however, testified that he was unable to produce a copy of the notes
for discovery because his notes were lost and
could not be found. The
plaintiff contends that Memela’s testimony regarding the notes
is untruthful and should be rejected
by the Court. The defendant, no
doubt, contends that that Memela's version should be accepted as true
as there is no credible reason
for him to lie on this issue. It
contends, in this regard, that Memela explained the circumstances in
which the notes were lost,
and there is no admissible evidence on
record to gainsay his explanation, save for unavailing attempts by
the plaintiff to discredit
him under cross-examination.
[17] Memela
testified that his notes went missing during an office move that took
place in 2010, and that the reason for not making
an effort to secure
the notes prior to 2010, was that he only consulted with the
defendant's attorneys for the first time in 2010.
He said that it was
only at this stage that he became aware of the exact nature of the
claim, and that his notes were required
for purposes of the trial.
During cross examination, Memela repeatedly emphasised, and did not
deviate from the fact, that he only
consulted with the defendant's
attorneys for the first time in 2010. He stated that prior to 2010
he was aware that the plaintiff
was suing the Sowetan - a fact that
was conveyed to him by the Bureau Chief of the Sowetan in Durban,
Mary Pappaya ("Pappaya")
– but he was not informed
of the details of the claim. At that stage he was under the
impression that the plaintiff’s
main complaint related to the
altered photo image, which had not been created by him. He also
testified that he was not asked
by Pappaya, at that stage, to make a
copy of his notes available.
[18] Memela's
version that he only consulted with the defendant's attorneys in
2010, and that it was only at that stage that he
was asked to hand
over a copy of his notes, is also supported by the fact that the
defendant's discovery affidavit was only deposed
to on 1 September
2010. I am of the view that the probabilities, therefore, favour the
conclusion that it was only at the stage
when the discovery affidavit
was being prepared that Memela was asked to provide a copy of his
notes. There is again no admissible
evidence on record to contradict
this. I am accordingly of the view that Memela's evidence, in this
regard, has not been gainsaid
by any evidence adduced by the
plaintiff. Memela’s testimony that he only consulted with the
defendant's attorneys in 2010,
and it was only at that stage that he
became aware that his notes were required, is also uncontested. His
failure to preserve the
notes at an earlier stage when he became
aware (without knowing the substance of the allegations) that the
plaintiff was taking
legal action, does not, in my view, mean that
the notes were deliberately concealed or destroyed. At best, this
demonstrates a
lack of adequate caution in preserving evidence.
Accordingly, I am of the view that Memela's version was truthful and
reliable,
and I find no reason to reject his evidence.
[19] The
plaintiff has admitted to making numerous other statements that are
the equivalent of “shoot to kill” or which
were
reasonably understood by reporters to mean “shoot to kill”.
He has also admitted to making numerous statements
in support of the
police using “deadly force” when confronting criminals.
These admissions appear from “Plaintiff’s
Reply to
Defendant’s Request for Admissions”:
(a) he
is correctly quoted in the article as having stated "We cannot
allow police to be killed by criminals. Once criminals
pull their
guns police must aim for the head" (He also admitted saying this
under cross examination);
(b) he
said that "you have to defend yourself you cannot die with a gun
in your hand";
(c)
he said that "if someone who is carrying a camera wants to shoot
a picture of you, respond with a smile. But if he is
carrying a gun
and threatens to shoot you then you must respond in a similar
manner";
(d) he
said that "when a criminal points a gun at a police officer and
then cocks it there is only one thing he will do next
and that is to
fire it";
(e) he
said that Police must "not die with guns in their pockets";
(f) he
said that "you can't be soft and you can't be moving around
kissing crime. You need to be tough, because you are dealing
with
tough guys";
(g)
he said that "criminals are comfortable with R5s and when they
pull the trigger it does not produce photos"…"The

only choice that police have is to answer with the same thing that
criminals are using. The only thing that an R5 understands is
R5";
(h)
he said that "if police see a suspect with a gun in his
hand, they
must
not shout";
(i) that
he said that "no policeman must smile on a thug that has a gun
in his hand";
(j) he
said that "if you are facing a criminal with a gun and he is
threatening your life, someone has to survive. Saying 'I
have a gun
put yours down does not work'";
(k) he
said that "my instruction to my officers is that they should not
die with their guns in their hands";
(l)
he said that "anybody who has a gun in hand and is threatening
you with a gun, you must use yours";
(m) he
used words to the effect that people who rape and kill innocent
people should not be granted any human rights;
(n) he
said that "it has been said that I say 'shoot to kill'. I have
never used that term. But I have told the police they
must use deadly
force";
(o) he
said that "no police officer must die with a gun in their hand.
The police should not be trigger happy but any criminal
with a gun in
the hand should not shoot at the police. We are not training you to
open new graves but do not let criminals prevail
over you";
(p) he
said that "we must show them that they cannot just take money
that they did not work for. No one here will die in the
hands of
thugs anymore because of you. You are here for a reason – quick
and decisive response – and we will show them
that either dead
or alive, it is the end of the road for them."
[20] It
is clear from the abovementioned statements that the plaintiff has
admitted to making other statements, inter alia "aim
for the
head" and "use deadly force" which are the equivalent
of "shoot to kill", meaning that the police
must use deadly
force when dealing with criminals. This certainly makes it more
probable than not that the plaintiff made the statement
"shoot
to kill". Indeed, the plaintiff conceded under
cross-examination, when questioned about his use of the term “deadly

force” that "deadly means dead". Although the
plaintiff sought to distinguish the occasions on which he had used

similar language and to justify the use of such language, his
explanation was a mere exercise in semantics. Whether one uses the

terms “aim for the head”, “use deadly force”
or “shoot to kill” their meaning and import is
the same.
The uncontested evidence demonstrates that the plaintiff had, on
numerous occasions including during the same speech
on 5 July 2007,
used language with the same import as "shoot to kill".
Having regard to these admissions, the plaintiff’s
denial that
he used the words "shoot to kill", or words reasonably
understood in this way, is implausible.
[21]
The plaintiff, furthermore, relies solely on his memory of a speech
that was given off the cuff more than five years before
the trial.
During cross-examination, he admitted that he did not have any record
of his speech from which to refresh his memory.
The plaintiff has
sought to rely on the fact that other newspapers that were present at
the meeting on 5 July 2007, i.e. the Daily
News and The Citizen, did
not report the statements made by him as support for his contention
that he did not make those statements.
This argument, in my view, is
ill-conceived. Firstly, neither the Daily News nor The Citizen
published articles on 6 July 2007
regarding the NAFCOC meeting.
Their failure to do so could be based on a whole host of reasons. It
is mere speculation to suggest
that they did not report on the
meeting because the plaintiff had not made any controversial
statements that were worth reporting.
Secondly, as pointed out by
the defendant, the Daily News articles relied upon by the plaintiff
are not reports of the events
that took place on 5 July 2007 at the
NAFOC meeting at Umlazi cinema. On the contrary, the article
published by the Daily News
on 5 July 2007 was a report of a
different event, i.e. the provincial police awards in Amanzimtoti. In
addition, the follow-up
article, published by the Daily News on 23
July 2007, also referred to the provincial police awards in
Amanzimtoti. Thirdly, aside
from the article published by the
defendant, the only other article that reported on the the NAFCOC
meeting, which was held at
Umlazi on 5 July 2007, was the
article published by The Citizen on 23 July 2007. Significantly, the
article reads in relevant
part as follows:
"A
shoot to kill call by a top South African law enforcement officer has
fuelled a debate on how far police can go to defend
themselves"
16
.
[22] It
is, therefore, apparent that the only other newspaper, namely The
Citizen, that reported on the meeting at Umlazi on 5 July
2007 also
reports that the plaintiff made a call for the police to "shoot
to kill". It is improbable that The Citizen
would have made the
same 'mistake' that Memela is alleged to have made − thus
signifying that Memela was not mistaken. The
plaintiff has, however,
not taken any action against The Citizen for reporting this statement
and attributing it to him. His explanation
that he did not pursue
newspapers that, in his view, reported on him in a balanced way is
yet again implausible. In the circumstances,
I find on a balance of
probabilities that the plaintiff made the statements "shoot to
kill" and "police must shoot
and kill all criminals"
during his speech on 5 July 2007, referring to “violent
criminals”.
The
meaning of the 6 July article and the altered photo image
[23] The
plaintiff's defamation claim regarding the article of 6 July 2007
relies "on the cumulative import" of the altered
image and
the content of the article. The plaintiff contends that the altered
image portrays the plaintiff as a "gun touting
man". This
contention is, however, inconsistent with the plaintiff’s
evidence which demonstrates that being portrayed
as a “gun
touting” law enforcement officer (or official) was not the
essence of the plaintiff’s complaint. His
actual complaint was
that the altered photo image “mixes” him or manipulated a
likeness of him. What hurt him, he
complains, is “to mix me”−
and it portrayed him as a “movie star” or actor. It is,
however, abundantly
clear from the plaintiff’s testimony that
he had no objection to being portrayed carrying guns or armed,
depending on the
context. Ultimately, the plaintiff complains that
the altered photo image is attired differently from how he would
normally present
himself; and is carrying a type of gun he would not
carry. I am of the view that this is not a complaint that deserves
the protection
of the law, especially in the case of a public figure
who courted public attention and controversy as consistently as the
plaintiff
did on an important public interest issue such as violent
crime, and what the police’s appropriate response should be.
The
law requires of such public figures, politicians and public
officers (by virtue of their chosen professions) to be robust and
thick-skinned
in relation to comments made against them.
[24] It
is well established in our law that public figures, including
politicians, are required to withstand greater scrutiny and

criticism. In
Delange v Costa
17
the Court observed that:
"[b]usinessmen
who engage in competition (like politicians who take part in public
life) expose themselves to, and must expect,
a greater degree of
criticism than the average private individual."
Similarly,
in Argus Printing and Publishing Co Ltd v Inkatha Freedom Party
18
the Court held that:
"the
law's reluctance to regard political utterances as defamatory no
doubt stems in part from the recognition that right-thinking
people
are not likely to be greatly influenced in their esteem of a
politician by derogatory statements made about him..."
Although
politicians are not expected to endure every infringement of their
personality rights, they must expect to be criticised
19
and "they do have to be more resilient to slings and arrows than
non-political, private mortals."
20
In Pienaar v Argus Printing and Publishing Co Ltd
21
,
the Court held that:
"I
think that the Courts must not avoid the reality that in South Africa
political matters are usually discussed in forthright
terms. Strong
epithets are used and accusations come readily to the tongue. I
think, too, that the public and readers of newspapers
that debate
political matters, are aware of this. How soon the audiences of
political speakers would dwindle if the speakers were
to use the
tones, terms and expressions that one could expect from a lecturer at
a meeting of the ladies’ agricultural union
on the subject of
pruning roses! Some support for this view is to be found in a passage
in Gatley on Libel and Slander, 3rd ed.
p. 468. It reads:
'In
cases of comment on a matter of public interest the limits of comment
are very wide indeed. This is especially so in the case
of public
men. Those who fill public positions must not be too thin-skinned in
reference to comments made upon them.'"
[25] Since
the plaintiff relies specifically on the altered photo image read
together with the content of the article, it is necessary
to
determine the meaning of the altered photo image, the meaning of the
words in the article read as a whole, and the meaning of
the altered
photo image read with the article. It is common cause that the
altered photo image is a composite image, which consists
of a
photograph of the plaintiff’s head superimposed onto the body
of another person. The identity of the person to whom
the body
belonged is not known. The photograph of the plaintiff’s head
depicts him wearing a wide brimmed hat. The body
is that of a man
dressed in clothing that is reminiscent of a sheriff wearing a shirt,
tie, waistcoat, long overcoat, trousers,
boots, a belt with a large
buckle and a gun holster attached to the belt. The figure is also
carrying a gun. The altered photo
image is a parodic representation
or caricature (using elements of satire) of the plaintiff as a law
enforcement officer or sheriff,
playfully, perhaps, from the Wild
West. It must not, therefore, be interpreted to be a portrayal or
representation of real life.
[26] When
it was put to the plaintiff, during cross examination by counsel for
the defendant, that the altered image of the plaintiff
depicted a law
enforcement officer or official taking a tough stance against violent
crime, he responded by stating that it was
not the way he viewed the
altered photo image, nor the way that the people who first alerted
him to the altered photo image viewed
it. It is important to bear in
mind that for purposes of a defamation claim, it is irrelevant how
the plaintiff subjectively viewed
the altered image or how people,
who spoke to him, viewed it subjectively.
[27]
As contended for by the defendant, a reasonable person would
understand the altered image in the context of the statements
made in
the articles in which the altered image was carried – to
portray officialdom represented by the plaintiff taking
a no nonsense
stance on violent crime − consistent with the statements
attributed to him on this issue. I agree. It would
have been clear to
readers that the altered photo image was not a real photograph of the
plaintiff because the clothing, as well
as the gun holster worn on
the belt, are clearly not modern and in keeping with current trends.
It is not the style of clothing
that people (especially the plaintiff
on his own evidence) would wear in the modern context. It is
important to recognise, in
this regard, that the plaintiff was a
public figure at the time, and the press was replete with images of
him. The attire in which
the plaintiff regularly presented himself,
in public, did not at all resemble the ensemble worn by the figure in
the altered photo
image. In my view, the altered photo image would
certainly have been understood by reasonable readers in the context
of the caption
that appears beneath it, which reads "police must
aim for the head”, as well as the article which followed on
page 6
of the Sowetan, which reports on the statements made by the
plaintiff concerning the use of force by the police.
[28] A
further element of context, which the Court must give consideration
to, is the political position held by the plaintiff as
well as his
history of involvement in law enforcement. At the time that the
article was published, the plaintiff was the MEC for
Community Safety
and Liaison in KwaZulu-Natal, which made him the highest political
office bearer dealing with safety and security
in the province. The
plaintiff testified that prior to the 1994 elections he was involved
in attempts to solve the problems relating
to political violence in
KwaZulu-Natal and that, in this context, he worked with the police
and communities. After the 1994 elections
he was appointed as member
of the provincial parliament in KwaZulu-Natal and held the portfolio
of Safety and Security. These facts,
in my view, would have been
known to the average readers of the Sowetan at the time, and would
have formed part of the context
in which they interpreted the altered
photo image. The altered image, in my view, is a depiction of the
plaintiff as a law enforcer
or sheriff from the Wild West, and it
would have been understood as such by reasonable readers of Sowetan.
The altered photo image
taken together with the caption and the
contents of the article would have been understood to mean that the
plaintiff was taking
a tough stance on crime and that, like a sheriff
from the Wild West, he wanted criminals to be harshly dealt with by
the police
and brought to justice, either dead or alive.
[29] In
Golding
22
the Court made it is clear that with respect to the meaning to be
derived from the content of the article, such meaning must be

ascertained having full regard to the context of the article.
Accordingly, the article must be read as a whole and individual words

such as "shoot to kill" must not be singled out and
interpreted out of context. With respect to context, the article
is a
news report regarding a meeting of businessmen at which the main
topic of discussion was revamping businesses that had been
destroyed
by political violence. One of the topics under discussion was the
concern expressed by the businessmen that they were
under attack by
violent criminals. Memela testified that the businessmen were angry
due to the perceived failure of the police
to address the crime
situation in Umlazi, and that the plaintiff accordingly addressed
them on this issue. The article also states
that, at the time that
the comments were made, KwaZulu-Natal was headed for the position of
most dangerous province in the country.
A reasonable reader would
have read the plaintiff’s statements and given meaning to them
within this context, which appears
from the article. As alluded to
above, reasonable readers of the Sowetan would also have been aware
of the plaintiff’s political
position at the time, and his
history of involvement in matters relating to safety and security.
[30] I
am therefore of the view that a reasonable reader of the article
would have understood the article to mean that the plaintiff
was
taking a tough stance on crime and that he was strongly advocating
the use of deadly force by the police against criminals.
There is no
suggestion in the article that the plaintiff advocated indiscriminate
use of force against members of the public by
the police. On the
contrary, the context is very clear - the plaintiff was talking about
the need for police to take action against
violent criminals. The
plaintiff conceded this under cross-examination.
The
6 July article and the altered photo image are not defamatory
[31] I
therefore remain of the view that the meaning of the 6 July article
and the altered image are not defamatory of the plaintiff.
A
reasonable reader of the Sowetan, taking into account the context
mentioned above, would know that the plaintiff was a high ranking

politician charged with ensuring safety and security of the public in
the province of KwaZulu-Natal; that he had a well-known history
of
involvement in matters relating to safety and security; and that the
statements attributed to him, as well as the altered photo
image were
reported in the context of a meeting at which one of the primary
topics of discussion was violent criminal activity
which was
affecting businesses in Umlazi township − where crime was
reportedly on the increase. The reasonable reader would
not “think
less” of the plaintiff for taking a tough stance on crime; for
calling on the police to deal harshly with
criminals; and for
encouraging them to use deadly force when dealing with criminals. As
is apparent from the numerous articles
contained in the trial bundle,
there were varied responses to the stance that the plaintiff took on
violent crime and criminals.
Some even lauded his stance. I am
accordingly of the view that the plaintiff's claim, based on the
article of 6 July 2007 read
together with the altered photo image, is
without merit because neither the content of the article nor the
altered photo image
published is defamatory of the plaintiff.
The
meaning of the 16 July article and the altered photo image
[32] The
plaintiff contends that the contents of the article of 16 July 2007
read with the altered photo image are per se defamatory,

alternatively, would have been understood to bear the following
meanings which are defamatory:
(a) That
the death and killing of the individuals mentioned in the article are
as a result of the statements attributable to the
plaintiff;
(b) That
the plaintiff is "a person with murderous intent";
(c) That
the members of the police acted in the manner described in the
articles at the instance of the plaintiff.
[33] I
discussed in detail the meaning which, in my view, the reasonable
reader would attribute to the altered photo image which
was published
together with the article of 6 July 2007. I am of the view that the
same meaning is conveyed by the altered photo
image that was
published with the article of 16 July 2007 − which is that the
plaintiff took a tough, no nonsense, stance
against violent crime. In
relation to the headline, ordinary reasonable readers of newspapers
understand that headlines, by their
very nature, draw attention to an
article by paraphrasing and highlighting its contents through the use
of a few well-chosen words
or phrases. The headline does not, and is
not meant to, reflect the full content or context of the article. It
would, therefore,
have been clear to reasonable readers of the
Sowetan that the plaintiff did not give a specific 'order' to the
police to shoot
criminals as alluded to in the front page headline.
The headline was merely a paraphrase of the plaintiff’s
statements, which
were then elaborated upon in the text of the
article.
[34] The
plaintiff interprets the article to mean that he specifically ordered
the killing of the eight suspects. This interpretation,
in my view,
is contrived and unreasonable, and does not accord with how the
reasonable reader would have understood the article.
I accordingly
reject the plaintiff’s interpretation of the article. The
plaintiff’s subjective understanding of the
article is, in any
event, irrelevant to the determination of whether the article is
defamatory of the plaintiff. What the Court
must give consideration
to, in determining whether the article is defamatory of the
plaintiff, is whether a reasonable reader of
ordinary intelligence
might reasonably understand the words of the article to convey a
meaning that tends to lower the plaintiff
in the estimation of the
members of the community.
23
[35]
As indicated, in my view the article would have been understood by
reasonable readers to mean that the “use of deadly
force”
by the police was to be understood in the context of the tough stance
which the plaintiff took against violent crime.
This much is apparent
from the article and, in particular, the calls which the plaintiff
made to the police to, amongst other things,
“aim for the head”
and/or “use deadly force”. The article would, in all
certainly, not have been understood
by reasonable readers to mean
that the plaintiff had specifically ordered the killing of the eight
suspects in question or that
he was in any way culpable for the
deaths of these suspected criminals. Reasonable readers would
furthermore not have understood
this to be a statement of fact but
rather an expression of opinion by the defendant, in similar vein to
the opinions which other
newspapers and commentators expressed in
consequence of the police killings of suspects, during this period in
the province of
KwaZulu Natal, which the plaintiff took no objection
to. As contended for by the defendant, it would have been clear to
readers
that, without conducting interviews with the police-officers
involved in the incidents, the defendant could not have been in a
position to assess the state of mind of each police officer, in the
province, for purposes of concluding whether their actions
were
motivated by the plaintiff’s statements. Consequently, the
conclusions drawn by the plaintiff in this regard are speculative
and
without foundation.
[36] The
article could also not have been understood by the ordinary
reasonable reader to mean that the plaintiff had "murderous

intent". Murder is the unlawful killing of another human being.
It is clear from the article that the plaintiff’s
statements
were made in the context of the police response to violent criminals
and did not seek to encourage indiscriminate killing.
The article
includes the plaintiff’s statement that the “police must
not be killed by criminals” and that “once
criminals pull
out their guns the police must aim for the head”. Given the
context of the article, reasonable readers would
not jump to the
conclusion that the plaintiff wanted the police to indiscriminately
commit murder or kill the particular eight
suspects mentioned in the
article and the headline. Predictably, the plaintiff conceded that
his statements were understood as
directed at “violent
criminals” only.
The
article is not defamatory
[37] The
article is not defamatory of the plaintiff as reasonable readers
would not “think less” of the plaintiff for
encouraging
the police to take a tough stance against criminals. The articles in
the trial bundle show that certain members of
the media and the
community applauded his tough stance and calls to the police. The
article would have been read and understood
in its full context. In
this regard, it is notable that the article reports that the
plaintiff stated, at the meeting, that he
did not want the police to
be killed by criminals and that the individuals who were killed by
the police were alleged to be hijackers,
ATM bombers, a taxi hit man
and a murder and robbery kingpin − all violent criminals. It
would, therefore, have been reasonable
to conclude that they probably
resisted arrest thus resulting in their deaths. The article also
includes a statement that the province
of KwaZulu Natal was engaged
in a "crime war" which had also resulted in the deaths of
four police officers while on
duty and includes a comment from police
spokesperson Vincent Mdunge in which he explains that:
“
It
is not our mandate or vision to kill. But there are situations which
force police to use extra powers when criminals shoot at
us,”
he said
Mdunge
confirmed that in the past few weeks police had dealt harshly with
police but he denied that it was a response to Cele’s
call.
He
said police had a right to protect themselves against criminals even
if it meant shooting to kill.”
[38] Having
regard to this context, the ordinary reader of the Sowetan would not
have thought less of the plaintiff even if they
accepted that his
comments had led or contributed to the deaths of the individuals
mentioned in the article. Views may differ on
whether the plaintiff’s
call for the police to use deadly force was a courageous and
necessary stance against crime or whether
it was an imprudent
position to adopt. Having regard to the content and meaning of the
article, both these views are equally probable.
It is settled law,
in this regard, that where words or conduct are capable of more than
one meaning, the courts apply the normal
standard of proof in civil
cases i.e. a balance of probabilities. Where an allegedly defamatory
statement is equally capable of
bearing more than one meaning, one
that is innocent and another that is defamatory, the court must adopt
the non-defamatory meaning.
This principle was highlighted in
Channing where the Court held that:
"
Counsel
for the defendants, relying, inter alia, upon Conroy v Nicol,
1951
(1) SA 653
(AD), and S.A. Associated Newspapers v. Schoeman,
1962 (2)
SA 613
(AD), urged upon me the proposition that a Court dealing with
a defamation case is not entitled, where the matter complained of
is
capable of more than one reading, to adopt a defamatory
interpretation in preference to a non-defamatory one. If a newspaper

article is equally capable of both types of interpretation, he
argued, the plaintiff must fail. That proposition is, in my judgment,

a sound one, provided that this qualification or clarification is
borne in mind: the test is not whether, to the Court itself,
after it
has had the benefit of a careful analysis of the article, the article
seems to bear one meaning rather than another, or
seems equally
capable of bearing both meanings. The enquiry relates to the manner
in which the article would have been understood
by those readers of
it whose reactions are relevant to the action, and who are sometimes
referred to as the 'ordinary readers'."
24
In
these circumstances, I am compelled to accept the non-defamatory
meaning of the article. Accordingly, the plaintiff's claim in

relation to the defamatory nature of the article of 16 July 2007 must
fail because the content of the article published is not
defamatory
of the plaintiff
The
plaintiff's dignity claim
[39] As
per the joint statement, the plaintiff's dignity claim is set out in
paragraphs 12 to 14 of the particulars of claim and
is limited to the
altered image that was published by the defendant on 6 July 2007 and
16 July 2007, respectively. It does not
include the content of the
articles published on 6 July 2007 and 16 July 2007. The exact nature
of the plaintiff's dignity claim
is unclear. The particulars of claim
make no specific reference to an infringement of plaintiff’s
dignity. The claim appears
to be based on "public falsification
of the personality image of the plaintiff" and "portrayal
of the plaintiff's
image or likeness in a false light". The
plaintiff does, however, allege that he was humiliated and degraded
by the image.
[40] The
confusion regarding the plaintiff's cause of action became even more
apparent during argument, when the plaintiff failed
to rely on any
case authority relating to infringement of his right to dignity by
way of humiliation or degradation, despite the
fact that degrading
behaviour, particularly where it evidences contempt for a person, may
infringe a person’s dignity.
25
On the contrary, the case law relied upon by the plaintiff related
solely to the unlawful use of an individual's image in a context

different from the present. The plaintiff appears, in my view, to
have conflated two claims that are, in law, separate and distinct
–
one founded on an infringement of dignity per se and the other on the
publication of the plaintiff’s image without
his consent.
[41] The
plaintiff contends that the altered photo image infringes upon his
right to dignity. Since dignity embraces a person’s
subjective
feelings of dignity or self-respect, an infringement of one’s
right to dignity would involve insulting that person.
Thus when
enquiring into whether a person’s right to dignity has been
infringed, an important consideration is that it is
the person’s
opinion of himself, and not the opinion of others, with which the
court is concerned. A claim based on an infringement
of dignity is
for this reason distinguishable from a defamation claim. In order to
succeed in a claim based on an infringement
of the right to dignity,
the plaintiff must prove that the conduct concerned is wrongful.
However, for the conduct to be regarded
as a wrongful infringement of
dignity, it must not only infringe the subjective feelings of
dignity, but also be objectively unreasonable,
and in conflict with
the legal convictions of the community.
26
In other words, the conduct complained of must be tested against the
prevailing norms of society. In Delange v Costa the Court
articulated
the test as follows:
“
Because
proof that the subjective feelings of an individual have been
wounded, and his dignitas thereby impaired, is necessary before
an
action for injuria can succeed, the concept of dignitas is a
subjective one. But before that stage is reached it is necessary
to
establish that there was a wrongful act… In determining
whether or not the act complained of is wrongful the court applies

the criterion of reasonableness - the “algemene redelikheids
maatstaf”… This is an objective test. It requires
the
conduct complained of to be tested against the prevailing norms of
society (i.e. the current values and thinking of the community)
in
order to determine whether such conduct can be classified as
wrongful. To address the words to another which might wound his

self-esteem but which are not, objectively determined, insulting (and
therefore wrongful) cannot give rise to an action for injuria.
27
”
[42] It
follows that although it is the subjective feelings of the plaintiff
in a claim for infringement of dignity that must be
considered, the
court must also undertake an objective test of reasonableness. While
the subjective element requires that the
plaintiff must feel insulted
or hurt, the objective element requires that a reasonable person
would feel insulted or hurt by the
same conduct and in the same
circumstances. With regards to the violation of a norm that is
required for wrongfulness, the “notional
understanding and
reaction of a person of ordinary intelligence and sensibilities”
is also very important. Due to the importance
of the right to freedom
of expression in the South African context, it is essential to ensure
that the correct balance is struck
between the right to freedom of
expression and the right to human dignity, with neither one being
given greater importance as a
general rule. Each case must depend
upon its own circumstances and courts must ensure that they effect
the appropriate balance
between these two rights.
28
If the plaintiff is successful in establishing that he or she was
hurt, a presumption of wrongfulness arises, which the defendant
may
rebut by way of a ground of justification
29
.
[43] In
line with this approach, I am of the view that the appropriate test
in this case is whether a reasonable politician holding
high public
office would be hurt by the publication of the altered image. The
plaintiff testified as follows in respect of his
dignity claim: The
altered image was brought to his attention by a number of people (he
does not say how many) who phoned him while
he was travelling
overseas and informed him that they had seen a photograph of him in
the newspaper carrying a firearm. He was
hurt by the publication
because it made him look like a “movie star” or actor.
The altered image interfered with his
work because, at the time, he
was involved in a campaign to reduce the use of firearms amongst the
youth and after the publication
of the altered image, some of the
youth, with whom he was working, told him that they had seen him
carrying a firearm and that
they too would start to carry firearms.
He felt that his dignity had been lowered because "I was not
depicted as the way in
which I operated, but it was the opposite".
He stated that certain people told him that the body used to create
the altered
photo image was the body of a famous actor, and that they
could no longer take him seriously. He said that this made him feel
that
although he was trying to do a serious job, it was being
"degenerated" as playful.
[44] The
plaintiff’s testimony that the altered photo image harmed his
subjective feelings of dignity, because it “mixed”
him,
is open to serious doubt. Firstly, the reasons that the plaintiff
provides to substantiate this claim are questionable at
best. It is
unclear why any person would feel insulted by being depicted as a
movie star or as someone who is 'playful'. The plaintiff’s

claim, that the altered photo image interfered with his work and
resulted in him not being taken seriously, is equally baseless,
as it
is highly unlikely that the mere publication of the altered image
could have this effect.
[45] Secondly,
when counsel for the defendant, in cross examination, drew the
plaintiff’s attention to the numerous cartoons
and caricatures
published in other newspapers, which depict him armed, and which are
accompanied by the words "shoot to kill"
and other similar
statements, the plaintiff categorically remarked that he had “no
problem” with those cartoons. In
the face of this concession,
his insistence that the altered image was hurtful is disingenuous.
The plaintiff, nevertheless, sought
to distinguish the altered photo
image from the cartoons on the basis that the altered image purports
to be a photograph of him
or “mixes me”. This
distinction, in my view, is without merit as it would have been clear
to any normal reasonable
person, including the plaintiff, that the
altered photo image was a manipulated image or caricature and not a
real photograph of
the plaintiff. In my view, an altered photo image
or caricature that relies on a combination of real images is no
different from
a cartoon that might even combine one real feature and
the others fanciful; the objective behind both types of visual
depictions
are essentially the same − only the medium used is
different.
[46] Accordingly,
it is senseless for the plaintiff to find inoffensive the numerous
cartoons that convey the same message as the
altered photo image,
while simultaneously insisting that the altered photo image offended
him. It is notable that some of the cartons
published in other
newspapers conveyed a more damaging message than the altered photo
image, yet the plaintiff did not deem it
necessary to sue the owners
of those publications. In the circumstances, I find it hard to
believe that the plaintiff, a seasoned
public figure and politician,
who was trained as a MK soldier and plainly of strong character, was
subjectively hurt by the publication
of the altered photo image. In
the circumstances, the correct enquiry is whether a reasonable
politician with many years of experience
and a long history of
involvement in law enforcement would have felt hurt by the
publication of the altered photo image. I am of
the view that a
reasonable person, in the position of the plaintiff, would not have
been similarly offended, particularly as the
evidence shows that he
had not been offended by the portrayal of him or his likeness as a
“macho” law enforcement officer
or sheriff, in the form
of a cartoon, brandishing a gun. It makes little difference, in my
view, whether he was portrayed in this
way by a cartoon or an altered
photographic image (caricature), as in this case. The same test
applies.
[47] As
discussed, the altered photo image is a parodic representation or
caricature of the plaintiff using satirical elements.
Satire is a
form of artistic expression and social commentary. Therefore, in
assessing whether the plaintiff’s dignity has
been infringed by
the publication of the altered photo image the court must also give
consideration to the protection that our
Constitution affords to
artistic expression in the form of cartoons, caricatures and the
like, which contribute to the exchange
of ideas and opinions, and
which is essential for a democracy such as ours. The right to freedom
of expression in s 16 of the Constitution
expressly includes the
freedom of artistic creativity
30
,
which is generally regarded as worthy of special protection because
it is a means of individual self-fulfilment and self-expression,
and
it generates ideas and information that contributes to the
ascertainment of truth for the individual and society
31
.
The altered photo image of the plaintiff was created by Mzi
Oliphant, an employee of the Sowetan. It is a form of satire that

would, in my view, be considered to be artistic expression as
recognised by our law. It is therefore deserving of protection. In

Müller v Switzerland
32
,
the European Court of Human Rights observed that:
“
Those
who create, perform, distribute or exhibit works of art contribute to
the exchange of ideas and opinions which is essential
for a
democratic society. Hence, the obligation on the state not to
encroach unduly on their freedom of expression.”
[48] Similarly,
the United States Supreme Court emphasised the value of the visual
arts as a medium of political and social commentary
in Hustler
Magazine and Another v Falwell
33
,
when it stated as follows:
“
[F]rom
the early cartoon portraying George Washington as an ass down to the
present day, graphic depictions and satirical cartoons
have played a
prominent role in public and political debate…From the
viewpoint of history, it is clear that our political
discourse would
have been considerably poorer without them.”
Closer
to home, in Laugh it Off Promotions,
34
Sachs J observed that:
“
parodic
illustrations in satirical columns, or editorial cartoons in
newspapers or magazines, or a satirical programme on TV, are
likely
in any open society to enjoy a large measure of protection.”
[49] Balanced
against these important socio-political considerations which a
caricature, such as the one in issue, serves in a democracy
such as
ours, plaintiff’s dignity claim in relation to the publication
of the altered photo image in the Sowetan pales in
significance, more
particularly because the plaintiff has failed to demonstrate that he
was hurt or insulted in the sense contemplated
by the law.
Accordingly, the plaintiff’s dignity claim falls to be
dismissed.
The
unlawful publication of the plaintiff's image
[50] This
then brings me to the remaining question of the publication of the
plaintiff’s image without his consent or permission.
The
defendant accepts that the superimposed image of the plaintiff was
published without his consent. In appropriate circumstances,
the
publication of a person's photograph without permission is capable of
constituting an infringement of the right to dignity,
and actionable
under the actio injuriarum. The essential elements of an iniuria are
that the act complained of must be wrongful;
it must be intentional;
and it must violate one or other of those real rights related to
personality.
35
This requires the Court to make a value judgment taking into account
public policy considerations. In O'Keeffe v Argus Printing
and
Publishing Co Ltd and Another
36
,
which was an action for damages based upon a violation of the
plaintiff’s dignitas where the defendants (an owner of a
newspaper, and a company respectively) had used the plaintiff’s
name and photograph without her consent, the Court observed
that:
“
Whether
an act is to be placed amongst those that involve an insult,
indignity, humiliation or vexation depends to a great extent
upon the
modes of thought prevalent amongst any particular community or at any
period of time, or upon those of different classes
or grades of
society, and the question must therefore to a great extent be left to
the discretion of the Court where an action
on account of the alleged
injury is brought. It will be seen that some acts which were
considered injurious amongst the Romans
were peculiar to their
manners and modes of thought, and would hardly be considered as such
at the present day.”
[51] I
am of the view that the mere unauthorised publication of plaintiff’s
image or likeness in the circumstances under consideration,
i.e.
where a politician's image has been used to create a caricature for
purposes of commenting on his or her public statements
on issues that
are in the public interest, and not for commercial purposes, would
not be considered wrongful. Having regard to
the importance of
striking the correct balance between the right to freedom of
expression and the right to dignity, public policy
dictates that in
these circumstances the defendant should not be held liable for
publishing the photographic image (albeit altered)
of the plaintiff.
[52] At
the time that the picture was published, plaintiff was a well-known
public figure and politician, who was regularly photographed
by the
press. As indicated earlier, the media was replete with images of
the plaintiff. Public figures, politicians and celebrities,
such as
the plaintiff, knowingly lay themselves open to public scrutiny and
forthright criticism by journalists and the public
at large. They
must consequently display a greater degree of tolerance to criticism
than ordinary individuals. Where a picture
of a public figure, such
as the plaintiff, accompanies an article that is of public interest
as it relates to the use of “deadly
force” in curbing
violent crime in the province of KwaZulu Natal, it can hardly be
argued that the publication of the photograph
without the consent of
the public figure is unlawful. It is important, in this regard, to
bear in mind the difference between the
publication of a photographic
image, such as in this matter, and the publication of the
photographic image, in issue, in O’Keeffe
37
,
which is relied upon by the plaintiff. In O'Keeffe, the plaintiff
complained that her photograph had been used in an advert without
her
consent. Whilst the court held that this was an aggression against
the plaintiff's dignitas, it made this finding in the specific

context of the photograph being used for advertising purposes. The
plaintiff’s reliance upon O’Keefe is accordingly

misplaced. So too is its reliance on the decision of Wells v Atoll
Media (Pty) Limited and Another
38
,
which concerned the publication of a photograph of a 12-year-old girl
wearing a bikini with the caption "only 100% pure filth"

written over the picture. The image of the 12-year-old girl was
described as being a "pinup photo" which was "provocatively

taken and used apparently 'to spice up' the magazine."
39
Although the court commented obiter that "the appropriation of
a person's image or likeness for the commercial benefit or
advantage
of another may well call for legal intervention in order to protect
the individual concerned"
40
,
the matter was in fact decided under the law of defamation, and it
was not necessary to consider whether any other personality
right had
been infringed.
41
Significantly, the photograph was used for commercial purposes,
which is distinguishable from the current matter.
[53] O'Keeffe
and Wells required there to be a commercial interest at play, which
is not so in the present matter. Moreover, neither
O’ Keefe
nor Wells dealt with a situation where a photographic image was
altered before publication. Furthermore, neither
of these cases
considered the way in which the position may be affected in instances
where the subject is a public figure and politician,
such as the
plaintiff. In this regard, the dictum in O'Keeffe is apposite:
“
[N]ot
necessary for me in the present case to hold, and I do not hold, that
this is always so. Much must depend upon the circumstances
of each
particular case, the nature of the photograph, the personality of the
plaintiff, his station in life, his previous habits
with reference to
publicity and the like.
42
”
Viewed
against the background that the plaintiff was a seasoned politician
and public figure who regularly courted public attention
and
controversy on important public interest issues such as violent crime
and the appropriate response of the police to such crime,
and that he
has failed to prove that any of his personality rights have been
violated, the publication by the defendant of the
plaintiff’s
image (albeit altered) in the Sowetan without his consent was not
unlawful.
Conclusion
[54] For
the reasons stated above, the plaintiff's defamation claim falls to
be dismissed. The altered photo image and the articles
published on 6
July 2007 and 16 July 2007 are not defamatory of the plaintiff.
Similarly, the plaintiff’s alternative claim
based on dignity
falls to be dismissed. The plaintiff has failed to make out a case
that his right to dignity has been infringed
by the publication of
the altered photo image of himself.
[55] In
the result, I make the following order:
The
plaintiff’s claim is dismissed.
The
plaintiff is ordered to pay the defendant’s costs.
_____________________________
F KATHREE-SETILOANE
JUDGE
OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
Counsel
for the Plaintiff: Mr TG Madonsela
Attorneys
for the Plaintiff: Strauss Daily Inc
Counsel
for the Defendant: Mr H. Maenetje SC
Attorneys
for the Defendant: Webber Wentzel
Dates
of hearing: 1, 3, 6 and 10 February 2012 and 10 October 2012
Date
of Judgment 14 February 2013
1
The plaintiff originally sued New Africa Publications Ltd,
the erstwhile owner and publisher of the
Sowetan
newspaper.
Subsequent to the issuing of the summons, New Africa Publications
had been wound up and the
Sowetan
is currently owned and
published by Avusa Media Limited. There has been a substitution of
New Africa Publication by Avusa Media
Limited. (notice of
substitution, dated 21 August 2012)
2
Paragraphs 16(a) and 16(c) of the plaintiff’s particulars of
claim
3
Neethling, Potgieter and Visser,
Neethling’s
Law of Personality
2
nd
ed, 2005 at 131
4
The
defendant withdrew its defence of jest at the hearing of argument,
as well as the defence of fair comment in relation to the
6 July
2007 article.
5
Milo
et al
Freedom of Expression
in Woolman
et al
Constitutional Law of South Africa at OS 06 08,Chapter 42 at 85
6
2002(8) BCLR 771 (CC) at para 28
7
Khumalo v Holomisa
at para 18
8
Le Roux and Others v Dey
2011 (6) BCLR 577
(CC)
9
Hardaker v Philips
2005(4)
SA 515 (SCA) at 14
10
Le Roux
at
para 89-91
11
1945 AD 22
12
1996 (3) SA 470
(W)
13
Channing
at
474A-C. Quoted with approval in
Mthembi-Mahanyela
at para 26
14
1949 (4) SA 150
(C) at 159
15
Le Roux v Dey
at para 104
16
Own emphasis
17
1989(2) SA 857 (A) at 861-862
18
1992(3) SA 579(A) at 588F
19
Crawford v Albu
1917
AD 102
at 105
20
Mthembi v Mahanyele
2004 (6) SA 329
(SCA) at para 67
21
Pienaar v Argus Printing and Publishing Co Ltd
1956 (4) SA 310
(T) at 322
22
Golding v Torch Printing and Publishing Co
(Pty) Ltd and Others
1949 (4) SA 150
(C) at 167
23
Channing
at
476A-C
24
Channing
at
473C-E
25
See
Innes v Visser
1936 WLD 44
;
Tiffen v Cilliers
1925 OPD 23
at 31;
Jacobs v Waks
[1991] ZASCA 152
;
1992
(1) SA 521
(A) at 541-542;
Ramsay v
Minister van Polisie
1981 (4) SA 802
(A)
26
Neethling, Potgieter and Visser,
Law
of Personality,
2
nd
edition, Durban, at 195
27
Delange
at 862
28
Khumalo v Holomisa
at para 27-28
29
Neethling, Potgieter & Visser (2010)
Law of Delict
6
th
edition, Durban, at 347
30
S 16(1)(c) of the Constitution
31
P Kearns ‘The Neglected Minority: The
Penurious Human Rights of Artists’ in R Banaker (ed),
Rights
in Context: Law and Justice in Late Modern Society
(UK:
Ashgate, 2010) 83 at 95
32
M
ü
ller
and Others v Switzerland
(1991) 13
E.H.R.R. 212
at para 33. See also
Vereinigung
Bildende Kunstler v Austria
, ECHR
(Application number 68354/01, 25 January 2007) at para 26 and 33
33
[1988] USSC 24
;
485 U.S. 46
,
108 S.Ct. 876
at para 16
34
Laugh It Off Promotions CC v SAB International
(Finance) BV t/a Sabmark International (Freedom of
Expression
Institute as Amicus Curiae)
[2005] ZACC 7
;
2006 (1)
SA 144
(CC) at para 87
35
R v Umfaan
1908
TS 62
at 66
36
1954 (3) SA 244
(C) at 248
37
O’Keeffe v Argus Printing and Publishing
Co Ltd and Another
1954(3) SA 244 (C)
at 247F and 249A
38
2010 JDR 0041 (WCC);
[2010] 4 All SA 548
(WCC)
39
Wells
at para 47
40
Wells
at para 49
41
Wells
at
para 46
42
O’Keeffe
at 249D