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
>>
2014
>>
[2014] ZAGPJHC 304
|
|
Branko v Moffat and Another (30069/12) [2014] ZAGPJHC 304 (10 June 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 30069/12
DATE:
10 JUNE 2014
In the matter
between:
MILENKOVIC
BRANKO
........................................
Plaintiff
And
QITHI
MOFFAT
..........................................
First
Defendant
BOXING SOUTH
AFRICA
......................
Second
Defendant
J U
D G M E N T
VICTOR, J:
[1] The plaintiff
who is a boxing promoter sues the first defendant, Mr Moffat Qithi
who is the Chief Executive Officer of Boxing
South Africa, the second
defendant. Boxing South Africa is the umbrella body constituted by
statute, the South African Boxing
Act No.11 of 2001 (“the act”)
together with the regulations to control the sport of boxing in South
Africa. The plaintiff
is a licensee to Boxing South Africa in his
capacity as promoter. Boxers are also licensed to Boxing South Africa
for purposes
of health protection and other positive features. There
are more stringent tests and constraints for female boxers and
medical
issues are treated very seriously.
[2] Sadly the
context of this dispute arises out of the failure by Ms Noni Tenge of
South Africa to defend her world boxing title.
She is the first
International Boxing Federation (IBF) world champion woman boxer from
South Africa and indeed the continent of
Africa. It is against this
background that the plaintiff claims that Mr Qithi gave interviews to
the City Press and Daily Dispatch
newspapers wherein he defamed the
plaintiff for the failure by Ms Noni Tenge to defend her world title.
[3] On 22 July 2012
Mr Qithi made statements concerning the plaintiff to a journalist
known as Mr Junior Motsei of the City Press
newspaper.
[4] The plaintiff
claims that the statements were made by Mr Qithi acting within the
course and scope of his employment with Boxing
South Africa.
[5] The statement is
as follows:
“Top promoter
Branco ‘Baby’ Milenkovic is to blame for Noni Tenge being
stripped of her International Boxing Federation
‘IBF’
welter weight crown … Qithi said that promoter should look in
the mirror to see the man who caused Africa’s
most
distinguished female pugilist her title … A promoter is
responsible for digging deep in his pocket and putting up a
world
title fight without blaming anyone for the repercussions.”
It was undisputed
that the article was read by members of the boxing industry, by
boxing promoters and boxers and the public
at large.
[6] The second claim
is that on 13 July 2012 Mr Qithi made the defamatory statement to one
Mr Monwabisi Jimlonga, a journalist employed
by the Daily Dispatch
newspaper knowing that the article would be published by it.
“It is clear
in this case that there is a breach of contract as Noni has not
fought since July last year.”
It is also
undisputed that Mr Qithi was acting within the course and scope of
his duty as the Chief Executive Officer of Boxing
in South Africa.
[7] The said
articles were published in the City Press and Daily Dispatch which
have a readership of hundreds of thousands of readers.
The parties
had agreed the extent of the publication.
[8] The plaintiff
contends that the words were wrongful and defamatory of him per se
and/or they imputed and were intended and were
understood by readers
of the statements to mean that the plaintiff had no concern for the
interests of boxers promoted by him,
is only concerned for his own
interests, is unethical, is unprofessional and does not honour his
contractual obligations. The statements
were made with the intention
of defaming the plaintiff and injuring his good name. Each claim is
for R2 million.
[9] There were
initially special pleas of non-joinder of the relevant newspapers and
journalists but these were abandoned. The import
of the plea is
simply that the discussions were had. They were relevant to issues
raised in the questions posed to Mr Qithi.
[10] In the plea Mr
Quithi admits making statements to Mr Junior Motsei of City Press in
respect of claim A and to Mr Monwabsisi
Jimlongo of the Daily
Dispatch in respect of claim B. The special plea of non joinder of
the journalists and newspapers was not
pursued before me. On the
merits the recognized defences were that the statements were factual
in nature and the content was true
and correct, relevant to the
question posed, not inspired by malice, not intended to defame, were
fair and reasonable, a matter
of public interest, for the public
benefit and were not wrongful or defamatory. The defendant also
pleaded that the comments were
permissible as a constitutionally
entrenched right to freedom of expression.
Plaintiff’s
reputation in the sport of Boxing
[11] The plaintiff
contends that his good name and reputation was impaired. He also
testified how the articles had a devastating
effect as he had
dedicated his entire career to the promotion of boxing.
[12] The plaintiff
testified that as a boxing promoter in the industry much turns on
one’s image and reputation. In particular
negotiations and
dealings are done verbally and many telephonically. Once there is a
commitment that you are going to pay someone
a certain amount of
money you cannot change that. The boxing world is very small and
reputation is everything. Word spreads very
quickly and the world has
become a global village. If a promoter breaches a contract or is
dishonest or dishonourable one’s
image is tarnished as it gets
around the world in a question of minutes.
[13] The plaintiff
has been a boxing promoter for 15 years and has contributed
significantly to the sport. He has won many accolades.
He has
promoted four legitimate World Championships with the IBF. He is the
only promoter on the Continent of Africa who has had
no less than
five IBF world champions. He has put South Africa on the boxing map.
[14]The plaintiff
referred to a chronology of his career as a boxing promoter. He took
the court through the bundle of documents
confirming all the
accolades that he had received over the decades. All this was
undisputed. Briefly the following accolades were
bestowed on him: IBF
promoter of the year at Carnival City in 2010 and 2011, the South
African Government was honoured in 2011
by the IBF for its role in
boxing. A photograph has a caption “South Africa honoured in
Las Vegas, promoter of the year
award.”
[15]The plaintiff is
placed at the same level as the famous Mr Don King in the boxing
world. The plaintiff was a promoter of the
South Africans who boxed
at international level: Hawk Makupela, Vusi Malinga, Moruti Mthalane,
Simpiwe Nongqayi, Jeffrey Mathebula,
Isaac Hlatshwayo, Malcolm
Klaasen, Evans Mabamba, Moruti Mthalane, Takalani Ndlovu, Zolani Tete
and Vusi Malinga. The plaintiff’s
promotion company Branco
Sports Productions was inducted into the International Hall of Fame
in 2005. He has been recognised for
his role in South Africa. The
Minister of Sport awarded him a Life Time Achievement Award. He was
sought after by the boxing fraternity
of Tanzania. He supports
charities such as a home for children born with HIV on the West Rand.
He is involved in the development
and upgrading of boxing projects
in Alexandra, Soweto and Ekurhuleni. The plaintiff has received an
accolade from the Tanzania
Professional Boxing Commission. He was
described by them as the real son of Africa and there was a show of
gratitude on behalf
of the country about his achievements in
Tanzania.
[16]It is abundantly
clear to me that the plaintiff enjoyed an unblemished and positive
reputation in the sport of boxing. Up until
2010 he had a very good
relationship with Boxing South Africa and all this changed when Mr
Qithi became the CEO. Quite clearly
the repercussions have found
themselves embedded in conflict within the boxing sport and the
claims made by the plaintiff must
therefore be assessed within the
context of boxing nationally and internationally and also to the
public at large.
Former IBF world
champion boxer Ms Noni Tenge
[17] The plaintiff
had promoted the world IBF title fight of Ms Noni Tenge of East
London at his own expense at a cost of almost
R1million. In South
Africa a promoter does not get a percentage of the boxer’s
purse. A promoter’s income is derived
from sources such TV
coverage and the like. There is also an agreement in place between a
boxer and promoter and in terms of clause
2 of the agreement the
promoter undertakes to promote a minimum of two bouts and a maximum
of four bouts per year.
[18] Ms Tenge did
not get to do her second fight or defend herself by 11 March 2012 as
required by the IBF. Much of the trial centred
on this. No one would
assist financially to promote the bout. In the past SABC had flighted
the boxing fights and the promoters
would derive their income from
this source. Mr Qithi after becoming CEO would not allow SABC to
flight the fight. He would no longer
allow the promoters to deal
directly with SABC and this meant that the plaintiff could not stage
Ms Tenge’s second fight.
South Africa is the only country
where a promoter does not get any percentage of the boxer’s
purse. The manager gets a percentage.
In this case the plaintiff even
had to pay her trainer/ manager’s fee. The plaintiff lost close
to R1 million in that first
fight and could not put up the money for
the second bout without SABC sponsorship. I find that Mr Qithi was
instrumental in cutting
off the SABC revenue stream to the plaintiff
and he knew what the effect would be on the plaintiff and in
particular the critical
fight of Ms Noni Tenge.
[19] The most
important feature in this case is that a boxer has to defend his/her
IBF title within a certain time period and if
that does not take
place then the boxer is stripped of the World Title.
[20] Ms Noni Tenge
also made very high demands as she wanted R250 000 and the plaintiff
could not put up that amount.
[21] The plaintiff
sought assistance from Boxing South Africa and received a cold
shoulder from them. He also spoke to Mr Loyiso
Mtya the Director of
Operations at the second respondent and he was ignored. He also
spoke to Mr Lennox Mpulampula to ensure that
Noni Tenge did her
second fight but no one was interested. He did get some sort of
response from the Minister of Sport Mr Balfour.
Whenever he put the
budget forward he was kept on a string, he kept reducing it until
finally it became evident that no one was
prepared to spend one cent
to promote the Noni Tenge fight.
[22] He received
various correspondences from the IBF advising that she would be
stripped of her title if the next fight did not
take place. He sent
copies of these to Mr Qithi and the response was cavalier. On the 9th
of April 2012 the plaintiff received
a letter from the office of the
President of the IBF stating that Ms Tenge had beaten the former
champion Ms Daniella Smith in
a mandatory defence of the IBF Female
Welter Weight Title on June 11, 2011 and that her mandatory defence
was due on or before
11 March 2012. The leading available contender
was Ms Cindy Serano and that she had agreed to fight Ms Tenge for the
IBF Female
Welter Weight champion. It was made very clear in the
letter that every effort was to be made to make sure that the
mandatory defence
fight took place. A further letter was received
on the 2nd of May and the import of that letter was that the IBF
ordered Ms Tenge
and Ms Serrano to start negotiations for Tenge’s
mandatory defence which was due on 9 April 2012. It would appear that
the
plaintiff then speeded up his efforts to try and obtain the
necessary financial support for the fight.
Mr Qithi’s
attitude towards the plaintiff
[23] In the light of
the critical financial situation and no support from SABC the
plaintiff wrote to Mr Qithi and Boxing South
Africa and pointed out
the dangers in Ms Tenge not being able to fight the mandatory defence
fight and the consequences thereof.
[24] On 18 June 2012
the plaintiff wrote to the defendants wherein he attached the letter
from the IBF.
“Attached
letter which speaks for himself (sic) itself. Noni’s mandatory
defence was due on or before the 11th of March
2012. We were unable
to get any interest from TV and for this reason we will have no
grounds to place a bid. This e-mail is to
make you aware of the
situation so there will be no accusations like in the case of Mzonke
Fana who was stripped of his title.
One will recall 11 June last
year when Noni won the title; there were no TV or sponsors again. We
have lost hundreds of thousands,
but we were determined to make
history in producing the only and first ever legitimate IBF Woman
World Champion from the continent
of Africa. It is sad that Noni’s
achievement, which was not only sporting but political importance as
well, is still without
the support from National Broadcaster or
potential sponsors. Regards Branco”
[25] The simple
answer was in my view one of disinterest. The response from the
first defendant was ‘thanxs Branco!!!’
Boxing South
Africa had gone a long way in order to make sure that boxing in South
Africa reached good heights, but here was a
female boxing champion
having to fight her mandatory defence and the response from Mr Qithi
and the controlling body was cavalier
and one of disinterest. Mr
Qithi’s response was calculated to cause the maximum amount of
divisiveness and spite towards
the plaintiff. This showed a
nonchalant attitude on the part of the controlling body to something
which was very important in
the female world of boxing.
[26] The consequence
was that the relationship between the plaintiff and Mr Qithi broke
down further and he formed the view that
this was a breach of
contract on the part of the plaintiff in that it was up to him to
make sure that Ms Tenge attended to her
fight which was required to
defend her title. In cross examination he tried to avoid answering
any question directly on his letter
to the IBF after the loss of Ms
Tenge’s title in which he claimed that if he had been informed
of the situation he would
have stepped in to save the situation. This
is a deliberate untruth in the face of the proven requests by the
plaintiff for him
and Boxing South Africa to save the day. Mr Qithi’s
evidence demonstrated unequivocally that he regarded the plaintiff as
having breached his contract with Ms Tenge, that the plaintiff had to
fund at least two fights a year from his own pocket and that
a boxer
should be compensated if there are not two fights.
[27] There is a wide
range of correspondence between the parties and in my view it was
clear that the wording that appears in the
newspapers in question did
come from the attitude and approach adopted by the first and second
defendants in their correspondence.
I find that Mr Qithi’s
failure to try and facilitate this very important fight was motivated
by malice. The plaintiff had
done all he could to draw their
attention to the deteriorating and critical situation regarding Ms
Tenge.
[28] The words which
appear in the newspaper therefore are consistent with the approach
taken by Mr Qithi in the matter. In contradiction
to his plea Mr
Qithi in evidence claimed the journalist had quoted him out of
context. This is yet another fabrication. Mr Qithi
claims that if he
had seen the second article he would have disputed the words used.
Well he had not done so right up to the time
of lodging the plea, at
the pre trial conferences and did so for the first time during his
own cross examination. If he had seen
the article he would have told
the journalist it was not what he said. In particular one sees in the
articles in question the words
that the plaintiff is to blame for Ms
Tenge being stripped of her IBF World Welter Weight crown and in
addition in relation to
claim B it is clear in this case that there
is a breach of contract as Noni has not fought since June last year.
[29] The version
particularly in relation to the breach of contract clearly emanates
from the writing and the correspondence which
I have referred to as
being too numerous to list in this judgement and to me, it is clear
that the approach as reflected in the
newspaper is the approach of
Mr Qithi in this matter.
[30] Both parties
testified at great length, every single issue was traversed. I
permitted an intensive ventilation of the issues
that may not have
been immediately and directly relevant in the hope that once the
difficulties had been aired the parties would
have found some
rapprochement but that failed to materialise.
[31] In my view Mr
Qithi deliberately set out to injure the reputation of the plaintiff.
Mr Qithi was not justified in doing so
having regard to all the
facts in this case. The sting in the publications was untrue and
calculated to defame the plaintiff. Mr
Qithi’s attempts to
obfuscate the central issues by never answering any question directly
dragged the trial out. He could
not explain why he had lied to the
IBF in his letter after Ms Tenge was stripped of her title. He could
not explain in any logical
and credible way why he had formed his own
promotions company (although it had not yet commenced trading) nor
could he explain
why he was party to a scheme where a private company
was going to take over the promoter’s work and pay over 20% to
Boxing
South Africa when promoter’s only paid over 15%. He
could not explain why he had not disclosed his previous criminal
conviction
when applying for the job of CEO of Boxing South Africa.
No explanation was forthcoming about his dismissal from the Walter
Sisulu
University for misconduct from his employment. The first
defendant testified and it was very difficult to find consistency in
his
version of events. No question was answered directly and in my
view the defensive approach adopted by the first defendant lacked
clarity, lacked frankness and no insight were shown into the
importance of the role of the second defendant in trying to save that
fight in question.
[32] The defence
suggested that the statements were factual in nature, true and
correct, relevant to the questions posed, not inspired
by malice, not
intended to defame, fair and reasonable are rejected. In my view the
comments were not fair and reasonable in the
circumstances. The
statements in the way that they were made were inspired by malice. Mr
Qithi has not been able to demonstrate
that the words published in
the article were true and for the public benefit
[33] As to whether
the words were defamatory it is necessary to consider the following
elements in Khumalo and Others v Holomisa
2002 (5)SA 401 (CC) 3
this court stated that the elements of defamation are '(a) the
wrongful and (b) intentional (c) publication
of (d) a defamatory
statement (e) concerning the plaintiff'. Once the element of
wrongfulness has been established the statements
are presumed
wrongful and intentional. As stated Brand AJ in Le Roux v Dey
2011
(3) SA 274
(CC) it becomes necessary for the defendant to raise
defences that excludes wrongfulness and intent
[34] In Modiri v
Minister of Safety and Security 2011(6) SA 370 at para 12 Brand JA
sets out a concise model to assess the truth
and public benefit
defence.
‘Though both
the presumption of intent and that of wrongfulness arise from a
single event, that is, the publication of a defamatory
statement, the
two presumptions are essentially different in character. The
presumption of intent to injure relates to the defendant's
subjective
state of mind. By contrast, the presumption of wrongfulness relates
to a combination of objective fact, on the one hand,
and
considerations of public and legal policy, on the other (see eg
Neethling v Du Preez and Others; Neethling v The Weekly Mail
and
Others
[1993] ZASCA 203
;
1994 (1) SA 708
(A) at 768I – 769A; Le Roux v Dey
2011
(3) SA 274
(CC) paras 121 – 125). By contrast, the objective
nature of the enquiry into wrongfulness signifies that the subjective
beliefs of the defendant are of no consequence.’
[35] In my view the
defendants’ defences on truth, fair comment and public benefit
must fail. All the elements of delictual
liability are present. The
words were per se defamatory in the context of the article. Mr
Qithi’s subjective state of mind
was intended to injure the
plaintiff. The issue of wrongfulness can be gleaned from the
objective facts. The evidence has amply
demonstrated this.
[36] The defendant
also relied on the constitutionally entrenched right to freedom of
expression. There is a limitation. The manner
in which Mr Qithi
reported the situation was filled with fabrications and goes beyond
what is permissible in terms of constitutionally
entrenched right to
freedom to expression. An objective evaluation of the published
articles does have the effect of tarnishing
the plaintiff’s
reputation as a promoter and that he has done something unethical in
destroying a young woman’s potentially
illustrious career.
[37] The
determination on the question of damages is complex. In my view the
plaintiff was a good witness; he was consistent in
what he told the
court. It is clear in my view that the accolades that he had
received in the boxing world were not fabricated
in any way and in
cross-examination the dignity and acknowledgement that he enjoyed in
the industry was clear in its terms.
[38] I am mindful of
the relatively modest amounts awarded by our courts in matters of
defamation and whether there should be an
award at all and not the
imposition of question of say an enforced apology. In this case the
plaintiff’s career as a promoter
in the boxing industry depends
on word of mouth, reputation and an unerring commitment to the boxer
he promotes and honesty. His
considerable role in the development of
the industry in South Africa went unchallenged. His international
career as a promoter
was also undisputed. In the result this
defamation did not amount to a prank but was intentionally calculated
to harm the plaintiff
as a promoter in the industry both nationally
and internationally. In addition the defamation in this case is
dissimilar to the
reported cases of defamation relating to a
litigant’s past or a restatement of a litigant’s past
involving criminal
activity or of him being charged for a criminal
offence in respect of which he has not been convicted. The conduct
here was aimed
at destroying the plaintiff in the market place and
undermining the great emotional and financial sacrifice he had made
of promoting
boxing in general and in particular a women boxer to
international champion at his own cost of a R1million.
[39] I have also
been referred to a number of international authorities, they include
a number of Canadian defamation verdicts for
example Fennimore v Sky
Service Airlines et al where a pilot had been blackballed by a tight
knit flying community, the allegation
being that he had consumed
alcohol 7 hours before he was scheduled to fly. He was awarded
$3million.
[40] In Cairns v
Modi case no HQ 10D00267 Queens Bench Division London Mr Justice Bean
awarded £75000 and added another £15000
in respect of
aggravation where a false allegation of match fixing in cricket had
been made.
[41] There are two
separate sets of defamation. Mr Qithi conducted two separate
interviews with two separate newspapers. Two separate
claims are
justified in the circumstances. Ultimately the effect on the
plaintiff was equally devastating and merit the same amount
awarded.
In the result I make
the following order.
ORDER
1. The first and
second defendants are ordered jointly and severally the one paying
the other to be absolved, to pay the amount
of R250,000 to the
plaintiff in respect of Claim A.
2. In respect of
Claim B, the first and second defendants are ordered to pay to the
plaintiff the sum of R250,000 jointly and severally
the one paying
the other to be absolved.
3. The interest on
the aforesaid amounts shall be payable at the rate of 15.5% per annum
from today’s date.
4. Costs of suit.
M VICTOR
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
COUNSEL FOR THE
PLAINTIFF ADV L HODES SC
ADV L
HOLLANDER
INSTRUCTED
BY PHILIP SILVER AND ASSOCIATES
COUNSEL FOR THE
DEFENDANTS MR HOPKINS
INSTRUCTED
BY MAJAVU INC
Date of hearing
11November 2013
Date of Judgement
10 June 2014