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2014
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[2014] ZAGPJHC 147
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Moselakgomo v Media 24 Ltd and Others (2011/15359) [2014] ZAGPJHC 147 (17 July 2014)
IN THE NORTH
GAUTENG HIGH COURT OF SOUTH AFRICA
PRETORIA
CASE
NO: 2011/15359
DATE:
17 JULY 2014
In the matter
between:
ALFRED
MOSELAKGOMO
............................................
Plaintiff
And
MEDIA 24
LTD
.........................................................
1st
Defendant
THEMBA
KHUMALO
............................................
2nd
Defendant
RIFUMO
MALELEKE
............................................
3rd
Defendant
J.
MASOMBUKA
........................................................
Third
Party
J U
D G M E N T
C. J. CLAASSEN J:
[1] In this matter
the plaintiff sues the three defendants for damages allegedly
suffered as a result of having been defamed in
an article published
in the Daily Sun on 17 March 2010. There is also a counterclaim by
the defendants. However, the parties have
agreed in terms of Rule
33(4) that it would be cost-effective to postpone the counterclaim
and to deal with the plaintiff’s
claim on the basis of a
separate legal argument. It was further agreed that, if the legal
argument is upheld in favour of the defendants,
it would put an end
to the plaintiff’s case. Alternatively, if the legal argument
goes the way of the plaintiff, then the
defendants would enter the
fray and lead evidence regarding their respective defences that they
have pleaded.
[2] The parties have
prepared a draft order which I will make an order in terms of Rule
33(4) of the Uniform Rules of Court. This
draft order reads as
follows:
“Having heard
the legal representatives for the parties, the following order is
made:
1. The first issue
to be decided is whether the article is defamatory of an concerning
the plaintiff in the manner pleaded by the
plaintiff in paragraph 7
of his particulars of claim, i.e. whether the article conveys or
attempts to convey to the reader that
the plaintiff is corrupt and
abuses his position as a journalist for personal gain and enrichment.
2. If the question
in 1 above is decided against the plaintiff, it is dispositive of the
plaintiff’s case.
3. If the question
in 1 above is decided in favour of the plaintiff, the defendants will
commence to lead evidence in terms of their
defences as pleaded in
paragraph 7 of their amended plea and the plaintiff is entitled to
lead evidence in rebuttal and also in
respect of his damages.
4. The defendants’
counterclaim against the plaintiff and claim against the Third party
are postponed sine die.”
[3] The manner in
which the plaintiff pleads the defamation appears from paragraphs 6,
7 and 8 of his particulars of claim:
“6. The said
article stated of plaintiff that plaintiff faces allegations that he
took a R60 000 bribe from a top politician
in Mpumalanga as a result
whereof he was suspended.
7. The article read
within the context of its publication, conveys or attempts to convey
to the reader that plaintiff is corrupt
and abuses his position as a
journalist for personal gains and enrichment.
8. The statement as
published by the defendants was wrongful and defamatory of the
plaintiff.”
[4] It will be
noticed that no innuendo of any kind is pleaded. The plaintiff’s
case therefore rests upon an interpretation
of the article as being
per se defamatory of the plaintiff. If the article cannot be
interpreted as such, then the plaintiff’s
case must fail. It is
therefore necessary to look at the contents of the article. It
appears as annexure “A” to the
plaintiff’s
particulars of claim and reads as follows:
“Two newspaper
journalists have been suspended over allegations of bribery in
separate cases. They are Alfred Moselakgomo
who is based in
Mpumalanga and Alex Matlala who reports from Limpopo. Both write for
the Johannesburg Daily Sowetan. Daily Sun
has been told allegations
of bribery are involved. The suspended journalists are said to have
taken money from politicians to write
negative articles about their
rivals. A caller to Capricorn FM, a radio station in Polokwane
claimed to know all about Matlala’s
alleged sponsored articles.
Matlala’s expensive lifestyle does not, according to a good
source, match his salary. Moselakgomo
also faces allegations that he
took a R60 000 bribe from a top politician in Mpumalanga. But
Sowetan’s editor, Fikile-Ntsikelelo
Moya said the pair were
merely suspended and have not yet been found guilty of any
wrongdoing.
Moya would also not
give details. Investigations were still under way.”
[5] To determine
whether a statement is to be regarded as per se defamatory, the test
is whether a reasonable reader would infer
from defamed in some
nefarious way. Emphasis has been placed by counsel for the plaintiff
that serious allegations are made in
this particular article. That of
course is correct, but they are only allegations. Nowhere in the
article is any statement of fact
made that the plaintiff has been
found guilty of such nefarious conduct.
[6] In my view, it
would be quite apparent to the reasonable reader of the article that
the reporter is reporting on what happened
to two journalists and why
they were suspended, and that is all. The article contains no less
than three times the word “allegations”
as a precursor to
the journalists alleged conduct. Nowhere is it stated that those
allegations are in fact true or have in fact
been proved. On the
contrary, it is clearly stated at the end of the article that the
plaintiff has not yet been found guilty of
any wrongdoing. It is
clear from the article that it merely reports that an investigation
is currently being conducted into alleged
wrongdoings by the two
journalists. The article does not intend to convey that such
wrongdoings actually occurred. This is so because
the reference to
bribery is preceded by the words “an allegation of bribery”.
So too is the statement that negative
articles had been written,
preceded by the words “it is said to have taken money from
politicians to write negative articles”.
Also, as far as the
plaintiff is concerned, the statement with reference to a R60 000
bribe taken from a top politician, is preceded
by the word that such
“allegations” have been made.
[7] To put it beyond
all doubt, the article ends with a clear statement that there are no
factual statements of actual wrongdoing
on the parts of the two
journalists. The only factual statement made is that the two
journalists were suspended. In my view, the
reasonable reader of the
article will simply deduce that it reports on an investigation which
is under way regarding the suspension
of the two journalists for
alleged wrongdoing. He will not infer from the article itself that
the journalists are in fact guilty
of such wrongdoing. In my view,
this conclusion coincides with the principle set out in Modiri v
Minister of Safety and Security
2011 (6) SA 370
(SCA) at paragraphs
14 and 15. For the reasons set out above, I am therefore of the view
that the article cannot be interpreted
as being per se defamatory of
the plaintiff.
[8] The effect of
the above finding in terms of paragraph 2 of the draft order, means
that it becomes dispositive of the plaintiff’s
case and I
therefore make the following order:
1. The article is
not per se defamatory of the plaintiff.
2. The plaintiff is
ordered to pay the costs.
DATED THE 17th
DAY OF July 2014 AT JOHANNESBURG
C. J. CLAASSEN
JUDGE OF THE HIGH
COURT
Appearance for
the Plaintiff: Adv Mthimunye
Appearance for
the Defendants: Adv C. Bester