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[2014] ZAGPJHC 430
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Cell C (Pty) Limited and Others v Prokas and Another (40902/2014) [2014] ZAGPJHC 430 (13 November 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
CASE
NO: 40902/2014
DATE:
13 NOVEMBER 2015
In
the matter between:
CELL
C (PTY)
LIMITED
...............................................................................................
First
Applicant
Y
CELL (PTY)
LIMITED
...........................................................................................
Second
Applicant
VAN
ROOYEN,
RIAAN
................................................................................................
Third
Applicant
And
PROKAS,
GEORGE
....................................................................................................
First
Respondent
EMIRA
PROPERTY
FUND
....................................................................................
Second
Respondent
JUDGMENT
WEINER J:
Introduction
1.
The Applicants (“Cell C” and/or
“Van Rooyen”) apply, as a matter of urgency, for an
interim interdict pending
the final determination of the relief set
out in part B of the notice of motion. The terms of the interim
interdict prayed for
are as follows:-
1.1.
calling upon the First Respondent
(“Prokas”) alternatively the Second Respondent (“Emira”)
to remove the
large banner erected on the outer wall of the “World
Wear Mall” on the corner of Beyers Naude Avenue and Wilson
Avenue
in Fairlands, Johannesburg, displaying the trademark and
colours of Cell C (“the original banner”) within two
hours
of this order being granted;
1.2.
interdicting and restraining Prokas and/or
Emira from publishing defamatory statements of and concerning any one
of the Respondents;
1.3.
directing and authorising the Deputy
Sheriff to remove the banner in the event that Prokas and/or Emira
fail to do so within the
time period stipulated above; and
1.4.
interdicting and restraining Prokas and/or
Emira from publishing the personal cell phone details of Van Rooyen.
Agreed Facts
2.
The parties agreed to certain facts which
they submitted to the court.
2.1.
The original banner contains the Cell C
trademark; in small print, the words “perceived by the owner of
this billboard to
be” and in larger print “the most
useless service provider in SA as experienced by Cell C Sandton
City”. Underneath
are the words, “Cell C’s Van
Rooyen franchise manager” and his cell number and the words
“his unnamed executive
head refuses to assist the customer”.
2.2.
Prokas later effected certain alterations
to the banner (“the second banner”). The way in which the
second banner differs
from the original banner is that the colours
and circle around the second “C” of Cell C have been
removed, as has the
“TM” designating the trademark.
In addition, the words “perceived by the owner of this
billboard to be”,
have increased in size. Other than that, the
second banner appears to be the same as the original banner.
2.3.
At an unknown time and overnight on 11 or
12 of November the banner inscription was again altered. After this
alteration, it reads
“Cell C, perceived by the owner of this
billboard to be the most useFULL service provider in SA. As
experienced via Cell
C Sandton City. WE LOVE CELL C.” The
alteration was affected in an amateurish fashion, by hand. Prokas
states that the alteration
was not affected at his instance and Cell
C states that it was not affected at its instance.
2.4.
Prokas has said that if the interdict is
not granted, he intends to display the banner as it was prior to the
amateurish alteration
(i.e. as appears in the second banner referred
to in 2.2 above). However he will not mention Van Rooyen’s name
or cell number
on the banner. The relevant portion will read, “Cell
C’s Franchise Manager says his unnamed executive head refuses
to assist the customer!!” Prokas states that the removal of Van
Rooyen’s name and cell number will be done solely for
the
purpose of avoiding controversy on this aspect and is not to be
construed as a concession by him that he was not entitled to
included
Van Rooyen’s name and cell number as per the original banner.
3.
It is common cause that the original banner
was erected by Prokas at approximately 4pm on 6 of November 2014.
Cell C alleges that
Emira was the owner of the mall. It now appears
that Emira is not the owner of the mall but merely a lessee. However
nothing turns
on this and Emira has agreed to be bound by the court
order. Reference below to the Applicant refers to Prokas.
4.
Cell C alleges that the banner is unlawful.
Firstly, it was erected in contravention of certain bylaws of the
Municipality; secondly
it is wrongful and defamatory of Cell C and
published with the intention of defaming Cell C and causing harm to
its reputation;
thirdly that the publication of Mr Van Rooyen’s
cell phone number, without his permission, is an unlawful violation
of his
privacy, which has caused, and continues to cause, harm to his
right to privacy.
Background
5.
Cell C sets out a brief background to the
reason for the application. In so far as this is disputed by Prokas
in the answering affidavit,
I will attempt to find a middle path
between those versions so that the court is put into a position of
assessing, as clearly as
is possible, the factual background, before
the original banner was erected. However, as will appear below, most
of the material
facts are not in dispute.
6.
In August 2013, Prokas took his daughters’
cellphone to Cell C Sandton because it had ceased to operate after a
few months.
His wife and daughter made a number of visits to Cell C
Sandton to enquire on the progress of the repair. They received no
satisfactory
information. After a considerable period had lapsed,
Prokas went to Cell C Sandton and spoke to one Nerran Chetty, the
Manager
(“Chetty”). Prokas could not recall the date of
his visit, but he pointed out to Chetty that the phone had been
brought
in a considerable period beforehand and he asked where it
was. Chetty replied that he would revert on the following Monday.
Chetty
did not do so.
7.
Prokas then made a number of attempts to
contact Chetty by telephone, all of which were unsuccessful. He was
advised by the person
answering the phone that Chetty was engaged
with a customer or unavailable for another reason. He left messages
and Chetty did
not return his calls.
8.
About 6 months after the phone was handed
in, Prokas was advised that it had been repaired and was available
for collection. He
went to Sandton Cell C and was handed a phone,
which he did not recognise. This one bore signs of physical damage as
the screen
was cracked. He informed the employees that this was not
the condition of the phone when he handed it in, and that the phone
also
did not work as it did not turn on. He declined to accept
delivery of the phone. He informed Chetty that the phone should be
replaced
or the contract cancelled. He told Chetty he could not
be expected to pay for a phone that he did not have and, that if the
problem was not resolved, he was going to stop paying. According to
Prokas, Chetty laughed and said that he had signed a contract
and was
obliged to pay. Prokas was incensed by this answer and the attitude
and could not understand why he was expected to pay
in circumstances
where he did not have the phone and where Cell C had failed to attend
to the repair of the phone.
9.
In August 2014, the phone had still not
been returned and Prokas hadn’t heard anything further from
Cell C. He accordingly
acquired another phone for his daughter on
contract from another cell phone provider. He continued to effect all
payments in respect
of the contract for a phone which he had
purchased for his son from Cell C. It then came to his attention that
the number which
had been allocated to his daughter’s phone,
which he believed was still in the possession of Cell C, was active
and being
used by a complete stranger, one Mfundo Ndaba. He was still
being billed for the phone usage. He accordingly stopped paying.
10.
In about September 2014, Prokas sought to
purchase a car for his wife and found that his application for
finance had been declined
because of a listing on the credit bureau,
ITC, which reflected him as a bad payer, arising out of non-payment
to Cell C of R5,754,00.
Prokas asked his secretary, Ms Cameron
(“Cameron”), to lodge a complaint with Cell C. She tried
but was told that only
the account holder could do so. She was
advised that someone from Cell C would phone back, but no one did.
11.
In the time that he has been able to draft
his answering affidavit, Prokas has located certain communications
which he annexes to
his affidavit. As appears therefrom:-
11.1.
In mid-September 2014, he spoke with one
Tumiso Motsepe (“Motsepe”) of Cell C’s legal
department concerning the
listing on the ITC. Motsepe advised that
she would revert by the Friday 19 September which she did not do. On
Monday 22 September
2014, Prokas attempted to contact her at the
number he had been provided with, but the line remained engaged. He
sent an e-mail
to Cell C’s customer services department
recording this and asking how else he could contact the legal
department.
11.2.
On 25 September 2014, he received a call
from Cell C. He asked to be transferred to Motsepe and also asked for
a contact number.
The caller furnished him with a telephone number
and then attempted to transfer the call to Motsepe, but the line went
dead.
11.3.
Cameron, repeatedly dialled the contact
number which the caller had supplied, but it was always engaged. When
she finally obtained
a ringing tone, the phone rang incessantly until
it cut off. Prokas described these instances in an e-mail to Cell C
on 25 September
2014.
11.4.
On 7 October 2014, Cell C’s
“escalated queries department” advised Prokas that the
account had been handed over
to a debt collection agency. He had
previously asked on various occasions for a copy of the contract
which had been signed because
he could not believe that he was
required to effect payment in circumstances where he did not have the
phone, which was apparently
still being repaired, and was being used
by someone else.
11.5.
He sent an e-mail with this repeated
request on 10
October
2014.
11.6.
On 13 October 2014, Cell C Sandton replied
that they were awaiting feedback from Head Office, but they hoped to
revert to him before
close of business and they hoped to resolve the
matter by the end of the week. On the following day, a further e-mail
was sent
to Cell C by Prokas, and the response was that they were
still awaiting feedback.
11.7.
On 14 October 2014, Cameron sent an e-mail
to Chetty requesting him to advise Cell C to remove the default
listing at the ITC Credit
Bureau until such time as Cell C could
provide the signed contract.
11.8.
On 15
October 2014, Cameron sent a further
email. She stated that on Cell C’s own version, a certain
handset was returned, not-repaired.
Cell C alleged that this device
was collected by the client after having been notified by the store.
This according to Cell C occurred
in Rosebank. According to
Prokas, he has never had any dealings with Cell C Rosebank; he never
took the phone there nor did
he/his wife or daughter collect it from
there.
11.9.
Cell C referred Prokas to the serial number
of the phone which had been collected. It was not the serial number
that was applicable
to his daughter’s phone or the phone that
had been handed in at Sandton.
11.10.
On 14 October 2014, Cell C represented by
one Candy Gordon (“Gordon”) informed Prokas that,
according to their records,
the phone that was booked in at Cell C’s
Rosebank store, was repaired and handed back to him. Again he
disputed that this
ever happened.
11.11.
He then had several conversations with one
Ismail Ravid (“Ravid”), who he thought was the owner of
Cell C Sandton and
voiced his dissatisfaction.
11.12.
On 23
October 2014, Cameron, on Prokas’
behalf, sent an e-mail to Customer Service at Cell C, to the Cell C
store at Sandton City
and to seven other individuals who represent
Cell C and/or Sandton City. In this e-mail, she advised that Prokas
would erect a
banner unless, by 5pm on 24 October 2014, Cell C
attended to and resolved his problems. A copy of the banner that he
intended to
erect was attached to that e-mail. The email read as
follows:
“
Hello
everyone.
We are not getting
anywhere with Cell C, no contract supplied, no proof of anything
supplied.
We’re not
getting anywhere with Sandton Cell C store - outright refusal to
supply store owner’s name and contact details.
We’re not
getting anywhere with Sandton City Centre Management - no response to
the request for their tenant’s name
and contact details.
My boss has a great
sense of humour though so …. if there is no resolution to the
problem BY CLOSE OF BUSINESS (17:00) TOMORROW,
we’re going
ahead with the production and installation of a rather large banner
at a rather busy intersection on the corner
of Beyers Naude Driver
and Wilson Street in Fairland.
The
attachment shows the proof of what we are about to amend and
approve
…”
[
emphasis
added]
11.13.
It is common cause that attached to the
email was a copy of a banner, which was in a slightly different form
to the original banner
erected later. It did not contain the words
“in the opinion of the owner of the billboard” or
“perceived by the
owner of this billboard”. It simply
said "Cell C was the most useless service provider in South
Africa as experienced
by Cell C Sandton”. It did not have the
franchise Manager’s name and number. Cell C was certainly put
on notice that
unless Prokas’ problems were dealt with he was
going to erect a banner, which had the potential to show Cell C in a
negative
light.
11.14.
On 24 October, 2014, Prokas received an
e-mail from Gordon of Cell C advising that Cell C undertook to
procure the removal of the
ITC listing by no later than 27 October
2014, and to expunge the amount owing of R5,754. The relevant persons
at Cell C regarding
the query were copied on the email. Gordon stated
”On behalf of Cell C Sandton, we the franchisee, would like to
express
our sincerest apologies for all the inconvenience caused to
Mr Prokas and hopefully will be given a chance to rectify the
business
relationship lost as we do value him as a loyal customer...
”
12.
If sanity had continued to prevail, the
matter would have ended there. However, Cell C failed to comply with
the undertaking and
Prokas remained listed as a bad payer on ITC. On
28 October 2014, he ascertained that he was still listed as a bad
payer on ITC.
He immediately phoned Ravid and pointed this out.
Ravid advised Prokas that Cell C had reversed its undertaking. He
stated the
matter was out of his hands and that he should speak to
the franchise Manager, Van Rooyen. He gave him his cell phone number.
13.
Prokas telephoned Van Rooyen, identified
himself to him and enquired why Cell C had reneged on its
undertaking.
14.
Van Rooyen stated that his executive head
had ruled that the ITC listing would only be removed if he paid the
sum of R5,754. Prokas
attempted unsuccessfully to obtain the number
of the executive head and he admits that he used intemperate language
in his frustration.
15.
On 6 November 2014 at approximately 4pm,
Prokas caused the original banner to be erected as he believed Cell C
was not assisting
him meaningfully, and he had exhausted all other
options.
16.
The original banner that was erected read
as follows: “
Cell C
;
in small print the words “
perceived
by the owner of this billboard to be
”
and in larger print “
the most
useless service provider in SA as experienced by Cell C Sandton City
”
Underneath were the words, “
Cell
C’s Van Rooyen franchise manager
”
and his cell number and the words “
his
unnamed executive head refuses to assist the customer
”.
17.
Prokas believed that he was entitled to
express this opinion. He states that, in this day and age, social
media are replete with
opinions both positive and negative of various
service providers. He had however, used an old fashioned medium to
express his right
to freedom of speech and freedom of expression.
18.
Cell C, in seeking the relief that they do,
state that the erection of the banner is unlawful and that Cell C and
Van Rooyen have
been defamed and their right to reputation has been,
and continues to be, infringed.
Urgency
:
Rules and Practice Manual
19.
The first issue that needs to be decided is
whether or not Cell C was entitled to enrol the matter in the manner
in which it did.
The rules of this court and the relevant practice
directives in so far as applications of an urgent nature are
concerned are clear
and precise.
20.
Cell C launched this application on 7
November 2014. It was served on Prokas and Emira at approximately
16h30 on the same day. They
were directed to deliver an answering
affidavit by no later than 4:30 on Friday 7 November. The matter was
set down for 17h00 on
Friday 7 November 2014.
21.
It is not clear whether or not the Judge
dealing with urgent applications on Friday 7 November 2014 would not
entertain the matter,
at that point, or whether Cell C decided to
rather set it down for Monday 10 November 2014, at 10:00.
22.
When the matter was called at 10:00 on
Monday 10 November, 2014, Cell C’s counsel asked for the matter
to stand down until
Wednesday 12 November at 10:00, as a
supplementary affidavit was to be filed. In addition, they were
expecting opposition from
Prokas.
23.
The opposition came in the way of the
answering affidavit filed by Prokas on November 12 2014.
24.
The Rules of Court and Practice Manual are
clear. If a matter is not set down the previous Thursday for the
following Tuesday at
10:00, the circumstances surrounding such
deviation from the rules, and the reasons for such urgency, must be
set out in detail.
The court must be advised why it is so urgent that
the matter cannot be placed on the ordinary motion court roll,
alternatively
,
timeously on the urgent roll.
25.
The way in which Cell C has seen fit to
bring the matter to court on less than one hour’s notice,
requiring Prokas to deliver
an affidavit within half an hour is
simply an abuse of the rules of this court.
26.
More particularly, Cell C had been informed
by Prokas on 23 October 2014, that if the matter was not resolved,
the banner was going
to be erected the following day. The copy of the
banner which was sent to Cell C (via the email) is, in some ways,
more serious
than the banner which was eventually put up, because it
does not contain the words that the information on the banner is the
opinion
of Prokas. As it stood (at the time the email was sent), it
might very well have been defamatory, without the material words
later
inserted.
27.
Despite this, Cell C ignored the warning
given to them on 23
October.
Cell C later attempted to resolve the matter when they offered an
undertaking to Prokas on 24
October,
to withdraw the ITC listing and waive the payment. However, they
failed to comply with that undertaking, and then reneged
on the
undertaking on the advice of their executive head.
28.
In my view, if Cell C had any right to
bring the application urgently, it could have done so after it
received the e-mail of 23
October
2014, attaching the banner that was to be erected unless the matter
was resolved,
alternatively
immediately that it reneged on its undertaking.
29.
As it now appears the original banner has
been up for several days. It has appeared in various forms in the
media and the damage
has already been done.
30.
I therefore find that the application was
not urgent,
alternatively
,
the urgency was self-created. On that ground alone, the application
should be struck off the roll.
Ongoing Damage
31.
Mr Whitcutt for Cell C, however, contended
that there is ongoing damage and ongoing harm that needs to be
stopped. That may very
well be so, if Cell C has the rights which it
claims, to support the relief it seeks. The issue of Van Rooyen’s
right to
privacy need not be dealt with, as the second banner does
not mention his name or cell phone number.
32.
In order to deal with Mr Whitcutts’
submissions, it is necessary to traverse the merits of the matter.
The
Merits
:
Defamation/Interdict
33.
Cell C contends that a defamation has taken
place, that it is
prima facie
unlawful and that Prokas has failed to show that he was justified in
making the statements which he did.
34.
From the authorities dealing with
defamation and the requisites for an interdict, the rights which Cell
C seeks to protect, and
which they allege are being infringed by
Prokas include:
1.
The right not to be defamed;
2.
The right, in respect of Van Rooyen, to
privacy and dignity; and
3.
The right to prevent the unlawful
contravention of bylaws.
35.
In regard to the latter proposition, it is
not for Cell C to state that Prokas is breaching bylaws. This is for
the relevant Municipality,
if it believes it has reason to do so.
This aspect was not pursued seriously by Cell C.
36.
The
delict of defamation is the unlawful publication
animus
iniuriandi
of a defamatory statement concerning the plaintiff. The statement is
defamatory if it has the effect of injuring a plaintiff’s
reputation. The onus is dealt with in the following manner: since
defamation is aimed at the protection of a person’s reputation,
that is the public estimation of the worth of a person, it is an
essential element of the delict that the defamatory statement
be
published or disclosed to third parties.
[1]
Publication is presumed if a document or a statement has been
distributed to the public.
[2]
37.
It is common cause that Prokas made the
statement and that it has been in the public domain.
38.
Whether
the statement is
per
se
defamatory or defamatory in its ordinary meaning, involves a two
stage enquiry- 1) the ordinary meaning of the statement must be
ascertained; and 2) once the ordinary meaning has been ascertained,
it must be determined whether that meaning is defamatory.
[3]
39.
At
the first stage, an objective test is applied when determining the
ordinary meaning of a statement.
[4]
The test entails determining what meaning a reasonable reader of
ordinary intelligence would attribute to the statement in its
context.
[5]
40.
At
the second stage, the meaning which should be ascribed to a statement
is considered. As was set out in
Simm
v Stretch
[6]
:
“…
a
statement is defamatory if it would tend to lower the plaintiff in
the estimation of right thinking members of society generally
”
41.
A
right thinking member of society has been held to be a reasonable
person of normal understanding and development and “society
should be understood to mean a respectable section of the
community”.
[7]
42.
For the purposes of the application for
interim relief, Cell C contends that, once it has established that
Prokas has published
his statement concerning Cell C, two rebuttable
presumptions of fact arise, namely, that the publication was
wrongful, (that is
there is presumption of unlawfulness) and that the
defendant acted with
animus iniuriandi,
(that is that there is a presumption of intent).
43.
Once these presumptions arise, the onus
rests on Prokas to rebut them. It has become settled that
wrongfulness and fault are separate
elements of a delict. In the case
of defamation, the presumption of wrongfulness can be rebutted by
justification. The presumption
of
animus
iniuriandi
can be rebutted by showing
that Prokas did not intend to injure Cell C’s reputation.
44.
To
rebut the presumption of unlawfulness, it was decided in
Neethling
v Du Preez; Neethling v The Weekly Mail
[8]
that the defendant bears the full onus of proof.
45.
As
to a defence excluding
animus
iniuriandi
or
fault, the position appears to be less clear.
In
Suid-Afrikaanse Uitsaai Korporasie v O’Malley
[9]
it was held that the intention to defame places only an evidentiary
burden on the defendant. Cell C contends that there appears
to be
some doubt, however, whether the differentiation between unlawfulness
and fault as far as the onus is concerned can be justified,
and
whether O’Malley’s decision has survived subsequent
developments. It is not however, necessary, at this stage,
for the
court to resolve this question.
46.
Prokas must also show that the statements
relate to a matter of public interest. Service providers are there to
”provide”
a “service” to members of the
public. In my view, Prokas was treated abusively and received no
service from his “service
provider”. On the contrary, he
was pushed from pillar to post for over a year. To add insult to
injury, he was charged for
calls being made by a stranger, on a phone
in the possession of Cell C.
47.
Cell C and Van Rooyen contend that they
have a clear right not to be defamed. They submit that the statements
are per se defamatory,
in that statements of this nature tend to
lower Cell C and Van Rooyen in the estimation of right thinking
members of society generally.
Cell C contends that accordingly they
have established that Prokas has published defamatory statements and
as a result the two
rebuttable presumptions of unlawfulness and
presumption of intent arise.
48.
Cell C states that Prokas might rebut these
presumptions in due course. This can be dealt with in the fullness of
time, but, in
the interim, the banner must be removed and until
Prokas discharges his onus, the balance of convenience, considered
carefully,
will favour the removal of the banner.
49.
On the papers before me, Prokas does not
need time to discharge his onus. In my view, he has discharged the
onus on the papers as
they appear, having regard,
inter
alia
, to the fact that Cell C chose not
to reply. In effect, it doesn’t appear from the correspondence
between the parties that
there is much in in Prokas’ version
that can be disputed.
50.
In
regard to the grounds of justification and more particularly the
defence of fair comment or protected comment, in
Citizen
(1978) (Pty) Ltd v McBride
[10]
the Constitutional Court
held that the defence protects criticism, comments or expressions of
opinion on facts which are true,
and which relate to matters of
public interest, and if they are such that any fair man might make
them on those facts.
51.
To establish this defence, a defendant has
to show that:
1.
The statements in question were comment or
opinion;
2.
they were fair;
3.
the facts that the comments were based on
were true; and
4.
the
comments related to a matter of public interest.
[11]
Comment or
Opinion
52.
In order to establish this defence, Prokas
must show that the statements in question were comment or opinion.
The statement that
was put on the banner is that “
it
is the opinion
” of the person
erecting the banner, and “
is
perceived by the owner
” of the
banner that Cell C’s service is “
useless
”.
This is an indication that the statement is the opinion of the owner
of the billboard, Prokas.
Fair
Comment
52.
The
question is then, whether the comments were fair. In regard to
what is fair comment, Justice Cameron set out in
McBride
[12]
the following:
“
Nearly
a century ago, in the judgment that firmly authenticated the defence
in South African law (in regard to comments being fair),
Innes CJ
remarked that the use of the term fair to describe the defence is not
very fortunate. He was right, as he explained the
criticism sought to
be protected need not commend itself to the court, nor need it be
impartial or well balanced. In fact, fair
in the defence, means
merely that the opinion must be one that a
fair
person, however extreme, might honestly hold even if the views are
extravagant, exaggerated or even prejudiced
.
The comment need be fair only in the sense that
objectively
speaking it qualifies as an honest, genuine
,
though possibly exaggerated and prejudiced expression of opinion
relevant to the facts upon which
it was based and not disclosing malice
.”
[
emphasis
added
]
53.
Cameron
went on to state
[13]
:
“
Protected
comment need thus not be fair or just at all in any sense in which
these terms are commonly understood. Criticism is protected
even if
it is extreme, unjust, unbalanced, exaggerated and prejudiced so long
as it expresses an honestly held opinion without
malice on a matter
of public interest on facts that are true. In the succinct words of
Innes CJ “the defendant must justify
the facts, but he need not
justify the comment”.
54.
As was stated by Cameron J, relying on
Innes CJ’s comments, all that is required in this regard is
that Prokas must have held
this “as an honestly held opinion
without malice”. The criticism need not be one that the court
accepts. It does not
have to be impartial or well balanced. It only
needs to be fair in the sense that Prokas held it as an honest,
genuine expression
of his opinion. It seems clear from the facts in
this matter that Prokas has established that the facts forming the
basis of the
comments led him to hold his honest and genuine opinion.
In addition, they were fair (as defined by Cameron J in McBride
supra).
55.
Cell
C chose not to file a replying affidavit. Although the well-known
ratio
in
Plascon-Evans
Paints Ltd v Van Riebeck Paints (Pty) Ltd
[14]
is not applicable in a matter where an interim interdict is being
sought, it has some bearing when allegations remain unanswered.
The
Respondent’s factual version as to what happened and how he got
to the point where he felt his only way of dealing with
his problem
was to erect the banner, appear to be common cause. In his view, the
service that he received was paltry and he believed
that what he
describes as a useless service provider was true.
56.
Reference
was made by Cell C to the case of
Delta
Motor Corporation Propriety Ltd and Jaco Van Der Merwe
[15]
.
In that matter the Respondent (“Van Der Merwe”), who had
bad service from Delta Motor Corporation, put a sign on his
car with
the words “
swakste
4x4 by far”, meaning the worst 4x4 by far. Underneath in
blazoned enlarged print he put the words “as a result of a
manufacturer’s defect”… “a bent chassis”.
57.
Delta regarded this as a smear campaign
against its product and it brought an application for an interdict.
An interim interdict
was granted in the lower court. It doesn’t
appear from the judgment in the SCA what the basis was for the grant
of the interim
order. The principle, however, that Cell C wishes to
rely on in relation to the present case, is that in the present case,
insufficient
facts were placed on the banner, and that without such
facts, the defence is unjustified.
58.
As
was held at paragraph [12] of the
Delta
case
[16]
, once the statement
by Van Der Merwe was shown to be
prima
facie
defamatory, the onus was on him to show that publication thereof was
not wrongful. He sought to do so by relying on the exercise
of his
right to freedom of expression. His defence was that of fair comment.
59.
On
the facts in the
Delta
case, the court found that Van Der Merwe’s adaptation of the
words “the worst 4x4 by far” (which was based upon
the
advertisement that Land Rover was the best 4x4 by far) was based on
an exaggeration, but this did not make the comment malicious
or
change its nature to something other than a genuine expression of
opinion. There was no factual basis to presume that the Respondent
was actuated by malice. It was accordingly held that the description
of the vehicle as the worst 4x4 by far because its chassis
bent on a
gravel road, was fair comment within the meaning of that term
[17]
.
60.
The
court in
Delta
[18]
reiterated that the limits of such criticism are only that the
comment must be a genuine expression of opinion, it must be relevant
and it may not be expressed maliciously. The words, “worst
4x4 by far”, were held by the SCA to be, in the
Delta
case, an expression of Van Der Merwe’s opinion based on the
factual allegation, “grondpad knak onderstel”. It
was
also found to be of general interest, particularly to the motoring
public and 4 wheel driving enthusiasts.
61.
Cell C attempted to distinguish the
Delta
case by submitting that in that case, Van Der Merwe had set out the
facts upon which his opinion was based, whereas this has not
happened
in this case.
62.
The present case deals with the provision
of services and whether or not Prokas could be assisted when he
sought to obtain service
and assistance. The facts, in his opinion,
are that the service was of absolutely no assistance, and therefore
useless to him.
That was his experience at Cell C. One of the reasons
was that the executive head refused to assist the customer. He does
not have
to state every detail as to why he arrived at his opinion.
There is sufficient information on the banner to show that, it is his
opinion, it is fair comment, it is not malicious and his opinion is
based on sufficient facts, which in his view are true. He is
permitted to express such opinion in order to get his message across.
Public Interest
63.
As was held in the
Delta
case, the comments made were, as in
this case, in the public interest particularly to the users of
cell-phones. If the service is
so inadequate that it does not render
any assistance to a customer, but on the contrary, frustrates and
abuses the customer, it
is in the public interest that such facts be
published and disseminated to the public.
Defamation v
Freedom Of Expression
64.
There has been much tension between the
right to freedom of expression which is protected,
inter
alia
, by the defence of fair comment
and the rights to dignity, fama and an unsullied reputation, which
are protected by the remedies
for defamation.
65.
The
Constitutional Court has held in
Khumalo
and others v Hollomisa
[19]
that the principles of the Common Law as recently developed in
National
Media Limited and others v Bogoshi
[20]
are consistent with the provisions of the Constitution. They maintain
a proper balance between the right to reputation and
the right to
freedom of expression. “
The
common law requires a defendant to establish, once a plaintiff has
proved the publication of a defamatory statement affecting
the
plaintiff, that the publication was lawful because the contents of
the statement were true and in the public benefit
”
[21]
O’Regan J
[22]
goes on to
say: “
Were
the Supreme Court of Appeal not to have developed the defence of
reasonable publication in Bogoshi’s case, a proper application
of constitutional principle would have indeed required the
development of our common law to avoid this result
”.
O’Regan J states further “However, the defence of
reasonableness developed in that case does avoid a zero-sum
result
and strikes a balance between the constitutional interests of
plaintiffs and defendants. It permits a publisher who can
establish
truth in the public benefit to do so and avoid liability”
[23]
66.
In my view, Prokas’ defence of fair
comment must succeed. Cell C has failed to show that it has any right
to the relief that
it seeks even on an interim basis. Prokas has
discharged the onus of showing that the statements were justified. In
the premises,
the following order is made:-
The application is
dismissed with costs including the costs consequent upon the
employment of two counsel.
WEINER
J
Counsel
for Applicant:
C. Whitcutt
Applicant’s
Attorneys:
Webber Wentzel
Counsel
for Respondent:
S. Symon
1
st
Respondent’s Attorneys:
Raymond
Druker Attorneys
Date
of Hearing:
10 November 2014
Date
of Judgment:
13 November 2014
[1]
Neethling,
Potgieter and Visser, The Law of Delict, 5
th
Edition, p307.
[2]
LAWSA,
vol7, p233, para236
[3]
Sindani
v Van der Merwe
2002 (2) SA 32
(SCA) at 36B-C
[4]
Crawford
v Albu
1917 AD 102
119
[5]
Sindani
v Van der Merwe supra
[6]
1936(2)
All England
LR 1237 HL 1240
[7]
LAWSA,
vol7, p235, para237
[8]
1994(1)
SA 708A
[9]
1977(3)
SA 394A, 401 - 403
[10]
2011
(4) SA 191
CC, 217E-F, [80
]
[11]
Supra
at 217E-F, [80]
[12]
Supra
at 217, [81]
[13]
Supra
at 217,
[83]
[14]
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
[15]
2004
4 ALL SA 365
(SCA)
[16]
Ibid
[17]
See
also Marais v Richard en ‘n Ander
1981 (1) SA 1157
(A).
[18]
Ibid
[19]
[2002] ZACC 12
;
2002
(5) SA 401
CC at [21] to [28]
[20]
1998
(4) SA 1196
at 1207ff
[21]
Khumalo
v Holomisa at [37] F-G
[22]
Supra
at [42] B
[23]
Supra
at [43] C