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[2020] ZAGPJHC 2
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Gqubule-Mbeki and Another v Economic Freedom Fighters and Another (30143/2018) [2020] ZAGPJHC 2 (24 January 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 30143/2018
In
the matter between:
THANDEKA
GQUBULE-MBEKI
First
Applicant
ANTON
HARBER
Second
Applicant
And
ECONOMIC
FREEDOM FIGHTERS
First
Respondent
MBUYISENI
QUINTIN NDLOZI
Second
Respondent
JUDGMENT
MODIBA
J
INTRODUCTION
[1]
There is an ongoing public debate about
the infiltration of media houses by StratCom and the use of the media
to spread disinformation
about anti-apartheid activists. In the
founding papers filed in this application, StratCom is defined as a
notorious propaganda
and disinformation unit
of the security police of the apartheid
government. The big question that has come up is: who are the
journalists who worked with
StratCom in that regard?
[2]
When she testified at the Truth and
Reconciliation Commission (“TRC”) more than two decades
ago, the late Ms Winnie
Madikizela-Mandela (“Ms Madikizela-
Mandela”) named Thandeka-Gqubule Mbeki and Nomavenda Mathiane
as two such journalists.
The TRC did not confirm the allegations due
to lack of
evidence.
[3]
More than 20 years later, before she
passed away, Ms Madikizela-Mandela repeated the allegations in a
documentary on her life aired
by the Huffington Post (“HP”)
on 4 April 2018. This time she included Anton Harber’s (“Mr
Harber”)
name alongside that of Ms Gqubule-Mbeki and Ms
Mathiane as StratCom journalists. Subsequently, the Economic Freedom
Front (“the
EFF”) and its national spokesperson Dr
Mbuyiseni Quinton Ndlozi (“Dr Ndlozi”) published certain
statements peddling
these allegations. Aggrieved by these statements,
Ms Gqubule-Mbeki and Mr Harber brought this application to clear
their names.
[4]
It is an application for defamatory
relief. Ms Gqubule-Mbeki and Mr Harber seek an order in terms of
which:
[4.1]
certain statements made against them by the EFF and Dr Ndlozi are
declared to be defamatory and false, and their publication
unlawful;
[4.2]
the EFF and Dr Ndlozi are ordered to remove the statements from all
their media platforms and to publish a statement on their
media
platforms within 24 hours of the order, retracting the defamatory
statements and unreservedly apologizing to them for the
allegations
that they make in the statements;
[4.3]
the EFF and Dr Ndlozi are ordered to pay them R 500 000.00 each,
jointly and severally, alternatively, a referral of the
quantification of their damages to oral evidence;
[4.4]
the costs for the application are to be paid jointly and severally by
the EFF and Dr Ndlozi on the attorney and client scale.
[5]
Ms. Gqubule-Mbeki and Mr. Harber
instituted this application on 16 August
2018. The EFF and Dr Ndlozi oppose it.
In their answering affidavit deposed to by Dr Ndlozi, the EFF and Dr
Ndlozi raise two points
in limine
,
the first in respect of the non-joinder of parties who published the
documentary on two other media platforms, and the second
in respect
of the inappropriate nature of application proceedings given the
existence of material disputes of fact, irresolvable
on the papers.
They also oppose the application on the merits.
[6]
Several days before the application was
scheduled for hearing, the EFF and Dr Ndlozi filed an application for
leave to file a supplementary
affidavit to set out a proper legal
defence for the allegedly defamatory statements and referring the
matter to trial on such directions
as the court may deem appropriate.
They also sought an order granting the applicants leave to file any
supplementary replying affidavit
to their supplementary answering
affidavit. Ms Gqubule-Mbeki and Mr Harber do not oppose the request
to admit the supplementary
answering affidavit but oppose the
application to refer the matter to trial.
[7]
In this judgment, I follow the following
structure: I first give a detailed description of the parties and
elaborate on the background
to the application. Thereafter, I deal
with the EFF and Dr Ndlozi’s preliminary points. I find that
both stand to be dismissed
for lack of merit. Then I deal with their
application to file a supplementary affidavit. I grant this
application. I however, dismiss
the application to refer the matter
to trial for the purpose of allowing the EFF and Dr Ndlozi to place
before the court a proper
legal defence, also for lack of merit.
Lastly, I determine the merits of the application.
[8]
In the latter section of the judgment I
set out the parties’ respective contentions, followed by an
identification of the
issues that stand to be determined between the
parties. I then set out the applicable legal principles. Then I apply
the principles
to the issues that arose between the parties. I
conclude that the impugned statements are defamatory. Then I
determine the quantum
of damages, taking into account authorities to
which the parties referred me, as well as aggravating and mitigating
factors found
to be present. The last consideration I make is in
respect of the costs of the application. An order consistent with the
conclusion
reached in respect of all the issues that I was requested
to determine concludes the judgment.
THE
PARTIES
[9]
The first applicant, Ms. Gqubule-Mbeki
is a journalist. At the time of this application, she was employed by
the South African Broadcasting
Corporation (“SABC”) as
the Economics Editor.
[10]
The second applicant, Mr. Harber is an
academic and a journalist. At the time of this application, he was
employed by the University
of the Witwatersrand as an Adjunct
Professor of Journalism. He is also the Founding Editor of the Mail
and Guardian newspaper.
He previously worked for The Sunday Post, The
Sowetan, The Rand Daily Mail and regularly writes for several print
media platforms
including The Business Day, Financial Mail, Daily
Maverick, The Conversation, and Media24.
[11]
From here onwards, I jointly refer to
Ms. Gqubule-Mbeki and Mr. Harber as the applicants and individually
by their names. In their
founding affidavits, they respectively
attest to their industrious careers as journalists in South Africa
during and post-apartheid,
spanning over 30 years.
[12]
Ms. Gqubule-Mbeki details her
involvement as a social justice activist, actively involved in the
fight against apartheid during
the 1980s and early 1990s. During this
period, she was arrested by the apartheid police and detained in
solitary confinement for
one month while pregnant and, without being
charged.
[13]
Mr. Harber also chronicles his
participation in the fight against apartheid, specifically his
participation in the legal battle
against the closure in 1988 of the
Mail and Guardian Newspaper, as well as his participation in local
and international anti-censorship
campaigns against the South African
government’s freedom of expression and access to information
restrictions during the
state of emergency. He also narrates how he
was personally targeted and intimidated by
the apartheid police as a result of his
participation in the fight against apartheid.
[14]
The first respondent, the EFF hardly
needs an elaborate introduction as it is a prevalent participant in
the South African political
landscape. It is registered with the
Independent Electoral Commission as a political party. It is the
third largest political party
with significant national, provincial
and local representation in the South African legislature.
[15]
As already stated, the second
respondent, Dr Ndlozi, is the national spokesperson for the EFF.
[16]
Similarly, I jointly refer to the EFF
and Dr Ndlozi as the respondents and individually by their names.
BACKROUND
FACTS
[17]
The background facts are largely common
cause. In June 2017, HP interviewed the late Ms. Winnie
Madikizela-Mandela (“Ms. Madikizela-Mandela”)
as part of
a documentary production on her life (“the documentary”).
During the interview, she alleged that the applicants
and Ms.
Mathiane were agents of the apartheid state who specialized in
writing negative stories about her and that while retained
as
journalists by the then Weekly Mail, now the Mail and Guardian
newspaper, Ms. Gqubule-Mbeki and Mr. Harber wrote such stories
for
StratCom. Ms Madikizela- Mandela has since passed away.
[18]
On 4 April 2018, HP published the
documentary on its website without affording the applicants an
opportunity to respond to Ms. Madikizela-Mandela’s
allegations.
[19]
On 12 April 2018, the EFF published the
following statement on its website (“the EFF statement”):
[See
PDF for image]
[20]
On the same date, Dr Ndlozi also
published the EFF statement on his personal twitter account. There he
added the following statement
(“Dr Ndlozi’s gloss”):
“
Must
Read: EFF Condemns SANEF’s Silence on #StratCom Revelations
We
call on all the 40 journalists, many of whom are still working in the
media, who were on the payroll of apartheid’s #StratCom
to
confess & ask for forgiveness. If they do not, EFF will reveal
their names one by one”
[21]
On 13 April 2018, Dr Ndlozi published
the statement below on his Twitter account in response to a
Poilticsweb publication on Twitter
(“Dr Ndlozi’s
statement”).
[See
PDF for image]
[22]
On 13 April 2018 HP issued a public
statement, unequivocally
and
unreservedly apologizing to the applicants and to Ms. Mathiane. In
the statement, it acknowledged the applicants and Ms. Mathiane
as
campaigning anti-apartheid journalists and as leaders of their craft.
It states that Ms. Madikizela-Mandela’s allegations
are her
opinion, untested and that she did not produce any evidence to
substantiate them. It further acknowledged that its publication
of
the video is not in keeping with the spirit of the Press Code in that
it failed to seek comments from the applicants and from
Ms. Mathiane
prior to publishing the interview and to give a proper context to the
history that the documentary recounts. It also
stated that the
publication, the reaction to it on social media as well as statements
by various political actors in society should
have been avoided.
[23]
On 10 May 2018, the applicants’
attorneys sent letters of demand to the respondents demanding that
they desist from making,
publishing or causing to be published any
further defamatory allegations concerning the applicants to any
party, remove the statements
from their media platforms and post an
unconditional apology and full retraction of the statements on their
media platforms.
[24]
On 25 May 2018, the respondents’
attorney, admitting the publication of the statements as alleged,
denied that the statements
are defamatory but also
sought to justify them.
POINTS
IN LIMINE
Non-joinder
[25]
The respondents take issue with the
non-joinder of Ian Thanduxolo Jindela (“Jindela”) and the
Editor of Uncensored Stories
That Media Ignore Website (“the
Uncensored Stories Editor”).
[26]
Jindela operates a channel on YouTube
where he has published a video of the documentary. The Uncensored
Stories Editor has also
published the documentary on the aforesaid
website (“the Uncensored Stories Website”). The
documentary was still available
on these platforms when the
application was heard. It is for that reason that the respondents
complain that the applicants were
remiss not to have joined these
parties. They contend that these third parties have a direct and
substantial interest in the matter
as they stand to be prejudiced by
the order that the applicants seek.
[27]
The respondents seek a stay of the
application until all the interested parties have been joined. The
applicants oppose the non-joinder
point primarily on the basis that
the offending statements which form the basis of the relief sought
are the respondents’
and not Ms Madikizela-Mandela’s.
Further, no order is sought against Jindela and the Uncensored
Stories Editor.
[28]
Although submissions in respect of the
non-joinder point are set out in the respondents’ heads of
argument, they were not
specifically dealt with during argument.
Neither was the non-joinder point specifically abandoned. It is for
that reason that I
deal with it. I find that it lacks merit.
[29]
Although the primary source of the
allegedly defamatory statements are the allegations that Ms
Madikizela-Mandela made against the
applicants in the documentary,
the relief that the applicants seek is not directed at her
allegations. It is directed at the allegations
as peddled by the
respondents in the statements that the respondents made pursuant to
those allegations.
[30]
Notably, the applicants do not challenge
the publication of the documentary
by
Jindela and The Uncensored Stories Editor, hence they seek no order
against these third parties. For that reason, I agree with
the
applicants that these third parties have no interest in the order
that the applicants seek against the respondents.
[31]
The respondents have not demonstrated
that these parties have a direct and substantial interest in the
relief that the applicants
seek. Therefore the non-joinder point
stands to be dismissed.
[32]
While the applicants’ election to
only pursue the respondents and not these third parties or even Ms
Madikizela-Mandela is
one that bears no relevance to the non-joinder
point or to the question whether the respondents defamed them, for
reasons that
I outline later in this judgment, it is one that I am
unable to ignore when exercising my judicial discretion in respect of
the
appropriate quantum for damages as well as the costs of the
application.
Material
disputes of fact
[33]
The respondents complain that the
applicants incorrectly followed the application procedure given that
they seek monetary damages
against them. They contend that the
quantum of damages claimed is illiquid and “seems to have been
drawn from the air”
and that the applicants have not set out
the damages in a manner that reasonably enables them to assess the
quantum thereof. They
rely on the trite legal principle that material
disputes of facts irresolvable on the papers have to be proceeded
with by way of
action proceedings.
[34]
Indeed the principle relied upon is
correct. However, the respondents have
not raised a material dispute of facts
irresolvable on the papers. As elucidated above, the facts underlying
the relief that the
applicants seek are common cause. So are
additional averments relied upon by the applicants in respect of the
reach of the published
statements and the harm that it caused them.
The respondents’ basis for opposition is not factual but legal.
Therefore no
value would be derived from a trial procedure as no
material dispute of facts irresolvable on the papers
exists.
[35]
There is no hard and fast rule against
using an application procedure in a damages suit. Damages for
defamation fall under the general
head of damages. Unlike other heads
of damages such as loss of income, they are incapable of
quantification. The factor that determines
the appropriate procedure
is whether there are foreseeable material disputes of fact
irresolvable on the papers that could arise
between the parties.
Where there are none, as in the present application, the application
procedure is competent. The second determining
factor is whether the
applicants are able to prove the alleged damages by way of affidavit.
The averments that they have advanced
in this regard are largely
undisputed. If the matter went to trial, the applicants would simply
repeat the same averments under
oath. Thus, a trial would only serve
to be dilatory and escalate legal
costs.
[36]
The respondents’ complaint in
respect of the second point
in limine
also lacks merit. It therefore
stands to be dismissed.
REQUEST
FOR LEAVE TO FILE A SUPPLEMENTARY ANSWERING AFFIDAVIT
[37]
This application seems to be
precipitated by the respondents’ belated engagement of senior
counsel on 30 September 2019, two
weeks before the application was
heard. Consultation with him only occurred on 8 October 2019, less
than a week before the application
was heard. It was at this
consultation that he advised that it was necessary to supplement the
respondents’ answering affidavit
to properly set out the
respondents’ defence. The respondents contend that their
complete defence as advised by their senior
counsel would require
that they:
[37.1]
set out the provisions of section 16 (1) (b) of the Constitution
which provides for the right of freedom of expression, which
they
contend includes the right to impart information and ideas. The
impugned statements relate to matters of serious national
importance
as they suggest that there are racist journalists who aided and
abetted apartheid, who still operate in the media, who
must be
identified and put to account. This is the EFF’s
raison
d’etre;
[37.2]
rely on section 19 (1) (c) of the Constitution which guarantees the
right to political freedom, which includes the right
to campaign for
a political party or a cause. They contend that the impugned
statements are political speech which the EFF has
the right to make
based on its right to political freedom and given its
raison
d’etre,
so that “the 40 off journalists who were
mentioned in the statement can be identified and excised from any
influence in the
media space”;
[37.3]
engage the services of an expert witness who will guide the court to
determine the content, ambit and legal parameters of
the
Constitutional provisions referred to above. They also intend to call
several witnesses named in the supplementary answering
affidavit;
[37.4]
issue a subpoena
duces tecum
to various departments who have
relevant documents for the respondents’ exercise of the
Constitutional rights mentioned above;
[37.5]
make out a case for the development of the common law defences to
defamation and align them to the Constitution as envisaged
in section
39 of the Constitution.
[38]
The applicants do not oppose the
respondents’ request for leave to file the supplementary
affidavit. They oppose their request
that the matter be referred to
trial.
[39]
I find that it is in the interests of
justice that the respondents’ request to refer the matter to
trial is dealt with on
the merits, particularly given that the
applicants do not oppose
the
respondents’ request
for
leave to file the supplementary
affidavit. Further, they do not stand to
be prejudiced by its admission.
[40]
Therefore, leave to file the
supplementary answering affidavit stands to be granted. Further,
failure to comply with the prescribed
time frames for the filing of
this affidavit stands to be condoned.
[41]
It is important to observe that the
respondents do not seek a postponement to supplement their basis for
opposition. They seek a
referral of the application to trial. For the
latter request, the test referred to in paragraph 33 and 34 of this
judgment is applicable.
I find that the respondents fail to meet it.
[42]
Regarding the issues in respect of which
the respondents seek to supplement their defence, there is no
foreseeable material dispute
of fact irresolvable on the papers that
arises between the parties. The respondents’ defence, which is
primarily based on
their right to political freedom, is pleaded in
their answering affidavit. The applicants have not placed their
pleaded constitutional
rights in dispute. Therefore the legal advice
belatedly received from their senior counsel does not validate their
request to refer
the matter to trial, more so that the respondents
have not established the relevance of the additional evidence that
they seek
to place before court to the issues that stand to be
determined in this application, or the prejudice that they stand to
suffer
if their request is not granted.
[43]
Furthermore, the content of the
constitutional rights sought to be asserted by the respondents is a
legal issue for determination
by the court. It is not an issue
in respect of which the court requires
the assistance of experts.
[44]
The respondents are not contending for
an amendment of their defence as initially pleaded. They have not
placed any reasons before
the court as to why they have not placed
the additional evidence that they intend to place before court by way
of affidavit.
[45]
Therefore the request to refer the
matter to trial stands to be dismissed.
THE
MERITS OF THE DEFAMATORY RELIEF
[46]
The applicants deny the allegations that
the respondents made against them. They contend that the respondents’
statements
are defamatory.
[47]
The respondents have advanced varied
responses to the applicants’ assertion. On the one hand they
contend that the statements
are not defamatory. On the other hand,
they impliedly admit that the statements are defamatory but seek to
justify them by raising
the defences referred to above.
[48]
In their reply to the applicants’
letter of demand, the respondents denied that the statements refer to
the applicants specifically.
They continued to advance this
contention in their answering affidavit where they argued for an
interpretation of the statements
that distinguishes the applicants
from the 40 journalists who are on the StratCom list. Further, in
their reply to the applicants’
letter of demand and later in
their answering affidavit, they contended that they merely
paraphrased what Ms. Madikizela-Mandela
stated in the documentary.
They asserted Ms. Madikizela- Mandela’s right to aggressively
respond to the applicants’
negative reportage against her, and
to use a public platform to defend herself and her image. They also
asserted EFF’s right
as a political party to express its fair
comment about information that was in the public domain and that as
journalists, the applicants
should not be too sensitive.
[49]
They also suggested that the allegations
are true as they were made by a person they consider to have
credibility in the person
of Ms.
Madikizela-Mandela.
[50]
Another postulation they have advanced
is that since the applicants were politically active during
apartheid, it is probable that
they were used by StratCom without
their knowledge as that was one its methodologies.
Issues
that arise
[51]
In relation to the merits of the
application, the following issues stand to be determined:
[51.1]
whether the impugned statements meet the test for defamation; if they
do
[51.2]
whether the statements would tend to lower the applicants in the
estimation of right thinking members of the society. If
they would
[51.2.1]
whether the publication of the statements was reasonable;
[51.2.2]
whether the statements constitute protected fair comment.
Applicable
legal principles
[52]
The trite legal principles set out below
are applicable to the dispute between the parties.
[53]
Defamation is the wrongful and
intentional publication of defamatory words or conduct that refer to
another person.
[54]
The onus to establish that the impugned
statement or conduct is defamatory and that the respondents have
published it lies with
the applicants. Once they discharge this onus,
a presumption that the publication is intentional and wrongful arises
against the
respondents. To escape liability, the respondents ought
to set out a defence to rebut this presumption. The onus that they
bear
in this regard is a full onus and not a mere evidentiary burden.
[55]
As mentioned above the respondents have
raised the reasonable publication and fair comment defence. To
succeed in this regard, they
ought to
establish:
[55.1]
in relation to the reasonable publication defence; that the
publication of the defamatory statement is reasonable in the
relevant
circumstances and therefore justified. In that regard the court will
take into account the following circumstances:
[55.1.1]
the public interest in the matter;
[55.1.2]
the nature, extent, and tone of the allegations;
[55.1.3]
the nature of the information on which the allegations were based;
[55.1.4]
steps taken to verify the information;
[55.1.5]
whether the applicant was given an opportunity to comment on the
allegations before publication
[55.2]
in relation to the fair comment defence; that:
[55.2.1]
the statement is a comment or an opinion as opposed to a statement of
fact;
[55.2.2]
such comment expresses an honestly-held opinion, without malice, on a
matter of public interest;
[55.2.3]
the comment or public opinion is based on underlying facts that are
true and which are incorporated in the statement.
Are
the statements defamatory?
[56]
I find that the impugned statements are
defamatory.
[57]
The respondents’ denial that they
did not make the call that the applicants were StratCom journalist is
disingenuous. Read
together, it is clear that the EEF statement, Dr
Ndlozi’s gloss and Dr Ndlozi’s statement was prompted by
Ms Madikizela-Mandela’s
allegations against the applicants. In
the impugned statements, the respondents advance Ms
Madikizela-Mandela’s allegations
that the applicants and Ms
Mathiane were part of the journalists on StratCom’s payroll who
wrote stories during apartheid
to destroy anti-apartheid activists,
including Ms. Madikizela-Mandela. They conclude that by so doing, the
applicants were party
to the destruction of lives and mass murder of
activists by the apartheid
regime.
[58]
The statements peddle Ms.
Madikizela-Mandela’s allegations against the applicants as a
factual truth, yet the respondents
have not placed any evidence
before this court in support of Ms. Madikizela-Mandela’s
allegations.
[59]
The EFF statement and Dr Ndlozi’s
gloss demand that as part of these journalists, the applicants must
confess and ask for
forgiveness for their collaboration with
StratCom. In the EFF statement, the respondents do not draw
a distinction between the 40 journalists
alleged to be on the StratCom list and the applicants. On the
contrary, they imply that
the applicants are part of the list as they
have been named by Ms Madikizela-Mandela as having worked for
StratCom.
[60]
The respondents’ contention in
these proceedings that their call for these journalists to come out,
confess and ask for forgiveness
exclude the applicants is not
consistent with the rest of the statement. Firstly, in the statement
“The EFF condemns South
African National Forum’s silence
following revelations that journalists who served on Apartheid’s
Strategic Communications
to destroy anti- apartheid activists still
report in different news rooms across the country’s media
fraternity.” Then
the statement goes on to state that “A
video showing Mama Winnie Mandela naming some of these journalists
has long come out
yet SANEF is dead silent.” The applicants
were not only specifically named by
Ms
Madikizela- Mandela, they still work in the media industry. The EFF
surmises that the applicants are some of ‘these journalist’,
implying that they are part of the 40 journalists on the StratCom
list.
[61]
Further, the allegations that Ms
Madikizela-Mandela made against the applicants in the video and the
respondents’ summation
of the allegations as published in their
statements are consistent with Ms Madikizela
Mandela’s testimony
at the Truth and Reconciliation
Commission (“TRC”) in 1995. A transcript of the TRC
proceedings attached to Ms Gqubule-Mbeki’s
founding affidavit
reflects that when questioned concerning these allegations at the
TRC, Ms. Madikizela- Mandela stated that she
was privy to allegations
that there are journalists
retained
by StratCom to discredit the ANC and some of its members including
her. She testified that she heard about the existence
of a list of
these journalists but was not privy to it. She also heard at the time
that journalists such as Ms Gqubule-Mbeki and
Ms Mathiane were
associated with the apartheid police and concluded that they must be
StratCom journalists. When questioned on
these allegations, she
admitted that she has no direct evidence. She also testified that she
cannot confirm that their names are
on the alleged StratCom list.
[62]
Therefore, Ms. Madikizela-Mandela’s
evidence at the TRC does not attest to the truth of the allegations.
On the contrary,
it confirms that Ms Madikizela-Mandela herself could
not confirm that the allegations were true when she testified at the
TRC and
that she had no evidence confirming that the allegations are
true.
[63]
In their letter in reply to the
applicants’ demand for a retraction and apology, HP confirms
that more than 20 years after
Ms Madikizela-Mandela testified at the
TRC, when she was interviewed for the documentary, she presented no
evidence of the allegations.
[64]
Lastly, Dr Ndlozi’s statement
advances the view that Mr. Harber’s involvement in the article
which exposed StratCom’s
campaign to tarnish Ms. Madikizela-
Mandela’s reputation, published on 30 June 1995 was
self-serving and
mala fide
because
prior to 1995, he wrote and edited publications for StratCom. Here
clearly, Dr Ndlozi states as a fact that Mr. Harber wrote
and edited
publications for StratCom.
[65]
The respondents have not presented any
evidence before this court of the truthfulness of the allegations.
They clearly did not have
such evidence when they published the
statements. They have not taken the court into their confidence
regarding the steps they
took prior to publishing the statements to
verify their truth.
[66]
In their application to refer the matter
to trial in order to present a complete defence, it appears that they
are yet to investigate
the evidence in support of their allegations.
They do not explain why they did not verify the allegations prior to
publishing the
statements or even after these proceedings were
instituted. On the contrary their version before this court
illustrates that they
had no intention of verifying the allegations
and that they had accepted the allegations as true as they were made
by a person
who in their view has credibility as she is of a high
standing. The standing of a person does not absolve them from the
responsibility
to back up allegations with evidence.
[67]
In light of the respondents’
statement that the 40 journalist were on StratCom’s payroll,
their postulation that the
applicants were used by StratCom without
their knowledge is irrational. The applicants could not have been
used by StratCom without
their knowledge if they were paid. Be that
as it may, the postulation also remains speculative as the
respondents’ have presented
no proof of it.
[68]
The applicants’ contentions in
light of their respective participation in the struggle against
apartheid cannot be refuted.
The statements by innuendo allege
against them, that they played a deceitful and shameful role in the
struggle against apartheid
because they pretended to be
anti-apartheid activists but were in fact agents of the apartheid
government who worked to undermine
the struggle against apartheid;
they were traitors who deceitfully betrayed their friends and
comrades in the struggle against
apartheid and cannot be trusted
because they were shameless and deceitful traitors. So is their
contention that the allegations
are particularly vicious in the
context of the anti-apartheid struggle that dealt ruthlessly with any
traitor variously branded
as a “sell out”, “askari”
or “impimpi”.
[69]
The applicants have made detailed
averments in relation to the reach of the statements, the impact of
their publication by the EFF
and Dr Ndlozi as influential political
role players as opposed to ordinary South Africans as well as the
harm they have suffered
as a result. To these issues I return later.
[70]
It is common cause that the respondents
published the impugned
statements.
I therefore, find that the applicants have discharged the onus to
prove that the published statements are defamatory.
Is
the publication of the statements reasonable in the circumstances and
therefore justified?
[71]
This
is a defence ordinarily available to the media. It promotes freedom
of expression by allowing the media to contribute to public
opinion
on political, social and economic issues without fear of a damages
claim in the event that it published certain facts erroneously.
It
was extended to a non-media party for the first time in
Manuel
[1]
.
Coincidentally, the first respondent was the respondent in
Manuel
.
Therefore, its reliance on this defence in this case is not
surprising.
[72]
I am respectfully disinclined to agree
with the reasoning in
Manuel
for
extending this defence to non-media players. I am of the view that
the extension of the reasonable publication defence to parties
who
are not part of the media is inappropriate. I also do not agree that
the public access to social media justifies such an extension.
The
respondents’ conduct in this case demonstrates how
toxic social media can be due to the
absence of regulation.
[73]
On the contrary, the media is an
organized profession bound by media ethics as set out in the Press
Code. Its members are held accountable
under the Press Code, which
requires journalists to report news truthfully, accurately and
fairly, in context and in a balanced
manner, without distortion,
exaggeration or misrepresentation. Further, it requires journalists
to only report what is true, having
regard to the source of the news
as fact, but to publish such facts fairly and with due regard to the
context and the importance
of the news. Where a report is not based
on facts or is founded on opinions, allegations, rumours or
suppositions, journalists
are to report it in a way that indicates
its status. Where its accuracy is in doubt, journalists are required
to verify the news.
Where it was not practical to verify the news,
this should be stated.
[74]
There is no mechanism that regulates the
conduct of general members of the public including non-media entities
on social media.
Extending this defence to non- media players will
lower the threshold for defamation, thereby encouraging reckless
publication
of information that has not been verified, under
circumstances where the publisher is not bound to act fairly towards
the implicated
person as journalists are.
[75]
The lower threshold for defamation by
media players is safeguarded by the Press Code and for that reason
justified. It promotes
compliance with the Press Code by exculpating
compliant journalists from liability for defamation while at the same
time projecting
the person against whom a report is made from the
harm that often results when untested allegations are published as
the truth.
[76]
Even if the defence was available to the
respondents as non-media players, the respondents have failed to
satisfy four of five factors
that would justify the publication of
the statements. I have no doubt that it is in the public interest to
know whether there are
any journalists who worked with the apartheid
machinery to peddle misinformation against organizations and their
members who opposed
apartheid as such entities and persons engaged in
an illegitimate course contrary to the public interest at that time.
However,
as already established, in over twenty years, no shred of
evidence has been advanced by the originator of the allegations made
against the applicants or the respondents before court, yet they are
published as a foregone truth, despite knowledge by the publishers
that the allegations have not been verified. The applicants’
denial of the allegations has not satisfied the respondents.
Hence
they have refused to retract them and to apologize.
[77]
Contrary to what is expected ethically
from members of the media, the applicants were not given an
opportunity to comment on the
allegations before they were published.
[78]
Therefore, the respondent’s
reasonable publication defence stands to fail.
Fair
comment defence
[79]
The cardinal pillar of this defence is
that the respondents comment or opinion is based on underlying facts
that are true. As already
established, the respondents fail in this
regard.
[80]
Their
raison
d’etre
as stated earlier is no
doubt a noble one in the context of South Africa’s history of
racial supremacy, oppression, inequality
and lack of freedom.
However, advancing this objective on the basis of unfounded
allegations is not only venomous as experienced
by the applicants, it
may entrap this country in its ugly past by entrenching mistrust and
disunity among those who belonged to
different factions during
apartheid, but even more dangerously, by sowing mistrust and disunity
among those who advanced the same
course as the applicants. Further,
it brings the media into disrepute. At worst, it may expose the
implicated journalists to a
variety of risks.
[81]
The respondents have not satisfied this
court that they hold this opinion honestly. Failure to verify the
allegations and to accept
the applicants’ version that the
allegations are not true is unfair, particularly because the
respondents continue to publish
them. It appears that nothing other
than the force of the law in the form of a court order would get the
respondents to cease from
their injurious
conduct.
[82]
Therefore, the respondents’ fair
comment defence also stands to be dismissed.
QUANTUM
OF DAMAGES
[83]
Relying primarily on
Manuel
where my brother Matojane J awarded
damages for defamation in the amount of R 500 000.00, the applicants
seek the same amount to
be awarded to each of them. On my invitation,
the parties submitted supplementary heads of argument on quantum,
relying on various
other authorities. Typically the applicants
advance authorities where a high quantum was awarded, while the
respondents advance
those where a lower quantum was awarded. What
clearly emerges from these authorities is that courts have
historically been awarding
low quantum for defamation and that the
high quantum which the applicants are contending for is only a recent
phenomenon in respect
of which the superior courts are yet to
pronounce themselves.
[84]
As already stated, the quantum of
general damages is incapable of quantification. Its award is
discretionary, considering the peculiar
facts of each case including
mitigating and aggravating circumstances. It is for that reason that
previous awards only serve as
a mere guideline.
[85]
In this case, I find that both
aggravating and mitigating factors are present.
Aggravating
factors
[86]
The respondents have not only refused to
concede that the allegations are defamatory, they have reprobated and
approbated their
position as demonstrated earlier, seeking
justification in the event that the court finds that the allegations
are defamatory.
It is clear in these proceedings that the originator
of the allegations could not prove them, neither could the
respondents, yet
they persisted with them, refused to accede to the
applicants’ demand to retract and apologize and went on to
defend the
applicants’ claims on very spurious grounds.
[87]
The allegations are harmful not only to
the person of the applicants but to their profession as journalists
and their standing as
senior journalists. As already stated above,
the allegations also have the potential to bring the media into
disrepute, and to
sow disunity and mistrust in society and in the
political landscape.
[88]
The defamatory statements were published
on the respondents’ Twitter account where the respondents’
have a significantly
large following. Some of their followers, as
evidenced by the responses posted on the respondents’ Twitter
account have not
only accepted the allegations as true, they have
further published the statements, thereby compounding their reach.
Others have
posted disparaging remarks against the applicants in
response to the allegations.
[89]
It concerns this court that the
applicants were tardy in bringing the application. They only
instituted the application four months
after the publication of the
statements. Further, they brought the application in the ordinary
course, hence it is only determined
almost two years after the
statements were published. Given the undisputed case they make out
regarding the serious and injurious
nature of the allegations as well
the extent of their publication, the applicants ought to have acted
with haste to curb the resultant
impairment. With the lapse of time,
it is probable that the readership value of the statements has
decreased.
[90]
While the applicants are not obliged to
seek defamatory relief against each person or entity who has defamed
them, for the purpose
of determining just and equitable damages, it
concerns this court that the applicants sought no relief against the
originator of
the allegations, Ms Madikizela-Mandela, after she made
the allegations at the TRC; but even more importantly, after she
repeated
them in the documentary. The fact that the applicants opted
to pursue the respondents due to their political influence does not
justify not seeking relief against Ms
Madikizela- Mandela because she too
carried significant influence in South African
politics.
[91]
Even more importantly is that the
documentary in which Ms Madikizela- Mandela makes the allegations
continues to be available on
other platforms, yet the applicants
opted not to pursue the relevant publishers. It is absurd that the
applicants endure harm when
the allegations are peddled by the EFF
but are not harmed when they were peddled by Ms Madikizela-Mandela or
other
publishers.
[92]
I find that the applicants’ lack
of haste in bringing the application, as well as their selective
response to the publishers
of the allegations is highly mitigating as
the allegations continue to be available on the internet.
[93]
These
mitigating factors distinguish this case
from others where courts awarded a higher quantum of damages based on
the presence of similar
aggravating factors.
[94]
Another distinguishing factor is that
the applicants specifically state that they are not interested in the
money and, for that
reason they intend donating it to journalism
related causes. Impliedly, the primary vindication that the
applicants seek is a declaration
that the allegations are false and
their publication unlawful, a retraction of the allegations, an
apology and an interdict from
further publication of the allegations.
Given that the primary purpose of general damages for defamation is
not to punish the respondent
but to serve as
solatium
for the applicant, the applicants’
attitude to the quantum when considered against the mitigating
factors, which outweigh
the aggravating factors, justify a
substantially lower award from that claimed.
For that reason, I find that an award of
R40, 000.00 for each applicant is just and equitable in the
circumstances.
COSTS
[95]
Where a party has refused to take down
manifestly defamatory statements, courts have awarded punitive costs
against it. I am not
persuaded that the peculiar circumstances of
this case warrants such costs. I find it absurd to punish the
respondents with a high
cost order given the applicants’
selective response to the publishers, resulting in the continued
availability of the defamatory
allegations in the public domain. I
therefore find that costs on the ordinary scale is
appropriate.
[96]
In the premises, the following order is
made:
ORDER
1.
The application succeeds.
2.
The respondents’ point
in
limine
in respect of the non-joinder
of Ian Thanduxolo Jindela and the Editor of Uncensored Stories That
Media Ignore Website is dismissed.
3.
The respondents’ point
in
limine
in respect of the foreseeable
material disputes of fact, irresolvable on the papers is dismissed.
4.
The respondents are granted leave to
file a supplementary answering affidavit.
5.
Condonation for the late filing of the
respondents’ supplementary answering affidavit is granted.
6.
The respondents’ request to refer
the matter to trial is dismissed.
7.
In this order ‘the statements’
are the statements referred to in the judgment as the EFF statement,
Dr Ndlozi’s
gloss and Dr Ndlozi’s statement.
8.
It is declared that the allegations made
about the applications in the statements are defamatory and false.
9.
It is declared that the respondents’
publication of the statements was and continues to be unlawful.
10.
The respondents are ordered to remove
the statements within 24 hours of the granting of this order from all
their media platforms
including the first respondents’ website
and the second respondents’ Twitter account.
11.
The respondents are ordered, within 24
hours of the granting of this order, to publish a notice on all their
media platforms, on
which the statements had been published, in which
they
unconditionally
retract and
apologise
for the
allegations made about the applicants in
the statements.
12.
The respondents are interdicted from
publishing any statement that says or implies that the applicants
worked for or collaborated
with the apartheid government.
13.
The respondents are ordered jointly and
severally to pay damages of R40,000.00 to each of the applicants.
14.
The respondents are ordered jointly and
severally to pay the applicants’ costs of the application.
____________________
L T
MODIBA
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEARENCES
Counsel
for applicants:
Advocate W Trengove SC
Advocate M Mbikiwa
Attorney
for applicants:
Webber Wentzel
Counsel
respondents:
Advocate I Semenya SC
Advocate N Nyembe
Attorney
for respondents:
Nicqui Galaktiou Inc
Date
of hearing:
15 October 2019
Date
of judgment:
24 January 2020
[1]
Manuel v Economic Freedom Fighters and Others
2019 (5) SA 210
(GJ)