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
>>
2020
>>
[2020] ZAGPJHC 104
|
|
Sunday Sun Newspaper and Others v Mokondelela (2018/46689) [2020] ZAGPJHC 104 (15 April 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2018
/46689
In
the matter between:
THE
SUNDAY SUN NEWSPAPER
First
Applicant/First Defendant
THE
EDITOR OF THE SUNDAY SUN
NEWSPAPER
Second
Applicant/
(PRINCE
CHAUKE)
Second
Defendant
REPORTER
OF THE SUNDAY SUN NEWSPAPER
Third
Applicant/
(SNAZO
NOTHO)
Third
Defendant
and
DONALD
MOKONDELELA
Respondent/Plaintiff
JUDGMENT
SOUTHWOOD,
AJ:
A.
INTRODUCTION
1.
This
is an application in terms of Rule 30(1)
[1]
read with Rules 18(4)
[2]
and
18(12)
[3]
of the Uniform Rules
of Court (‘
the
Rules
’)
to set aside the respondent’s particulars of claim.
2.
In the action, the respondent seeks damages
in an amount of R20 million for defamation.
B.
PARTIES
3.
I refer to the parties as cited in the
action.
4.
The particulars of claim allege that:
4.1
the plaintiff, the respondent to this
application, is an adult male professional soccer player who resides
in Polokwane;
4.2
the first defendant, the first applicant in
this application, is The Sunday Sun Newspaper, a print media company
established in
terms of South African law, operating at 69 Kingsway,
Auckland Park, Johannesburg;
4.3
the second defendant, the second applicant
in this application, is the editor of The Sunday Sun Newspaper
(Prince Chauke), responsible
for approval of newspaper articles and
the printing of the newspaper articles and currently employed by the
first defendant at
69 Kingsway, Auckland Park, Johannesburg;
4.4
the third defendant, the third applicant in
this application, is a reporter (Snazo Notho), employed by the first
defendant, under
the supervision of the second defendant, at 69
Kingsway, Auckland Park, Johannesburg.
C.
SERVICE OF NOTICE OF SET DOWN
5.
At the hearing held on 28 January 2020, the
defendants were represented by Mr
Stevens
.
There was no appearance for the plaintiff. Accordingly, the first
question to be determined is whether the plaintiff had notice
of the
hearing.
6.
No notice of set down was delivered before
the hearing. Two notices of set down were uploaded onto
caselines on 21 January
2020. The notices indicate that service would
be effected by way of sheriff and by way of email. No proof of
service was
uploaded with these notices.
7.
On 18 November 2019, in a notice dated 14
November 2019, the plaintiff’s attorneys, HLM Mamabolo
Attorneys, served a notice
of withdrawal as attorneys of record on
behalf of the plaintiff. The notice indicated that the last known
address of the plaintiff
is number […], Polokwane, the address
indicated in the particulars of claim, and that his cellphone number
is […].
This notice did not comply with Rule 16(4)(a) which
provides that the attorney must serve notice of withdrawal on his own
client.
8.
Accordingly, it comes as no surprise that
the plaintiff did not notify the parties or the registrar of this
court of a new address
for service in terms of Rule 16(4)(b).
9.
At the hearing, the defendants handed up a
service affidavit, deposed to, on 27 January 2020, by one Colin
Hindle Isherwood, a candidate
attorney in the employ of the
defendants’ attorneys. The affidavit describes the steps
taken by the defendants’
attorneys to draw the date of the
hearing of this matter to the attention of the plaintiff. Initially,
the sheriff was instructed
to serve the notice of set down at […]
Polokwane, the address indicated in the notice of withdrawal as well
as in the particulars
of claim. The sheriff’s
return indicates that no such address could be found, and he was
unable to serve the notice of set
down. The defendants’
attorneys indicated that they then contacted the plaintiff
telephonically as well as by email
and text to advise him as to the
hearing date. Unfortunately, the telephone number used is not
identified making it impossible
to assess whether the plaintiff’s
cellphone number was used. In addition, there is nothing to indicate
that the email address
used is the plaintiff’s email address.
10.
I was not satisfied, on the basis of this
affidavit, that defendants had established that they had brought the
set down of this
matter to the plaintiff’s attention.
11.
In response, Mr
Stevens
indicated that he had been present at the previous hearing of this
matter on 24 October 2019 where both parties had appeared,
represented by their respective attorneys and counsel. He informed me
that the matter had been postponed by the court to 27 January
2020.
Since I was in possession of a duplicate court file, the
history of this matter was not apparent from the file
cover.
12.
I requested the defendants to furnish me
with a copy of the court order or a transcript or a recording thereof
and reserved my determination
in this regard. I then invited Mr
Stevens
to
address me on the merits of the application and reserved judgment.
13.
After the hearing, both the defendants’
attorney and counsel addressed emails to my Registrar indicating that
what had been
disclosed to me in court in relation to the previous
hearing of the matter was not correct. I therefore summoned the
defendants’
representatives to appear in court on 30 January
2020 so as to be informed as to what the correct position was and to
obtain an
explanation for the error.
14.
I was informed that at the hearing on 24
October 2019, the court postponed the matter to 25 November 2019 and
not to 27 January
2020, as indicated by counsel during the hearing on
28 January. However, the matter had not been heard on 25 November
2019.
Prior to the previous hearing, the defendants’
legal representatives were informed that the registrar had refused to
enrol
the matter. The defendants’ legal representatives
had then re-enrolled the matter for hearing on 27 January 2020.
Thereafter, it was discovered that the matter had, in fact, been
enrolled for the week of 25 November 2019. The defendants’
legal representatives were informed by the judge to whom the matter
had been allocated in the week of 25 November 2019 that the
matter
would be heard on 27 November 2019. On that date, because of
the plaintiff’s absence, the matter was removed
from the roll.
15.
Mr
Stevens
indicated that he had forgotten about the hearing of 27 November 2019
because nothing had happened on that day.
16.
I accept Mr
Stevens
’
explanation for the incorrect submission.
17.
Given my queries in relation to the service
affidavit handed up at the hearing on 28 January 2020, on 30 January
2020, two further
affidavits dealing with service of the notice of
set down, entitled, respectively, Supplementary Affidavit and Second
Supplementary
Affidavit, were tendered. Both affidavits were
deposed to on 30 January 2020 by, respectively, Andrew Chris Eric
Boerner,
the defendants’ attorney, and Mr Isherwood. I
have accepted both affidavits.
18.
In the Supplementary Affidavit, Mr Boerner
alleges that the plaintiff’s erstwhile attorneys of record,
advised the defendants’
attorneys that the plaintiff’s
email address is
[…]
.
19.
The service affidavit indicated that, on 14
January 2020, the defendants’ attorneys had sent an email to
[…] informing
the plaintiff of the hearing date of 27 January
2020. Proof of delivery of the email was attached to the affidavit.
20.
In addition, on 16 January 2020, the
defendants’ attorneys sent a further email to […] to
inform the plaintiff that
the matter would be heard before me on 28
January 2020 at 14h00. Proof of delivery of the email was
attached to the affidavit.
21.
In the Second Supplementary Affidavit, a
link is drawn between the cell phone number in the notice of
withdrawal, […], and
the number used for a variety of WhatsApp
messages sent by the defendants’ attorneys to inform the
plaintiff of the hearing
date. These messages were sent on 24
January 2020, informing the plaintiff that the matter would be heard
before me on 28
January 2020 at 14h00.
22.
Proof that at least one of these messages
had been delivered on 14 January 2020 at 16h01 and read at 16h02 were
furnished.
23.
Accordingly, I am satisfied that the
plaintiff was aware of the date for the hearing of this application.
D.
OBJECTIONS
IN
LIMINE
24.
The plaintiff contends that there has been
non-compliance with:
24.1
Rule
30(2)(b)
[4]
; and
24.2
Rule
30(2)(c)
[5]
25.
The plaintiff contends that the defendants
would have become aware of the irregularity on the date of service of
the combined summons.
The plaintiff contends, further, that the
Rule 30(2)(b) notice was not filed timeously as the notice was served
more than ten days
after service of the combined summons. There
is no return of service in the court file indicating when the
combined summons
was served.
26.
The defendants, in the founding affidavit,
do not indicate when the combined summons was served.
Presumably, this is the result
of their view, recorded in the
replying affidavit, that they only became aware of the irregularity
on or about 24 January 2019.
This is the date when the
plaintiff served the alleged defamatory newspaper article on the
defendants in response to their notice
in terms of Rules 35(12) and
(14). The newspaper article had not been attached to the particulars
of claim.
27.
Given that the particulars of claim were
incomplete in the absence of the alleged defamatory article, I agree
that the defendants
only became aware of the alleged irregularity on
receipt of this newspaper article.
28.
As a result, the Rule 30(2)(b) notice had
to be given by 7 February 2019. The notice was served on 1
February 2019.
29.
Accordingly, the objection that Rule
30(2)(b) was not complied with must fail.
30.
Insofar as the objection relating to
compliance with Rule 30(2)(c) is concerned, and regardless of the
fact that the plaintiff was
given fifteen days in which to respond
instead of the ten days contemplated by Rule 30(2)(b), the deadline
for delivering the application
in terms of Rule 30(2)(c) was 8 March
2019. The application was delivered on 1 March 2019.
31.
Accordingly, the objection that Rule
30(2)(c) was not complied with must fail.
E.
GROUNDS OF IRREGULARITY
32.
In its Rule 30(2)(b) notice, the defendants
raise eight complaints. The application raises only seven complaints.
33.
Each complaint alleges that the particulars
of claim do not disclose a cause of action
alternatively
are vague and embarrassing
alternatively
do not contain sufficient facts in
breach of sub-rule 18(4) of the Rules.
34.
The defendants argued the matter on the
basis that the particulars of claim do not comply with sub-rule 18(4)
because they do not
disclose a cause of action or are vague and
embarrassing.
35.
Rule
30 does not apply to matters of substance but to non-compliance with
the Rules.
[6]
The question
as to whether the particulars of claim disclose a cause of action is
a matter of substance and cannot be dealt
with in terms of Rule 30.
[7]
In any event, the
defendants were required to show that on every construction of the
particulars of claim, the claim is excipiable.
[8]
In my view, the particulars of claim disclose a cause of action
based on defamation.
36.
Whilst
a pleading may give rise to both an exception that a pleading is
vague and embarrassing in terms of Rule 23 and that it is
lacking in
particularity, these two rules provide for different situations and
have different tests.
[9]
37.
Rule
18(4) requires that a plaintiff shall furnish only those particulars
which are strictly necessary to enable the defendants
to plead.
[10]
Accordingly, an application brought in terms of Rule 30 read with
Rule 18(4) requires a determination as to whether the particulars
of
claim contain sufficient particulars to enable the defendants to
plead. Such inability would be inherently prejudicial.
38.
Rule
23, on the other hand, contemplates vagueness and embarrassment which
strikes at the whole cause of action pleaded, and not
merely to
paragraphs in the pleading.
[11]
39.
In order to determine whether particulars
of claim are vague and embarrassing, a two-fold consideration must be
undertaken, namely:
39.1
whether the pleading lacks particularity to
the extent that it is vague (in the sense of rendering it meaningless
or capable or
more than one meaning); and
39.2
whether
the vagueness causes embarrassment of such a nature that the
complainant is prejudiced.
[12]
40
Prejudice
is established if the complainant cannot plead to it.
[13]
41
Save that the exception must go to the root
of the cause of action, there is an overlap in the tests to be
applied in determining
whether the particulars of claim are vague and
embarrassing and whether the particulars of claim do not contain
sufficient particularity
to plead thereto.
42
The defendants’ heads of argument
only refer to the first three complaints. However, Mr
Stevens
indicated that all the complaints in the application should be
considered.
43
Mr
Stevens
submitted that the first two complaints
have the same basis, namely that the particulars of claim do not
contain sufficient facts
to substantiate the innuendo relied upon and
referred to in paragraph 12 of the particulars of claim.
44
This complaint would support a contention
that the particulars of claim do not disclose a cause of action based
on defamation by
innuendo (a determination which is inappropriate in
Rule 30 proceedings). It does not support the contention that
the particulars
of claim are vague and embarrassing.
45
In the premises, the first two complaints
must fail.
46
The third complaint is directed at
paragraph 7 of the particulars of claim, which refers to a ‘…
required
publishing standard’
without
describing the content of the standard.
47
Whilst this allegation is undoubtedly
vague, no content being given to this publishing standard, it does
not follow that the defendants
cannot plead to this paragraph.
48
The allegation is not required for a
defamation claim and no other cause of action appears to arise in
relation to this allegation,
damages being alleged to have arisen as
a result of the alleged defamation. In my view, the defendants
are able to plead.
49
Accordingly, the third complaint must fail.
50
In relation to the fourth complaint, the
defendants refer to paragraph 10 of the particulars of claim which
alleges that, ‘…
the conduct
of the First, Second and Third defendant by writing, approving, and
authorising printing and publishing
(
sic
)
the defamatory newspaper article clearly
shows that, all the defendants had an intention to defame the
plaintiff
’’ and paragraph 4
of the particulars of claim which provides that, ‘[o]
n
or about
26 February 2018
at Johannesburg, the First Defendant printed and published a
newspaper article throughout South Africa about the Plaintiff, the
said article had full names, a photo and full description of the
plaintiff on it and the said article defamed the plaintiff
.’
51
It appears (since the substance of the
complaint is not expressly stated) that the defendants interpret
paragraph 10 to mean that
all the defendants
inter
alia
printed the article whilst
paragraph 4 only refers to the first defendant as printing the
article
52
Although
reading paragraph 10 out of context may give rise to the
interpretation alleged by the defendants, it is trite that documents
must be interpreted in context.
[14]
53
In paragraph 2.2 of the particulars of
claim, it is alleged that the second defendant is responsible for the
approval of newspaper
articles.
54
In paragraph 2.3 of the particulars of
claim, it is alleged that the third defendant is a reporter for the
Sunday Sun newspaper.
55
In paragraph 6 of the particulars of claim,
the allegation is made that the second and third defendants were
acting within the scope
of their employment with the first defendant,
presumably, in the case of the second defendant, as the person
responsible for approving
the alleged defamatory newspaper article,
and, in the case of the third defendant, as the person who wrote the
defamatory newspaper
article.
56
In the latter instance, this is apparent
from the newspaper article itself.
57
In this context, paragraph 10 means that
the defendants, respectively, wrote, approved and authorised the
printing and publishing
of the newspaper article.
58
On this interpretation of the paragraph,
the particulars of claim are not vague and the defendants may plead
thereto.
59
Even if paragraph 10 is interpreted to mean
that all the defendants conducted themselves in the manners alleged,
the defendants
would be able to plead thereto. They are able to
admit or deny whether they, jointly or severally, conducted
themselves in
the manner alleged.
60
In any event, the import of paragraph 10 of
the particulars of claim is not the conduct of the defendants but
that the defendants
intentionally
defamed the plaintiff. The defendants are able to plead to this
allegation as well.
61
On this basis, the fourth complaint must
fail.
62
In relation to the fifth complaint, the
defendants complain that the allegation in paragraph 12 of the
particulars of claim that
‘[t]
he
conduct of the defendant by publishing defamatory article
(
sic
)
,
intentionally to defame the plaintiff was understood by the plaintiff
to mean …
’ does not
indicate which defendant’s conduct is being referred to.
63
However, the import of this paragraph is to
indicate what the article meant. The defendants’ conduct is
not, therefore, relevant
to the meaning of this paragraph.
64
Accordingly, although it is not a model of
clarity and might be considered vague, the defendants can plead to
paragraph 12.
65
In the premises, the fifth complaint must
fail.
66
The sixth complaint is that the plaintiff
has failed to establish a cause of action against the first defendant
as it does not exist
as a separate entity.
67
Since it is inappropriate to determine
whether the particulars of claim disclose a cause of action in a Rule
30 application, this
complaint must fail.
68
The seventh complaint in the papers is
entitled, Eighth Complaint.
69
The complaint is that the allegation in
paragraph 4 relating to the publication day of the article has the
result that the plaintiff
will not be able to establish a claim
against any of the defendants.
70
This is so, contend the defendants, because
the particulars of claim allege that on Monday 26 February 2018, the
first defendant
printed and published a newspaper article of and
concerning the plaintiff.
71
However, the first defendant does not
publish a newspaper on a Monday but is a weekly Sunday publication.
Daily Sun publishes a
newspaper on a Monday.
72
Since this complaint constitutes a matter
of substance and not an irregularity, it cannot be dealt with in
terms of Rule 30.
73
In any event, the premise of the complaint
is incorrect. The allegation in the particulars of claim is that the
article was printed
on or about 26 February 2018. A copy of the
relevant article indicates that it was published in the Sunday Sun on
25 February.
ORDER
Accordingly,
I make the following order:
a.
The application is dismissed with costs.
_________________________________
F
SOUTHWOOD
ACTING
JUDGE OF THE HIGH COURT,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
Appearances:
Date
of Hearing: 28 January 2020, 30 January 2020
Date
of Judgment: 15 April 2020
For
the Applicants: BD Stevens
Instructed
by: Jurgens Bekker Attorneys
For
the Respondent: No appearance
1
A party to a cause in which an irregular step has been taken by
any other party may apply to court to set it aside
2
Every pleading shall contain a clear and concise statement of the
material facts upon which the pleader relies for his claim, defence
or answer to any pleading, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto.
[3]
If a
party fails to comply with any of the provisions of this rule, such
pleading shall be deemed to be an irregular step and
the opposite
party shall be entitled to act in accordance with Rule 30
[4]
An
application in terms of sub-rule (1) shall be on notice to all
parties specifying particulars of the irregularity or impropriety
alleged, and may be made only if the applicant has, within ten days
of becoming aware of the step, by written notice afforded
his
opponent an opportunity of removing the cause of complaint within
ten days
[5]
An
application in term of sub-rule (1) shall be on notice to all
parties specifying particulars of the irregularity or impropriety
alleged, and may be made only if the application is delivered within
fifteen days after the expiry of the second period mentioned
in
paragraph (b) of sub-rule (2)
[6]
De
Polo v Dreyer
1989 (4) SA 1059
(W)
[7]
Cochrane
v City of Johannesburg
2011
(1) SA 553
(GSJ) at [20]-[22]
[8]
Picbel
Groep Voorsorgfonds (in liquidation) v Somerville and other related
matters
[2013] 2 All SA 692
(SCA) at [7]
[9]
Jowell
v Bramwell-Jones and others
1998
(1) SA 836
(W) at 902D-G
[10]
Jowell
v Bramwell-Jones and others
1998
(1) SA 836
(W) at 901F
[11]
Jowell
v Bramwell-Jones and others
1998
(1) SA 836
(W) at 899F/G, 902E
[12]
Trope
v South African Reserve Bank
1992 (3) SA 208
(T) at 211B-E
[13]
Jowell
v Bramwell-Jones and others
1998
(1) SA 836
(W) at 913F-G
[14]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at [18]