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
>>
2021
>>
[2021] ZAGPJHC 60
|
|
Ramos v Independent Media (Pty) Ltd and Others (01144/21) [2021] ZAGPJHC 60 (28 May 2021)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER
JUDGES:
YES
/NO
(3)
REVISED.
CASE NO: 01144/21
In the matter
between:
MARIA
DA CONCEICAO DAS NEVES CALHA RAMOS
Applicant
and
INDEPENDENT
MEDIA (PTY) LTD
First respondent
SIFISO
MAHLANGU
Second
respondent
INDEPENDENT
NEWSPAPERS (PTY) LTD
Third respondent
INDEPENDENT ON
LINE
Fourth respondent
J U D G M E N T
KEIGHTLEY,
J
:
INTRODUCTION
1.
Under our Constitution both the right to
dignity and the right to
freedom of expression are accorded protection. Under section
10: “
Everyone has inherent dignity and the right to have
their dignity respected and protected.
” Section
16(1)(a) guarantees freedom of expression which includes “
freedom
of the press and other media
”. Both of these rights
are central to our constitutional dispensation.
2.
Section 1(a) of the Constitution identifies
human dignity as one of
the foundational values of our democratic state. It is aimed at
fostering respect for “
the intrinsic worth of all human
beings
”.
[1]
The right to dignity under the Constitution protects both the
individual’s sense of self-worth as well as the individual
reputation of each person, in other words, the public’s
estimation of the worth and value of a particular individual.
[2]
In this latter sense, the right to dignity is most commonly protected
under the umbrella of our law of defamation.
3.
In this matter, the applicant’s cause
of action is founded on
defamation. Ms Ramos avers that her reputation has been harmed
by the publication of a defamatory
article that appeared (and
continues to appear) on various media platforms associated with the
respondents. She seeks, among
others, interdictory relief to
protect her rights. Ms Ramos is a well-known public figure
having served in prominent positions
in both the public and private
sectors.
4.
The respondents are the editor of The Star
newspaper (Mr Mahlangu),
in which the article first appeared, the publisher of that newspaper
(Independent Newspapers (Pty) Ltd),
and Independent Online SA (Pty)
Ltd, being the publisher of the digital platform IOL, on which the
article also appeared.
The respondents are active members of
the mass media. Unsurprisingly, they raise the right to freedom
of expression and the
press as a core component of their opposition
to Ms Ramos’ application. Indeed, the respondents say
that the case is
primarily about media freedom.
5.
There is weighty authority supporting the
importance of freedom of
the press in society. Even before the advent of our democratic
state, our courts acknowledged this.
So, for example, in the
1950’s, this Division held that:
“Although
conscious of the fact that I am venturing on what may be new ground I
think that the Courts must not avoid the reality
that in South Africa
political matters are usually discussed in forthright terms.
Strong epithets are used and accusations
come readily to the tongue.
I think, too, that the public and readers of newspapers that debate
political matters, are aware
of this. How soon the audiences of
political speakers would dwindle if the speakers were to use the
tones, terms and expression
that one could expect from a lecturer at
a meeting of the ladies’ agricultural union on the subject of
pruning roses!”
[3]
6.
The Constitutional Court has noted the importance
of “untrammeled”
public debate about public figures who seek office, albeit within
constitutional bounds. In
The Citizen v McBride
, the
majority of the Court, per Cameron J noted that:
“Public debate in South Africa has always been robust. More
than 50 years ago, within the then-constrained perimeter of
racially-defined public life, a court noted that in this country's
political discussion, '(s)trong epithets are used and accusations
come readily to the tongue'. The court also found that allowance must
be made 'because the subject is a political one, which had
aroused
strong emotions and bitterness', of which readers were aware, and
that they 'would not be carried away by the violence
of the language
alone’. These words are still apt today. Public
discussion of political issues has if anything
become more heated and
intense since the advent of democracy. A constitutional boundary is
the express provision in the Bill of
Rights that freedom of
expression does not extend to hate speech. Another is the legitimate
protection afforded to every person's
dignity, including their
reputation. But, so bounded, it is good for democracy, good for
social life and good for individuals to
permit maximally open and
vigorous discussion of publicc affairs.”
[4]
7.
However, as important as freedom of the
press is, it is trite that it
must be balanced against other constitutionally protected rights.
As expressly noted in the
dictum cited above, one of the common law
and constitutional boundaries imposed on freedom of the press is the
protection of dignity
and reputation. What this means is that
what the present case is really about is neither the primacy of media
freedom, nor
that of the protection of dignity and reputation.
The case is about the lawful balance to be struck between these two
competing
sets of rights.
THE
ARTICLE
8.
On 9 December 2019 the Star published the
following article (the
article) in its print
edition:
“RAMOS HAS MUCH TO ANSWER FOR
WE MUST be very concerned about Maria Ramos's recent appointment as
chairperson of the AngloGold Ashanti board.
Ramos has still not
accounted for
fixing the rand
. All the Republic got for
her actions was an apology. An apology for rand fixing?
Ramos
wasn't criminally charged nor did she face any disciplinary
action
. But
instead she was honoured with a PIC board seat
.
While she was the group chief executive for Absa, Ramos was also a
donor to President Cyril Ramaphosa's CR17 campaign.
Even with the negative publicity surrounding her, last year she was
called into the Public Investment Corporation.
Her recent appointment
should not be celebrated
.
Absa borrowed money from the then government of national unity to
bail out its debtors and form a new bank, the Amalgamation of
Banks
in South Africa, thus Absa. Former public protector Thuli
Madonsela made it clear that she was not going to investigate
the
matter. One of advocate Busisiwe Mkhwebane's crimes is that she
rattled Absa's cage when she investigated the Absa bailout
and the
CIEX report.
It's really bizarre that in out (
sic
) society, Mkhwebane is
shunned while Ramos is celebrated.
In any other country Ramos would have been charged with treason or
corruption, but she won't be
.
Rather, she'll be appointed to chair more boards.
With all the talk of fighting corruption,
South Africa is a
country that applauds
and celebrates the corruption of some
.”
(emphasis added)
9.
The article also appeared on Independent
on Line (IOL), which is
accessible on the internet. In the online version, the article
carried a photograph of Ms Ramos,
with the caption: “
Ramos
was
never charged for for (sic) fixing the rand
but
keeps getting
rewarded with top
jobs
” (emphasis added). In addition, the article
was published on The Star’s Twitter and Facebook pages.
When
Ms Ramos instituted her application, the tweet which embedded
the article had been retweeted 355 times, quoted 81 times and liked
620 times. There were also 29 reactions, 20 comments and 7
“shares” in respect of the Facebook post.
10.
It is common cause that the article appeared as a Leader
piece on the
Editorial page of The Star. Although it is not clear whether Mr
Mahlangu wrote the piece or not, he accepts
that he was the Editor of
the newspaper at the time and published the article. He also
accepts that the views and opinions
expressed in the article are his
own. As I discuss in more detail later, he takes the view that
it was his responsibility
as a journalist to express a view so as to
contribute to public debate.
CONTEXT
OF THE REFERENCES TO “
FIXING THE RAND
”
11.
The timing of the article coincided with Ms Ramos’s
appointment
as chair of the AngloGold Ashanti (AGA) board in December 2020.
The respondents say that this appointment was
of public interest.
Ms Ramos does not deny this, nor could she. However, what she
complains of is the thrust of the
article linking her personally with
the “
fixing of the rand
”, and the connotations
related to that link drawn in the article.
12.
The article itself does not give any background to what was
meant by
the “
rand fixing
” or “
fixing of the rand
”
to which it referred. For that context we have to look outside
the article.
13.
A media statement by the Competition Commission, dated 15
February
2017, attached to Ms Ramos’s founding affidavit explains what
was involved in the rand fixing saga, as I shall call
it for
simplicity’s sake. The media statement announced that it
was referring a collusion case to the Competition Tribunal
for
prosecution against no less than seventeen banks, both South
African-based and international.
The statement went on to explain that:
“The Commission has been investigating a case of price fixing
and market allocation in the trading of foreign currency pairs
involving the Rand since April 2015. It has now referred the
case to the Tribunal for prosecution.
The Commission found that from at least 2007, the respondents had a
general agreement to collude on prices for bids, offers and
bid-offer
spreads for the spot trades in relation to currency trading involving
US Dollar/Rand currency pair. Further, the Commission
found that the
respondents manipulated the price of bids and offers through
agreements to refrain from trading and creating fictitious
bids and
offers at particular times.
Traders
of the respondents primarily used trading platforms such as the
Reuters currency trading platform to carry out their collusive
activities. They also used Bloomberg instant messaging system
(chatroom), telephone conversation and had meetings to coordinate
their bilateral and multilateral collusive trading activities. They
assisted each other to reach the desired prices by coordinating
trading times. They reached agreements to refrain from trading,
taking turns in transacting and by either pulling or holding trading
activities on the Reuters currency trading platform. They also
created fictitious bids and offers, distorting demand and supply
in
order to achieve their profit motives.”
14.
It is a matter of fact that one of the banks named in the
media
statement was Absa, and that, at the time the statement was made, Ms
Ramos was its Group Chief Executive. She was also
the Chief
Executive when the Tribunal’s investigation commenced in 2015,
but not at the date from which the Commission found
that the
collusive scheme commenced, namely 2007.
15.
Ms Ramos takes no issue with Absa being linked to the rand
fixing
investigation by the competition authorities, or the fact that she
was the Chief Executive during part of the period over
which the
Tribunal found that the collusive practices took place. It is
common cause that Ms Ramos was publicly reported
to have issued an
apology in a media statement on behalf of Barclays Africa (in whose
stable Absa fell) for its role in the rand
fixing saga. On 23
February 2017, Ms Ramos was quoted as saying that: “
We
deeply regret that this conduct took place within our organisation
”;
and that: “
Those who are found to have contravened our rules
and conduct will in due course be held accountable
.”
16.
Ms Ramos contends in her application that although the link
between
Absa and the rand fixing saga is a fact, the statements made about
her in relation to the rand fixing issue in the article
under
consideration, and in particular the accusation that she fixed the
rand, were based on false facts. In her founding
affidavit, she
stated that the true facts were as follows:
16.1. The Competition Tribunal
initiated a complaint against several banks in 2017 alleging
collusion to fix prices in respect of the Rand-Dollar exchange rate.
The matter was referred to the Competition Tribunal.
16.2. Although Absa was one of
the banks implicated in the complaint, the Commission did not
seek a
fine or any other sanction against Absa. This appeared from the
Commission’s media statement of February 2017.
16.3. Barclays PLC, which at that
time was the controlling shareholder of Absa
actually
brought the conduct of the currency traders to the attention of the
Commission under its leniency programme.
16.4. At that time, Ms Ramos was
the Chief Executive of Absa Group Limited, an institution
employing
approximately 40 000 employees. She was not involved in the day
to day running of any business unit within Absa,
including the
business unit involved in currency trading.
16.5. She was not one of the
currently traders concerned and was not involved in “
fixing
the rand
”.
16.6. She was entirely unaware of
the conduct of any of the currency traders at the time.
As soon
as she became aware of it, she ensured that Absa conducted a thorough
internal investigation in order to bring to light
all the facts
necessary to co-operate with the Commission and to offer Absa’s
assistance. Ms Ramos says that this led
to the Competition
Commission’s own investigation and action.
16.7. Absa held an internal
investigation and disciplined the two employees who
were implicated.
16.8. These facts were in the
public domain at the time that the article in The Star was published,
Absa having issued a press statement to this effect in April 2019.
17.
The respondents do not take issue with these facts in any
material
sense. It is not
disputed,
therefore, what Absa’s role in the saga was or how Absa dealt
with it. It is also not disputed that Ms Ramos
did not play any
active role in the rand fixing. In fact, as I discuss
later, the respondents do not contend that she
had any personal role
in fixing the rand. Their defence is based primarily on an
entirely different meaning ascribed to the
statements in the article
in question.
THE
ALLEGED DEFAMATORY NATURE OF THE ARTICLE
18.
Ms Ramos contends that the article contains several untrue
statements
that are
per se
defamatory of her. She points to the
underlined portions in the version of the article I have set out
above.
19.
The first set of statements in the first two paragraphs of
the
article, and in the IOL caption, say that Ms Ramos has never been
charged for fixing the rand; that instead she gets rewarded
with top
jobs; that she has never accounted for fixing the rand; in addition
to not having been criminally charged, she has not
faced any
disciplinary action; and instead has been honoured with a PIC board
seat. Ms Ramos says that these statements are
defamatory in
that the reasonable reader would understand them to mean (either
expressly or by implication) that she is personally
guilty of
currency manipulation in the form of fixing the rand, and that she
should be held accountable for doing so, through facing
criminal
charges and disciplinary action.
20.
Alternatively, Ms Ramos says that the reasonable reader would
understand these statements to mean that there are grounds for
suspecting her of fixing the rand or similar criminal or unethical
conduct, and that she has engaged in such conduct that justifies
criminal charges and disciplinary action against her.
21.
According to Ms Ramos, these statements are false, as she
was not
personally involved in fixing the rand nor is there any basis for
suspecting her to have done so that would justify criminal
charges.
22.
Ms Ramos then points to the second last underlined statement,
to the
effect that in any other country she would be charged with treason or
corruption, but in South Africa she won’t be.
She says
that these statements are also defamatory as they would be understood
by the reasonable reader to mean (expressly or impliedly)
that she
engaged in conduct that makes her guilty of treason or corruption and
that she should face criminal charges for those
crimes.
Alternatively, they would be understood to mean that there are
grounds for suspecting her of engaging in conduct
amounting to
corruption or treason, and in criminal and unethical conduct that
would justify such criminal charges against her.
23.
In addition, she says that the reasonable reader would understand
the
statements to mean that she received some kind of undue political
protection from prosecution for those crimes, which accounts
for her
non-prosecution to date.
24.
Finally, Ms Ramos highlights the last underlined statement
(“
South
Africa is a country that applauds and celebrates the corruption of
some
”), read with the statement that says her appointment
as chair of the AngloGold Ashanti board should not be tolerated.
These statements read together would be understood by the reasonable
reader to state or imply that she has engaged in corrupt conduct.
25.
In sum, Ms Ramos contends that read as a whole and in context,
the
article either expressly or implicitly accuses her of:
25.1. being engaged in the
criminal conduct of fixing the rand;
25.2. being corrupt or engaging
in corrupt activities;
25.3. having engaged in conduct
that justifies a suspicion of criminal or unethical
conduct;
25.4. having engaged in conduct
that justifies criminal charges being laid against her or her
facing
disciplinary action;
25.5. committing treason;
25.6. being unethical; and
25.7. acting illegally and
unethically without impunity.
26.
Ms Ramos asserts that these are false statements of fact
that are
per
se
defamatory. They do not have a factual basis, nor does
the article provide any factual support for them.
27.
Further, Ms Ramos charges that the statements were self-evidently
made with the intention of defaming her and damaging her reputation.
There was also no basis for the respondents to have
genuinely
believed that she was personally involved in fixing the rand.
28.
According to Ms Ramos, even if the respondents did genuinely
believe
this to have been true, they could no longer have done so after her
attorneys sent a letter of demand to them on 17 December
2020 (the
letter of demand). In the letter of demand, her attorneys
identified the several statements Ms Ramos contended
were defamatory
of her and false. The letter further indicated that no proof
was offered either in the article or elsewhere
to justify the
allegations made about Ms Ramos. It demanded the removal of the
article from the respondents’ media
sites. It also
invited the respondents to indicate which of the statements they
maintained were true and, insofar as it was
suggested that any
statements were opinions, the respondents were invited to set out the
true facts on which the opinions were
based. Ms Ramos did not
receive a response to the letter.
29.
As to the harm to her reputation, Ms Ramos says that throughout
her
personal life she has enjoyed a reputation as a successful public
servant, business- and industry leader who conducts herself
with
integrity, professionalism, and a commitment to public service.
She served as the Director-General of the National Treasury
from 1996
to 2003. Thereafter, and until 2009 she served as Group Chief
Executive of Transnet Limited. In 2009 she
was appointed as GCE
of Absa until February 2019. She became a director of AGA in
May 2019. AGA is the third largest
gold mining company in the
world and is listed on several stock exchanges across three
continents. In December 2020, she
was appointed as chairperson
of AGA’s board. In addition to this, she details various
other positions she has held
on boards and similar entities, both in
South Africa and internationally.
30.
Ms Ramos contends that she has earned her reputation over
many years
as a leader of ability and sound integrity who has contributed
meaningfully to the economy of Sought Africa. She
says that the
statements in the article have tarnished her reputation, and will
continue to do so for so long as the article appears
online and on
The Star’s social media accounts.
THE
RELIEF SOUGHT
31.
Ms Ramos does not seek damages. Instead she seeks the
following
relief:
31.1. A declarator that the
statements made about her in the article are defamatory, false
and
unlawful (the declarator or declaratory relief).
31.2. An interdict (the interdict
or interdictory relief) prohibiting the respondents from
publishing or republishing:
31.2.1. the article;
31.2.2. any statement that says or implies that Ms Ramos, while
employed as the CEO of Absa Bank, participated in fixing
the rand or
committed corruption or treason in relation to the fixing of the
rand.
31.3. An order directing the
respondents, within 24 hours of the order, to permanently remove
the
article from the IOL website, all Twitter accounts controlled by the
respondents and all Facebook accounts controlled by the
them (the
removal order).
31.4. An order (the apology)
directing the respondents to publish a retraction and apology
on identified media sites in the following terms:
“On
9 December 2020, Independent Media published an article on the
Independent Online website, and in the Star, which contained
various
false and defamatory statements concerning Ms Maria Ramos. These
include that she is guilty of "fixing the rand",
that she
engaged in conduct that amounts to, and justifies criminal charges
for, "treason or corruption", and that she
received
improper
quid pro quos
. Independent Media
unconditionally retracts these false and defamatory statements and
apologises unreservedly for any harm
caused to Ms Ramos.”
THE
BASES OF OPPOSITION BY THE RESPONDENTS
32.
In opposing Ms Ramos’s application the respondents
adopted a
rather curious approach in their answering affidavit, as well as in
their written and oral submissions to the court.
As their first
line of defence they contended that even if the court found that the
article was defamatory (which they denied),
Ms Ramos was not entitled
to the relief she sought. It was only in the later stages of
their defence that they dealt with
the merits of their alleged
defamatory conduct.
33.
In brief, the respondents’ first line of defence incorporated
the following submissions:
33.1. The interdictory relief is
too wide as it would prevent the respondents from publishing
statements or opinions that associate Ms Ramos with Absa’s
fixing of the rand. This would be the case despite the fact
that in the future she may be charged with corruption or treason in
that respect. In short, it
was
submitted that the wide interdictory relief claimed was tantamount to
silencing the media and preventing it from fulfilling
its
constitutional role.
33.2. Ms Ramos has failed to
satisfy the requirements for an interdict. She has not shown
that she has suffered any harm or that harm is reasonably
apprehended. This submission is based on the underlying
submission
that similar statements about Ms Ramos have been in the
public domain since at least 2016, and despite this, she has
demonstrated
an upward trajectory in her professional career.
33.3. The interdict would serve
no purpose because it would only muzzle the respondents while
allowing others to continue to publish similar statements to those
made in the article, as they had done for a while.
33.4. For similar reasons, even
if the court were to find the article defamatory, a declarator
to
this effect would not serve any practical purpose. It would not
prevent others from continuing to publish similar statements
to the
ones that have been in the public domain for a while, and which were
mirrored in the article.
33.5. Ms Ramos has more
appropriate alternative relief to that of the interdict. The
submission here is that her remedy does not lie in seeking an
interdict or declaratory relief “
on issues that have been in
the public domain for many years and which she now seeks to
dispute
”. Instead, her remedy lies in using media
platforms to dispute the statements she finds offensive. In
this respect,
Mr Mahlangu offers to give Ms Ramos a right of reply in
as prominent a space as the Leader piece that is the subject matter
of
the application.
33.6. The submission regarding
the apology sought is that the respondents cannot be ordered
to
apologise for something they did not say. This submission is
based on the meaning that the respondents say would be given
to the
statements in the article by the reasonable reader. As I
explain shortly, this meaning is at odds with that posited
by Ms
Ramos.
34.
Despite the invitation by the respondents to consider their
first-line defence before the merits of Ms Ramos’s case, I do
not believe that it would be the correct approach to adopt
in this
matter. At the heart of the case lies the meaning to be
ascribed to the statements in the article about which Ms
Ramos
complains. It is only once that meaning has been determined
that the court can properly make a finding on whether the
respondents
are correct in their submission that similar statements, in other
words, those with the same or similar meaning to
the court-determined
meaning, have been in the public domain for years. This
submission forms the basis of much of the respondents’
first
line defence.
35.
Similarly, it is only once the court has made a determination
on the
meaning of the statements in the article that proper consideration
can be given to the question of whether, as the respondents
submit,
the interdictory relief is cast too wide. The same
considerations apply as regards the submission that the apology
is
not warranted: whether it is warranted or not depends on the court
first determining the meaning of the statements in the article.
36.
What the statements in the article mean must be determined
on the
basis of the well-established principles that apply in the field of
defamation. This involves determining the meaning
of the
impugned statements, and whether that meaning impinges on the
applicant’s dignity and reputation. It makes sense
then
that the place to start is not with the respondents’ first-line
defences, which attack the nature of the relief sought,
but rather
with the core of the case, namely the question of whether the
statements are defamatory and unlawful. This is how I
intend to
approach the matter.
37.
As far as the respondents’ defence to the merits of
Ms Ramos’s
case are concerned, they submit that the statements made in the
article carry a different meaning to that contended
for by Ms Ramos.
They accept that Ms Ramos was not personally involved in rand
fixing. But, they say, the article cannot
be read as accusing
her of being so involved. Instead, the respondents contend
that: “
The article clearly calls for Ms Ramos to account not
because she was
personally involved
in rand
fixing but, as the Chief Executive Officer of Absa Bank, she was
personally
responsible
” (emphasis in the
original).
38.
Mr Mahlangu says that he did not state, nor is it implied
in the
article that Ms Ramos fixed the rand herself. However, he says
it is public knowledge that she apologised for Absa’s
role, and
therefore she must account “…
as the Chief
Executive Officer
” (emphasis in the original).
39.
In response to the statements identified by Ms Ramos as being
defamatory. the respondents deny the defamatory nature of each of
them:
39.1. As to the headline stating
that Ms Ramos was never charged for fixing the rand, Mr Mahlangu
says
that this is simply short-hand for drawing a connection between rand
fixing and the fact that Ms Ramos was never charged.
He says
the latter is a statement of fact, and is not defamatory. If
one reads the whole article, as one must, the respondents
say that
the reasonable reader will find no allegation that Ms Ramos was
personally involved in fixing the rand. Instead,
the reasonable
reader will understand that what the article is saying is that as
Chief Executive of Absa, she was responsible and
should be held
accountable. This, too, the respondents say, is not defamatory
of Ms Ramos, or false and unlawful.
39.2. The statement that she
instead gets rewarded with top jobs, according to the respondents,
will be read as simply lamenting the lack of accountability by a
Chief Executive in relation to a matter of national interest and
significance, and that instead of accountability she is appointed to
top positions such as that of chair of a multinational commodities
company. The respondents say that when understood in this
context the statement is not defamatory or false, and is not
unlawful.
39.3. According to the
respondents, the statement that Ms Ramos has still not been held
accountable
should be read as a factual allegation that she has not
been held accountable for what occurred while she was Chief Executive
of
Absa. Accordingly, it is not defamatory, or false or
unlawful.
39.4. Similarly, in respect of
the statement that she hasn’t been criminally charged
or faced
disciplinary action, but instead was honoured with a PIC Board seat,
the respondents say that the first part of the sentence
is an
undenied statement of fact, and the second is an opinion lamenting
the lack of accountability of a Chief Executive officer.
The
respondents say that Ms Ramos may disagree with the opinion, but she
has no right to censor it.
Thus, the statement is not defamatory, or false or unlawful.
39.5. As far as the statement
that: “
In any other country Ramos would have been charged
with treason or corruption, but she will not be. Rather, she’ll
be
appointed to chair more boards
” is concerned, the
respondents say is not defamatory, or false or unlawful. Mr
Mahlangu says that is an opinion based
on his world outlook and on
his own assessment of facts that are already in the public domain.
These facts relate to the
favourable treatment of some people with a
public profile and the disdainful treatment to which others are
subjected.
39.6. Mr Mahlangu also says that
the statement that: “
(w)ith all the talk of fighting
corruption, South Africa is a country that applauds and celebrates
the corruption of some
,” is his opinion based on his
assessment of facts that are in the public domain. He points to
what he says is the different
treatment of the current Public
Protector, who was charged in court with perjury only a few months
after charges were laid, and
Ms Ramos who has not been charged even
though a political party laid charges against her in 2016. The
latter averment refers
to a media report to the effect that the
political party, Black First Land First (BLF), laid charges against
Ms Ramos, along several
other business leaders, in 2016. I will
revert to this issue later.
40.
It is the respondents’ case that on their proposed
ordinary
meaning of the article, it is not defamatory. It is not an
ordinary news report, but is a Leader piece, found on
the opinion
page of the newspaper. It is an opinion of the editor,
indicating the editorial stance of the editor, based on
his
political, social analysis. The respondents say that Ms Ramos
is someone who is in the public political eye, and by taking
such a
position she has opened herself up to public scrutiny. As such,
she should display a greater degree of tolerance to
criticism than
ordinary individuals. The respondents submit that the
reasonable reader of ordinary intelligence would understand
the
meaning in the “
fraught political context
” in
which it was written and thus it would not lower Ms Ramos in the eyes
of right-thinking members of society.
GENERAL
LEGAL PRINCPLES APPLICABLE TO DEFAMATORY STATEMENTS
41.
Defamation is the wrongful and intentional publication of
a
defamatory statement concerning the plaintiff. The statement
need not be false. Once a plaintiff establishes that
a
defendant has published a defamatory statement concerning the
plaintiff, it is presumed that the publication was both unlawful
and
intentional. The defendant may then raise a defence to rebut
the unlawfulness or the intention. The most commonly
raised
defences to rebut unlawfulness are that the publication is true and
in the public benefit, or that the publication constituted
fair
comment.
[5]
As far as the media is concerned, the defence of reasonable
publication may be available.
[6]
42.
The onus on a defendant to rebut one or the other presumption
(of
unlawfulness or
intention) is a full onus: it is not only the duty to adduce
evidence, but instead is an onus that must be discharged on a
preponderance
of probabilities. A bare denial is not
sufficient. The defendant must plead and prove facts sufficient
to establish
the defence.
[7]
43.
To determine whether a statement is defamatory entails a
two-stage
process. The
first
stage of the inquiry involves having regard to its meaning. The
primary meaning of a statement is the ordinary meaning
given to the
statement in context by a reasonable person.
[8]
The test for determining the ordinary meaning of the statement is
objective, and not subjective. Thus, the court is
not concerned
with the meaning the maker of the statement intended to convey, or
the meaning given to it by the persons to whom
it was directed.
The test is what meaning the reasonable reader of ordinary
intelligence would attribute to the statement.
It is understood
that this reader would understand the statement in its context, and
that she would have regard not only to what
is expressly stated, but
what is implied.
[9]
44. The Supreme
Court of Appeal has cautioned that it must be borne in mind
that the
ordinary reader has no legal training or other special discipline.
And further, that:
“… a
court that has of necessity subjected a newspaper article under
consideration to a close analysis must guard against
the danger of
considering itself to be ‘the ordinary reader’ of that
article.”
[10]
45. If the
statement is ambiguous in the sense that it can bear one meaning
that
is defamatory and others that are not, the normal standard of proof
in civil cases is applied. If the defamatory meaning
is more
probable than the other, the defamatory meaning will have been
established as a matter of fact. If the non-defamatory
meaning
is more probable, then the plaintiff will have failed to satisfy the
onus she bears.
[11]
46. Once the
meaning of the statement has been established, the court moves
to the
next stage of the inquiry, which is to determine whether the meaning
is defamatory. The question is whether it is
likely to injure
the good esteem in which the plaintiff is held by the reasonable or
average person to whom it is published.
[12]
Statements attributing guilt or dishonest, immoral or dishonourable
conduct to a plaintiff are common examples of statements
of this
nature. So too are those that belittle a plaintiff or that
render her less worthy of respect by her peers.
[13]
The court does not consider evidence of whether an actual observer
thought less of the plaintiff. The test is rather
whether it is
more likely, or more probable than not, that the statement will harm
the plaintiff.
[14]
ARE THE
STATEMENTS DEFAMATORY?
The meaning of
the statements
47.
The first step is to determine the meaning of the statements
Ms Ramos
asserts are defamatory of her. This involves the question of
what meaning the reasonable reader of ordinary intelligence
would
give to them when reading them in context. It is plain from my
earlier discussion of each party’s case that they
diverge
sharply in their response to this question.
48. The crux of
this divergence lies in whether the statements should be
interpreted
as saying, expressly or impliedly, that Ms Ramos was personally
involved in the rand fixing, and that she should
be held criminally
liable for it personally, or whether they should be interpreted as
saying that she was not personally involved,
but must be held
accountable because she was the Chief Executive of Absa at the time
of the rand fixing. Ms Ramos contends
for the former meaning,
and the respondents for the latter.
49. It is worth
reiterating that it is not what Mr Mahlangu meant to say
in the
article that is determinative of the meaning. Mr Mahlangu’s
ex post facto
explanation of the statements in the article
carries no weight unless it accords with an objective assessment of
the meaning gleaned
by the reasonable reader of ordinary
intelligence. To find this meaning, we must look at what the
article actually does and
does not say, while at the same time
placing ourselves in the shoes of that reader.
50. There is no express
indication in the article that it is about corporate responsibility
or accountability, as the respondents aver. Nor can this
meaning be implied.
51.
An overriding feature of the article is that the language
is
emphatically directed at Ms Ramos in her personal capacity. The
headline is: “
Ramos
has much to answer for
”
(my emphasis), not: “
As ex-Absa CEO, Ramos, has much to
answer for.
” Of course, one must read beyond the
headline. But the content of the article only serves to
underline what is
portended in the headline. It says “
Ramos
”
(my emphasis) has still not accounted for fixing the rand, and all
that South Africa got for “
her
” (my
emphasis) actions was an apology. It does not say or imply that
the actions complained of were those of Absa,
and that as Chief
Executive, Ms Ramos should account. It says that “
Ramos
”
(my emphasis) wasn’t criminally charged nor faced disciplinary
action, but instead “
she
was honoured
”
(my emphasis) with a PIC board seat. The article states that in
another country
“
Ramos
would have been
charged with treason or corruption, but
she
won’t be
” (my emphasis).
52. If there
was something in the article to link these personal references
to Ms
Ramos with Absa’s role in the rand fixing, it might have been
arguable that the reasonable reader would have understood
that the
statements were directed at her in her corporate, and not her
personal, capacity. But there is no such link.
The
article does not explain or give any background to the rand fixing it
refers to. In fact, it does not mention Absa’s
role in
the rand fixing at all, or the fact that Ms Ramos was Chief Executive
of Absa at the relevant time.
53.
The only link drawn between Absa and Ms Ramos in the article
is the
statement that when she was Chief Executive of Absa she donated to
the President’s CR17 campaign. The article
does not link
this fact to the rand fixing. Ms Ramos makes no complaint about
the statement of fact that she donated to the
CR17 campaign.
Her complaint is that the article says or implies that she should
face criminal punishment for rand fixing,
not for donating to the
CR17 campaign.
54. Apart from
this reference to Absa, the bank is only referred to again
in
connection with the “
Absa bailout
” issue discussed
in the article. The article draws no link with Ms Ramos in this
respect. It is well documented
that the bailout issue is
historic, and took place years before Ms Ramos became Chief Executive
of Absa.
55.
Without the linguistic and contextual link by the writer
between
Absa, rand fixing and Ms Ramos as the Chief Executive at that time,
the reasonable reader could not be expected to, nor
would she,
understand the article to mean that it was about Ms Ramos’s
corporate responsibility, rather than her personal
involvement in and
responsibility for the corrupt and treasonous conduct articulated.
This conclusion is not based on an
overly close analysis of the
statements made in the article. It is based on a plain and
simple reading of the statements
in the context of the article as a
whole.
56. It was
submitted by the respondents that the ordinary reader would never
understand that a Chief Executive of a bank would have been involved
in rand fixing personally, and therefore the statements could
never
have the meaning contended for by Ms Ramos. The obvious
difficulty for the respondents with this submission is that
the
reader is not told that she was Chief Executive at the time, or that
Absa was involved in rand fixing. The article appeared
in late
2020. The rand fixing saga was in the media in February 2017,
and although it may have surfaced now and again in
the media, it was
not what one would call a current affairs item when the article
appeared. Given this time lapse, without
the proper context
being drawn by the writer, the reasonable reader would not
independently have understood that Ms Ramos was the
Chief Executive
when the rand fixing occurred and that for this reason (and despite
the directed personal references to her and
her actions) she could
not have been personally involved.
57.
Instead, the reasonable reader would understand what the
ordinary
language and context of the article told her. The writer was
asserting that Ms Ramos was personally involved in
manipulating the
Rand/dollar exchange rate, or “fixing the rand” as the
article called it. This is clear from
the statement that she
had not accounted for “
her actions
” in “
fixing
the rand
”. And, crucially, the writer was also saying
that these actions on her part were criminal, and that she deserved
to
be criminally prosecuted on charges of corruption or treason for
her part in the rand fixing saga.
58.
These are serious allegations, pointing to individual/personal
criminal accountability. If it is stated, as it was in this
article, that charges of corruption or treason are warranted
against
someone, the non-legal, reasonable reader will understand this to
mean that the person should be charged for their personal
wrongdoing,
not the wrongdoing of their company for which they had oversight
responsibility: treason is not something the layperson
normally would
associate with companies. In order for the reader to understand
corporate criminal responsibility, the requisite
explanation or
context would have to appear from the article. It is
simply absent in this one.
59.
I do not agree with the respondents’ submissions that
the
article would be understood to mean that Ms Ramos should be held
accountable, as Chief Executive with oversight responsibilities
at
the time, for Absa’s role, or those of its employees, in the
rand fixing saga. The tenor of the article read as
a whole and
in context would not be understood by the reasonable reader to be a
piece about corporate involvement and liability.
The reasonable
reader would understand it to mean that it was about Ms Ramos’s
personal involvement in rand fixing and that
this involvement
justified serious criminal charges against her in her personal
capacity. The reasonable reader would also
understand the
article as meaning that despite these charges being justified, Ms
Ramos, unlike other public figures, enjoyed undue,
corrupt protection
from the might of the law.
The false
and defamatory nature of the statements
60. The
defamatory nature of these statements speaks for itself. Ms
Ramos is a business leader of high standing, both nationally
and internationally. This is plain from her
curriculum
vitae
. Self-evidently, statements to the effect that Ms
Ramos was involved in currency fixing warranting charges of treason
and
corruption against her would tend seriously to lower her esteem
in the eyes of her peers and the public. It is not necessary
to
give any expanded reasons for reaching this conclusion. Our
courts have recognised that:
“… the
reasonable, normally intelligent, right thinking member of society,
when he hears that a man known to him has
been charged with a crime,
will withhold final judgment on that man. But, temporarily at any
rate, the news will tend to lower
that man in his estimation, and
diminish his willingness to associate with him.
On
general principles … it seems to me that it is defamatory to
say of a person that he has been, or is about to be charged
with a
crime, although in certain circumstances, a defendant can escape
liability for such a publication.”
[15]
61. In
Modiri v Minister of Safety
and Security
[16]
the Supreme Court of Appeal found that the respondent “
rightly
”
did not dispute that statements reporting that the appellant was
allegedly involved in drug-dealing, cash-in-transit heists
and car
thefts were
per se
defamatory.
[17]
It has also been held that it is defamatory to say that a Minister of
Finance is corrupt and should be prosecuted with corruption
and
similar offences is defamatory.
[18]
62. In my view, the same principles
dictate that it is
per se
defamatory to say that criminal
charges of corruption and treason are justified against Ms Ramos, but
that she is likely to escape
criminal justice because she enjoys
undue protection. Indeed, the respondents did not deny that if
Ms Ramos’s contentions
regarding the meaning of the statements
is correct, the statements would be defamatory. Their defence
is that the article
and statements made in it do not mean what Ms
Ramos says they mean, and which I have found them to mean.
63.
One must bear in mind, of course, that at this stage we are
dealing
only with the defamatory nature of statements of this sort. The
question of the defences that may be available to
the respondents to
show that the defamatory statements nonetheless were not unlawful is
one that arises subsequently.
64. Before
turning to the question of defences, I deal with a further submission
made on behalf of Ms Ramos. I have found that the identified
statements made in the article bear the meaning contended for
by Ms
Ramos, and are of a defamatory nature. However, it is submitted
on her behalf that even if I may be found to have erred
in this
regard, it would not lead to a different outcome. In other
words, she submits that even on the meaning contended
for by the
respondents, the statements are defamatory.
65. As a
precautionary measure, and in an effort to provide as much finality
to the parties as possible on the issue, I proceed to consider this
submission.
66. On the
respondents’ approach, the article and the impugned statements
mean no more than that although Ms Ramos was not personally involved
in fixing the rand, in her capacity as Chief Executive she
must be
held accountable. Instead, she keeps getting appointed to
senior corporate positions, despite unanswered questions
about Absa’s
involvement in the rand fixing scandal, despite a criminal case
having been opened against her. She seems
to be above the law
because anyone else in her position would have been criminally
charged for their role as Chief Executive of
a bank involved in price
fixing. Her donation to the President’s election campaign
seems to be shielding her from accountability
as Chief Executive.
67.
Even if we are to assume (contrary to what I have found)
that the
reasonable reader would understand the article to be addressing Ms
Ramos’s accountability as Chief Executive for
Absa’s
involvement in rand fixing, it seems to me that the implications of
the statements are demeaning of Ms Ramos as a
recognised business
leader. They impugn Ms Ramos’s reputation as a leader in
the financial sector. At the very
least the statements mean
that while she was at the helm of Absa she failed in her executive
duties by creating a climate where
rand fixing could take place.
What is more, it judges her failures to be so serious as to warrant
prosecution for corruption
or treason. This, to me, implies a
level of failure of leadership and responsibility going beyond the
notion that she is
accountable simply because “
the buck
stopped with her
,” as the respondents asserted in their
answering affidavit.
68. Moreover,
even on the respondents’ meaning, Ms Ramos is accused
of
enjoying political protection from prosecution as a result of a
private donation she made while she was Chief Executive of Absa.
This is not the kind of allegation likely to leave her reputation as
a business leader intact. Quite the contrary.
It implies
that she and the bank she headed are corruptly protected from just
prosecution on serious offences. This is not
a leadership
quality that anyone would applaud.
69. For these
reasons, I find that even on a benevolent reading of the statement,
and even if I may be found to have erred in rejecting the
respondents’ averments as to what the statements mean, they
nonetheless
are of a defamatory nature. It is so that the
statements were in a Leader piece on the Opinion pages of The Star.
However,
this does not save them from bearing a defamatory meaning.
Nor does the fact that Ms Ramos is a public figure. Of course,
this does not mean that without more the respondents should be held
liable. It remains open to them to establish that the
defamatory publication of the statements was not unlawful.
DEFENCES
70.
Since I have found the statements to be of a defamatory nature,
the
onus lies on the respondents to rebut the presumption that the
publication of the statements was wrongful, or unlawful and
intentional. It is at this stage of the defamation inquiry that
the focus shifts most noticeably to the balance that must
be struck
between the interests of Ms Ramos and those of the respondents.
The balancing exercise in this context has been
described as follows:
“The general test for wrongfulness is based upon the
boni
mores
or the legal convictions of the community. This means
that the infringement of the complainant’s reputation should
not only have taken place but be objectively unreasonable. This
application of the
boni mores
test involves an
ex post
facto
balancing of the interests of the plaintiff and the
defendant in the specific circumstances of this case in order to
determine
whether the infringement of the former’s interests
was reasonable. In this balancing process the conflict between
the
defendant’s freedom of expression and the plaintiff’s
right to a good name demands resolution.”
[19]
71.
Essentially, the exercise involves striking a balance between the
private
interests of the person defamed and the broader public
interest served by the right to freedom of expression and the media.
Generally, our law recognises that a person may rely on the defences
of truth and public interest, fair or protected comment and,
when the
defamatory matter is published by the media, the defence of
reasonable publication.
[20]
The defence of privileged occasion is also available but is not
raised in this case.
Truth and public interest
72. This
defence requires the respondents to establish not only that the
statements were true but also that their publication was in the
public interest.
[21]
As the respondents say that the article does not mean that Ms Ramos
was personally involved in rand fixing and hence must
be held to be
personally criminally liable, they cannot assert any truth or public
benefit in statements to this effect.
This means that the
defence does not avail them on the meaning I have found must be given
to the statements.
73. As a
precautionary measure, and in case I may be found to have erred
in my
conclusion as to the meaning of the statements contained in the
article, I consider whether the defence would avail them
on their
contended-for meaning.
74. The
respondents must establish that the sting of the statements is true.
In other words, they must show that charges of corruption or treason
are justified against Ms Ramos as the representative of Absa
for the
latter’s part in rand fixing. Further, that despite these
charges being justified, Ms Ramos has escaped prosecution
because of
her influence in political quarters stemming from her contribution to
the President’s campaign, and that such
influence smacks of
corruption.
75.
The respondents say that it is a matter of undisputed fact
that
criminal charges have been laid against Ms Ramos and that she has not
yet been prosecuted. She apologised
on behalf of
Absa for its role in the rand fixing saga. Also, they say that
it is undisputed that she contributed to the
President’s
campaign. However, these facts do not establish the truth of
the sting. The respondents must show
that the sting is true,
that is, that, objectively speaking, the charges and prosecution of
Ms Ramos are justified and that it
is her untoward influence in
political circles that is obstructing her prosecution.
76. One must
consider what gave rise to the charges against Ms Ramos.
They
were laid by BLF. This appears from an article on a website,
blackopinion.co.za, that the respondents attach to their
answering
affidavit. It reports that BLF laid criminal charges “
in
respect of corruption (which includes state capture) by the following
white monopoly capital … interests
” (words in
brackets appear in the original).
77. At the same
time, the blackopinion article reports that BLF had lodged
a
complaint with the Public Protector, and requested the
then-President, Mr Zuma, to institute a Judicial Commission of
Inquiry.
It lists no less than nine names against whom the
charges and complaints were reported to have been laid by BLF.
They include
Ms Ramos, as well as the Chair of Richemont, the CEO of
Investec, the CEO of Imperial Holdings, and the chair of Business
Leadership
South Africa. One of the complaints against these
persons is to do with alleged manipulation of the currency when Mr
van
Rooyen was appointed as finance Minister for a short period in
December 2015. This was alleged to have been aimed at forcing
Mr Zuma to fire Mr van Rooyen and to hire Mr Gordhan as Finance
Minister “
which cost the country R500 billion in two days
”.
78.
The report goes on to state that further charges were laid
by BLF in
2017 against 18 banks, including Absa for “
collusion,
corruption, fraud, money laundering, and theft
” in that
they engaged in criminal activities relating to price fixing and
market division. It is reported that BLF
believes that “
the
banks have not stopped any of their criminal activities - they
continue with impunity
”. What is more, says the
report: “
This is massive corruption that has been swept
under the table by the white owned media
”. And: “
The
fact that Maria Ramos has admitted to Absa’s role in the
manipulation of the currency, supports the charges against her
and 8
others relating to state capture by WMC (White Monopoly Capital), as
well as the charges against the 18 banks in respect
of their conduct
relating to price fixing and market division.
”
79. It is plain
from the report that the criminal charges laid against Ms
Ramos have
political origins. They were laid by a political party and they
are founded on a particular political agenda.
Whether that
agenda is good or bad, right or wrong is not in issue: BLF is
entitled to its political opinion and it is entitled
to woo voters
who may be persuaded by, and agree with, that opinion. However,
that does not mean that criminal charges laid
against persons who are
categorised as contravening BLF’s political agenda objectively
justify a prosecution against one
individual. Still less does
it mean that if a prosecution has not been forthcoming (as is the
case here) it is because that
individual, enjoys undue political
influence which is tainted by corruption. One does not have to
dig very deep to come up
with any number of perfectly valid
alternative reasons why the charges laid by BLF have not resulted in
any prosecutions against
Ms Ramos or any other of the nine
individuals identified.
That the charges
are politically motivated, without substantive criminal merit, may be
one reason.
80. The
respondents don’t provide any other evidence, save for the
attached article, to establish that there is indeed a basis upon
which charges of corruption or treason are justified against Ms
Ramos, even in her representative capacity. If one considers
the facts asserted by Ms Ramos in her founding affidavit, which
are
set out in paragraph 16 above, there is no basis for the conclusion
the respondents seek to draw
81. As I noted
earlier, the respondents do not take issue with these facts
in any
material sense. They say that even if Ms Ramos was not involved
in the day to day running of the business units involved,
she is
ultimately accountable and responsible for the conduct of Absa
employees, and that the “
buck stops
” with her as
Chief Executive. They say that her averments that she did not
have oversight of the activities of the
traders involved demonstrates
her lack of understanding of governance and accountability issues.
Save for these expressed
views, the facts averred by Mr Ramos stand
uncontested.
82. These facts
do not show that charges of corruption or treason are justified
against Ms Ramos, even in her representative capacity. It
cannot be that the Chief Executive of a bank should be charged
with
the serious offences of corruption or treason based solely on the
fact that she was Chief Executive at the time that two of
its
employees engaged in the kind of conduct investigated by the
Competition Commission. Ms Ramos’s public apology
on
behalf of Absa cannot be equated to a confession of criminal guilt by
any stretch, and the respondents do not suggest that it
amounted to
one. The respondents do not even attempt to lay any basis for
what the criminal law foundation for these charges
is, or how it
could be said that the bank (represented by Ms Ramos) is
criminally liable in respect of them. This is
significant in
view of the undisputed facts averred by Ms Ramos. In fact, the
reference to charges of treason are studiously avoided
by the
respondents in their answering affidavit, which is a telling feature
of their case.
83.
I conclude, for these reasons, that even if, contrary to
what I have
found, it were to be assumed that the respondents were correct in
their contended-meaning of the statements and the
articles, the sting
of the statements is not true. Consequently, the defence of
truth and public benefit does not avail the
respondents.
Fair
comment
84.
The defence of fair comment has four elements. The
defamatory
statement:
84.1. must be a comment and not a
statement of fact;
84.2. it must be fair, meaning
only that it must be an honestly-held opinion, not
that it is balanced or temperate;
84.3. it must be based on facts
that must be true and they must be clearly
indicated, or matters of public knowledge; and
84.4. it must relate to a matter
of public interest.
[22]
85. As with the respondents’
first defence, because they do not claim that Ms Ramos was personally
involved in fixing the rand, they cannot establish the defence of
fair comment on the meaning I have found must be given to the
statements in the article.
In other words, it is common cause that she was not personally
involved in rand fixing, and so the respondents cannot claim any
truth to statements meaning that she was so involved.
86.
However, and again as a precautionary measure, I will consider
whether the respondents could establish fair comment as a defence in
the event that I may be found to have erred in my conclusion
on the
meaning of the statements.
87.
The article appears on the Opinion page of The Star and is
in the
nature of a Leader piece. However, not all of the impugned
statements in the article can be characterised as comments.
What is required of the respondents is for them to show that those
statements that are comments are based on facts that are
substantially true.
88.
Mr Mahlangu says that the article is an editorial opinion,
and that
the opinions he expresses in it are based on his own assessment of
facts that are already in the public domain.
Mr Mahlangu also
says that negative stories about Ms Ramos, including stories about
her role as Chief Executive of Absa at the
time of the rand fixing
saga, have been in the public domain for some years. He says Ms
Ramos does not deny this.
89.
The defence of fair comment runs into the same difficulties
for the
respondent as the defence of truth and public benefit. Despite
the respondents’ reliance on isolated undisputed
facts (the
existence of the BLF charge, the absence of a prosecution, the
donation, and the Absa apology), the sum of the facts
relied on does
not justify Mr Mahlangu’s comments. For example, and for
the reasons outlined in respect of the defence
of truth and public
benefit, the fact that Ms Ramos has not been prosecuted factually
cannot be ascribed to her donation to the
President’s
campaign. These separate facts do not support the concluding
comment (if this is what it is) that “
in any other country
(Ms) Ramos would have been charged with treason or corruption but she
won’t be. Rather she’ll
be appointed to chair more
boards.
” This statement is not based on facts that
are substantially true.
90. There is a
further reason why the defence cannot succeed. The facts
relied
on by the respondents as the basis for the alleged fair comments are
not clearly stated in the article. The article
does not tell
the reader that Ms Ramos was the Chief Executive of Absa at the time
of that the rand fixing occurred. Nor
does it say that she
apologised on behalf of Absa for its role in the saga. It does
not refer to the fact that criminal charges
were laid against Ms
Ramos (together with eight other business leaders) by BLF.
91. The
respondents say that this does not matter because these facts were
in
the public domain. It is a known fact that Ms Ramos was the
Chief Executive of Absa. On the respondents’ showing,
Ms
Ramos’s apology on behalf of Absa was reported in the
mainstream media. The articles attached to the answering
affidavit show that these reports were in 2017, over three years
before the article appeared. It is questionable whether the
ordinary reader of the article would have remembered the fact that an
apology had been made by Ms Ramos.
92. Regarding
the publicity surrounding the fact that BLF laid criminal charges,
the respondents attach the blackopinion.co.za website article
referred to earlier. The article was posted on 14 February
2019. The respondents provide no evidence on how widely the
article was publicised or any other information about the website.
They do not establish that the BLF charges were a matter of public
knowledge more than a year after the website article was posted,
and
more than three years after the charges were laid.
93.
It follows that the respondents have failed to show that
the facts
relied on by Mr Mahlangu forming the basis of what he says was fair
comment were clearly stated or a matter of public
knowledge.
While some facts may have been public knowledge, crucial facts were
not. These include the fact of the existence
of the BLF
criminal charges, which was a critical component of Mr Mahlanugu’s
expressed view that charges of corruption or
treason were justified
against Ms Ramos, and that she was avoiding prosecution because of
undue political protection.
94. For these reasons I find that on
the assumption that I may have erred in my interpretation of
the
meaning of the statements in the article, the respondents would not
succeed in establishing a defence based on fair comment,
even on
their own interpretation.
Reasonable
publication
95.
This defence has been available to the media since the decision
of
the SCA in
Bogoshi
. It permits a media defendant
to establish that the publication of a false statement was not
wrongful by proving that
they reasonably believed in its truth and
that it was in the public interest that it be published. In
other words, a media
defendant will be able to rebut the
prima
facie
presumption of wrongfulness if they can show that it was
reasonable to publish in a particular way at a particular time,
albeit
that the statements are defamatory and untrue.
[23]
96. Consideration must be given to all
the circumstances of the case. As the SCA explained
in
Bogoshi
:
“In considering the reasonableness of the publication account
must obviously be taken of the nature, extent and tone of the
allegations. We know, for instance, that greater latitude is
usually allowed in respect of political discussion …
and that
the tone in which a newspaper article is written, or the way in which
it is presented, sometimes provides additional,
and perhaps
unnecessary, sting. What will also figure prominently is the
nature of the information on which the allegations
were based
and the reliability of their source, as well as the steps taken to
verify the information.”
[24]
And further:
“…
the opportunity given to the person concerned to respond, and the
need to publish before establishing the truth
in a positive manner
also come to mind. The list is not intended to be exhaustive or
definitive.”
[25]
97.
The court also cautioned that:
“Ultimately there can be no justification for the publication
of untruths, and members of the press should not be left with
the
impression that they have a licence to lower the standards of care
which must be observed before defamatory matter is published
in a
newspaper. Professor Visser is correct in saying
(1982
THRHR
340)
that a high degree of circumspection must be expected of editors
and their editorial staff on account of the nature of their
occupation;
particularly, I would add, in light of the powerful
position of the press and the credibility which it enjoys amongst
large sections
of the community.”
[26]
98.
The respondents bear the onus of providing evidence to establish
the
defence of
reasonable publication.
[27]
99.
They accept that Ms Ramos was not involved personally in
rand fixing,
and they do not call for her to be held personally liable.
Consequently, they cannot say that they published
statements to this
effect (as I have found to be the case) in the honest belief that
they were true. This precludes the respondents
from
successfully establishing the defence of reasonable publication on
the meaning I have found the defamatory statements to carry.
100. What of this defence in the
context of the alternative interpretation, in the event that
I may be
found to have erred?
101. I take into account that the
article in which the statements occurred was an editorial
opinion
piece with political overtones. Ms Ramos is a public figure,
both politically, through her having held prominent
positions in
public sector, and financially, through her positions in the private
sector. The article appeared at the time
that Ms Ramos was
appointed to chair the AGA board. An editorial piece on her
appointment was timely. However, the
statements made in the
article extended beyond that appointment. The article went
further than saying that her appointment
as chair of AGA must be
treated with concern, and not celebration. It said (on the
assumption, contrary to my finding, that
the respondents’
meaning is adopted) that her position as Chief Executive of Absa
during the rand fixing saga justified criminal
charges of corruption
or treason against her, and that she was being protected unduly from
prosecution. It also said that
instead of being prosecuted she
would be appointed to chair more boards, and that her appointments
were indicative of corruption
being applauded and celebrated.
102. As I have
explained in relation to the other defences raised, these defamatory
statements are not true. The respondents do not place any
evidence before the court to establish that they honestly believed
that charges of corruption or treason against Ms Ramos as Chief
Executive are justified, save for the fact that BLF laid corruption
charges against her and others.
103. The fact that charges were
laid by a political party is not evidence of Mr Mahlangu’s
honest belief that the charges are justified. He provides no
evidence on any reliable source with whom he consulted to justify
the
belief in his statement that in any other country Ms Ramos would be
charged with corruption or treason.
Ex post facto
, in
his answering affidavit Mr Mahlangu made reference to the Enron and
Huawei prosecutions in the United States as examples of
corporate
executives who had been found guilty of offences, he said, that were
committed by their companies. No references
were made to these
examples in the article itself, and Mr Mahlangu does not aver that he
did this research before he wrote or published
the article.
104. In any event, as
Ms Ramos established in her replying affidavit, the prosecutions
in
those cases were not based on corporate responsibility, as stated by
Mr Mahlangu. Instead, the executives involved were
prosecuted
for their individual criminal conduct, and not those of the company
they served. Even if Mr Mahlangu had used
these examples as a
source for his statements (which he does not say), he did not do
sufficient due diligence to establish the
correct facts. An
obvious final point in this regard is that none of these cases
involved charges of treason, and Mr Mahlangu
does not even hint at
any source he may have relied on to establish an honest belief that
treason charges against Ms Ramos are
justified.
105. In the absence of evidence
of the source relied upon by Mr Mahlangu for his honest belief
that
charges against Ms Ramos are justified, it follows that there is no
basis for Mr Mahlangu honestly to have believed in the
truth of his
further statement that the reason why she is not being prosecuted is
because she enjoys undue political protection,
tainted by corruption.
106. Furthermore, it is not
disputed that Ms Ramos was not given an opportunity to comment
on the
defamatory statements before they were published. As indicated,
this is one of the relevant factors identified in
Bogoshi
in
the inquiry as to whether the publication of untrue facts may
nonetheless be found to be reasonable and hence not unlawful.
Mr Mahlangu offered Ms Ramos the opportunity to have a response to
the article published in The Star. The defence of reasonable
publication looks at the circumstances existing at the time the
article was published. Had Ms Ramos been given an opportunity
to comment before publication it is arguable that the defence may
have been available to the respondents. However, an
ex post
facto
offer to respond obviously cannot retrospectively make
lawful what was from inception a defamatory and
prima facie
unlawful publication. The defence of reasonable publication
does not extend so far.
107. Even on the assumption
(contrary to my finding) that the respondents’ meaning of
the
defamatory statements must be considered, in my view that would not
establish the defence of reasonable publication.
The
respondents have failed to provide evidence to support a finding that
Mr Mahlangu honestly believed in the truth of the defamatory
statements, or that he acted reasonably in taking steps to verify
that the information at hand justified the defamatory statements.
He did not give any opportunity to Ms Ramos to comment on the article
before publication, despite the fact that the statements
made serious
allegations about her criminal liability and her appointments being
tainted by corruption. The respondents did
not display the
standard of professional care expected of members of the media before
publishing the defamatory statements, and
the defence of reasonable
publication would not save the respondents from liability, even if
they were to be found to be correct
on their interpretation.
REMEDIES
108. In the absence
of any valid defence to rebut the
prima facie
unlawful and
intentional nature of the defamatory statements, Ms Ramos must be
found to have established a breach of her rights
to dignity, her good
name and her reputation. And so, at last we come to where the
respondents wished the court to begin:
the question of remedies.
109. Ms Ramos is
entitled to an effective remedy,
[28]
which addresses the consequences of the breach of her rights.
[29]
110. What precludes
the respondents from successfully establishing this defence
on the
meaning I have found the defamatory statements to carry is that they
have disavowed any belief in it being true that Ms
Ramos was
personally involved and should be held to be personally liable for
rand fixing.
111. Instead of
pursuing a claim for damages, Ms Ramos seeks the declarator,
interdict,
removal order and apology described in more detail
earlier. There is nothing unusual in a defamation complainant
electing
to pursue relief other than damages, or in addition to
damages. The SCA recently endorsed similar relief to that
sought by
Ms Ramos here in
EFF v Manuel
,
[30]
although in that case the court overturned the award for unliquidated
damages granted by the High Court on application (as opposed
to by
way of an action). The SCA held in this regard that:
“Motion
proceedings are particularly unsuited to the prosecution of claims
for unliquidated damages, whether in relation to
defamation or
otherwise.”
[31]
However,
the SCA upheld the declarator, interdict, and removal order granted
by the High Court.
The
declaratory relief
112.
Ms Ramos seeks an order declaring
that:
“(T)he statements made about the Applicant in the article
published by the Respondents on 9 December 2020 … are
defamatory
of her, false and unlawful.”
113. I have found
that the statements identified by Ms Ramos are indeed defamatory,
false and unlawful. However, the respondents nonetheless take
issue with Ms Ramos’s entitlement to a declarator to
this
effect. As far as I can gather from their submissions in this
regard, the respondents contend that since Ms Ramos’s
career
advancement has not been affected since the rand fixing news broke
five years ago, she cannot claim that her reputation
actually has
been tarnished. As I understand it, the argument is that Ms
Ramos’s claim to reputational harm is not
real and so the court
should not grant declaratory relief.
114. The respondents’
submissions seem to me to miss the point. Ms
Ramos’s
claim is
based on defamation. I have found that her claim is good in
law: by publishing the statements, the respondents committed
a
delict. A declarator confirming the false and defamatory nature
of the statements concerned does not constitute abstract
relief for
which a declaratory order is unsuited.
[32]
On the contrary, the declarator Ms Ramos seeks encapsulates the legal
finding I have made, and it leads into the
interdictory relief that follows.
115. I find that
there is no merit in the respondents’ objections to the
granting of the
declaratory relief sought. Ms Ramos is entitled to an order in
the terms she seeks in this regard.
The
interdictory relief
116. Ms Ramos avers
that she has a clear right to her reputation and good name,
and that
the respondents have breached that right. The breach continues
on an ongoing basis as the article containing the
defamatory material
remains accessible on line and through social media. Having
failed to discharge their onus to show that
the defamatory statements
were not unlawful, Ms Ramos says that the respondents cannot justify
the publication and continued publication
of the defamatory
material. She avers that she has suffered and continues to
suffer ongoing harm to her reputation, and that
she has no
alternative effective remedy. An award of damages would be
backward looking, and thus would not be effective against
the
continued harm to her reputation. Similarly, she says that an
apology and retraction would also not be effective on their
own.
117. Accordingly, she
seeks an interdict prohibiting the respondents:
“3. …from publishing or republishing:
3.1 the article; and
3.2 any statement that says or implies that the
Applicant, while employed as the CEO of Absa Bank
participated
in fixing the rand or committed corruption or treason in
relation to the fixing of the rand”.
118. The respondents
contend that Ms Ramos has not satisfied the requirements for
the
granting of an interdict. Their case is that she has not shown
that she has suffered any harm. They say that calls
for Ms
Ramos to be held accountable for rand fixing have been in the public
domain since 2016, and she has nonetheless advanced
in her career.
119. As with the respondents’
objection to the declaratory relief, this argument also
appears to
miss the point. Ms Ramos has established a claim of defamation
against the respondents. The court has found
that her
reputation is likely to be harmed by the defamatory statements.
It was not necessary for her to show actual harm
to her career in
order to satisfy her onus in the defamation claim where she seeks
interdictory relief. Ms Ramos is not claiming
damages on the
basis that she is likely to be fired as chair of the AGA board and
likely to be unemployable as a result of the
respondents’
defamatory statements. Thus, this court is not concerned with proof
of actual damages. It is inarguable
that statements to the
effect that criminal charges of corruption or treason are justified
against Ms Ramos, and that she is avoiding
prosecution because of
undue political influence are likely to harm her reputation.
That is sufficient evidence of harm to
suffice for purposes of an
interdict to prevent the harm from continuing.
120. In any event,
whatever criticism previously may have been in the public domain
over
the years about Ms Ramos, the respondents do not point to any that
made the specific defamatory statements that are the subject
matter
of this application. The respondents’ argument that Ms
Ramos has not suffered harm from other people making
critical
comments, and therefore that she is unlikely to suffer harm from the
respondents’ statements is thus ill-founded.
121. The respondents also contend
that Ms Ramos has an alternative, and more appropriate remedy.
This is to take up Mr Mahlangu’s offer to afford her the space
in the respondents’ publications to respond in the public
space
to the statements made in the article. This is not an effective
remedy against the defamation committed against Ms
Ramos. In
the face of the defamation, she cannot be expected to defend her
reputation,
ex post facto
, in the media.
122. I find no merit in these
objections raised by the respondents. Ms Ramos has established
a right to her dignity, good name and reputation. Her rights
have been infringed by the false, defamatory and unlawful statements
published by the respondents. The respondents do not dispute
that the article containing the statement remains accessible
on the
respondents’ websites and through their social media portals.
The harm to Ms Ramos’s reputation is ongoing.
I am also
satisfied that she has no alternative effective remedy other than to
be granted an interdict prohibiting the continuation
or repetition of
the defamatory statements.
123. This brings me to the final
objection by the respondents. They say in the first
place that
the terms of the interdict sought in prayer 3 of the notice of motion
are too broad. It would prevent the respondents
from reporting
on or making statements about Ms Ramos’s appointment as chair
of the AGA board; her donation to the President’s
campaign; and
the SARB bailout issue.
124. This objection is based on a
misunderstanding of the ambit of prayer 3. It does
not prohibit
the respondents from making statements about the general topics they
identify. It prohibits them from making
specific statements,
namely: “
(those) that (say) or (imply) that the Applicant,
while employed as the CEO of Absa Bank participated in fixing the
rand or committed
corruption or treason in relation to the fixing of
the rand.
” They are also prohibited from publishing
or republishing the article in full.
125. While only
certain statements in the article are impugned and have been found
to
be defamatory and unlawful, the article would not make any sense if
it were published in redacted form. It is therefore
not
irrational (as the respondents contend) for the court to make an
order prohibiting the publication of the article. It
makes
practical sense to do so. However, the order does not prohibit
the respondents from making the non-impugned and non-defamatory
statements in another form, provided they do not carry the same sting
as that carried by the defamatory statements, and thus breach
prayer
3.2.
126. The second
objection by the respondents to the prayer 3 relief is that in
future
Ms Ramos may indeed be found to have participated in fixing the rand
while Chief Executive of Absa, or in having committed
treason or
corruption in relation to fixing the rand. I was referred in
this regard to the following dictum in
Heroldt v Wills:
[33]
“Although
judges learn to be adept at reading tea leaves, they are seldom good
at gazing meaningfully into crystal balls.
For this reason I shall
not go so far as 'interdicting and restraining the respondent from
posting any information pertaining to
the applicant on Facebook or
any other social media'. I have no way of knowing for certain that
there will be no circumstances
in the future that may justify
publication about the applicant.”
It
was submitted by the respondents that as the Competition Commission
inquiry is ongoing, this court should not attempt the impossible,
that is to predict the future. This court does not, and cannot
know whether statements of the type sought to be prohibited
may be
justified by events in years to come. Consequently, say the
respondents, to grant an interdict in the terms sought
would unduly
undermine the respondents’ rights and obligations under s 16 of
the Constitution.
127. The respondents accept that
if there is merit in this submission, I have the power to
grant an
interdict in terms that would effect a balance between the two sets
of rights involved. Media reports attached to
the answering
affidavit by the respondents indicate that the Competition Commission
seeks fines against the banks involved based
on 10% of their
turnover. I have no other information before me that the
Competition authorities are pursuing relief against
Ms Ramos, or that
the prosecuting authorities intend to charge her.
128. While at this stage, on the
evidence before me, it does not appear that Ms Ramos is in
any real
danger of being found guilty of corruption or treason, I will err on
the side of caution and resist the temptation to
gaze into the
crystal ball. In my view, the respondents’ concerns may
be dealt with by the simple expedient of adding
the word “
falsely
”
before the phrase “
says or implies that the Applicant ….
”.
I do not believe that this small adjustment warrants an adverse order
of costs, as the respondents submitted.
The
removal order
129. The respondents object to
the removal order on the basis, in the first place, that the
harm has
already occurred. As it is common cause that the article
remains available on line and through social media portals,
clearly
there is no merit in this objection.
130. The second
objection is that the removal of the article will be academic because
nothing would bar other media platforms from keeping or publishing
similar statements in their publications or on their platforms.
In the first place, as I noted earlier, the respondents present no
evidence of other publications making the kind of defamatory
statements that they have made in the article under consideration.
131. In the second place, where
particular parties have made defamatory statements it is the
practice
to cite them as defendants and respondents and to seek appropriate
relief against them. Quite obviously, relief
cannot be sought
against the media in general in a case like the present.
However, once an order is granted against the respondents
in this
case, it would be legally foolhardy for any other media players to
engage in the same or similar unlawful conduct.
This is always
the effect of an order of this nature. Of course, Ms Ramos
would have to seek relief against anyone who committed
a similar
defamation. However, that does not mean that an order to remove
the defamatory material should not be made against
the respondents.
The apology
132. The Constitutional Court
confirmed in
Le Roux
that an apology is an appropriate remedy
in respect of an actionable injury to a person’s dignity.
[34]
In that case, the complainant sought both delictual damages and an
apology. The same held true in
EFF v Manuel
.
There, the High Court ordered both forms of relief. The SCA
denied the complainant damages, and consequently denied
him the
apology. It’s reasoning was as follows:
“Neither
of these two judgments (
Le Roux
and
McBride
) suggested
that an order for publication of a retraction and apology on its own
and not in conjunction with an award of damages
would be an adequate
remedy. The High Court's order for publication of a retraction and
apology in this case was made in conjunction
with its order for
damages. We have held that the latter should not have been made
without hearing evidence. The applicants had
suggested in their
challenge to the quantum of damages, that an apology would be
sufficient redress, but that suggestion can only
be considered in
conjunction with the consideration of whether an award of damages
should be made and the quantum of that award.
An apology has always
weighed heavily in determining the quantum of damages in defamation
cases as occurred in
Le Roux v Dey
.
In our view,
whether an order for an apology should be made is
inextricably
bound up with the question of damages.
As the latter award falls
to be set aside and referred to oral evidence, so too must the order
to publish a retraction and apology
be set aside and referred to the
High Court for determination after the hearing of oral evidence on
damages.
[35]
(emphasis added)
133. As the SCA noted, none of
the judgments to date have considered the question of an apology
de-linked from a claim for damages. Although the underlined
portion of this dictum suggests that there is an inextricable
link
between the question of damages and that of an apology, this must be
read in context. It is clear from the dictum as
a whole that
the statement is directed at the manner in which the case was
pleaded. As I read the underlined statement, it
is that in this
case, the link is inextricable. In other words, where both
forms of relief are claimed the link is established.
This is
because the measure of damages will be affected by the additional
award of an apology. For this reason, where the
two are pleaded
together (as they were in
EFF v Manuel
), they must be
determined together. For this reason, the apology could not, in
that case, survive without the survival of
the claim for damages.
134. In my view, there is nothing
in the relevant dicta of our higher courts that prevents
a court
ordering an apology along with the kind of relief that Ms Ramos is
entitled to in this case. She has elected not
to pursue a
damages claim. The effect of an apology on the computation of
damages in the future is not a relevant factor
here. The
respondents are members of the media. It is by no means unusual
for the media to publish corrections and
apologies without a court
directing them to do so. I see no reason why, in circumstances
where the respondents elect not
to offer an apology, this court
should not order them to do so.
CONCLUSION
135. I have given lengthy reasons
for my finding in favour of Ms Ramos. Inherent in our
law of
delict, amplified by our Constitution, is the need to effect a
balancing exercise between the rights of the individual defamed
and
the public interest in safeguarding the right to freedom of
expression and the press. The latter right requires that
courts
avoid overly protecting public figures from criticism directed at
them in the media, even if the criticism is defamatory.
136. On the other hand, the media
has an obligation to act lawfully as the instrument through
which the
right to freedom of the press is exercised. Where the media
makes defamatory statements about public figures it
is nonetheless
required to justify its conduct in terms of the law. There is a
good reason for this. Irresponsible
reporting of false facts
can be extremely damaging to democracy. The public has a right
to be informed, and it has the right
to read information and opinions
that may be critical of public figures. But the media has an
obligation to exercise due
care in making sure that the facts and
opinions it publishes fall within the bounds of the law.
In this case, the respondents failed to do so.
137. I find that Ms
Ramos is entitled to the relief she seeks in her notice of
motion,
subject to the adjustment to prayer 3.2 discussed earlier.
There is no reason why costs should not follow the result.
The
applicant seeks the costs of two counsel. Both parties had
teams of more than one counsel, and in my view, the costs
of two
counsel for the applicant is justified.
138. I make the
following order:
1. It is declared that the statements made about the
Applicant in the article published by the Respondents on 9 December
2020 and attached to the founding affidavit as "FA1" and
"FA2" ("the article") are defamatory of
her,
false and unlawful.
2. The Respondents are interdicted from publishing or
republishing:
2.1.
the article; and
2.2.
any statement that falsely says or implies that
the Applicant, while
employed as the CEO of Absa Bank, participated in fixing the rand or
committed corruption or treason in relation
to the fixing of the
rand.
3. Within
24 hours of the date of this order, the Respondents are directed to
permanently remove the article from:
3.1.
the First Respondent's website, www.iol.co.za,
and any other online
platform on which the article was published;
3.2.
all Twitter accounts controlled by the Respondents,
including the
Twitter
account for The Star (@The Star news); and
3.3.
all Facebook accounts controlled by the Respondents,
including the
Facebook page for The Star.
4. Within 24 hours of the date of this order, the Respondents
are directed to publish the following retraction and apology
in the
manner directed in paragraph 5:
"On 9 December 2020, Independent Media published an article on
the Independent Online website, and in the Star, which contained
various false and defamatory statements concerning Ms Maria Ramos.
These include that she is guilty of "fixing the rand",
that
she engaged in conduct that amounts to, and justifies criminal
charges for, "treason or corruption", and that she
received
improper quid pro quos. independent Media unconditionally retracts
these false and defamatory statements and apologises
unreservedly for
any harm caused to Ms Ramos."
5. The Respondents must publish the apology referred to in
paragraph 5 in the following manner:
5.1. in the next
print edition of The Star after the date of this order in reasonably
sized print and in a reasonably prominent
location on page three;
5.2. on the homepage of the First Respondent's website,
www.iol.co.za, for five business day, in reasonably
sized print and
in a reasonably prominent location;
5.3.
in a tweet from The Star's Twitter account (@The
Star news), tweeted
during ordinary business hours, which tweet must be pinned for at
least five business days;
5.4.
in a post on The Star's official Facebook page,
posted during
ordinary business hours, which post must remain on the page for at
least five business days.
6. The Respondents are ordered to pay the Applicant's costs,
including the costs of two counsel, such costs to include costs
of
senior counsel
ELECTRONICALLY
SUBMITTED
This
judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to
the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The date
for
hand-down is deemed to be 28 May 2021.
R M KEIGHTLEY
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION
Appearances:
Date of hearing:
26 MARCH 2021
Date reserved:
26 MARCH 2021
Date judgment delivered:
28 May 2021
For the applicant:
S Budlender SC
J Mitchell
S Mabunda
Instructed by:
WEBBER WENTZEL
For the respondents:
V Ngalwana SC
F Karachi
N Jiba
Instructed by:
ABRAHAMS KEIWITZ
INC
[1]
Dawood
& Another v Minister of Home Affairs & Others
[2000] ZACC 8
;
2000
(3) SA 936
(CC) at para 35
[2]
Khumalo & Others v Holomisa
2002 (6) SA 401
(CC) at para 27
[3]
Pienaar & Another v Argus
Printing and Publishing Co Ltd
1956 (4) SA 310
(W) at 308C-E
[4]
The Citizen 1978 (Pty) Ltd &
Others v McBride (Johnstone & Others, Amici Curiae)
2011
(4) SA 191
(CC) at paras 99-100
[5]
Khumalo, n2 above, para 18
[6]
National Media Ltd & Others v Bogoshi 1998 (4) SA 1196 (SCA)
[7]
Le Roux v Dey
2011 (3)
SA 274
(CC) at para 85
[8]
Le Roux, above n7, para
[9]
Le Roux, above n7, para 89
[10]
Sindani v Van der Merwe
2002 (2) SA 32
(SCA), para 11, and citing
Ngcobo
v Sheme & Others
1983
(4) SA 66
(D) at 71 C-D
[11]
Le Roux
, above n7, para
91(b)
[12]
Le Roux
, above n7, para
91
[13]
Le Roux
, above n7, para
91
[14]
Le Roux
, above n7, para
91
[15]
Hassen v Post Newspapers (Pty) Ltd
1965 (3) SA 562
(W) at 565C-D,
which cited the following further authorities: Clark v Roodt
1908
EDC 303
; Schoeman v SA Associated Newspapers Ltd
1962 (1) SA 672
;
Luyt v Morgan; Luyt v King Printing Company 1915 EDL 223
[16]
2011 (6) SA 370 (SCA)
[17]
At para 10
[18]
Manuel v Crawford-Browne
2008 JDR 0242 at para 2
[19]
Waldis & Another v Von
Ulmenstein
2017 (4) SA 503
(WCC) at paras 21-2
[20]
See
Bogoshi
, n6 above,
Khumalo, n2 above, and
Economic
Freedom Fighters & Others v Manuel
1 All SA 623
(SCA) at
para 65
[21]
Haroldt v Wills
2013 (2)
SA 530
(GSJ) para 27
[22]
EFF
v Manuel
, above n20, para 38, citing
Crawford
v Albu
1917 AD 102
at 115-7;
Marais
v Richard en ’n Ander
1981 (1) SA 1157
(A) at 1167E-G;
The Citizen 1978 (Pty) Ltd v
McBride
2011
(4) SA 191
(CC) at para 80
[23]
EFF v Manuel
, n20 above,
para 65
[24]
Bogoshi
, above n6,
1212H-I
[25]
Bogoshi
, above n6,
1213B-C
[26]
Bogoshi
, above n6,
1212I-J
[27]
Bogoshi
, n6 above,
1218D-E
[28]
Tswelopele Non-Profit Organisation v City of Tshwane Metropolitan
Municipality
2007 (6) SA 511
(SCA) at para 17
[29]
Tswelopele
, n28 above,
para 19
[30]
Above, n28
[31]
EFF v Manuel
, above n20,
para 105
[32]
See for example, Shoba v Officer Commanding, Temporary Police Camp,
Wagendrift Dam, and Another; Maphanga v Officer Commanding,
South
African Police Murder and Robbery Unit, Pietermaritzburg, and
Another
1995 (4) SA 1
(A) at 14F-G; Maccsand (Pty) Ltd & Another
v City of Cape Town & Others
2011 (6) SA 633
(SCA) para 39; and
Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
2005 (6) SA 205
(SCA) at paras 16-17
[33]
Above, n21, para 40
[34]
Le Roux
, above n7, paras
202- 203, read with para 150
[35]
EFF v Manuel
, above n20,
para 130