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[2023] ZAGPJHC 1040
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Ndlozi v Media 24 t/a Daily Sun and Others (21/25599) [2023] ZAGPJHC 1040; 2024 (1) SA 215 (GJ); [2024] 1 All SA 392 (GJ) (19 September 2023)

FLYNOTES:
CIVIL LAW – Defamation –
Rape
complaint
–
Whether
three statements Daily Sun published on basis of confidential
source’s tip-off were defamatory – Rape
complainant’s
interest in confidentiality will generally weigh against reporting
facts of complaint and identity of
suspect at a very early stage
of investigation – Sting of defamatory statements is that a
complaint to police was made
that Dr Ndlozi raped someone –
Failure to demonstrate public benefit – Publication of
statements was defamatory
and unlawful.
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
Case
No.
21/25599
REPORTABLE
OF INTEREST TO OTHER
JUDGES
REVISED
19.09.23
In the matter between:
MBUYISENI
QUINTIN NDLOZI
Applicant
and
MEDIA
24 T/A DAILY
SUN
First Respondent
MAPULA
NKOSI
Second Respondent
AMOS
MANAYETSO
Third Respondent
Summary
Practice –
defamation claims – whether declaratory and interdictory relief
can be sought on motion with a prayer to
refer a claim for damages to
oral evidence in the event that declaratory relief is granted –
such a hybrid procedure available
in principle in exceptional cases –
exceptional cases are those where there are no disputes of fact
underlying the primary
defamation claim and where there is no
prejudice to the respondent in adopting the hybrid procedure.
Defamation –
defences – truth and public benefit – public benefit
analysis requires the evaluation of any confidentiality
interests
that may be affected by the publication of a true fact – a rape
complainant’s interest in confidentiality
will generally weigh
against reporting the fact of the complaint and the identity of the
suspect at a very early stage of the investigation.
JUDGMENT
WILSON
J:
1
On 11 April 2021, the third respondent, Mr. Manayetso, a
journalist, received a tip-off from a confidential source within the
South
African Police Service (“SAPS”). The tip-off was
that the applicant, Dr. Ndlozi, had been named in a rape complaint

made to SAPS on 9 April 2021. The source told Mr. Manayetso that, in
the complaint, a woman had said that Dr. Ndlozi raped her.
SAPS had
opened a case of rape, and the confidential source supplied Mr.
Manayetso with the case number allocated to the complaint.
The source
also supplied Mr. Manayetso with a number of further details, culled
from the woman’s statement, that appeared
in a story published
in the Daily Sun later that day under Mr. Manayetso’s by-line.
The Daily Sun is a newspaper controlled
by the first respondent,
Media 24. The second respondent, Ms. Nkosi, was the editor of the
Daily Sun at the time.
2
Before publishing his article, Mr. Manayetso sought to confirm
what the confidential source had told him with Dr. Ndlozi, and with

the SAPS spokesperson for the Gauteng Province, a Captain Makhubele.
3
Mr. Manayetso telephoned Dr. Ndlozi at around 10h13 on 11
April 2021. Dr. Ndlozi did not answer, but the two men agreed to
communicate
by text. In a text message sent later that day, Mr.
Manayetso outlined the tip-off he had received. He disclosed the
identity of
the complainant and the location and details of the
assault she alleged. He asked Dr. Ndlozi for comment. The gist of Dr.
Ndlozi’s
response was that he had not been contacted by the
police, that he did not know about the complaint, but that, on the
details of
the complaint Mr. Manayetso relayed to him, there was no
possibility that he could have been the perpetrator. Dr. Ndlozi
provided
an account of his movements over the period apparently
covered in the complaint. He adverted to eyewitnesses and CCTV
footage that,
he said, would demonstrate that he could not have been
the complainant’s assailant. He expressed solidarity with the
complainant,
and said that he hoped that her true assailant was
apprehended and punished.
4
Mr. Manayetso first contacted Captain Makhubele at 12h21 on 11
April 2021. No substantive response was forthcoming from the SAPS
for
the period of just under 8 hours between the first contact Mr.
Manayetso had with Captain Makhubele, and the point at which
Mr.
Manayetso’s article was published online at around 20h00 on 11
April 2023. Just before 17h00, Captain Makhubele did refer
Mr.
Manayetso to an individual Captain Makhubele identified as “Peters”,
but “Peters” did not respond before
the Daily Sun
published the article.
5
At 11h33 on 12 April 2021, a Brigadier Peters, who was
probably the “Peters” to whom Captain Makhubela had
originally
referred, issued a statement to the media, in which he
confirmed that the complaint reported in the Daily Sun online the
night
before had been made, but that Dr. Ndlozi was not a suspect in
the police investigation of it. The statement goes on to criticise

Mr. Manayetso and, by implication, the Daily Sun and Ms. Nkosi, for
publishing the story without seeking comment from SAPS, and
for
basing the story substantially on the complainant’s statement,
which Brigadier Peters said, could “only have been
obtained
through unlawful and unethical means”.
6
In his first criticism, it appears that Brigadier Peters was
misguided. On the papers before me, Mr. Manayetso plainly sought
comment
from SAPS before the Daily Sun published his story. Brigadier
Peters’ second criticism, however, appears to have been
well-founded.
On a conspectus of all the facts, the Daily Sun
published its story solely on the basis of what the confidential
source had relayed
to Mr. Manayetso over the telephone. There has
never been any suggestion that the confidential source had the right
– whether
legal or ethical – to disclose the information
that they did.
7
Be that is it may, the issues in this case do not turn on the
morality of the confidential source’s conduct, or that of Mr.

Manayetso and the Daily Sun in choosing to write about and publish
what they were told.
8
What is at issue in this case is whether three statements the
Daily Sun published on the basis of the confidential source’s

tip-off were defamatory, and whether, if they were defamatory, the
statements were nonetheless lawful because they were true, and
it was
for the public benefit that they be published. A subsidiary issue is
whether either of these questions may appropriately
be decided on
motion.
9
In what follows I first set out, and identify the sting of,
the three statements of which Dr. Ndlozi complains. I then draw the
following conclusions: first, that the lawfulness of publishing the
statements is an issue that can properly be decided on motion;

second, that two out of three of the statements defamed Dr. Ndlozi;
and third, that the two defamatory statements were substantially

true, but that their publication, on the facts of this case, was not
for the public benefit. These conclusions compel me to find
that the
respondents have unlawfully defamed Dr. Ndlozi, and that he is
entitled to a declaration that this is so. He is also entitled
to an
order that the two defamatory statements be removed from Media 24’s
online media platforms. Any further relief to which
he may be
entitled is a matter that should either be agreed between the
parties, or on which oral evidence should be led. I will
make an
order setting out how that oral evidence, if it is necessary, should
be taken.
The
statements
10
In his founding papers, Dr. Ndlozi sets out three statements
that he contends are defamatory. The first is a billboard, under the

Daily Sun banner, which reads “‘MBUYISENI NDLOZI RAPED
ME!’”. The billboard was published in hardcopy,
and
attached to lampposts in Johannesburg, one of which Dr. Ndlozi saw on
Jan Smuts Avenue on 12 April 2023.  It was also
published
electronically on the Daily Sun’s social media accounts. It was
published separately from the article to which
it adverts. The
billboard is plainly a “teaser”, which is meant to
stimulate curiosity and lead those who see it to
read the article.
11
The Daily Sun published a tweet containing the billboard hours
before the article first appeared online. It follows from all of this

that the statement must be evaluated separately from the text of the
article to which it refers. This is because an ordinary, reasonable

reader cannot be presumed to have access to the article, and to be
able to evaluate the billboard in the context the article supplies.

It also follows from this that a decision to publish must have been
taken by about 15h00 on 12 April 2021, which is around
three-and-a-half
hours after comment was first sought from the
police. While it is true that the publication of the story was
delayed to allow the
police to revert, the intention was clearly to
publish with or without police comment.
12
The gist or “sting” of the statement is that
someone has accused Dr. Ndlozi of rape. The manner in which the
statement
is presented has the unfortunate and misleading implication
that someone has approached the Daily Sun directly to tell the
newspaper
that Dr. Ndlozi raped them. But we know that did not
happen. What happened is that Mr. Manayetso noted down what the
confidential
source told him. It was accepted before me that the
Daily Sun never came into possession of the written complaint in
which Dr.
Ndlozi was named. A notice under Rule 35 (12) was issued on
Dr. Ndlozi’s behalf demanding that the respondents produce the

complaint. The notice went unanswered. The only reasonable inference
to be drawn in the context of this case is that the respondents
never
had the complaint, and when they purported to quote from it, they
were in fact quoting their confidential source.
13
The second statement of which Dr. Ndlozi complains is Mr.
Manayetso’s article itself. The article was published online on
the evening of 11 April 2021, and in the Daily Sun’s printed
edition on 12 April 2021. The article sets out the portions of
the
complainant’s statement to SAPS as relayed to Mr. Manayetso by
the confidential source. Again, the unfortunate impression
is created
that the article is quoting directly from the statement. The article
also replicates Dr. Ndlozi’s vehement denial
of any
involvement, his characterisation of the complaint as a “terrible
instance of mistaken identity” and his pledge
to co-operate
with any investigation. It specifically records that Dr. Ndlozi says
he was not present at the place the complainant
said she was raped
and that he did not know her. The article does not contain any of the
facts Dr. Ndlozi offered to exculpate
himself. Nor, in its original
form, did it contain SAPS’ confirmation that Dr. Ndlozi was not
a suspect in its investigations.
That was added later.
14
The gist of the article is that a complaint of rape has been
made against Dr. Ndlozi and that Dr. Ndlozi denies any involvement in

the attack alleged against him. In its original form, the article
conveys the sense that there is an ongoing investigation into
Dr.
Ndlozi’s conduct. In its revised version, the article makes
clear that Dr. Ndlozi is no longer being investigated.
15
The third statement is an article the Daily Sun published on
13 April 2021. It appears under the headline “We stand by our

story!”. It is a short response to Brigadier Peters’
media release. It repudiates the allegation that comment was not

sought from SAPS before Mr. Manayetso’s article was published.
It notes that Dr. Ndlozi is not a suspect in the complaint
(SAPS’
confirmation of this is the subject of a longer piece on the same
page) and it chooses not to address Brigadier Peters’

imputation of unlawful and unethical conduct.
16
The gist of the third statement is not directly concerned with
Dr. Ndlozi. The third statement takes aim at one part of the SAPS

statement on the original story: that SAPS’ comment was not
sought prior to publication.
17
It is these three statements that Dr. Ndlozi says defamed him.
But before addressing the question of whether, and to what extent
Dr.
Ndlozi was defamed, it is necessary for me to consider the question
of whether and to what extent Dr. Ndlozi’s claim
of defamation
can be decided on motion.
Can
this case be decided on motion?
18
In his notice of motion, Dr. Ndlozi
seeks a declaration that each of the three impugned statements was
unlawful and defamatory.
He also asks for an order directing the
respondents to remove the impugned statements from all of its
electronic media platforms;
an order that the respondents print a
retraction and an apology; and an order that damages be paid in the
sum of R120 000, or that
the respondents be declared liable for
damages and that quantification of damages be referred for the
hearing of oral evidence.
19
Mr. Kairinos, who appeared together
with Ms. Mathe for the respondents, argued that none of this relief
can be granted on motion,
because the Supreme Court of Appeal has
said as much in
Economic Freedom
Fighters v Manuel
2021 (3) SA 425
(SCA) (“
Manuel
”).
Before exploring the decision in that case, I think that it is
important to set out some basic principles about when relief
can be
claimed on motion, and how those principles apply, on their face, to
the relief Dr. Ndlozi seeks.
20
The general rule is that motion proceedings are all
about deciding questions of law on undisputed facts (
NDPP v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA), paragraph 26). The
affidavits setting out those facts are both the statement of the
parties’ respective cases and
the evidence for the truth of the
propositions stated in the affidavits. Unless the court can decide
the application on the undisputed
or common cause facts, it must
dismiss the application or refer any material dispute of fact to
trial.
21
It follows that, where there is
unlikely to be a dispute about a material fact, a litigant may
approach a court on motion, by filing
a notice setting out the relief
they seek (a “notice of motion”), together with an
affidavit setting out the facts
on which they say they are entitled
to that relief (a “founding affidavit”). They may also
attach to the founding affidavit
any documentary evidence or
supporting affidavits on which they rely. There are cases where the
law requires a party to proceed
on motion, whether or not a dispute
of fact will foreseeably arise, but they need not concern me here.
22
Conversely, where there is a
foreseeable dispute of fact, a litigant must ask the court to hold a
trial of the facts before any
of the ultimate legal questions they
wish to raise can be decided. A trial of fact generally involves oral
evidence from the parties
to the case or other witnesses who will
testify in support of their claims. Each party is entitled to
cross-examine the other party’s
witness, and it is through
cross-examination that the truth of a witness’ account is
tested, and any disputes of fact between
the parties are resolved.
23
In the High Court, a trial action
commences when a plaintiff issues a combined summons, comprising a
notice summoning a defendant
to appear, and the written particulars
of the claim the defendant will have to answer. Neither of those
documents is evidence of
the claims made in them. The plaintiff’s
particulars of claim merely embody a statement of the facts the
plaintiff intends
to prove by the presentation of evidence at the
trial.
24
A litigant who institutes a claim on
motion but who ought to have known that a dispute of fact would arise
runs the risk that their
application will be dismissed, and that they
will have to start their case again by issuing a combined summons.
Where a dispute
of fact arises, but was not foreseeable, a court may
decide to refer the case to the hearing of oral evidence on that
fact.
25
It is generally understood that
certain types of case are brought on motion, and others are brought
as trial actions. But the overriding
consideration, no matter what
type of claim is being considered, is always whether the facts
alleged in support of the claim are
likely to be disputed. Some cases
– for example where the parties’ relationship is governed
by documents the authenticity
and meaning of which are largely common
cause – are unlikely to require a trial. Other cases –
for example those which
require a court to consider what someone saw
at a particular place or at a particular time, or to inquire into a
person’s
state of mind – are very likely to require a
trial.
26
It follows that, unless Parliament
had made one, there is no rule that requires a particular type of
claim to be brought using either
the motion procedure or the trial
procedure. What matters is the facts that have to be proved and
whether they are likely to be
disputed.
27
In this case, it is agreed that the
impugned statements were made. The content of those statements is
likewise agreed. The meaning
of the statements – especially the
sense in which the statements can be said to be “true” –
is disputed,
but only on a point of interpretation: whether the
statements assert the fact that Dr. Ndlozi raped the complainant, or
merely
that he was reported to the police as having done so. The
factual background against which the statements require
interpretation
is common cause. If the publications are found to be
defamatory, they may nevertheless be lawful if the respondents can
establish
that they did not intend to injure Dr. Ndlozi, or if they
can establish that the statements were not made wrongfully.
28
In this case, the respondents do not
ask me to decide whether the statements were made with the intent to
injure. The defences set
out in their answering affidavit address
only the question of whether the impugned statements were wrongful.
In particular, they
raise the questions of whether, if the statements
turn out to be true, they were made for the public benefit, and, if
the statements
turn out to be false, they were published reasonably.
These are primarily questions of legal policy, which do not normally
entail
the resolution of factual disputes.
29
Given all this, on the ordinary
principles I have set out, it seems to me that the primary question
of whether Dr. Ndlozi was in
fact unlawfully defamed can easily be
decided on the papers before me. It follows that, at the very least,
the question of whether
Dr. Ndlozi is entitled to a declaration that
he was unlawfully defamed and a mandatory interdict ordering the
removal of the impugned
statements from Media 24’s platform can
be considered on motion. This sort of relief has been considered
without controversy
on motion in a number of other cases in this
Division (see, for example,
Ramos
v Independent Media (Pty) Ltd
[2021]
ZAGPJHC 60 (28 May 2021) and
Van
Deventer and Van Deventer Inc v Mdakane
[2023] ZAGPJHC 529 (22 May 2023)). The question of whether someone is
likely to be defamed is also regularly decided on motion
when
interdicts in prior restraint of defamation are sought (see for
example
Hix Networking Technologies v System Publishers
(Pty)
Ltd
[1996] ZASCA 107
;
1997 (1) SA 391
(A) and
Quandomanzi
Investments (Pty) Ltd t/a SM Structures v Govender
[2023]
ZAGPJHC 516 (19 May 2023)).
30
The question becomes trickier when
other forms of relief are sought. Classically, questions of damages
for harm to a person’s
reputation are extremely difficult, if
not impossible, to decide on motion. Where the quantum of damages is
linked to the nature
and likely effect of an apology, oral evidence
of the reach and impact of the defamatory statements must generally
be placed alongside
the likely ameliorative effect of the apology.
Not only are these issues likely to be disputed, but they can also
only really be
properly ascertained and identified once legal
disputes about the nature and extent of the defamation have been
resolved.
31
It is this difficulty that animated
the Supreme Court of Appeal’s decision in
Manuel
,
in which the court set aside an award of damages and a court-ordered
apology which was made after this Division had found, on
motion, that
the EFF had defamed Mr. Manuel. The Supreme Court of Appeal then made
some remarks about whether, given that the declaratory
and
interdictory relief the High Court granted was correctly decided on
motion (and confirmed on appeal), but the apology and damages
relief
was not, it is generally permissible to approach a court on motion
for a declaration that a person has been defamed and
for an interdict
in restraint of that defamation, while also seeking an order that
damages be assessed by way of oral evidence
at a later stage.
32
It is fair to say that the Supreme
Court of Appeal’s attitude to this hybrid approach was at best
tepid. However, given that
there was no procedural objection or
allegation of prejudice raised by the EFF in that case, the court did
not have to finally
decide whether the procedure adopted was
generally appropriate or permissible. The court contented itself with
the statement that
its judgment should not “be seen as
endorsing as a general practice in defamation cases an application
for some immediate
relief, together with an application for the issue
of the quantum of damages to be referred to oral evidence. For the
reasons we
have given, the ordinary procedure in claims for
unliquidated damages should be by way of action”. The court
also implied
that the hybrid procedure adopted in the case before it
was permissible because the case was exceptional (
Manuel
,
paragraph 127).
33
None of this means that the Supreme
Court of Appeal has laid down a rule which disallows the approach
taken in
Manuel
,
or which has been taken by Dr. Ndlozi here. Even if the court’s
remarks can be read as blanket disapproval of such a procedure
(they
cannot), they are plainly
obiter
.
In any event, it seems to me that the considerations the court did
identify as justifying the hybrid approach in
Manuel
– whether the case has exceptional features, whether the
procedure is objected to and whether there is any appreciable
prejudice
to either party in its adoption – can, at least
notionally, justify a similar procedure being adopted in other
“exceptional”
cases that can be decided without prejudice
to the parties’ procedural rights.
34
To decide otherwise would impede
access to justice and over-complicate legal procedure to no valuable
end. I see no reason why,
if a case can be fairly decided using the
hybrid procedure Dr. Ndlozi engages here, it should not be so
decided. I also see no
reason in principle why, if a litigant is
entitled to final declaratory or interdictory relief in restraint of
defamation on the
undisputed facts, they should have to await the
outcome of a contested trial on their unliquidated damages before
they are able
to obtain it.
35
In
Manuel
,
the Supreme Court of Appeal was plainly alive to the fundamental
issue: whether, in a particular case, the hybrid procedure is

prejudicial to the parties, or to the administration of justice.
Although they object to the procedure, the respondents’

objection in this case is purely technical. They have not identified
any prejudice caused by the procedure Dr. Ndlozi has adopted.
It is
hard to see what prejudice the respondents could suffer, given that
the principal issues before me must be resolved on the
facts that the
respondents have alleged or which they do not dispute.
36
Even if the respondents are correct in
their interpretation of the decision in
Manuel
,
that would mean no more than that Dr. Ndlozi’s prayers for
damages and an apology would have to be dismissed rather than

postponed. It would not prevent me from entering into the issue of
whether the impugned statements were defamatory and unlawful.
But,
for the reasons I have given, there is no warrant in this case to
dismiss Dr. Ndlozi’s prayer for an apology and damages
when it
can be postponed and dealt with by way of the hearing of oral
evidence.
37
The respondents also relied on the decision
of the Supreme Court of Appeal in
Malema
v Rawula
[2021] ZASCA 88
(23 June 2021)
(“
Malema
”),
but that decision takes the issue no further. In
Malema
,
the Supreme Court of Appeal reiterated that an interdict in restraint
of unlawful defamation may be granted on motion (see
Malema
,
paragraph 26). It also reiterated that damages for unlawful
defamation may not be sought on motion (see
Malema
,
paragraph 27). The court had nothing to say about whether the hybrid
procedure adopted here and in
Manuel
is permissible, whether generally or exceptionally.
38
It follows from all this that I can decide
Dr. Ndlozi’s prayer for a declaration that he has been
unlawfully defamed, and
his prayer that the defamatory material be
removed from Media 24’s media platform on the papers before me.
His prayer for
damages and an apology must, though, stand over for
later determination once oral evidence has been led.
Were the impugned
statements defamatory?
39
A publication is defamatory if it tends to lower the person
defamed “in the estimation of the ordinary intelligent or
right-thinking
members of society” (
Hix Networking
Technologies v System Publishers (Pty)
Ltd
[1996] ZASCA 107
;
1997 (1) SA 391
(A), 403G-H). The test is objective. What matters is not what the
publisher intends, but “what meaning the reasonable reader
of
ordinary intelligence would attribute to the statement. In applying
this test, it is accepted that the reasonable reader would
understand
the statement in its context and that he or she would have had regard
not only to what is expressly stated but also
to what is implied”
(
Le Roux v Dey
2011 (3) SA 274
(CC), para 89).
40
Mr. Premhid, who appeared together with Ms. Mahomed and Mr.
Mohammed for Dr. Ndlozi, argued that all three statements defamed Dr.

Ndlozi because they reported the rape allegations made against him as
if they were true. But that argument was plainly misconceived.
By
using quotation marks and reported speech, the first statement
clearly adverted to an accusation of rape by someone else. It
did not
endorse the allegation. The second statement told a story of two
sides. It set out what the complainant had reportedly
told the
police, alongside what Dr. Ndlozi had to say in response. It endorsed
neither story. It plainly did not report the rape
allegations as the
truth. The gist of the third statement had little to do with the
truth or falsity of the rape allegations. It
was rather concerned
with whether the police had accurately conveyed the respondents’
efforts to secure comment from them
before going to press. For what
it is worth, the third statement records that Dr. Ndlozi is not a
suspect in the police investigation.
It also opines that the justice
system should “commit to finding out who the perpetrator is and
help [the victim] find justice”.
None of this is compatible
with the proposition that the rape allegations against Dr. Ndlozi
were reported as the truth.
41
Mr. Premhid next argued that the mere fact that the rape
allegation was reported as one side of a contested story does not
save
the respondents from the repetition rule. In other words, the
mere repetition of a rape allegation is defamatory, even if the
repetition
was in the context of a report that the allegation had
been made.
42
That repetition rule, which Nugent JA set out in the
Tsedu
case, is that “[a] newspaper that publishes a defamatory
statement that was made by another is as much the publisher of the

defamation as the originator is. Moreover, it will be no defence for
the newspaper to say that what was published was merely repetition.

For while the truth of the statement (if it is published for the
public benefit) provides a defence to an action for defamation,
the
defence will succeed only if it is shown that the defamation itself
is true, not merely that it is true that the statement
was made”
(
Tsedu v Lekota
2009 (4) 372 (SCA), paragraph 5).
43
However, I think Mr. Premhid’s submission entails a
somewhat strained interpretation of the repetition rule. The rule
addresses
a situation akin to the repetition of an unverified rumour.
If the rumour turns out to be false and defamatory, the mere fact
that
the publisher only repeated what they heard does not mean that
they have not defamed the target of the rumour.
44
This case is different. The respondents did not report a
rumour that Dr. Ndlozi had committed rape. They reported the fact
that
someone had made a complaint to the police that he had done so.
The fact reported was not the rape, but the complaint of it. In
other
words, the respondents did not repeat the allegation of rape. They
reported the fact that a complaint of rape had been made
to the
police.
45
Ultimately, both Mr. Kairinos and Mr. Premhid accepted that
little turns on the application of the repetition rule. The
publication
in this case was defamatory because even the report that
a complaint of rape has been made to the police lowers a person
in
the estimation of the ordinary intelligent or right-thinking members
of society. This is true
whether or not the report amounts to
the “repetition” of the complaint
. It
matters not whether the complaint is true, or even if it is false but
reasonably made (in other words that the conduct alleged
in the
complaint was all substantially true but turns out not to have met
the legal requirements to sustain a case of rape). There
can be
little doubt that the publication of the fact that a person has been
reported to the police for rape is defamatory, because
it will
clearly tend to lower the person accused of rape in public esteem.
46
I emphasise that this does not mean that a
person who makes an allegation that they have been raped, or
publicises the fact that
they have made a complaint of rape to the
police against a named individual, thereby defames the person they
believe is their assailant.
I am not called upon to decide that
question. It is enough to say that a newspaper that publishes the
fact of such a complaint
plainly defames the subject of the complaint
in the legal sense that they damage that person’s reputation.
47
Accordingly, I am driven to conclude that
the first and the second impugned statements are defamatory. The
sting of both statements
is the fact of the complaint against Dr.
Ndlozi. However, the third impugned statement is not defamatory,
since it had no such
sting. Read as a whole, it is not primarily
concerned with the fact of the complaint. Where it did address the
complaint, it plainly
acknowledged that Dr. Ndlozi was no longer the
subject of it, and that it was necessary to find out “who the
perpetrator
is” in order for the complainant to “find
justice”.
Were
the defamatory statements substantially true?
48
Once it has been established that a statement is defamatory,
it is presumed that the statement was made wrongfully and with the
intent to injure. The presumption of intent to injure can be rebutted
by evidence that the publisher of the statements did not intend
to
defame. The presumption of wrongfulness can be rebutted if one of a
number of known defences that exclude the wrongfulness of
the
publication are established.
49
The respondents have not adduced facts that would allow me to
conclude that they did not intend to injure Dr. Ndlozi.
They
deny Dr. Ndlozi’s assertion that they acted maliciously by
holding back comment from the police when they published the
impugned
statements, but that is something different. What is required is a
positive factual case that rebuts the presumption of
intent to injure
(see
Modiri v Minister of Safety and
Security
2011 (6) SA 370
(SCA)
(“
Modiri
”),
paragraph 12). There is no such case in the respondents’
answering affidavit.
It follows that the presumption of
intent to injure has not been rebutted.
50
The respondents instead rely on two other defences. The first
defence is known as “truth and public benefit”. The
second
is the defence of “reasonable publication”. These
defences are mutually exclusive. As its name implies, the defence
of
truth and public benefit is engaged only where the published
statement is substantially true. The defence of reasonable
publication
only arises if a statement turns out to have been false
(see
National Media Limited v Bogoshi
1998 (4) SA 1196
(SCA)
at 1212G-H). Given that Dr. Ndlozi’s primary contention was
that the respondents defamed him by repeating an untrue
statement, it
is easy to see why the respondents sought to make out a defence of
reasonable publication.
51
But, on the facts, the defence is inapplicable, because the
sting of the defamatory statements is not that Dr. Ndlozi raped
someone,
but that a complaint to the police was made that he had.
This is plainly true: everybody accepts that Dr. Ndlozi was the
subject
of a complaint of rape made to the police.
52
I have given some thought to whether the misleading impression
that the first and second statement contained quotes which falsely

purport to have been taken directly from the complainant and her
complaint substantially affects the truth of either statement.

However, as Mr. Kairinos argued, persuasively, the gist of the
statements was the fact of the accusation, not the manner in which
it
was made. While I do not think that the respondents were entirely
honest in their presentation of the story, the fundamental
truth of
the gist of both the defamatory statements cannot seriously be
impugned.
Were
the defamatory statements published for the public benefit?
53
Having established that the sting of the two defamatory
statements is true, it remains to consider whether their publication
was
for the public benefit.
54
This is perhaps the most difficult part of the case. Truth has
never been a complete defence to a claim of defamation. That entails

accepting that it may sometimes be defamatory and unlawful to publish
something that is perfectly accurate. That may sound
counter-intuitive,
because, while it may sometimes be rude, or
unethical, to speak the truth, or unlawful to break a duty of
confidentiality, it seems
onerous to require a defendant, especially
a media defendant, to demonstrate that the dissemination of a true
fact was also for
the public benefit. As a general proposition, the
public benefits from knowing the truth. The media exist to
disseminate the truth,
and must be accorded an appropriate margin of
appreciation in their work towards doing so. That is precisely why we
do not generally
hold the media liable for publishing a falsehood if
the publisher reasonably believed the falsehood was true.
55
However, the law recognises that it is not always in the
public interest to publish a fact merely because it is likely to be
of
interest to the public. Cases where a person has a reasonable
expectation of privacy are a paradigmatic example. We might
appropriately
disapprove of the publication of the details of
someone’s private life – their addictions and peccadillos
for example
– unless they are a public figure who has
cultivated a reputation to which they are not really entitled because
it is contradicted
by their private conduct. But where a person
avoids the limelight, and performs no public role, there is no public
benefit to peering
into their private lives, no matter how
entertaining the consumers of media content would find it.
56
Even public figures have an expectation of privacy in relation
to particularly intimate details of their private lives, such as
their health or their children. For example, it will rarely be for
the public benefit to report, without their consent, that a public

figure or their child suffers from a particular disease, even if
knowing that they do would give comfort and relief to others.
57
It is partly for these reasons that our courts have long held
that whether the publication of a defamatory statement is for the
public benefit depends critically on the content of the statement,
and the time, manner and occasion of its publication (see, for

example,
Modiri,
paragraphs 23 to 25 and the cases referred to
there). The question, in other words, is whether there was an overall
public benefit
to the publication of the statement in the way it was
published, when it was published. Even if there was some benefit to
be had
from the publication, that must be weighed against any harm to
the public interest the publication caused.
58
Accordingly, the inquiry extends further than the harm done to
the claimant’s reputation. It is necessary to consider whether,

overall, the publication did more good than harm to the public
interest.
59
Mr. Kairinos contended that there is a clear public benefit in
the reporting of cases of gender-based violence in South Africa. As
a
general proposition this is no doubt true. There is an epidemic of
violence against women in this country. It is a national disgrace.

The violence meted out to women daily on our streets and in our homes
bespeaks a culture of male entitlement and oppressive patriarchy
that
must be highlighted, explored and exposed to opprobrium at every
opportunity.
60
Mr. Kairinos was also on firm ground when he highlighted the
position of high public esteem and trust that Dr. Ndlozi occupies. He

is a senior leader of South Africa’s third biggest political
party. He is a Member of Parliament. As a public figure he must

expect scrutiny. Where, as he has done, he speaks out against
gender-based violence, that scrutiny may legitimately extend to his

private treatment of women.
61
Against this, however, must be weighed the public interest in
the confidentiality of police investigations at a very early stage.

That confidentiality interest was recognised in
Independent
Newspaper Holdings Ltd
v Suliman
[2004] 3 All SA 137
(SCA). At paragraph 47 of that decision, Marais JA warned against
“premature disclosure of the identity of a suspect”
in a
police investigation, especially where it is clear that the person
“may never be charged or appear in court”.
Having regard
to this confidentiality interest, Marais JA held that it is generally
not “in the public interest or for the
public benefit that the
identity of a suspect be made known prematurely”.
62
That notwithstanding, in
Modiri
, Brand JA made clear
that
Suliman
did not lay down a rule that it is not for the
public benefit to disclose the identity of a person suspected of
criminal behaviour.
In that case, a publication alleged that Mr.
Modiri had long been suspected of a pattern of organised criminal
behaviour, but could
not be charged or prosecuted because none of his
low-level accomplices would give evidence against him. The
publication of those
facts was held to be for the public benefit.
Brand JA cautioned, though, that the question of whether the public
benefits from
the publication of the fact that a person is a criminal
suspect is highly context-sensitive. The confidentiality interest in
concealing
the identity of a suspect may, on the facts of a
particular case, trump the public interest in reporting the identity
of the suspect
when an investigation is at a very early stage,
especially where the facts are uncertain and there is no suggestion
of a pattern
of criminal behaviour (see
Modiri
paragraph 23).
63
As Brand JA held, the inquiry into whether a publication is
for the public benefit is also generally the stage of deliberation at

which a court will balance the right to freedom of expression,
including media freedom, against the right to dignity of the person

defamed
(see
Modiri
paragraphs 23 and 24)
. In my view, that balancing act must
take place against the backdrop of “the appropriate norms of
the objective value system
embodied in the Constitution” (see
Carmichele v Minister of Safety and Security
[2001] ZACC 22
;
2002 (1) SACR 79
(CC) paragraph 56). That value system embraces, I think, a
confidentiality interest that does not just protect the suspect’s

right to dignity. It also protects the integrity of the police
investigation.
64
Most importantly, in a case like this, it protects the dignity
and privacy of the complainant. In
NM v Smith
[2007] ZACC 6
;
2007 (5) SA 250
(CC) (“
NM
”), the Constitutional Court made clear
that the right to privacy “seeks to foster the possibility of
human beings choosing
how to live their lives within the overall
framework of a broader community. The protection of this autonomy,
which flows from
our recognition of individual human worth,
presupposes personal space within which to live this life” (
NM
,
paragraph 131). In
NM
that autonomy encompassed the right to
choose whether, when and how to disclose intimate details about one’s
private life.
65
As is clear from the facts of this case, the complainant did
not chose to make her complaint public. She did not approach the
respondents
with her story. As far as I can see, she did not
co-operate at all with its publication. Moreover, the complainant had
a right
to expect that her complaint would be treated sensitively and
that it would be kept private unless she decided otherwise. That
confidentiality interest is all the more acute when the
identification of a person’s assailant turns out to have been
mistaken,
or where, for some other reason, the police cannot or do
not pursue as a suspect the person originally identified by the
complainant.
Unless the complainant actively chooses to tell her
story publicly, I see no public benefit in it being spirited into a
newspaper
by a confidential police source where an investigation is
otherwise at a very early stage, and the police have chosen not to
comment
on it.
66
Even if there were some public benefit to reporting the
complainant’s statement in this case, it would only accrue
because
of the fact that the complaint was made against Dr. Ndlozi as
a public figure, and that it is generally in the public interest to

know the truth about the character and conduct of public figures. But
it seems to me that this benefit would be more than outweighed
by the
interest in protecting the integrity of the police investigation, and
the dignity and privacy of the complainant at the
very early stage
the investigation had reached at the time the report in this case was
published.
67
It seems to me to be potentially extremely damaging to the
capacity of the police to investigate complaints of rape against
public
figures if the media do not have to exercise caution in the
timing and manner of their reporting on an ongoing investigation. If

a rape complainant cannot be confident that their statement will not
be promptly leaked to, and published by, the media, just hours
after
it is made, they may well decide not to report their assault at all.
68
Although the focus of the public benefit inquiry is generally
on whether there is a benefit to the published facts being known, I

do not think that there is an uncomplicated line to be drawn between
the publication of the facts, and the way in which the facts
are
gathered. There are of course cases in which the value of making a
fact public far outweighs any impropriety – such as
the breach
of a duty of trust or confidentiality – that may have been
involved in securing and disseminating the information.
But this case
is not one of those. It weighs with me that Mr. Manayetso (no doubt
inadvertently) interfered with the police investigation
by naming the
complainant to Dr. Ndlozi and disclosing details of the complainant’s
statement to Dr. Ndlozi before the police
had been able to contact
Dr. Ndlozi themselves. The public does not benefit from a news story
being prepared in this way. It seems
to me that a journalist does not
act in the public interest by putting the details of a complaint to a
potential suspect before
the police have been able to do so.
69
Ultimately, I am driven to the conclusion that, on the
particular facts of this case, any public benefit derived from
reporting
the fact of the complaint against Dr. Ndlozi was outweighed
by the public interest in keeping the complaint private at the very

early stage of an investigation at which it was reported.
70
It follows that the respondents have failed to demonstrate
that the first and second impugned statements were published for the
public benefit. Accordingly, the publication of those statements was
defamatory and unlawful.
Costs
71
Mr. Premhid asked for costs on the attorney and client scale
in the event that I decided for Dr. Ndlozi. However, he could point

to no facts that would justify such an order. The respondents have
not misconducted themselves in this litigation. Their defence,
while
ultimately unsuccessful, was far from frivolous. Since it is plain
that Ms. Nkosi and Mr. Manayetso have acted throughout
as employees
of Media 24, and with its full support, it is appropriate that Media
24 bear the costs of the application alone, which
would probably have
been the effect of a joint and several costs order in any event.
Order
72
For all these reasons –
72.1
The publications annexed to the applicant’s notice of motion
as
“NOM1” and “NOM2” are declared to be unlawful
and defamatory.
72.2
The first respondent is directed to remove these unlawful and
defamatory
statements from all its media platforms including its
website, Twitter account, and Facebook account within one week of the
date
of this order.
72.3
The relief sought in paragraphs 3.2, 3.3. 3.4 and 4 of the
applicant’s
notice of motion is to be determined by reference
to oral evidence to be heard by Wilson J on a date and at a time be
arranged
with his registrar. The affidavits presently filed and their
annexures will stand as the pleadings and discovery. Further
discovery
may be agreed between the parties or authorised by Wilson J
on application brought by either party on reasonable notice to the
other.
72.4
The first respondent will pay the costs of the application to date,

including the costs of two counsel.
S
D J WILSON
Judge
of the High Court
This
judgment is handed down electronically by circulation to the parties
or their legal representatives by email, by uploading
to Caselines,
and by publication of the judgment to the South African Legal
Information Institute. The date for hand-down is deemed
to be 19
September 2023.
HEARD
ON:

8 August 2023
DECIDED
ON:

19 September 2023
For
the Applicant:

K Premhid
F Mahomed
S Mohammed (Pupil
Advocate)
Instructed by Ian Levitt
Attorneys
For
the Respondents:

G Kairinos SC
S
Mathe
Instructed by Jurgens
Bekker Attorneys