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[2011] ZAGPPHC 152
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Minister of Trade and Industry v Mphahlele and Another (64514/10) [2011] ZAGPPHC 152 (25 August 2011)
REPORTABLE
I
N
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Date: 2011-08-25
Case Number:
64514/10
In the matter between:
MINISTER OF
TRADE AND INDUSTRY
…........................................
Applicant
and
EDWIN MATANE
MPHAHLELE
..............................................
First
Respondent
LOUISE
KRITZINGER
…......................................................
Second
Respondent
JUDGMENT
SOUTHWOOD J
[1]
On
8 April 2011 this court granted a judgment by default in favour of
the first respondent against the Minister of Trade and Industry,
the
applicant, for payment of damages in the sum of R15 million. The
first respondent claimed this amount as damages for defamation.
On 8
June 2011 the applicant launched this application in terms of Rule
31(2)(b) for an order setting aside the default judgment
granted on 8
April 2011 and on 13 June 2011 the first respondent’s attorney,
Mr. S.N. Molele of SN Molele Incorporated delivered
a notice of
intention to oppose and the first respondent’s opposing
affidavit. The applicant did not deliver a replying
affidavit and on
5 July 2011 Mr. Molele delivered a notice of set down for hearing on
the opposed roll of 22 August 2011. The
first respondent’s
attorney filed a practice note and heads of argument but the
applicant did neither. The first respondent
seeks an order
dismissing the application with costs on the scale as between
attorney and client.
[2] On 17 August
2011, after perusing the available record, I requested my registrar
to direct a letter to the two attorneys acting
on behalf of the
parties and to send copies to the following people: Ms. A.M. Mosidi,
the State Attorney, Pretoria; Mr. R. Davies,
The Minister of Trade
and Industry; Ms. I. Sick, the Private Secretary of the Minister of
Trade and Industry; Mr. P. Gordhan,
the Minister of Finance; Ms. J.
Scott, the Private Secretary of the Minister of Finance (the reasons
for doing so appear from
the letter which is filed at p131-134 of the
applicant’s record). In this letter I sought an assurance that
the applicant
did not wish to proceed with the application as it
seemed inappropriate to deal with the matter on an unopposed basis.
[3] Shortly after
this letter was faxed to all the parties concerned on 18 August 2011,
the applicant’s attorney filed the
applicant’s replying
affidavit and the applicant’s counsels’ practice note and
heads of argument and a bundle
of correspondence between the
applicant’s and first respondent’s attorneys. It appears
from the correspondence that
the applicant’s attorney, the
State Attorney, objected to the enrolment of the matter because the
first respondent had not
complied with the relevant practice
directive: he had not served the index of the papers on the State
Attorney to enable the State
Attorney to file a practice note and
heads of argument. After the State Attorney unsuccessfully attempted
to have the first respondent
remove the matter from the roll the
State Attorney immediately instructed counsel to prepare a practice
note and heads of argument.
These were served and filed on 18 August
2011.
[4]
The
papers filed by the first respondent do not have an index. It is
therefore not possible to determine whether the first respondent
did
comply with the practice directive. Where the applicant had not
filed a replying affidavit and did not seem to be pursuing
the matter
the first respondent was entitled to index and paginate the papers
and then enrol the matter for hearing. But the practice
directive
requires that on completion of the index it must be served
immediately on the other party and must include prominently
on the
front page the date on which it was completed. The applicant then
had 15 days from that date to serve and file heads of
argument. If
the first respondent did not comply with these requirements the
applicant would not know that he had to file heads
of argument. This
an adequate reason for the applicant’s failure to file his
replying affidavit and practice note and heads
of argument before the
roll closed.
[5]
It
is clear that if the judgment is not rescinded it will be a serious
miscarriage of justice. The first respondent’s particulars
of
claim are excipiable: they are vague and embarrassing and/or they
lack averments which are necessary to sustain an action.
Furthermore, the damages awarded are out of all proportion to any
wrong committed and far exceed previous awards for serious
defamations. These issues will be dealt with in turn.
[6]
The
elements of the delict of defamation are:
(i) the wrongful and
(ii) intentional
(iii) publication of
(iv) a defamatory statement
(v) concerning the plaintiff.
Once a plaintiff
has established that the defendant has published a defamatory
statement concerning the plaintiff, it is presumed
that the
publication was both unlawful and intentional. A defendant who
wishes to avoid liability for defamation must then raise
a defence
which rebuts unlawfulness and intention see
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002
(5) SA 401
(CC)
para
18;
Le
Roux v Dey
2011
(3) SA 274
(CC)
paras
84 and 85. ‘Publication’ means the communication or
making known to at least one person other than the plaintiff.
The
most obvious way of doing this is by speech or print – see
Le
Roux v Dey supra
para
86. A statement may have a primary and a secondary meaning. The
primary meaning is the ordinary meaning given to the statement
in its
context by the reasonable person. The secondary meaning is a
different meaning from the ordinary meaning which arises in
the
special circumstances of the case. This meaning will be attributed
to the statement by someone having knowledge of those special
circumstances. A plaintiff who relies on such secondary meaning
(also called innuendo) must plead the special circumstances from
which the statement derives its secondary meaning – see
Le
Roux v Dey supra
para
87.
[7] Where the
plaintiff contends that the published statement is defamatory
per
se,
a
two stage enquiry must be undertaken. In the first, the ordinary
meaning of the statement must be established. In the second,
it must
be determined whether that meaning is defamatory. The test to be
applied in the first stage is objective. The question
is what
meaning the ordinary reader of reasonable 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 regard not only to what
is
expressly stated but also to what is implied. The court is not
concerned with the meaning the maker of the statement intended
to
convey or with the meaning given to it by the persons to whom it was
published. In the second stage the court must decide whether
the
meaning established is defamatory: i.e. if it is likely to injure
the good esteem in which the plaintiff is held by the reasonable
or
average person to whom it has been published (or put differently, if
it would ‘tend to lower the plaintiff in the estimation
of
right-thinking members of society generally’). Consequently a
statement is defamatory if it attributes to the plaintiff
that he has
been guilty of dishonest, immoral or otherwise dishonourable conduct
– see
Le
Roux v Dey supra
paras
89 and 91.
[8
] Paragraph
5 of the particulars of claim contain the allegations which underlie
the whole claim:
‘On
23
rd
July 2010 at Pretoria, alternatively, Johannesburg, the defendant
(
obviously
the second defendant
)
stated to Brooks and Brand a firm of attorneys, of and concerning the
plaintiff that “all fraudulent information was removed”’.
(My emphasis).
This statement is alleged to mean
that the plaintiff is dishonest in the following respects:
(1) that he misled the Companies and
Intellectual Properties Registration Office that he is a director of
Tension Overhead Electrification
(Pty) Ltd t/a Tractionel Enterprise;
(2) that he is corrupt;
(3) that he is untrustworthy; and
(4) that he is a fraudster
and the additional sting that
plaintiff is –
(5
) not
a law-abiding citizen;
(6
) a
coward; and
(7
) without
any moral fibre.
[9
] The
allegation that the defendant stated to Brooks and Brand ‘of
and concerning the plaintiff that “all fraudulent
information
was removed”’ is the only allegation of what the second
defendant did. There are no allegations of the
circumstances in
which the statement was made. In my view, as it stands, the
allegation is meaningless and cannot be understood
in any grammatical
sense. The words ‘all fraudulent information was removed’
do not refer to any person or attribute
any wrongdoing to anyone,
particularly not the first respondent. The particulars of claim are
therefore vague and embarrassing
- see
Screening
& Earthworks (Pty) Ltd and Another v Capital Outsourcing Group
(Pty) Ltd; Capital Outsourcing Group (Pty) Ltd v Screening
&
Earthworks
(Pty) Ltd
[2008]
1 All SA 611
(B)
para
8.
[10
] The
particulars of claim also lack averments to show that the statement
was in fact made ‘of and concerning the plaintiff’.
Since this is essential in a defamation action the particulars of
claim do not disclose a cause of action – see
Le
Roux v Dey supra
para
84;
Khumalo
and Others v Holomisa supra
para
18;
SA
Associated Newspapers Ltd v Pelser
1975
(4) SA 797
(A)
at
810C-H. If the plaintiff is not referred to by name in the statement
the special circumstances which would have identified the
plaintiff
to the addressees must be pleaded – see
Argus
Printing & Publishing Co Ltd v Weichardt
1940
CPD 453
at
459-60;
Visse
v Wallach’s Printing & Publishing Co Ltd
1946
TPD 441
at
446.
[11
] A
second reason why the particulars of claim do not disclose a cause of
action is that the statement ‘all fraudulent information
was
removed’ does not expressly or by implication attribute to any
person any form of wrongful conduct let alone the meanings
alleged.
It is therefore at least arguable that the ordinary reader of
reasonable intelligence would understand it to mean that
the
information has been removed from some record or document and nothing
else.
[12
] A
court which is requested to grant judgment by default should not do
so unless the summons and/or the particulars of claim contains
a
valid cause of action – see
Cohen
Ltd v Koekemoer
1949
(2) SA 807
(SWA)
at
808-809;
Theron
v Coetzee
1970
(4) SA 37
(T)
at
48D-E.
[13
] The
situation does not change if the circumstances in which the statement
was made are taken into account (these are not in dispute
on the
papers). They can be summarised as follows:
(1) On 19 July 2010
in
J
Boshoff NO and 10 Others v Mphahlele ME and 10 Others
under
case number 40771/2010 this court granted an interim order
interdicting the first respondent and 6 other respondents from
performing or purporting to perform any acts as directors and company
secretaries of the 10
th
respondent (Tension Overhead Electrification (Pty) Ltd) and ordered
the 11
th
respondent (CIPRO) to restore the status quo in its records of the
10
th
respondent’s directors and company secretaries as at 20 June
2010;
(2) On 20 July 2010 attorneys Brooks
and Brand addressed a letter to CIPRO enclosing a copy of the order
and requesting that CIPRO
give effect to it;
(3) On 22 July 2010
Tina Rabilall, a CIPRO official, addressed the following e-mail to
Louise Kritzinger, the 2
nd
respondent (and the 2
nd
defendant in the action) under the subject ‘Tension Overhead
Electrification (Pty) Ltd/Reg No 1982/010497/07. Urgent Application
Johannes Boshoff NO and Others/Mphahlele ME and Others case number
40771/10’:
‘Hi
Louise.
The
above matter refers.
Kindly
attend to the removing of directors as per the court order attached.
The
court has ordered CIPRO to restore the status quo in the records of
the above Company as at 20 June 2010.
Mphahlele
M Edwin
Makgae
Hellen Kentse
Khumala
Mpini Meschack
Brachini
Osvaldo
Mphahlele
M Thomas
CFP
Management Services (company sec).
The above persons are interdicted and
restrained from being directors and Company secretary of the above
Company. Thus remove
them as active directors and Co sec.
CM29
with tracking number 19516078.
Audrey:
prepare change request forms attach mail. Please attach court
papers.
Thanks
all’;
(4) On 23 July 2010
the second respondent sent the following e-mail to Trish Kriel of
Brooks and Brand and Tina Rabilall with copies
to Audrey Rakau and
Viyani Mkohla, two CIPRO officials:
‘Subject:
Re Fwd: Tension Overhead Electrification (Pty) Ltd/Reg No
1982/010497/07: Urgent application Johannes Boshoff
NO and
others/Mphahlele ME and others case number 40771/10
Attachments:
198201049707.htm
Good
afternoon
The
matter has been sorted out and the information has been restored to
what it should be.
The
CM29 with tracking nr 19516078 had been deleted from the system.
All
Fraudulent information was removed as per your instruction below.
Regards’
The
‘instruction below’ was the e-mail from Tina Rabilall to
the second respondent on 22 July 2010.
[14
] In
my view even when read in this context the ordinary meaning of the
words does not include an implication that the first respondent
committed fraud. It is at least arguable that the ordinary reader of
reasonable intelligence would understand that certain wrong
(inappropriately described as ‘fraudulent’) information
had been removed from the CIPRO records. It is also at least
arguable that the ordinary reader postulated would not understand the
statement to attribute, either expressly or by implication,
fraudulent or any other wrongful conduct to any person. The
statement therefore does not appear to be defamatory.
[15
] But
even if it is accepted that the particulars of claim do contain a
valid cause of action and/or that the facts referred to
justify an
award of damages, the damages awarded are unprecedented and far
exceed what reasonably could have been awarded. A claim
for damages
for defamation is obviously not a liquidated claim and a court which
is required to grant judgment must, in every case,
assess the damages
to be awarded in the light of all the facts and circumstances of the
case. (These were set out in an affidavit
deposed to by the first
respondent). Awards in previous cases offer some guidance but are
obviously not binding as they are made
in the light of the facts and
circumstances of the cases concerned. Nevertheless awards made in
other cases may demonstrate that
an award is palpably excessive and
clearly disproportionate to the circumstances of the case. Such an
award will be reduced on
appeal despite the wide discretion of the
trial court to award damages – see
Salzmann
v Holmes
1914
AD 471
at
480;
Le
Roux v Dey
2010
(4) SA 210
(SCA)
para
42.
[16
] The
trial court did not give reasons for the award but it is clear that
there were a number of facts and circumstances which should
have
limited the amount of the award. These include the fact that there
was no malice; the applicant’s officials immediately
tendered
an apology for the inappropriate use of the word ‘fraudulent’
and there was very limited publication, to three
or four people at
most. In recent cases where the defamation was serious and there was
wide publication the awards have been far
less than R15 million –
see e.g.
The
Citizen 1978 v McBride
2010
(4) SA 148
(SCA)
paras
1 and 45-48;
The
Citizen 1978 v McBride
2011
(4) SA 191
(CC)
paras
129 and 136;
Tsedu
and Others v Lekota and Others
2009
(4) SA 372
(SCA)
paras
3 and 25;
Mogale
and Others v Seima
2008
(5) SA 637
(SCA)
paras
1 and 8-18;
Le
Roux v Dey
2010
(4) SA 210
(SCA)
paras
1 and 42-48;
Le
Roux v Dey
2011
(3) SA 274
(CC)
paras
150 and 200-206. I have not been referred to one case where there
has been an award in excess of R200 000.
[17
] The
applicant would therefore be able to make out a case for an award of
much less than R15 million – probably less than
R100 000.
[
18] The
first respondent has sought to defend his judgment with reference to
the technical rules relating to applications for condonation
and
applications for rescission in terms of Rule 31(2)(b). He points out
that the applicant was informed of the judgment on 11
April 2011 and
only launched the application on 8 June 2011 (i.e. some 18 days late)
and that the applicant has not made out a
case for condonation. With
regard to the granting of the default judgment he contends that the
applicant has not shown ‘good
cause’ as required by Rule
31(2)(b).
[19] With regard to
condonation, the first respondent relies on
Federated
Employers Insurance Co Ltd v McKenzie
1969
(3) SA 360
(A)
at
362G-H where the court said:
‘In
considering petitions for condonation under Rule 13, the factors
usually weighed by the Court include the degree of non-compliance,
the explanation therefor, the importance of the case, the prospects
of success, the respondent’s interest in the finality
of his
judgment, the convenience of the Court and the avoidance of
unnecessary delay in the administration of justice …
The
cogency of any such factor will vary according to the circumstances,
including the particular Rule infringed.’
While the
explanation for the non-compliance is not convincing and suggests
that proper attention was not given to the matter this
is far
outweighed by the other factors. The degree of non-compliance was
not great. In addition the case is important (it involves
a judgment
for R15 million), the applicant’s prospects of success are very
good, the court is not inconvenienced and it is
essential for the
administration of justice that the clearly erroneous judgment be
corrected. The facts speak for themselves and
condonation should be
granted for the applicant’s delay in launching these
proceedings.
[20] The
requirements for rescission were set out in
Grant
v Plumbers (Pty) Ltd
1949
(2) SA 470
(O)
at
476-477:
‘
(a) He must
give a reasonable explanation of his default. If it appears that his
default was wilful or that it was due to gross
negligence the Court
should not come to his assistance.
(b) His application
must be
bona
fide
and
not made with the intention of merely delaying the plaintiff’s
claim.
(c) He must show
that he has a
bona
fide
defence
to plaintiff’s claim. It is sufficient if he makes out a
prima
facie
defence
in the sense of setting out averments which, if established at the
trial, would entitle him to the relief asked for. He
need not deal
fully with the merits of the case and produce evidence that the
probabilities are actually in his favour.’
Once again the
facts speak for themselves. Although the explanation for the default
lacks detail and was rightly criticised by
the first respondent’s
attorney it is clear that the default was not wilful or grossly
negligent and that for some inexplicable
reason the summons was not
brought to the attention of the responsible person. The applicant is
obviously
bona
fide
.
He seeks to rectify a judgment which is patently wrong. The
applicant has a
bona
fide
defence.
The first respondent does not have a valid cause of action and, in
any event, in my view, on the known facts, it is highly
improbable
that the first respondent will succeed in proving that he was
defamed. The letter from the applicant’s Department
apologising for the statement made is not an admission of defamation
let alone an admission of liability for defamation. Finally,
even if
the first respondent was defamed, an award of damages will be
considerably less than R15 million.
[2
1] The
parties agree that the applicant should pay the wasted costs of the
first respondent’s application for judgment by
default and that
the costs of the application be costs in the cause.
[22] The second
defendant who was cited as second defendant in the action played no
part in these proceedings. The first respondent
did not obtain a
judgment against her.
[23
] The
following order is made:
I Condonation is granted for the late
filing of the applicant’s application for rescission;
I
I The
judgment by default granted in favour of the first respondent on 8
April 2011 under case number 64514/2010 is rescinded and
set aside;
III The applicant
is granted leave to file a notice of intention to defend the main
action within 10 (ten) days of this order;
IV The applicant is ordered to pay the
first respondent’s wasted costs in the application for judgment
by default;
V The costs of
this application will be costs in the cause;
VI It is noted the applicant was
represented by two counsel and the question of the costs of two
counsel is reserved.
__________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
CASE NO:
64514/2010
HEARD
ON: 22 August 2011
FOR
THE APPLICANT: ADV. S.J. MARITZ SC
ADV. S. MANGOLELE
INSTRUCTED
BY: State Attorney
FOR
THE FIRST RESPONDENT: MR. S.N. MOLELE
INSTRUCTED
BY: SN Molele Incorporated
DATE
OF JUDGMENT: 25 August 2011