Matzner and Others v Smith and Another (183/2011) [2013] ZAECPEHC 17 (28 March 2013)

80 Reportability

Defamation Law

Brief Summary

Defamation — Publication — Elements of defamation established — Plaintiffs, trustees of the Parkhurst Body Corporate, claimed damages for defamation against defendants who distributed a letter alleging dishonesty and misconduct in managing the body corporate — Court found that the letter's contents were capable of being understood as defamatory, injuring the plaintiffs' reputation and dignity — Plaintiffs awarded damages of R10,000 each, with costs on the magistrate's court scale.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were an application for judgment in an action for defamation, brought after the defendants failed to comply with a prior court order compelling them to furnish particulars for trial. The matter ultimately came before the Eastern Cape High Court, Port Elizabeth, on an unopposed basis due to the absence of any appearance for the defendants.

The parties were three plaintiffs (Mr Robert Matzner, Mr Ray de Wet, and Ms Beryl de Wet), who were trustees of the Parkhurst Body Corporate, and two defendants (Mr Erol Smith and Ms Jackie Smith), a married couple residing in the Parkhurst Townhouse Complex. Each plaintiff initially claimed R120 000 as damages for defamation.

Procedurally, after pleadings had closed and a trial date had been set, the plaintiffs requested particulars for trial. The defendants did not respond. The plaintiffs obtained an order directing compliance within ten days. When the defendants still failed to reply, the plaintiffs returned to court seeking dismissal of the defendants’ defence and judgment in their favour. The application served before Beshe J and was not opposed.

The dispute concerned an allegedly defamatory letter authored and distributed by the defendants to residents of the Parkhurst Townhouse Complex, impugning the integrity and honesty of the plaintiffs in their capacity as trustees of the body corporate.

Material Facts

The plaintiffs were, at the relevant time, trustees of the Parkhurst Body Corporate, which managed the affairs of the Parkhurst Townhouse Complex in Lorraine, Port Elizabeth. The defendants were residents of the complex and lived there as tenants.

On or about 29 July 2010, the defendants wrote a letter addressed to “all Tenants and Owners of Parkhurst Townhouse Complex” under the subject “Barking Dog”. The letter related to complaints about the defendants’ dog and the handling of the issue by the body corporate and its trustees. The defendants distributed the letter by placing a copy in the letterbox of each of the approximately 27 units in the complex.

In the letter, the defendants asserted, in substance, that the body corporate had not handled the matter properly; that the defendants had been made to believe that a special meeting had been held when it had not; that votes were allegedly obtained in circumstances suggesting irregularity; and that trustees who did not live in the complex or who were not in a position to know relevant facts nevertheless “voted”. The letter further suggested that the trustees and body corporate acted in a manner described as lacking honesty and not following proper process, and it called for residents to stand with the defendants because it was framed as an “HONESTY” issue.

The plaintiffs relied on the contention that the letter was intended and understood by recipients to mean that the plaintiffs were dishonest, that they had a dishonest disregard for the body corporate’s processes, that they acted without honesty in discharging fiduciary duties, and that they were untrustworthy in a manner undermining their integrity and reputation.

The third plaintiff, Ms Beryl de Wet, testified (and her evidence was confirmed by the first and second plaintiffs) that the publication shocked and dismayed them, that it was regarded as a significant insult to their integrity, and that the defendants refused to apologise. The court treated the publication and its distribution within the complex as central to the plaintiffs’ claim that their reputation and dignity were harmed.

Legal Issues

The central legal question was whether the contents of the defendants’ letter, assessed in context, were defamatory of the plaintiffs, thereby unlawfully impairing their personality rights (including reputation/good name and dignity) and entitling them to damages.

This required the court to determine, as a matter of application of law to fact, the meaning of the publication (objectively construed) and whether that meaning had the tendency to undermine the plaintiffs’ good name or reputation. Once liability was established, a further issue concerned the appropriate quantum of damages.

In addition, given the procedural posture of the matter (non-compliance with particulars for trial and the absence of opposition), the court was required to decide whether to grant judgment and what relief (including costs) was appropriate in the circumstances as presented.

Court’s Reasoning

The court approached the defamation claim by applying established principles governing defamation in South African law, specifically the two-stage inquiry articulated in Le Roux v Dey 2010 (4) SA 210. The court treated the first stage as a matter of interpretation: what the publication would mean to a reasonable person of ordinary intelligence, taking account of both express statements and reasonable implications drawn from the text in context. The second stage concerned whether that meaning was defamatory, in the sense that it had a tendency or was calculated to undermine the plaintiffs’ reputation.

Applying these principles to the letter distributed within the townhouse complex, the court considered the natural and ordinary meaning of the statements complained of, understood within the context of communication to tenants and owners of the complex about the governance of the body corporate. The court concluded that the language used was capable of being understood by a reasonable recipient as conveying that the plaintiffs were dishonest, that they disregarded proper process in performing their duties as trustees, and that their conduct placed tenants at risk in the sense of undermining trust in governance. On this basis, the court was satisfied that the publication would injure the plaintiffs’ dignity and reputation and would hurt their feelings.

Having found that the statements were defamatory in their ordinary meaning and effect, the court accepted that the plaintiffs were entitled to damages to compensate for the harm suffered. The judgment reflects an evaluative assessment that the content of the letter went beyond a mere complaint and conveyed imputations of dishonesty and lack of integrity directed at trustees responsible for communal governance.

On quantum, the court noted that although each plaintiff initially sued for R120 000, counsel for the plaintiffs ultimately submitted in argument that R20 000 per plaintiff would be appropriate. The court then exercised a discretion on damages, stating that it had regard to relevant factors and to examples of awards in cases referred to in argument, and concluded that R10 000 per plaintiff constituted an appropriate award.

Regarding costs, the issue was left to the court’s discretion. The court considered it appropriate to award costs on the magistrates’ court scale, indicating an evaluative judgment about proportionality in costs relative to the nature and scale of the dispute and relief granted.

Outcome and Relief

The court granted judgment in favour of the plaintiffs.

The defendants were ordered to pay each of the three plaintiffs R10 000 as damages for defamation, with liability stated to be joint and several, the one paying the other to be absolved.

The plaintiffs were awarded costs on the scale applicable in the Magistrates’ Courts.

Cases Cited

Le Roux v Dey 2010 (4) SA 210.

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, on an objective construction of the letter distributed by the defendants to tenants and owners in the Parkhurst Townhouse Complex, the words complained of were capable of conveying to a reasonable reader that the plaintiffs were dishonest and did not properly follow the body corporate’s processes in discharging their duties as trustees. The court held that this meaning was defamatory, injured the plaintiffs’ reputation and dignity, and warranted an award of damages.

The court further held that an award of R10 000 per plaintiff was appropriate on the facts and that costs should be awarded on the magistrates’ court scale.

LEGAL PRINCIPLES

Defamation protects a person’s personality rights, including the right to reputation/good name and dignity, and provides a remedy in damages where those rights have been unlawfully and intentionally impaired.

Whether a publication is defamatory involves a two-stage inquiry. First, the court determines the meaning of the publication as a matter of interpretation, assessed by reference to how a reasonable person of ordinary intelligence would understand it, considering both express content and what is reasonably implied in context. Second, the court determines whether that meaning is defamatory, in that it has the tendency or is calculated to undermine the plaintiff’s reputation.

The reasonable reader is assessed objectively and contextually, with regard to the nature of the audience to whom the publication is directed.

Damages in defamation are a matter of judicial discretion, assessed with reference to relevant contextual factors and comparative awards, and costs are likewise discretionary, including the determination of an appropriate scale.