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[2018] ZAECPEHC 40
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Arvesco 119 (Pty) Ltd t/a Carry Cat Marine and Another v Sonday (2050/2017) [2018] ZAECPEHC 40 (10 May 2018)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 2050/2017
In
the matter
between:
ARVESCO
119 (PTY) LTD t/a CARRY CAT MARINE
First Applicant
DAVID
HERCULES
SCHOLTZ
Second Applicant
And
ISMAIL
SONDAY
Respondent
Coram:
Chetty J
Heard:
26
April 2018
Delivered:
10 May 2018
JUDGMENT
Chetty
J:
[1]
Given its centrality to the legal issues which fall for
determination, it is apposite to commence this judgment with the
reproduction
of Lewis JA’s pragmatic approach, with
reference to eminent authority, in determining the defamatoriness of
words complained
of, to wit
[1]
:
-
“
[25]
The test for determining whether words published are defamatory
is to ask whether a ‘reasonable
person of ordinary intelligence
might
reasonably understand the words . . . to convey a meaning
defamatory of the plaintiff. . . . The test is an objective one.
In
the absence of an innuendo, the reasonable person of ordinary
intelligence is taken to understand the words alleged to be
defamatory
in their natural and ordinary meaning. In determining this
natural and ordinary meaning the Court must take account not only of
what the words expressly say, but also of what they imply’ (per
Corbett CJ in
Argus
Printing and Publishing Co Ltd v Esselen’s Estate
[2]
).
[26]
One must have regard also, however, to what the ordinary reader of
the particular publication
would understand from the words complained
of. A clear statement of this principle is to be found in
Channing
v South African Financial Gazette
Ltd
[3]
a passage relied on by Joffe J in the court below. In
Channing
Colman J said, with reference to the
locus
classicus
in point,
Johnson
v Rand Daily Mails Ltd
:
[4]
‘
From these and other
authorities it emerges that the ordinary reader is a “reasonable”,
“right-thinking”
person, of average education and normal
intelligence; he is not a man of “morbid and suspicious mind”,
nor is he “super-critical”
or abnormally sensitive; and
he must be assumed to have read the articles as articles in
newspapers are usually read. For that
assumption authority is to be
found in
Basner v
Trigger
1945 AD 22
at
pp 35-6. It is no doubt fair to impute to the ordinary reader of the
South African Financial
Gazette
a somewhat
higher standard of education and intelligence and a greater interest
in and understanding of financial matters than
newspaper readers in
general have. But this, I think, is clear: one may not impute to him,
for the purposes of this inquiry, the
training or the habits of mind
of a lawyer.’
”
[2]
The first applicant is a manufacturer of deep-sea angling boats based
in Jeffreys Bay and the second applicant, its shareholder
and
manager. I shall henceforth refer to them collectively as the
applicant. It seeks relief formulated as:-
“
(a)
that the Respondent be ordered to remove from the website,
“
www.boatfishing.co.za
”
,
all postings defamatory of the Applicant’s manufacture of their
product “Carry Cat”;
(b)
that Respondent be interdicted and restrained from permitting on the
website “
www.boatfishing.co.za
”
,
any postings defamatory of the Applicant’s manufacture of their
product, “Carry Cat”;
(c)
directing the Respondent as administrator of the website,
www.boatfishing.co.za
, to
fulfil his duties as administrator by refusing to permit the posting
of content defamatory in respect of the Applicants’
manufacture
of their product “Carry Cat”;
(d)
directing the Respondent to disclose to the Applicants within five
(5) days of this
order the identities, contact details, email
addresses and IP addresses of the following forum members of the
“boatfishing”
website:
(i)
Pirate Pete;
(ii)
Backline;
(iii)
Leerie2;
(iv)
Veritas;
(v)
RWD;
(vi)
Seabass; and
(vii)
Carrycat;
(e)
that the Respondent be ordered to pay the costs of this application.”
[3]
The applicant contends that the myriad postings on the aforementioned
website constitute
“
false,
derogatory and malicious defamatory statements”
concerning himself and
the first applicant. An objective analysis of the offending posts
however ineluctably compels the conclusion
that it amounts to no more
than robust debate amongst deep-sea angling enthusiasts which no
reasonable, ordinary and right thinking
internet site reader would
consider defamatory. But, on the assumption that it is, does the
defence of fair comment, the justification
advanced by the
respondent, not avail him? The answer thereto requires, in the first
instance, an historical overview of the events
which precipitated
this application.
[4]
In 2013 an entity, Butt-Cat Boat Builders (Butt Catt), based in
Kenton on Sea, voiced its concerns that the applicant had unlawfully
purloined the hull of its catamaran ski boat to the detriment of
their business and called upon it to cease production of what
they
contended were identical hulls. In the founding affidavit, the
applicant adverted to the dispute thereanent and to a meeting
held
subsequently between himself, his attorney, Butt-Cat, and its
attorneys to resolve the matter and narrated its import as :
-
“
8.
At this inspection Mr John Butt and his attorney inspected the First
Applicant’s
premises, the mould used by the First Applicant and
the hulls manufactured by the First Applicant. During this inspection
Burrell
made various comments suggesting that First Applicant and I
had copied the Butt-Catt design in various respects. I then
instructed
my attorney to ask Mr Butt’s attorney to request Mr
Burrell to withdraw from our meeting and inspection as he was not
part
of the Butt-Cat delegation. Mr Burrell undertook to remain
silent.
9.
Mr Butt and his attorney continued with the inspection. Mr Butt
inspected a mould
and a hull which had recently been taken out of the
mould. This was the mould of the Carrycat 670. He did so thoroughly.
He then
stated in the presence of all those attending that the hull
was not the same as the Butt-Cat hull and that I could continue to
build the boats, subject to certain conditions. Mr Butt and his
attorney were thus satisfied that the First Applicant and I had
not
copied their design and was not competing unlawfully with them. An
oral agreement was reached after the inspection in the following
terms (as recorded by my attorney to me in his letter dated 5
November 2013):
9.1
that the First Applicant may use the name Carry Cat as a trademark
with regard to the boats manufactured
by it;
9.2
the First Applicant could proceed with the manufacture of its boats
using the design of the two hulls
which was inspected during the
inspection;
9.3
that the First Applicant may not use the name Butt-Cat in the
manufacture or marketing of its products;
9.4
the First Applicant would identify boats manufactured by it with the
name Carry-Cat built at Jeffrey
Bay.
We all parted amicably
after this meeting.”
[5]
It is apparent from the respondent’s opposing affidavit that
the applicant’s account of this meeting was less than
candid. A
significant omission was that Butt Cat’s ski boat’s hull
mould had been found at the applicant’s premises
and had
subsequently, at Butt-Catt’s insistence, been destroyed in the
presence of all concerned parties on 31 October 2013.
Although the
applicant had, in his founding affidavit, paraphrased the import of
his attorneys’ letter to him dated 5 November
2013, it
contained no reference to the destruction of the mould – it
lurked amidst the narrative of the annexed letter and
only close
scrutiny to such appendix would have revealed the true state of
affairs. It is apparent from annexure “C”
to the founding
affidavit that Butt Cats’ attorneys complained that the
applicant.
“
used
an old Butt Cat hull for the purpose of manufacturing a mould from
which he produced catamaran ski boats known as the “Carry
Cat.”
As I shall in due course
advert to, the applicant’s surreptitious use of Butt Cat’s
mould became a matter of public
knowledge and informed much of the
debate amongst the ski boat fraternity.
[6]
The requirements of the defence pleaded, i.e. fair comment, were
articulated by Harms AJA,
[5]
as:
-
“
(i)
the statement must be one of comment
and not of fact;
(ii)
it must be fair;
(iii)
the facts upon which it is based must be true; and
(iv)
the comment must relate to matters of public interest.”
[7]
In similar vein and in a constitutional context, Jones AJA
[6]
stated the matter thus, -
“
[12]
Once the statement about Delta’s product is shown to be prima
facie defamatory, the onus is on
the respondent to show that
publication thereof was not wrongful. The respondent seeks to do so
by relying on the exercise of his
right to freedom of expression. His
defence is that of fair comment. There has always been tension
between the right to freedom
of expression, which is protected inter
alia by the defence of fair comment, and rights to dignity, fama, and
an unsullied reputation,
which are protected by the remedies for
defamation. The Constitutional Court has held in Khumalo and
others v Holomisa
that the principles of the common law as
recently developed in National Media Limited and others v Bogoshi
are consistent
with the provisions of the Constitution and maintain a
proper balance between the right to reputation and the right to
freedom
of expression. It remains to apply those principles to the
facts.
[13]
For the defence of fair comment to succeed, the respondent must prove
that the statement in question
was a comment or opinion and not an
allegation of fact; that it was fair; that the allegations of fact
commented upon were true
and accurately stated; and that the comment
was about a matter of public interest (Marais v Richard en 'n
ander). ‘The
use of the word “fair” . . . is
not very fortunate. It does not imply that the criticism for which
protection is sought
must necessarily commend itself to the judgment
of the Court, nor that it must be impartial or well-balanced. It
merely means that
such criticism must confine itself within certain
prescribed limits’. Those limits are that the comment
must be a genuine
expression of opinion, it must be relevant, and it
may not be expressed maliciously.”
[8]
Thus, to determine the validity of the submissions advanced by the
respondent that the posts were expressions of opinions based
upon
facts which were substantially true, it is necessary to contextualise
the postings on the respondent’s, and, kindred
websites. It is
common cause that deep-sea angling aficionados utilise such websites
as discussion fora in matters incidental to
their discipline. The
offending posts, although delineated as annexures “R1” –
“R19” in the founding
affidavit, in fact comprise fifteen
(15) concatenated postings over the period 4 to 7 February 2017,
marked R1, R4, R5, R6, R7,
R8, R9, R10, R11, R12, R13, R14, R15, R16
and R17 respectively.
[9]
Their
fons
et origo,
reproduced
hereunder
,
is a photograph of damage to a boat’s transom and commentary
thereanent posted by one
Veritas
on R1, the opening salvo post which concluded with the comment,
“
would you
trust your life and your crews’ lives with this type of
quality.”
[10]
It triggered a plethora
of posts, commencing with
R4,
a riposte by
Pointrunner
,
a boat owner in which he not only bemoans the damage to the boat but
extolls the virtues of the first applicant’s expertise.
It
elicited a response, R5, 6 and 7, from the respondent under his
nom
de guerre
,
Miles
,
wherein he voiced his opinion on the damage with particular emphasis
on the boat’s age. It in turn educed R8, a posting
by
Rwd
,
a detailed technical exposition of the boat’s shortcomings.
Pointrunner
responded to R5, 6 and 7 in R8 wherein he lambasted the respondent
for his condescending attitude and comment and it, sequentially,
elicited comment the following morning from
Seabass
in R9 wherein he expressed his opinion as follows: -
“
And
this is exactly why you pay a premium for Butt Cats!! If Dawie is a
man of integrity and helpful like all the Carrycat owners
say he is
he will replace the hull (not repair it) and get Pointrunner charters
up and running ASAP. The charterers livelihood
is at stake due to a
poorly built vessel. Miles, the guys from Nautitech and many others
on this forum called it right from the
beginning saying that the
Carrycats were being built inferior and the correct materials and
volumes weren’t being used. The
Carrycat owners argued that
this was not the case and that they were being biased towards
Buttcat. Pictures don’t lie. Turns
out that Nautitech weren’t
bullshittig about the build quality of Carrycats and were stating
facts. If I owned a Carrycat
I would certainly be a nervous owner and
would thoroughly go and check my vessel immediately. Robbie I hope
you get this sorted
ASAP so you can get back on the water. With poor
fishing in Cape Town at the moment this leaves lots of time to
discuss this incident
at length. Will be interesting to see what the
outcome is.”
[11]
Shortly thereafter,
Pirate
Pete
joined the fray and in R10 waxed lyrically, and concluded his
viewpoint with the rejoinder,
“
The
most important thing is to be safe and have a vessel that in any
weather brings you and your crews home to their loved ones
after each
trip. Tight lines and safe sailing.”
His
request that the respondent repost pictures of the boat, “
Fishtales
”
,
saw the reproduction of R11 on the site and ushered in
Leeries
contribution to the conversation, a repost of
Pirate
Pete’s
comment on R10 and his own opinion piece.
Pointrunner
and
Pirate
Pete
then added their tuppence to the debate (R13), followed by
Mombakkie’s
expression of empathy and
Rwd’s
viewpoint, (R14).
.
[12]
R14 also records a post by
Backline
,
the latter clearly no boating novice as appears from his comments,
viz
“
I
do not profess to be a boatbuilder or for that matter a boat
designer, but I KNOW boats both on and off the water. A couple of
years ago I was asked to do an appraisal of a NEW Carry Cat on the
floor of a Somerset west dealership for a friend who was looking
to
buy a budget boat. I was alarmed at the flimsiness of the hull and
the poor quality of the finishes and advised the potential
buyer to
steer clear.
Shortly
after pictures of another CC emerged with serious delamination
problems. At that stage I voiced concern on this forum and
received
threatening phone calls from at least 1 CC owner.
I
had my 760 Butt revamped with outmounts {hull extensions} and other
mods done by Nautitech about the same time. A couple of months
later
I saw a CC on a slipway and noticed it was almost identical.
Virtually everything had been cribbed. I was now gatvol and
again
voiced concern on the forum about how a system that took at least a
year to develop could be cribbed in a matter of weeks.
Again more
threats, legal this time and I backed off.
For
those unfortunate owners of CC I SINCERELY hope that your boats have
been built up to standard and that you do NOT suffer the
same fate of
a least 3 buyers. BUTT you were warned.”
[13]
In R15,
Thyslouw
, an unsolicited sympathiser for the
applicant’s cause, takes umbrage at the criticism directed at
the applicant and vouchsafes
the Carry Cat’s integrity. It in
turn elicited comments by
Seabass
(R15),
Fully
Hooked
and the respondent (R16) and
Rwd
(R19,)
reproduced hereunder as follows, respectively: -
“
R15
Thys, let’s state
the facts. Unfortunately the early Carrycats were poorly built. Fact.
Not sure if Dawie has changed his
ways but hopefully build quality
has improved. I personally know of 5 Carrycats that have had fairly
serious issues due to poor
workmanship and possibly incorrect
materials being used. That’s 5 that I’m aware of! How
many more are giving trouble
that we don’t know about!
I’m
not a boatbuilder but I spend more time on a boat than most people so
know what is acceptable and what’s not
. . . Seems the
Carrycat owners are always trying to defend the Carrycat brand for
some reason and cover up all these mishaps. Maybe
you are lucky and
your boat was built correctly. Let’s hope that the newer
Carrycats are being built better and stronger
and we don’t see
more of this happening at it’s very unpleasant for the boat
owner and builder alike.”
“
R16
Looks like this week
all the carry cat guys will be looking under their hulls, whilst we
BUTT cat owners are fishing!!”
“
R16
There is an old adage,
WE LIVE IN A SMALL WORLD. However, the fishing community is an even
smaller one …………..
I spent the morning
sorting out some boating stuff and you’ll not believe how small
our fishing community really is!!
In June 2016, this
particular vessel sustained damage to the hull, as well as having an
issue with water filling the battery boxes
up. It was taken to a
prominent boating company here in the Cape and they tried to sort out
the water filling up the battery boxes.
The join between the top deck
and hull was not properly sealed and this is where the water entered
the transom!! The boating company
here in the Cape advised taking the
boat back to the manufacturer, to fix the damage inside the tunnel.
The boat then went back
to Carry Cat to fix the issue.
They FIXED the boat,
yet a mere few months later, the same area’s are damaged/broken
………….
Please correct me if if
am wrong so far …………..”
“
R17
BFC im not making
assumptions.
I looked at a carry cat
awhile back thats sender units had rusted over and broke off, the
petrol went wild underneath the deck.
That is the absolute first
place to start looking if I owned a one of them. That boat would have
probably blown the harbour up.
These guys gave gone
insanely thin on the hulls to save weight, there is no debate there.
Having a 3mm skin with 0 structural core
behind it is madness
considering its above 13 ft, atleast use more layers if you going to
be using the worst materials. Having
20mm thick gelcoat being painted
on which is becoming more structural than the fiberglass is 100%
going to tear the shit out of
the fibreglass when it cracks, which it
will especially glass being so thin. Look at all those boats
underneath ……”
[14]
It will be gleaned from the content of the aforegoing posts that the
underlying substratum of the debate is the photograph
reproduced in
paragraph [9] above. It is furthermore apparent that each of the
contributors, in particular the respondent, are
not the run of the
mill
“
fishermen”
but deep-sea anglers
possessed with the requisite skill, competence and knowledge of
matters related to their discipline. Although
Seabass
commenced his post with the assertion, “. . .
let’s
state the facts”
,
an holistic appraisal of the entire internet debate establishes that
he and the other scribes were merely expressing their opinion,
albeit
in some instances, firmly. The posts complained about clearly
constitute comment which is fair, honest, genuine and in the
public
interest. The defence of fair comment must consequently succeed. In
the result the following order will issue: -
The
application is dismissed with costs
.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the Applicants:
Adv H.J. van der Linde SC
Instructed
by
Brown Braude & Vlok Inc, 317 Cape Road, Newton Park,
Port Elizabeth
Ref: NF De Villiers
Tel: (041) 365 3668
Obo
the Respondent:
Adv A.C. Moorhouse
Instructed
by
RJ M attorneys, 145 Main Road, Walmer, Port Elizabeth
Tel: (041) 581 1294
[1]
Mthembi-Mahanyele v Mail & Guardian Ltd and Another 2004 (6) SA
329.
[2]
1994 (2) SA 1
(A) at 20E-G.
[3]
1966 (3) SA 470
(W) at 474A-C.
[4]
1928 AD 190.
[5]
Johnson v Beckett and Another
[1991] ZASCA 175
;
1992 (1) SA 762
(AD) at 778J-779B
[6]
Delta Motor Corporation (Pty) Ltd v van der Merwe
2004 (6) SA 186
(SCA)