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[2010] ZASCA 155
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Els v Weideman and Others (512/09) [2010] ZASCA 155; 2011 (2) SA 126 (SCA) ; [2011] 2 All SA 246 (SCA) (30 November 2010)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 512/09
In the matter between:
CHRISTIAAN JURIE ELS
..................................................................................Appellant
and
ESMARÉ
WEIDEMAN
.............................................................................1
ST
Respondent
MEDIA 24 LIMITED
.................................................................................2
ND
Respondent
IZELLE VENTER
.....................................................................................3
RD
Respondent
Neutral citation
:
Els v Weideman
(512/09)
[2010] ZASCA 155
(30 November 2010)
Coram:
NUGENT,
HEHER AND MAYA JJA
Heard:
18 November
2010
Delivered:
30
November 2010
Updated:
Summary:
Court
– contempt of – scope of order prohibiting publication of
‘article’ – breach was publication
of cover,
editorial and truncated article published together – mala fides
inferred from content of editorial and cover.
____________________________________________________________________________________
ORDER
On appeal from:
Western Cape High Court (Cape Town)
(Dlodlo J sitting as court of first instance):
1. The appeal succeeds in
respect of the first and second respondents.
2. The appeal is
dismissed in respect of the third respondent.
3. The order of the court
a quo is set aside and replaced with the following:
‘
(1)
The first and second respondents are convicted of contempt of court.
(2) The application
against the third respondent is dismissed.’
4. The application is
remitted to the court a quo to consider and, if necessary, hear
evidence as to the sanctions appropriate to
the offences committed by
the first and second respondents, to impose the said sanctions, and
to make an appropriate award of costs.
5. The first and second
respondents are to pay the costs of the appeal jointly and severally.
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER JA (MAYA JA
concurring):
[1] This case is about
what a newspaper may lawfully publish but it is not about freedom of
the press or freedom of expression.
It concerns obedience to an
extant court order.
[2] The appellant appeals
against the whole of the judgment of Dlodlo J in the Western Cape
High Court in which the learned judge
dismissed with costs his
application for an order that the respondents were guilty of contempt
of court and imposing sanctions
on them. Dlodlo J granted leave to
appeal to the Full Bench of his division. On application to this
Court by the appellant that
order was replaced by one directing that
the appeal be heard by this Court.
[3] The appellant is a
singer and well-known personality in the South African entertainment
world. He emigrated to New Zealand and
was living there in February
and March 2008 when the events giving rise to this appeal took place.
[4]
Huisgenoot
and
You
are magazines edited by the first respondent, Ms Weideman,
and owned and published by the second respondent, Media 24 Limited.
They
are Afrikaans and English versions of the same magazine. The
third respondent, Ms Venter, was the editorial head of the
Johannesburg
office of the magazines.
[5] In setting out the
chronology that follows, I make extensive use of the version deposed
to by the respondents in the contempt
proceedings almost all of which
is common cause.
[6] On
Monday 11 February 2008 the
Beeld
newspaper
published an article stating that one Robbie Klay, whom it described
as a 21 year old singer and actor, had been, over
a period of seven
years, the ‘sex toy’ (‘seksspeelding’) of one
of the best known men in the South African
entertainment world. The
article did not identify the man, saying Klay did not want the name
to become known because that would
ruin the man’s life.
According to the article Klay had disclosed the name to
Beeld
,
but in the article the man was referred to simply as ‘die oom’
(ie a respected older man).
[7] The article contained
detailed allegations by Klay relating to the abuse he had suffered at
the hands of this man and explained
that Klay had kept silent about
the abuse because he had feared that his own career would suffer as
the man possessed power in
the entertainment industry. The article
concluded by saying that all attempts by
Beeld
to contact ‘die
oom’ the previous day had been unsuccessful: his cell phone was
switched off and several people suspected
he was overseas.
[8] At 11h16 (22h16 New
Zealand time) on 11 February 2008, Ms Marie Opperman, a journalist
who wrote for Media 24’s magazines
and had previously written
articles about Els’s marriage and the birth of his daughter,
sent an e-mail to him, attaching
an English version of the
Beeld
article. Opperman said that it was alleged that Klay had said,
off the record, that Els was the man he was referring to. She said
Huisgenoot
was sending someone to interview Klay. She asked
Els to comment, saying the deadline for the article was the next
evening.
[9] Over the following
two days Opperman sent four further e-mails bearing a similar import.
Most distastefully, she also pressured
the appellant to persuade his
wife, a person well-known in South Africa in her own name, to comment
on the allegations. Opperman
also contacted the appellant’s
sister who informed her that she had earlier been told by the
appellant that he was busy with
an answer to her e-mails.
[10] Els replied to
Opperman’s last e-mail at 22h58 on 12 February 2008 (09h58 on
Wednesday 13 February New Zealand time):
‘
Stuur
asb vir my die storie. Ek en my prokureur is tans aan die gesels
daaroor en ek sal antwoord sodra ek die storie gekry het.
Terloops:
Ek kruip nie weg nie maar ek het niks om weg te steek nie en daarom
wil ek nie kommentaar lewer nie. Ek sal beslis ‘n
naamskending
saak maak sodra my onskuld bewys is, daarvan kan Robbie en Huisgenoot
seker wees.’
[11] At about 10h00 on 13
February Els’s South African attorney contacted the office of
the publisher of family magazines
at Media 24. In the result an
undertaking was given to send a copy of the article to the attorney.
[12] At 12h01 (23h01 New
Zealand time) on 13 February the draft article was sent to Els and
attorney du Plessis by the third respondent
who also notified du
Plessis that she had done so. As indicated in the Opperman e-mails,
the article was based on and quoted detailed
allegations by Klay that
Els had sexually molested him from the age of 10 years.
[13] At 12h38 (23h38 New
Zealand time) on the same day Els sent an e-mail to the third
respondent:
‘
My
prokureur Koos du Plessis . . . sal jou kontak aangesien ek hom en ‘n
advokaat aangestel het om hierdie saak namens my
te hanteer. Maak
seker jy maak kontak met hom voor julle publiseer asb want hierdie
ding is groter as wat ‘n mens dalk besef
en die gevolge kan
ernstig wees.
[14] Shortly before 17h00
on 13 February 2008 Els’s attorney informed Media 24’s
attorney that Els intended bringing
an urgent application at about
18h00 at the home of Sutherland AJ in Johannesburg. (Although Els
alleges that earlier in the day
his attorney sought an undertaking
that the article would not be published until he had been given a
fair opportunity to respond
to it, that allegation was denied by the
second respondent’s attorney.)
[15] The application
comprised a notice of motion without a supporting affidavit. The
respondents were Media 24 and Venter. Sutherland
AJ heard argument
from Els’s counsel (who was present in person) and the
respondents’ counsel (over the telephone from
Cape Town). He
granted the relief sought and furnished brief oral reasons. Later
that evening the learned judge e-mailed to the
parties’ legal
representatives a document which in essence contained the terms of
the order, and the following day he gave
more detailed written
reasons.
[16] Sutherland AJ’s
order included interim relief phrased as follows:
‘
An
interim interdict shall issue immediately against the First and
Second Respondents from publishing the article of which a copy
was
annexed as “A” to the Notice of Motion, pending the
institution of an application for final relief by the Applicant
within 10 days hereof.’
Annexure ‘A’
was the draft article which, earlier that day, Venter had sent to Els
for his comments.
[17] The order did not
expressly prohibit publication about the proceedings before
Sutherland AJ. The fact that Els had applied
for and obtained the
interim interdict was, according to the respondents, widely
publicized in the media.
[18] On 14 February 2008
the Cape newspaper
Die Burger
, (also a Media 24 publication)
published an article which included the following:
‘
Huisgenoot
en You se redakteur, Esmaré Weideman, het gisteraand gesê
ná deeglike oorweging is besluit om voort
te gaan met die
publikasie van die artikel maar om nie die sanger se identiteit te
openbaar nie.
“
Ons
is verbaas deur die interdik, aangesien die appèlhof onlangs
bepaal het die media se mond kan nie deur middel van ‘n
interdik gesnoer word nie, omdat die opsie bestaan om ná
publikasie ‘n lastereis in te dien. Nog meer verbasend is
dat
die interdik toegestaan is in die Witwatersrandse provinsiale
afdeling van die hooggeregshof, aangesien Media 24 se hoofkantoor
in
die Kaapse provinsiale afdeling van die hooggeregshof is.
In
die lig daarvan dat minstens twee ander persone ná publikasie
van mediaberigte na vore gekom het om dieselfde sanger van
seksuele
molestering te beskuldig, ag Huisgenoot dit in openbare belang dat
ons voortgaan met die publikasie van die artikel.”’
[19] The contents of the
article published in
Die Burger
on 14 February prompted one of
Els’s attorneys to telephone Venter about the impending
publication in
Huisgenoot
and
You
and to confirm the
contents of their conversation in an e-mail to Venter later that day.
The e-mail included the following:
‘
Ons
verstaan uit die artikel soos vanoggend in Die Burger gepubliseer,
asook uit die gesprek hierbo na verwys, dat Huisgenoot/You
ten spyte
van die hofbevel van voornemens is om voort te gaan met die
publikasie van ‘n “gewysigde” weergawe
van die
artikel.
Ons
plaas op rekord dat indien ons kliënt se identiteit op enige
wyse afgelei kan word uit bogenoemde, u asook Media 24 hulself
skuldig sal maak aan minagting van die hof en sal ons by regte wees
om ‘n lasbrief vir u arrestasie uit te reik.’
[20] On 21 February 2008
editions of
Huisgenoot
and
You
were published, each
containing matter which, Els alleges, constituted the article
referred to in the order of Sutherland AJ.
[21] On 25 February 2008
Els instituted contempt proceedings in the Western Cape High Court
against Weideman, Media 24 and Venter.
Although Weideman was not a
party to the proceedings in Johannesburg she had knowledge of the
order and obliged to comply with
its prohibition.
[22] Els identified the
offending matter in each of the publications as:
(a) the front cover;
(b) the contents page;
(c) the editorial;
(d)
an article entitled ‘MY JARE in GESENSOR! se KLOUE’
(
Huisgenoot
)
and ‘CENSORED! molested me SEXUALLY’ (
You
);
(e)
a further article in the ‘advice’ section entitled
‘INSTINK WAT JOU KIND KAN RED’ (
Huisgenoot
)
and ‘HOW THE ABUSE BEGINS’ (
You
).
[23]
Els alleged that the respondents had published the article
intentionally and in bad faith. (In argument before the court a
quo,
as the judgment of Dlodlo J makes clear, counsel on his behalf
contended in the alternative that Weideman and Media 24 had
been
negligent and that negligence was sufficient to sustain their
conviction of contempt of court because they were, respectively,
the
editor and the owner of the magazines.
1
That contention was
repeated before us, but it is unnecessary to answer the questions
that it raises.)
[24] Els asked for orders
convicting the three respondents of contempt of court, sentencing
Weideman to imprisonment, Media 24 to
a fine, and Venter to a
suspended period of imprisonment, and directing them to pay the
costs, jointly and severally.
[25] The respondents
opposed the relief on grounds which included the following:
(a) the Western Cape High
Court did not have jurisdiction to hear the contempt application
because the order allegedly breached
had been made by the South
Gauteng High Court;
(b) the matter published
in the 21 February editions of the magazines did not constitute the
article and its publication was not
prohibited by the order on any
other basis;
(c) that Weideman, not
Venter, took the decision to publish; and
(d) Weideman did not
intend to act in contempt of the order, nor did she act in bad faith.
[26] On 18 March 2009
Dlodlo J delivered judgment dismissing Els’s application on the
grounds that the Western Cape High Court
did not have jurisdiction to
entertain an application in relation to alleged contempt of an order
made by the South Gauteng High
Court. For ‘academic purposes
and in the event that I am found to have wrongly applied the law on
the question of jurisdiction’
the learned judge proceeded to
consider the merits of the application and concluded that 1) the
offending publications differed
from the article and were
consequently not prohibited by the order, 2) Venter had not been
involved in or responsible for the decision
to publish and could not,
therefore, be convicted of contempt of court, 3) Weideman’s
assertions that she did not act intentionally
or mala fide could not
be rejected as so implausible as to warrant dismissal without
recourse to oral evidence, which Els had not
sought, and, 4)
negligence had not been raised as an alternative basis for conviction
in Els’s papers. The application was,
for all these reasons,
the learned judge considered, without merit.
[27] Before us on appeal
both counsel approached the matter on the basis that, if we should
find that the court a quo had indeed
possessed jurisdiction to decide
the application, we should proceed to decide the merits and not refer
the matter back. Subject
to what may have to be said on the question
of sanction (should the arguments for the appellant otherwise be
sustained) that appears
to be an appropriate course as the matter has
been fully argued in both courts.
Jurisdiction
[28] The issue in the
appeal really involves two aspects. The first is the relationship
between the High Courts of this country
in regard to the enforcement
of an order of one of them. The second is whether proceedings for
contempt of court arising from a
breach of an order of one High Court
can be tried before another and, if so, whether the last-mentioned
court can or should decline
to exercise jurisdiction in such an
application.
[29] The argument before
this Court was largely directed to the second aspect. Perhaps that
was because the law in relation to the
first is clear and has been
stated on previous occasions by this Court. In summary-
(a) a judgment and order
of the Gauteng South High Court would run throughout the Republic and
would have legal effect (including
enforceability) in the
jurisdiction of other High Courts of our country: s 26(1) of the
Supreme Court Act 59 of 1959;
(b) the first respondent
resided in Cape Town and the second respondent had its head office
and principal place of business in that
city: the Western Cape High
Court accordingly had jurisdiction over the persons of the first and
second respondents: s 19(1) of
the Act. The third respondent, who
resides in Johannesburg, was subject to the jurisdiction of that
Court by reason of the provisions
of s 19(1)(b) of the Act;
(c) the alleged breach of
the order took place in Cape Town when the offending article was
published there. The cause therefore
arose within the jurisdiction of
the Western Cape High Court as contemplated by s 19(1)(a).
In the normal course this
legislative foundation would be decisive and considerations of
convenience and commonsense (both of which
favoured the jurisdiction
of the court a quo) would not need to be brought into the equation.
See
Estate Agents Board v Lek 19
79 (3) SA 1048
(A) at 1067E-G
and the cases there cited. As Steyn CJ said in
Roberts
Construction Co Ltd v Willcox Bros
1962 (4) SA 326
(A) at 336A:
‘
Ook
ons Howe kan, wat hul prosedures en die ten-uitvoer-legging van hul
vonnisse betref, reken op doeltreffendheid buite hul gebied.
Die
dagvaardings en bevele van die een Hof kan in die gebied van ‘n
ander bestel en afgedwing word.’
Why should that salutary
principle not also apply to the application to the Western Cape High
Court in this case?
[30] The respondents’
argument (which found favour with the learned judge) was that the
particular nature of the proceedings
excluded the aegis of any court
but the one that granted the order; the applicant could in the first
instance have applied in the
Cape instead of electing the
jurisdiction of South Gauteng but, having made the election he was
bound by law to submit such contempt
as he perceived to that court.
Dlodlo J was persuaded by the following considerations:
1. The South Gauteng and
Western Cape High Courts are separate high courts each with its own
area of jurisdiction (with particular
reliance on s 166(c) of the
constitution and schedule 16(4)(a) to it; and s 3(1) of the
Rationalisation of Jurisdiction of High
Courts Act 41 of 2001).
2. An application for
committal for contempt of court has to be made to the court which
made the order which a respondent is said
to have disobeyed. Contempt
proceedings are not new proceedings but merely a continuation of
proceedings previously instituted:
James v Lunden
1918 WLD 88.
[31] I respectfully
disagree with the reasoning of the learned judge.
[32] The separate
jurisdiction of courts must be understood in the light of the
practical adaptations brought about by the provisions
of the Supreme
Court Act and its predecessors. As pointed out in
Estate Agents
Board v Lek
at 1062A-C, since 1912 the judgment or order of one
division of the Supreme Court has been executable in the jurisdiction
of all
the others. Effectiveness is not sufficient of itself to
confer jurisdiction but may be a factor to be taken into account, in
conjunction
with other factors, in considering whether some common
law
ratio jurisdictionis
does exist to confer jurisdiction on
a High Court in respect of the particular proceedings. For the
reasons already mentioned such
other factors are present in this
case.
[33] With regard to the
authorities relied on by the learned judge I agree with counsel for
the appellant that they fall generally
into two categories:
(a) those that hold that
the High Court cannot or will not exercise jurisdiction to try a
question of contempt of the order of a
lower court or one exercising
an unrelated jurisdiction:
R v Chadwick
(1901) 22 NLR 139
(the
magistrate’s court);
Clerk of the Peace v Davis
(1908)
29 NLR 20
(the magistrate’s court);
Komsane v Komsane
1962
(3) SA 103
(C) (the so-called ‘Native Divorce Court’);
Wright v St Mary’s Hospital Melmoth
1993 (2) SA 226
(D)
(the Industrial Court). None of these cases was concerned with the
legal relationship between the divisions of the High Court
as they
presently exist;
(b) the continuation of
proceedings in a high court in which it was initiated and in which an
order was granted, at a time when
the disobedient party has left the
area of jurisdiction of that court (
James v Lunden
;
Cats v
Cats
1959 (4) SA 375
(C);
Di Bona v Di Bona
1993 (2) SA
682
(C)). Such a case gives rise to considerations very different
from those affecting the present appeal.
In the relationship
between the High Courts the mutual duty to enforce orders has the
consequence that each court recognises and
protects the dignity of
another wherever that dignity is infringed in South Africa (provided
only there is established a recognised
ratio jurisdictionis
).
[34]
I do not agree that because contempt proceedings are a continuation
of an already instituted proceeding or ‘no more than
a step in
the execution of the judgment’ (
James
v Lunden
)
the judgment must be enforced in the court which granted the original
order. When a party leaves a High Court with an order in
his favour
(not obtained
ex
parte
)
those proceedings have been effectually completed (subject to appeal
or in the case of an interim order, its confirmation). A
subsequent
breach of the order or wilful disobedience to its terms outside the
jurisdiction of the court gives rise to a right
in the holder to take
steps to enforce the order wherever in South Africa he may find the
defendant. To hold otherwise would negate
the statutorily-created
country-wide enforcement of judgments. Should the court approached by
the complainant decide that, because
of reasons peculiar to the case
before it, the issue of contempt would more appropriately or
conveniently be decided by the court
which made the order, it might
decide to exercise its powers to transfer the case to that court.
2
[35]
Nor do I agree unreservedly with the proposition that ‘contempt
of court is not an issue inter partes; it is an issue
between the
court and the party who has not complied with a mandatory order of
court’:
Federation
of Governing Bodies of South African Schools (Gauteng) v MEC for
Education, Gauteng
2002
(1) SA 660
(T) at 673D-E. When an order made in civil proceedings is
disobeyed, the party in whose favour the order is made will bring the
breach to the notice of the court if he has an interest in doing so
(eg in seeking to enforce his judgment). The onus is upon that
party
to establish the contempt and persuade the court that sanction is
merited; only on the rarest of occasions will the court
initiate such
proceedings itself.
[36]
Counsel for the respondents boldly claimed support for his argument
in the common law, which, so he submitted, restricted the
power to
try contempt proceedings to the court whose order was said to have
been disobeyed. In addition to the authorities cited
above he
referred us to
In
re Dormer
(1891)
4 SAR 64 and
Luyt
v Luyt
1926
WLD 179.
But neither case addresses proceedings for contempt in a
high court in respect of an order made by another high court in a
dispensation
remotely similar to that which now exists. Nor does
either lay down a principle which is opposed to such enforcement.
Indeed counsel
was unable to formulate any principle that could
justify such a limitation.
[37] Some reliance was
placed by the respondents on a dictum of Cameron JA in
Fakie NO v
CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at para
[7]
:
‘
[A]
private litigant who has obtained a court order requiring an opponent
to do or not do something (
ad
factum praestandum
),
[is permitted]
to
approach the court again
,
in the event of non-compliance, for a further order declaring the
non-compliant party in contempt of court, and imposing a sanction.’
(Counsel’s emphasis.)
A court that grants an
order undoubtedly retains jurisdiction to ensure that the order is
complied with, as pointed out in that
passage, but the passage does
not suggest that its jurisdiction to do is exclusive.
[38] To sum up, the
statutory authority vested jurisdiction in the Western Cape High
Court. That jurisdiction was buttressed by
considerations of
common-sense and convenience. Given the common constitutional
foundation and mutual duty of enforcement among
the High Courts of
South Africa it makes no sense to insist that the court which issued
the order is the only one to feel the insult
to its dignity and,
therefore the only proper court to try such an issue. None of the
countervailing arguments carries persuasion.
[39] For the reasons set
out above I find that the learned judge erred in finding that the
Western Cape High Court lacked jurisdiction
to try the issue of
contempt of court.
The meaning of the
order made by Sutherland AJ
[40] Media 24 published
an edited and mildly truncated version of the article. Counsel for
the respondents initially submitted that
the interdict unequivocally
prohibited publication of ‘the article’, meaning thereby
the full article as reflected
in annexure ‘A’ without
deletions or modifications. However he conceded in argument that the
intention of the learned
judge, as appeared from his reasons for
judgment, was to provide protection
pendente lite
against
damage to the appellant’s reputation and the order would only
have that effect if it covered the substance of the
article.
[41] The order is
unequivocal. It forbids publication of the article. Quite plainly the
learned judge was concerned by the impact
of the whole article. The
order does not say or imply that the respondents may escape its
breadth by making judicious cuts according
to their own judgment.
Sutherland AJ did not consider it appropriate to identify what he
regarded as areas more damaging than others
and confine his order to
those areas. Nor was he asked by the respondents’ counsel to
frame the order so as to permit publication
of any part of the
article. To interpret the order as one permitting the respondents to
perform that exercise would be to redefine
its scope, and,
potentially, destroy its effect. The only sensible and practical
construction to place on it is that the respondents
were prevented
from publishing any form of the article that reflected its substance.
Whether the substance is so reproduced is
not a matter of quantity:
its thrust may be repeated in a few well-chosen sentences.
[42] The alleged breach
of the court order is said to have occurred on the cover, in the
editorial and two articles published in
Huisgenoot
and
You
on 21 February 2008. Annexure ‘A’ to the court order
is reproduced on page 12 of each magazine under the sensational
headings referred to in para 23 above. An attempt was made to
eliminate (by blackening words out) all direct or indirect references
to the alleged abuser so as to eliminate any possibility of him being
identified by a reader; so also in relation to his wife,
who is also
a national figure in her own right. What remains as an indicator of
the identity of the abuser are the following passages
in
Huisgenoot
:
‘
Een
van die land se mees geliefde sangers is ‘n
kindermolesteerder.’
and
‘
Die
man wie se gruwelike geheim hy nou oopvlek, het hom as tienjarige
sanger [deleted] hom gehelp om ‘n sukses van sy loopbaan
te
maak en het selfs drie liedjies [deleted]’. (Both in the ‘MY
JARE’ article.)
and
‘
Jare
lank het Robbie Klay . . . saamgeleef met die vretende geheim van die
dinge wat die “oom” in die vermaaklikheidsbedryf
aan hom
gedoen het . . . En hy was bang dat sy mentor, met sy mag in die
musiekbedryf, sy ontluikende musiekloopbaan sou verongeluk.’
(In the ‘INSTINK’ article.)
[43] The editorial and
the articles were preceded by a cover on which a photograph taken
from a recent CD or DVD made by Els and
sold to the public had been
used – although the face was distorted so as to be
unidentifiable of itself, the jacket and trousers
worn by Els are
readily identifiable when compared with the CD cover or DVD box.
[44] Of further direct
relevance is ‘VAN MY KANT’, the editorial written by
Weideman which appeared on p 6 of the respective
publications. In
Huisgenoot
it reads as follows:
‘
Teen
dié tyd weet jy dalk al van die drama wat hom die afgelope
paar dae afspeel rondom die publikasie van Huisgenoot se
hoofstorie
vandeesweek.
Jy
sal weet dat die sanger Jurie Els ‘n tydelike interdik aangevra
het teen die publikasie van hierdie artikel, waarin die
jong sanger
Robbie Klay vertel hoe hy as kind en oor vele jare seksueel
gemolesteer is deur ‘n bekende in die Afrikaanse
musiekwêreld.
Die
hof het die interdik toegestaan. Dit is die eerste keer in Huisgenoot
se geskiedenis dat ‘n interdik teen ons toegestaan
is.
Hoekom
is daar so baie swart strepe deur die woorde op ons voorblad en in
ons artikel (vanaf bl 12)? Die antwoord is regstegnies,
maar uiters
belangrik. Die regter het bevind dat DIE ARTIKEL – soos in alle
regverdigheid aan die vermeende molesteerder
voorgelê vir
kommentaar – nie gepubliseer mag word nie.
Die
naam van die mens wat die interdik aangevra het, mag wel bekend
gemaak word.
Dit
het ons dus met die volgende keuse gelaat: óf ons kon doen wat
die meeste dagblaaie teen hierdie tyd reeds gedoen het
en die naam
van die aansoeker publiseer en nie besonderhede van DIE ARTIKEL
bekend maak nie, of ons kon DIE ARTIKEL met geringe
veranderinge
plaas en steeds die besonderhede behou van die eksklusiewe
diepte-onderhoud wat Robbie aan ons toegestaan het.
Die
keuse was dus voor die hand liggend, want ons glo dis in die openbare
belang dat die besonderhede van die jare wat Robbie na
bewering
seksueel misbruik is, bekend gemaak word. Minstens twee ander mans
het ná Robbie se dapper bekentenis reeds na
vore gekom om te
sê dieselfde man het hulle ook seksueel gemolesteer.
Die
hofbevel was vir ons verbasend, veral omdat die Appèlhof
onlangs bevind het dat die media net in uitsonderlike gevalle
deur ‘n
interdik gesnoer behoort te word omdat die keuse bestaan om ná
publikasie ‘n lastereis in te dien.’
[45] I do not propose to
repeat the article in
You
. It is substantially an English
translation or edition of
Huisgenoot
. It may be noted however
that
i) in the editorial the
reference to ‘geringe veranderinge’ becomes ‘certain
changes’.
ii) in the first
paragraph of the article ‘Een van die land se mees geliefde
sangers’ becomes ‘one of the most
popular Afrikaans
singers in South Africa’.
[46] Of course, what may
not lawfully be published at all may also not be published piece-meal
where the separate publications are
presented as or comprise an
integral disclosure of facts or allegations. In this instance the
purchaser of the magazine and the
reader of the editorial had his or
her attention directed to the article with the intention that he or
she should read the two
in association and draw the logical
conclusions.
[47] The respondents’
answer is two fold: first that they were not interdicted from
publishing the identity of the applicant
for the interdict; second
that the editorial does not say that Els brought the urgent
application in his own interest and a reader
would understand that he
acted on behalf of someone else. There is no merit in either
submission.
[48] The respondents were
perfectly entitled to disclose the identity of the applicant for the
interdict and to say that he had
obtain relief in particular terms.
They were interdicted from publishing the allegations of abuse
contained in the article in such
close proximity to the disclosure of
identity of the applicant or in such a manner as to create the
impression that the applicant
and the abuser were one and the same
person. That is exactly the impression created by the editorial and
the article read together.
That that was the intention of the editor
is also apparent from the choice which she exercised as appears from
the editorial.
[49] The suggestion that
any reader of normal intelligence would regard Els as acting in the
interest of another is disingenuous.
It would be very unusual. The
editorial creates no such impression and if the possibility were to
occur to anyone it would be dispelled
by the failure of the editorial
to draw that very material fact to the attention of its readers.
There is this further consideration:
in the editorial the statement
is made that the article was shown to the ‘alleged abuser’
whose name could not be made
public for comment; this is followed
immediately by the statement that the name of the applicant for the
interdict may be disclosed
– the public was simply challenged
to put two and two together.
[50] For these reasons I
am left in no doubt that what appeared in the two magazines on 21
February 2008 comprised the substance
of the interdicted article and
such publication was therefore a breach of the court order.
Intention and mala
fides
[51] Dlodlo J found,
obiter, that neither intention nor mala fides had been established.
These findings were challenged in this
Court on three grounds:
1. Counsel submitted that
the learned judge erred in not finding that the respondents had
failed to advance evidence that established
a reasonable doubt as to
whether their non-compliance with the court order was wilful and mala
fide.
2. Counsel also contended
that analysis of the affidavits established that the respondents must
have foreseen and did foresee that
the publication carried the risk
of Els being identified and that the necessary mens rea was
accordingly present.
3. As a matter of law it
was argued, culpa was a sufficient form of mens rea for purposes of
contempt of court where the offending
party acted in the capacity of
the editor of a publication.
[52] Disobedience of a
court order will constitute contempt when the breach is committed
deliberately and in bad faith:
Fakie
, para 9:
‘
A
deliberate disregard is not enough, since the non-complier may
genuinely, albeit mistakenly, believe him or herself entitled to
act
in the way claimed to constitute the contempt. In such a case, good
faith avoids the infraction. Even a refusal to comply that
is
objectively unreasonable may be bona fide (though unreasonableness
could evidence lack of good faith)’.
[53] Thus, ‘the
offence is committed not by mere disregard of a court order, but by
the deliberate and intentional violation
of the court’s
dignity, repute or authority that this evinces’:
Fakie
,
para 10. Where there is an honest belief that non-compliance is
justified or proper, that is incompatible with the required state
of
mind (ibid).
[54] This Court, in
Fakie
, recognised that a respondent’s version must be
carefully scrutinised, but added that ‘however robust a court
may be
inclined to be, a respondent’s version can be rejected
in motion proceedings only if it is “fictitious” or so
far-fetched and clearly untenable that it can confidently be said, on
the papers alone, that it is demonstrably and clearly unworthy
of
credence’ (at para 56). As Els did not ask for the matter to be
referred to oral evidence or for Weideman to be cross-examined
he
must, as counsel for the respondents submitted, live with the
consequences of the affidavits read for their own sake.
[55] The respondents
adduced evidence calculated to show that they published the censored
article with no intention to breach the
terms of the order. In
summary, if their protestations can be believed,
i) they understood that
publication of a truncated version of the article which did not
enable the reader to identify the alleged
abuser fell outside the
terms of the order; and
ii) they believed that it
was in the public interest to publish details of Klay’s
unfortunate history of abuse.
[56] Nevertheless the
respondents knew that if they disclosed the identity of the abuser in
the article they would breach the order.
As Weideman put it in her
answering affidavit:
‘
Ek
stem wel saam met die punt wat in die tweede laaste paragraaf van die
brief gemaak word, naamlik dat minagting van die Hof slegs
sou
geskied “
indien
ons kliënt (synde die Applikant) se identiteit op enige wyse
afgelei kan word uit bogenoemde
”
,
te wete die gewysigde weergawe van die artikel. Ek en die Tweede
Respondent was versigtig om toe te sien dat die Applikant se
identiteit nie uit die (gesensorde) artikel sou blyk nie.’
[57] The first
respondent’s state of mind before and at the time of publishing
the article can best be understood by reference
to her answering
affidavit, the contents of the editorial and the design of the cover
of
Huisgenoot
.
[58] As appears from the
passage quoted in para 56 above, Weideman sought to convey her
understanding that the order would have
been breached only if the
identity of the abuser could have been inferred from the amended
article. The editorial conveys a like
impression. That however was a
misrepresentation of her state of mind. That her true appreciation of
the scope of the order was,
correctly, much wider, appears from para
20 of her affidavit:
‘
Die
artikel en die voorblad was juis gesensor aangesien die Tweede
Respondent opreg van mening was dat daar sodoende aan die bevel
voldoen sou word.’
Weideman knew, therefore,
that disclosure of Els’s identity (as the alleged abuser)
either in the article or on the cover
would breach the order.
Consistent with that knowledge she must also have appreciated that
disclosure in the editorial would have
the same consequence.
[59] In both the
editorial and her affidavit Weideman made much of her intention to
publish the article because of the public interest
(in the broad
sense) in hearing about the abuse which Klay, and others like him,
had suffered. However the following passage in
her affidavit casts
serious doubt on that motive:
‘
9.1
Ek ontken dat
“
die
artikel”
,
soos dit voor die Agbare Regter van die WPA gedien het, in wese, of
hoegenaamd in
Huisgenoot
en
You
gepubliseer
is.
9.2
In hierdie verband wys ek daarop dat die beweringe dat mnr Klay as
kind deur ‘n ouer man gemolesteer is, asook besonderhede
van
die beweerde molestering, reeds teen 11 Februarie 2008 wyd
gepubliseer is. Daardie beweringe was dus toe reeds wêreldkundig.
Die hele punt van
“
die
artikel”
was
Klay se bewering dat die Applikant die persoon was wat hom sou
gemolesteer het. Dit was die identifisering van die Applikant
as
daardie persoon wat die wese was van die artikel. Daarsonder sou dit
niks bygedra het tot die reeds-bestaande publikasies oor
Klay se
beweringe nie.
“
Die
artikel”
het
dus om die identiteit van die beweerde molesteerder gedraai.’
That the role of public
interest was, in her mind, subservient to exciting the narrower
interest of the public in the identity of
the abuser is also apparent
from the cover of
Huisgenoot
. The attention of the reader is
drawn to-
(a) the reproduction of
the figure of the abuser (with the face obscured);
(b) the words ‘as
kind gereeld gemolesteer deur GESENSOR! se man’; and
(c) ‘My jare as
GESENSOR! se seksspeelding’.
The ‘censored’
parts of the cover design were specifically created for the purpose
and are not extracts from the article.
[60] The Court asked
respondents’ counsel what publication of the article could
offer the reader in the absence of disclosure
of the identity of the
abuser. He could only suggest the report of the ‘in-depth’
interview with Klay. But it is clear
that nothing was added to the
article after the making of the order. As the editorial makes clear
the particulars of the article
were retained (‘behou’),
the details of the abuse were already in the public domain and, as
the affidavit confirms,
the spice of the article lay in revealing the
name.
[61] In constructing the
editorial Weideman knew that she was addressing herself to a public
that wanted an answer to that question.
The cover had been designed
to stimulate that enquiry.
[62] It is clear from the
editorial that the first respondent was irritated by the grant of the
interdict and of the opinion that
the judge had wrongly interfered
with what she perceived as press freedom. Her description of the
deleted passages as ‘regstegnies’
and of the changes in
the article as ‘gering’ reflected her disdain for the
order. She was clearly determined to publish
the article. For the
reasons already mentioned her resort to ‘the public interest’
must be taken with more than a pinch
of salt.
[63] In the second
paragraph of the editorial the appellant is identified by name as the
applicant for the interdict. He is described
as a singer and in the
same breath the reader is told that the alleged abuser is a
well-known figure in the Afrikaans music world.
In the fourth
paragraph we learn that the article was submitted to the abuser for
comment. The assertion is emphatically made that
although the article
may not be published the name of the applicant for the interdict
could be disclosed.
[64] Weideman provided no
rational explanation for mentioning the name of the applicant for the
interdict or for her express reference
to her right to publish it.
Nor was counsel able to suggest an innocent reason for her doing so.
The editorial did not say or suggest
that Els had acted on behalf of
the alleged abuser. Nor did it say that Els was not the abuser. Any
reasonable reader would drawn
the inference that the omission to do
so was deliberate.
[65] The design of the
cover of
Huisgenoot
cannot be divorced from the editorial. The
photograph of the abuser was, as I have noted, taken from the cover
of a current CD and
DVD released by Els which showed a full length
picture of him. The reproduction on the magazine cover would be
recognised and identified
beyond any doubt from a simple comparison
of the clothing worn by the subject. Moreover, as the answering
affidavit makes clear,
there had been an historical association
between the appellant and the magazine and its readers. Inter alia
Huisgenoot
had devoted space to the marriage of the appellant
to a woman famous in her own right in South Africa and to the birth
of their
child. The curious and interested reader would have no
difficulty in ‘joining the dots’ between Els’s name
in
the editorial and the reference to ‘GESENSOR! se man’
on the cover, as indeed he or she was impliedly invited to do.
[66] Thus, when one
considers the first respondent’s affidavit with the content of
cover and editorial one is left in no reasonable
doubt that she,
while appreciating both the scope and effect of the interdict, set
out carefully and deliberately to construct
a trail for her readers
which would lead them to conclude that Els and the abuser who could
not be directly named were one and
the same person. That, in my
judgment, is the only reasonable inference that follows from the
facts and it is consistent with all
of them.
[67] That being the
conclusion, not only has Weideman failed to adduce credible evidence
of her bona fides, but her intention unlawfully
to circumvent the
court order is manifest.
[68]
The legal basis necessary to establish the guilt of the second
appellant, her employer and the publisher of the magazines,
is by no
means so clear. Does its liability depend on proof of its individual
mens rea or should a civil court apply the test laid
down in s 332 of
the Criminal Procedure Act (which renders a corporate body
vicariously liable).
3
In relation to the
latter alternative, why should the basis of liability of a corporate
body for contempt of court be tested by
a standard different from
that of an individual employer?
[69] But Weideman deposed
as follows:
‘
Ek
is behoorlik deur die Tweede Respondent gemagtig om hierdie
verklaring af te lê. Waar van toepassing, is enige verwysing
na
my in hierdie verklaring ook ‘n verwysing na die Tweede
Respondent, tensy die teendeel blyk.’
It appears, therefore,
that Media 24 accepted that the actions and intentions of its editor
were in all respects to be regarded
as its own, and that her bona
fides or mala fides reflected its own state of mind. On that basis
there is no ground of distinction
between them and the second
respondent also committed contempt of court in publishing the
article.
[70] Appellant’s
counsel conceded that he was unable to establish a direct connection
between Venter and the publication of
the article. The cost
implications of the involvement of the third respondent in the
application and the appeal appear to be negligible.
[71] No evidence was
placed before the court a quo by either party that would have enabled
it (or us) to decide on an appropriate
sanction. In my view, the
appeal having succeeded, the matter should be referred back to it so
that a proper enquiry can be undertaken
and an apposite sanction be
imposed.
[72] In the result the
following order is made:
1. The appeal succeeds in
respect of the first and second respondents.
2. The appeal is
dismissed in respect of the third respondent.
3. The order of the court
a quo is set aside and replaced with the following:
‘
(1)
The first and second respondents are convicted of contempt of court.
(2) The application
against the third respondent is dismissed.’
4. The application is
remitted to the court a quo to consider and if necessary hear
evidence as to the sanctions appropriate to
the offences committed by
the first and second respondents, to impose the said sanctions, and
to make an appropriate award of costs.
5. The first and second
respondents are to pay the costs of the appeal jointly and severally.
____________________
J A Heher
Judge of Appeal
NUGENT JA (Maya JA
concurring):
[73] I agree with Heher
JA that the Western Cape High Court had jurisdiction in the matter
for the reasons that he gives.
[74] It was submitted for
the respondents that this case is about the right to media freedom
but that is not correct. The time to
assert the right to media
freedom is while a matter is under adjudication. But once the
adjudication is complete and the court
had made its order then even
the media must submit to the authority of the courts. Without
assiduous preservation of that authority
all rights become vulnerable
– including the right to media freedom.
[75]
To the mind of Ms Weideman the allegation by Mr Klay that he had been
molested, and the details of the alleged molestation,
were not
newsworthy. Those had been published before. What was newsworthy was
the identity of the alleged molester. Ms Weideman
said that she
understood the order to prohibit only that disclosure. In that she
was wrong. The fact that much of the content of
the article was
already in the public domain might have provided grounds for
Sutherland J to have limited the order but we are
not concerned with
what ought or ought not to have been prohibited. We are concerned
with what the learned judge did or did not
prohibit. That is a matter
for construction of the language in which the order is couched,
unless the language is ambiguous.
4
[76] There is nothing
ambiguous about the language. It prohibited publication of the
article and not only part of the article. There
is no suggestion in
the language of the order that ‘the article’ meant only
the newsworthy part. Indeed, I have difficulty
seeing how the
language could possibly have been construed in that way.
[77] It was not disputed
by counsel for the respondents that ‘the article’
contemplates its substance. Merely to black
out names and words here
and there does not seem to me to alter its substance – even if
the article does cease to be news.
What was published was in
substance the prohibited article and by doing so Ms Weideman
contravened the order – even leaving
aside the editorial. What
remains is only to examine the state of mind with which she did so.
[78] Ms Weideman revealed
her state of mind in the editorial that she wrote. She was clearly
annoyed that the order had been granted.
Her response was to devise
what she told her readers was a ‘legalistically technical’
form in which to publish the
article. Reasoning from the premise that
the magazine had not been prohibited from identifying the person who
had applied for the
interdict she went on to tell her readers that
once the interdict had been granted the magazine had been left with
two options:
Either it could publish ‘the name of the applicant
[for the interdict] but not disclose details of the article’.
Or
it ‘could publish the article with certain changes while
retaining the details [of the molestation that was alleged to have
occurred]’. Plainly she meant by the latter ‘option’
that the altered article would be published in addition
to publishing
the name of the applicant for the interdict because that is in fact
what she did.
[79] There was another
course that she might also have chosen – which was not to
publish the name of the applicant for the
interdict at all. The fact
that that was not considered to be an option demonstrates ineluctably
that she was intent upon having
the name of Mr Els in the magazine.
What she debated in her mind was only whether to add the details of
the alleged molestation.
The debate could only have been brief
because she told her readers that the choice was ‘obvious’.
[80]
In her affidavit Ms Weideman denied that she ‘attempted to
disclose the identity of Mr Els or that she had any intention
in that
regard’. She pointed out that the article itself did not
disclose the identity of the alleged molester once portions
had been
blacked out – which is perfectly true. She also pointed out
that the editorial ‘did not indicate, or furnish
an indication,
that the person referred to in the article was the applicant for the
interdict’
5
–
which is also true in one
sense. But what Ms Weideman does not explain is what purpose she
intended to serve by publishing the name
at all. Clearly she did so
intending her readers to make the link.
[81] Ms Weideman was at
pains to say in her evidence that the details of the alleged
molestation in themselves were no longer newsworthy.
They had value
only if they were published in conjunction with the identity of the
alleged molester. That being so there can be
no explanation for her
having published those details with the identity blacked out unless
she intended her readers to fill in
the gaps for themselves. Only the
most slow-witted reader would not have identified the applicant for
the interdict as the alleged
molester. She might just as well have
published the article in its original form for the difference that it
made.
[82]
The only reasonable inference from her conduct in publishing the name
of the applicant for the interdict – in the absence
of an
alternative explanation, which has not been forthcoming – is that Ms
Weideman intended her
readers to deduce by inference who the alleged
molester was. I have no hesitation finding that her denial that that
was her intention
is untruthful and rejecting it on the papers
alone.
6
[83] The state of mind
for contempt of court in the present context is ‘deliberate and
mala
fide’
defiance
of a court order.
7
In
Fakie
8
this court said the following in
relation to proceedings for contempt of court:
‘
[O]nce
the applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden in relation
to wilfulness and
mala
fides
.
Should the respondent fail to advance evidence that establishes a
reasonable doubt as to whether non-compliance was wilful and
mala
fide
,
contempt will have been established beyond reasonable doubt.’
[84] Far from laying such
a basis the evidence in this case establishes the contrary. Ms
Weideman was pertinently aware that she
was prohibited from
disclosing the identity of the alleged offender yet she deliberately
set about to do so. Her denial that she
intended to disclose the
identity of the alleged molester is palpably untrue. There was no
suggestion in her affidavit that she
believed that she was entitled
to achieve what she knew was prohibited provided only that she
achieved it through a ruse or that
any such belief would be bona
fide. The ineluctable finding in those circumstances is that she
published the material deliberately
and in bad faith in breach of the
order. That is not the pursuit of media freedom – it is
contempt of court.
[85] I agree with my
colleague that the` act of Ms Weideman must be taken to be the
simultaneous act of Media 24. I also agree that
Ms Venter cannot be
said to have offended. For those reasons I agree with the order that
he proposes.
_______________________
R W NUGENT
JUDGE OF APPEAL
APPEARANCES
APPELLANT: D F Dörfling
SC
Instructed by Du Plessis
& Associates Inc, Randburg;
Martins Attorneys,
Bloemfontein
RESPONDENTS: A M
Breitenbach SC (with him M L Norton and L J Arnott)
Instructed by Werksmans
(Incorporating Jan S de Villiers), Cape Town;
Naudés,
Bloemfontein
1
Relying
on
S v Harber
1988 (3) SA 396
(A).
2
Section
3(1)(b) of the Interim Rationalisation of Jurisdiction of High
Courts Act 41 of 2001.
3
Cf
eg
Re Supply of Ready Mixed Concrete (No 2) Director General of
Fair Trading v Pioneer Concrete (UK) Ltd
[1995] 1 AER 135
(HL)
142b-d, 151f-156f;
Twentieth Century Fox Film Corporation v
Playboy Films (Pty) Ltd
1978 (3) SA 202
(W) 203C-D.
4
Firestone
South Africa (Pty) Ltd v Gentiruco AG
1977 (4) SA 298
(A) at
304D-H.
5
My
translation.
6
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
at 635C.
7
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) paras 9 and
10.
8
Note
2 above.