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2023
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[2023] ZAGPJHC 1184
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Raphala v Baloyi (2021/29113) [2023] ZAGPJHC 1184 (17 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO: 2021/29113
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
17/10/23
In the matter between:
ASHLEY
RAPHALA
APPLICANT
And
NHLAMULO
BALOYI
RESPONDENT
JUDGMENT
WRIGHT J
1.
On 1 July 2021, the present applicant, Mr Raphala
a well-known DJ issued summons against the present respondent as
defendant. Damages
were claimed arising out of an alleged defamation,
on 17 May 2021 and via social media, by the defendant of the
plaintiff.
2.
The respondent, Mr Baloyi is well known in the
music industry and has a wide social media following.
3.
A plea was filed denying the defamatory nature of
the allegations and raising as defences truth in the public interest,
fair comment
and “
public media
privilege
.”
4.
The nature of the defamatory statements in the
trial action is similar to that set out below.
5.
On 17 June 2021, the applicant issued the present
application. What is sought, in the notice of motion as presently
framed, is a
declarator that the 17 May 2021 statements are
defamatory, an interdict, a retraction and an apology.
6.
On 12 August 2022, Mooki AJ awarded the plaintiff
R200 000 as damages. Interest and costs were awarded. This
followed a trial
in which the plaintiff and defendant testified.
Mooki AJ rejected the defences raised.
7.
The applicant deposed to a supplementary
affidavit in the present application, on 29 April 2023 alleging
further defamation on,
among other dates, 19 and 28 March 2023 and 5
April 2023. The defamatory statements here include allegations by the
respondent
that the applicant is corrupt and that the applicant
allows President Ramaphosa to “
rawdo
g”,
that is have unprotected sex with the applicant’s girlfriend,
Ms Athi Geleba, the Head of Digital Communications
in the Presidency.
The applicant is accused of bribing judges “
with
CR17 campaign money.
”
8.
The applicant seeks the admission into evidence
of this supplementary affidavit and he seeks modified relief in a to
be amended
notice of motion to keep pace with the ongoing
defamations.
9.
The answering affidavit was deposed to on 13
August 2021. The respondent says that Ms Geleba organized a
cookout event and
that her boyfriend, the applicant played at the
event and was paid with public money in circumstances where there had
been no proper
tender procedure. Hence, according to the respondent,
the statements are not defamatory and are protected by “
public
interest, truth and fair comment
“. The
respondent refers to numerous statements by members of the public on
social media questioning the alleged lack of
correct tender process
and the applicant’s and Ms Geleba’s role therein. He says
that he relies on a television programme
which went into the matter.
10.
The respondent relies on the defence of lis
pendens. This argument is mistaken. The defamations before Mooki AJ
in the action were
the 17 May 2021 defamations. These are presently
before me as are the later March and April 2023 defamations. But the
relief sought
in the action was damages. The relief sought now does
not include damages.
11.
The respondent says that he enjoys the right to
freedom of speech under s16 of the Constitution.
12.
It is beyond doubt that, objectively considered
the statements lower the applicant in the esteem of the reasonable
person.
13.
The respondent has not begun to prove that the
defamatory statements are true and in the public interest. These are
motion proceedings
rather than a trial but the answering affidavit
does not raise real disputes of fact.
14.
Regarding the defence of fair comment, the
respondent needs to prove that the statements are opinion or comment,
which are fair,
true and relate to a matter of public interest. The
respondent does not establish truth and to the extent that he is
entitled to
comment on the broad issue of corruption he exceeded by
far what is permissible.
15.
It is not clear from the respondents answering
affidavits that he relies on privilege of any kind. In the trial, he
raised a defence
of “
public media
privilege
”. Mooki AJ held that our law
does not recognise such a defence. If the respondent relies on
reasonable publication he needs
to show that he published as media,
that the publication was not wrongful, that he reasonably believed in
its truth and that it
was in the public interest that it be
published. See
EFF v Manuel
,
a judgment of the SCA on 17 December 2020 at paragraph 40. I am not
all sure that the respondent falls within the media just because
he
is well known and is on social media. I do not decide the question.
The published statements are mere invective which, on the
facts of
the present case could not possibly give rise to an actual belief in
their truth, reasonable or otherwise.
16.
The statements in question, including the newer
statements of March and April 2023 go far beyond what is legitimate
to protect the
right of freedom of speech under section 16 of the
Constitution. The respondent’s right to engage in robust public
debate
about matters of public concern like the question of
corruption is well protected without recourse to the baseless and
crude statements
made.
17.
When the matter was called, neither the
respondent nor any lawyer for him appeared.
18.
Counsel for the applicant handed up two draft
orders which cover the relief claimed and provide for punitive costs.
The excessive,
vituperative and continual defamations call for such
costs.
ORDER
X -
Y -
GC Wright
Judge of the High
Court
Gauteng Division,
Johannesburg
HEARD
: 17 October 2023
DELIVERED
: 17 October 2023
APPEARANCES
:
APPLICANT
Adv
E J J Nel
ejj.nel@brooklynadvocates.co.za
082 414 2634
Instructed
by
Molai
Attorneys
goitse@molaiattorneys.co.za
071 413 1407
RESPONDENT
No
appearance
Instructed
by
Mophosho
Attorneys
011 331 3915
mophosho@telkomsa.net