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[2022] ZAFSHC 105
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Du Toit v Coetzee (A122/2021) [2022] ZAFSHC 105; [2022] HIPR 198 (FB) (2 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A122/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
JOHANNA
MAGDALENA DU TOIT
Appellant
And
MICHIEL
COETZEE
Respondent
HEARD
ON:
09 MAY 2022
CORAM:
MATHEBULA, J et LITHEKO, AJ
JUDGEMENT
BY:
LITHEKO, AJ
DELIVERED
ON:
2 JUNE 2022
Introduction
[1]
This is an appeal against the decision of the Magistrate Court for
the district of
Bloemfontein, in which the Appellant’s claims
for sentimental damages for the infringement of her dignity and
reputation
were dismissed with costs. The appeal is unopposed.
The
parties
[2]
The Appellant is Johanna Magdalena Du Toit, a 45-year-old female
Travel Agent who
holds a Diploma in Travel and Tourism and is
employed as such by a travel agency known as Travel Counsellors. In
this Court she
was legally represented by Adv. B Knoetze SC, on
instructions of Spangenberg Zietsman and Bloem Attorneys.
[3]
The Respondent is Michiel Coetzee, an adult businessman on whose
behalf Mr L J Pienaar
of YDE Attorneys appeared in the court
a
quo
. There was no appearance for the Respondent in this Court and
no heads of argument were delivered on his behalf.
Factual
Background
[4]
The Appellant’s claims arose from these facts: During November
2018 the Respondent
requested her to make flight tickets and
accommodation arrangements for him and his life partner for their
trip to Spain. The Appellant
compiled a quotation for that service
and discussed same with the Respondent whereupon the Respondent paid
the quoted amount. In
the evening of the day on which he paid, the
Respondent contacted the Appellant enquiring whether he could cancel
the bookings.
The Appellant undertook to look into it and revert to
the Respondent with a response. On the 17
th
November 2018
she advised the Respondent that the bookings could not be cancelled.
The Respondent became angry and uttered these
words to the Appellant:
‘
jy is ‘n skelm’
; ‘
ek dink jy is ‘n
skelm
’; and later he sent a WhatsApp message saying, ‘
Ek
glo dit, jy seker jou kinders gaan haal? Ek al voor jy die goed
gestuur het die antwoord gehad. Maar geweet jy stuur dit met
brawade
want jy het my klaar gespyker en geweet dit kan nie omgedraai word
nie’
.
[5]
The Appellant became emotional and cried. She had made travel and
accommodation arrangements
for the Respondent about four times in the
past. It was the first time in her 20 years’ career as a Travel
Agent that she
had been insulted by a client in that manner.
[6]
The Appellant later heard from her colleague, Nina Gerdener, her
brother Stefanus
Oosthuizen, her sister Lucille Schultz, her mother
Hendrina Oosthuizen and her fiancé, James Gilliland that the
Respondent
had spoken to them and had said of and concerning her that
she is a crook, she stole money from him and that he would never do
business with her or Travel Counsellors anymore.
[7]
As a result, the Appellant instituted an action against the
Respondent claiming damages
for defamation and for
injuria
. In
his plea, the Respondent denied that he uttered the said words to the
Appellant and/or that he published words of similar meaning
to the
above mentioned people. He pleaded in the alternative that, in the
event it was found that he made the alleged utterances,
they were
either not defamatory or he did not act wrongfully. He also pleaded
that he had a duty to inform the Appellant’s
colleagues and
they had a corresponding duty to know of the Appellant’s
conduct. In his evidence, however, he neither disputed
the utterances
he was alleged to have made to the Appellant, nor denied the
publications he was alleged to have made to people
referred to above.
He testified that he is sorry and he did not intend to cause any harm
to the Appellant or her family as they
are his friends. His actions,
he testified, were consequently not wrongful. It would seem that the
court
a quo
dismissed the Appellant’s claims on the
strength of this evidence and made a finding that he did not intend
to cause harm
to the Appellant.
The
Issue
[8]
The issue raised by the appeal is whether the court
a quo
was
correct in finding that the Respondent had no
animus injuriandi
and that his actions were not wrongful.
The
legal position
[9]
Notwithstanding the limited issues raised by the appeal, I propose to
deal with all
the elements of defamation and
injuria
in order
to properly address the above issue.
Defamation
[10]
Defamation consists in the wrongful and
intentional publication of a defamatory statement concerning the
plaintiff.
[1]
[11]
In determining whether a statement is defamatory,
the following two-stage enquiry is conducted. Firstly,
one
establishes the ordinary meaning of the words used and, secondly, one
asks whether that meaning was defamatory in that it was
likely to
injure the good esteem in which the plaintiff was held by the
reasonable or average person to whom the statement was
published.
[2]
In determining the meaning of the statement complained of, the court
is not concerned with the meaning which the maker of the statement
intended to convey nor is it concerned with the meaning given thereto
by the person to whom it was published. It is irrelevant
whether they
believed the statement to be true or whether they thought less of the
plaintiff.
[3]
[12]
Once the publication of defamatory statements has
been proved, it is presumed that the publication was wrongful
and
animo
injuriandi
.
A defendant wishing to avoid liability must raise a defence that
excludes, and adduce admissible evidence rebutting, either
wrongfulness
or intention.
[4]
[13]
It is accepted that a statement is defamatory of the plaintiff if
there is a likelihood that
it may injure the good name in which he or
she is held by the reasonable or average person to whom it has been
published. The question
is whether the statement was calculated to
expose a person to hatred, contempt or ridicule or it could attribute
to the plaintiff
that he or she is dishonest, immoral or is guilty of
dishonourable conduct. It may also include statements which are
likely to
humiliate or belittle the plaintiff or make him or her look
foolish, ridiculous or absurd, or less worthy of respect by his
peers.
[5]
Injuria
[14]
There are three essential elements to establish an action for
injuria
,
namely, (i) an intention on the part of the defendant to produce the
effect of his act (
animus
injuriandi
)
(ii) an overt act which the defendant is not legally entitled to do,
constituting (iii) an infringement of the plaintiff’s
right
resulting in an impairment of the person, and dignity of the
plaintiff.
[6]
[15]
To be wrongful, an act, in relation to a verbal or written
communication, would have to be one
of an offensive or insulting
nature.
Animus
injuriandi
is presumed once the wrongfulness of an act is determined, and the
burden of rebuttal shifts to the defendant to establish one
of the
recognised grounds of justification. If the defendant fails to do so,
the plaintiff in order to succeed, would have to establish
the
further requirement that he suffered an impairment of his or her
dignity. This involves a consideration of whether the plaintiff’s
subjective feelings have been violated, for the very essence of an
injuria
is that the aggrieved person’s dignity must actually have been
impaired. It is not sufficient to show that the wrongful act
was such
that it would have impaired the dignity of a person of ordinary
sensitivities. Upon establishment of all the three requisites,
the
aggrieved person would be entitled to succeed in an action for
damages subject to the principle of
de
minimis non curat lex
.
[7]
The criterion of reasonableness is applied in determining the
wrongfulness of the conduct complained of.
Application
of the legal position
[16]
It is noteworthy that the court
a
quo
found that, “
in
this matter publication or utterances of alleged defamatory
statements concerning the plaintiff is not in dispute
”
and correctly determined that “
the
onus rested on the defendant to prove the facts that dispel
animus
injuriandi
or
wrongfulness.”
[8]
[17]
The Respondent’s grounds of justification in his testimony was
that he did not have the
intention to cause the Appellant any harm
and he apologised for his actions, these actions being the insults
hurled at the Appellant
and the defamatory statements concerning the
Appellant which were communicated to the Appellant’s family
members, her fiancé
and her colleagues. The Respondent also
testified that the Appellant and her family members, who are his
family friends, knew the
kind of language that he speaks and that
when he uttered and wrote the defamatory statements, they knew that
he meant no harm.
The Respondent however did not produce any evidence
of any previous communications between him and the Appellant or her
family
members to demonstrate that, although the words complained of
were defamatory
per se
, as the court
a quo
correctly
found, they had a non-defamatory innuendo.
[18]
The Respondent also attempted to justify his conduct by attributing
same to the Appellant’s
failure to carry out his instructions
despite her knowledge of his financial situation. Failure on the part
of the Appellant to
perform in terms of the contract between
Respondent and her constitutes breach of contract in my view and the
Respondent’s
legal remedy would have been to sue for
contractual malperformance.
[19]
In its judgement,
[9]
the court
a
quo
concludes that it was confronted with two irreconcilable versions and
had to determine facts on the basis of the probabilities,
the
credibility of various witnesses and their reliability. I am of the
view that considering the fact that the court
a
quo
had
found that the statements complained of were defamatory
per
se,
the
approach that it adopted in the determination of the issues was a
misdirection. In the first instance the versions were not
irreconcilable as the Respondent’s grounds of justification
were that he had no
animus
injuriandi
and consequently bore the onus of proof in respect of that ground.
Secondly the Respondent, rather than the Appellant, is the one
whose
evidence was totally divorced from the case that he pleaded.
[20]
The Respondent’s testimony, coupled with the tenor of his legal
representative’s
cross examination of the witnesses raised the
issue of wrongfulness and while the court
a quo
was correct in
its identification of this as one of the issues to be decided, it
arrived at a conclusion that did not enjoy the
support of the
authorities referred to and was not founded on the facts. The court
a
quo
held that none of the Appellant’s witnesses testified
that the esteem in which they held her was diminished in any way.
Despite
the irrelevance of the witnesses’ subjective views,
that holding clearly ignores the fact that the Appellant’s
mother’s
uncontroverted testimony was that she informed the
Respondent that ‘stealing’ is a strong word whereupon he
resorted
to “screwing”. It cannot be argued otherwise
than that when she protested at the use of the word ‘stealing’
she did so to demonstrate her dissatisfaction with it being used with
reference to the Appellant. Secondly, the Appellant’s
colleague
testified that, although she and the Appellant do the same job, she
learnt everything that she knew about the travel
agency work from the
Appellant. This is indicative of the esteem in which she must have
held the Appellant coupled with the fact
that she did not even agree
with the criticism that the Respondent had levelled against the
Appellant.
[21]
The court
a
quo
referred to the Respondent’s testimony that he did not publish
anything on social media platforms such as
Hallo
Peter, Facebook
or
Trip
Advisor
concerning the conduct of the Appellant. The court
a
quo
however
does not indicate in what manner this constitutes justification for
publishing to the witnesses to whom publication of the
defamatory
statements was made. The court
a
quo
also
emphasised that the Appellant’s mother and brother did not
regard the matter as being serious. This conclusion disregards
the
Appellant’s mother’s testimony that when the Respondent
contacted the Appellant’s co-workers, they all were
of the view
that he was taking the matter out of hand. In any event, when
determining wrongfulness, the question whether the good
name of the
person involved has in fact (factually) been infringed, is
irrelevant.
[10]
[22]
In its assessment of the evidence of the Appellant’s fiancé,
Adv. James Gilliland,
the court
a quo
found that his evidence
that the Respondent orally stated to Appellant’s colleagues
that he ‘would no longer work with
Travel Counsellors, they
steal’ did not carry much weight as it was hearsay evidence for
the reason that they did not testify.
However, the record shows that
a colleague of the Appellant, Nini Gerdener testified in the
proceedings before the court
a quo
and confirmed that the
Respondent said that ‘he will no longer work with Maggie, the
Appellant and Travel Counsellors, because
they steal, they stole his
money’. The court
a quo
also concluded that the
testimony of Adv. James Gilliland had to be approached with caution
as he is the fiancé of the Appellant.
However, the court
a
quo
did not indicate how and what cautionary measures it applied
in the treatment of his evidence. There are no cogent reasons why his
evidence was singled out of the others who even have closer familial
ties with the Appellant. His evidence appears to have been
rejected
in its totality despite the fact that it was ‘confessed and
avoided’ in the plea and it was not denied by
the Respondent in
his testimony.
[23]
In paragraph 50 of its judgement, the court
a quo
states that:
“
I was therefore
satisfied that after applying a proper interpretation of the words
used the Defendant did not have the necessary
intention and did not
act unlawfully and that therefore I find that there is no evidence
that the esteem held by any of the witnesses
of the plaintiff had
been diminished.”
This
conclusion is inconsistent with the court
a quo
’s
finding that there was proof that the words complained of were
published and that they were defamatory
per se
, casting upon
the Respondent a duty to prove on a balance of probabilities that he
did not act wrongfully or
animo injuriandi
. It is difficult to
understand the reasoning of the court
a quo
in this regard
because under no circumstances can words that are found to be
defamatory
per se
and therefore casting a duty on the
Respondent to rebut their legal meaning, can simultaneously be
properly interpreted to exclude
the very wrongfulness and intention
that it is presumed they prove.
[24]
The conclusion arrived at in paragraph 53 of the court
a quo
’s
judgement is also anomalous in that it presupposes that if a
defamatory statement that is wrongfully published is an opinion
held
by the Respondent about the Appellant, then there is sufficient
disproof of
animus injuriandi
. This is in my view a
misconstruction of the authorities whereupon the court
a quo
based this conclusion.
[25]
For the above reasons, I find that Respondent did not succeed in
rebutting the presumption that
he had
animus
injuriandi
or that he acted wrongfully when he published the defamatory matter
about the Respondent. This conclusion also finds application
in so
far as the action for
injuria
is concerned. I deal below with the grounds whereupon I concluded
that the Appellant is entitled to succeed on both claims despite
the
following statement in the case of
Le
Roux v Dey
[11]
:
“
I am unaware of
any instance in the history of the
actio injuriarum
where a
particular defamatory act gave rise to two causes of action…
The reason is in my view any defamation is in the first
instance an
affront to a person’s dignity which is aggravated by
publication. Someone who is not affronted by a publication
and who
does not feel humiliated will not sue for defamation”.
[26]
In the instant case, the Respondent is sued for the impairment of the
Appellant’s dignity
on the basis of offensive and insulting
words that he uttered directly to the Appellant, (
injuria
) and
the publication of defamatory statements concerning the Appellant to
her family members and her colleagues. There are therefore
two
distinct delicts that are involved entitling the Appellant to sue for
damages for both. However, as stated further in the paragraph
to
which I have referred, “
the award of damages compensates the
plaintiff for injured feelings and for the hurt to his or her dignity
and reputation”
and for that reason, to avoid over
compensation for an injury that stems from one wrongful conduct, it
may be necessary depending
on circumstances of a given case to make
one global award for both claims, i.e. defamation and
injuria
.
[27]
In the case of Dikoko v Mokhatla
[12]
,
the Constitutional Court said:
“
It is a well
settled general rule that the assessment of sentimental damages
properly resides within the province of a trial court.
It is better
suited to the task having had the opportunity to evaluate at first
hand the evidence and demeanour of the parties”.
[13]
[28]
The question at this point therefore is whether the court
a quo
,
having been found to have been wrong in not upholding the claims of
the Appellant, is better suited to the task of assessing the
damages?
I am of the view that the facts in this appeal are unique and this
court is in no worse position than the court
a quo
to properly
assess sentimental damages. In any event, in the
Dikoko
case
referred to above, the Constitutional Court further said:
“
In defamation
cases in particular, compensation is for sentimental damages which
perforce are inexact and no more than a conjectural
estimate. They
cannot readily be translated into monetary terms. The discretion
exercised in such cases, therefore, falls within
the category of
discretion strictly so-called.”
[29]
I am of the view that special circumstances which justify this
encroachment upon a function which
is intrinsic to the trial court
are that the court
a quo
had dismissed the actions and for
that reason, in its opinion the Appellant was not entitled to any
compensation.
Damages
[30]
It is trite that in assessing damages in a defamation case a court
must have regard to the nature
of the defamatory statements, the
extent of the circulation of the publication and the effect the
publication had on the plaintiff.
[14]
.[31]
In Gelb v Hawkins
[15]
, the
determination of compensation in a defamation case was said to
relate:
“
in the main to
contumelia
(meaning contempt or insult), but does not overlook the elements of
loss of reputation, and penalty; which means that on the facts
of the
case, the plaintiff’s humiliation, and not loss of reputation,
was the major factor in deciding quantum.”
[16]
[32]
In SA Associated Newspapers Ltd en ‘n Ander v Samuels
[17]
it was held that the amount of damages in a defamation case
compensates the plaintiff for injured feelings and for the hurt to
his or her dignity and reputation.
[18]
[33]
A person whose dignity has been wrongfully impugned deserves
appropriate financial recompense
to assuage his or her wounded
feelings.
[19]
[34]
Mr. Knoetze SC submitted that there are factors in this matter which,
owing to their aggravating
nature, warrant an award that is
reflective of such circumstances. The circumstances, he argued, are
the following:
34.1
The Respondent knew the Appellant’s family members and singled
them out as the addresses of his
defamatory statements to cause the
Appellant greatest humiliation and embarrassment.
34.2
The Respondent published the defamatory statements to other people
that Appellant cheated him and stole
from him.
34.3
The Respondent’s apology was made for the first time in his
testimony in court and therefore
not genuine but an afterthought.
34.4
The Appellant was distraught for a couple of days. She began to doubt
her competence and was emotionally
upset. She had to explain the
events that led to the Respondent’s actions to her manager.
34.5
The defamation was perpetrated over a number of days despite threats
of a civil suit against him.
[35]
He submitted that in the circumstances and taking into consideration
the extent of the publication,
the effect that the defamation and
insult has had on the Appellant, and the consumer price index and the
fact that the rights that
the Appellant sought to protect are
constitutional rights, an award that is appropriate is R75,000.00 for
defamation and R30,000.00
for
injuria
.
[36]
Mr. Knoetze SC referred us to cases wherein comparable awards were
made, which serve as a useful
guide. They are:
36.1
Le Roux v Dey, (CC)
supra
, the Constitutional Court reduced
the amount of R45,000.00 by the High Court to R25,000.00 for
defamation.
36.2
Tuch v Myerson
2010 (2) SA 462
(SCA), the Supreme Court of Appeal
awarded damages in the amount of R30,000.00 for defamation.
36.3
GQ v Yedwa and Others, the High Court awarded an amount of
R10,000.00
for
injuria
in November 1994.
36.4
Dikoko v Mokhatla (
supra
) the Constitutional Court dismissed
an appeal against an award of R110,000.00 for defamation published,
inter alia
, in a newspaper.
[37]
No doubt the Appellant was wounded in her self-esteem by what she
considered to be unjustified
attack on her good name and her dignity.
The publication of defamatory matter concerning her was however made
to a relatively small
number of people, the majority of whom were her
immediate family. Despite this however she is entitled to sufficient
recompense
for the affront to her dignity and
fama
. I consider
an amount of R30,000.00 for damages for defamation and R20,000.00 for
damages for
injuria
just and equitable in the circumstances.
Costs
[38]
Mr. Knoetze SC argued that despite the fact that the Respondent did
not oppose the appeal, costs
should follow the cause on the basis
that the Respondent was at liberty to abandon the judgement and his
failure to do so was indicative
of his support thereof. I am of the
view that there is no just cause for not applying the general rule
applicable to costs.
Order
[39]
I would therefore propose the following order:
1.
The appeal is upheld.
2.
The Respondent is ordered to pay the costs of the appeal.
3.
The order of the court
a quo
is set aside and in its place the
following order is made:
“
1.
The plaintiff’s claims for both defamation and
injuria
succeeds with costs.
2.
The defendant is ordered to pay to the plaintiff:
2.1
R30,000.00 as damages for defamation.
2.2
R20,000.00 as damages for
injuria
.”
M.
S. LITHEKO, AJ
I
concur and it is so ordered.
MATHEBULA,
J
For
the Appellant:
Adv. Knoetze SC
Instructed
by:
Spangenberg
Zietzman and Bloem Attorneys
Bloemfontein
For
the Respondent:
No appearance
/bmokhoro
[1]
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) at paragraph 18.
[2]
Economic
Freedom Fighters and Others v Manuel
2020 (3) SA 425
(SCA) at
paragraph 30.
[3]
Neethling,
Potgieter and Visser:
Neethling’s
Law of Personality
(2005) at 136. Le Roux v Dey
2011 (3) SA 274
(CC) at paragraph 89.
[4]
Economic
Freedom fighters and Others v Manuel (supra) at paragraph 36.
[5]
Le
Roux v Dey (supra) at paragraph 91.
[6]
Whittaker v Roos and Batman
1912 AD 92
at 130 – 131.
[7]
De
Lange v Costa
[1989] 2 All SA 267
(A) at 271.
[8]
Paragraphs
32 – 35 of the judgement.
[9]
At
paragraph 42.
[10]
Neethling
et
al
(
supra
)
at 136.
[11]
Le
Roux v Dey
2010 (4) SA 210
(SCA) at paragraph 23.
[12]
2007
(1) BCLR 1 (CC).
[13]
At
paragraph 93.
[14]
Dikoko v Mokhatla (
supra
)
at paragraph 101
.
[15]
1960
(3) SA 687 (A).
[16]
At
693 H.
[17]
1980
(1) SA 24 (A).
[18]
At
39 F – G read with 40B.
[19]
Van den Berg v Coopers and Lybrand Trust (Pty) Ltd and Others
[2000] ZASCA 77
;
2001
(2) SA 242
(SCA) at 260 H.