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[2011] ZASCA 153
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Modiri v Minister of Safety and Security and Others (581/2010) [2011] ZASCA 153; 2011 (6) SA 370 (SCA); [2012] 1 All SA 154 (SCA) (28 September 2011)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 581/2010
In
the matter between:
MOGALE
WINSTON STANFORD MODIRI
….................................................
Appellant
v
THE
MINISTER OF SAFETY AND SECURITY
…..............................
First Respondent
SUPERINTENDENT
ADAM WIESE
…..........................................
Second
Respondent
THEMBA
KHUMALO
….....................................................................
Third
Respondent
MEDIA
24 LIMITED
….....................................................................
Fourth
Respondent
DEON
DU PLESSIS
…........................................................................
Fifth
Respondent
YOLISWA
SOBUWA
…......................................................................
Sixth
Respondent
Neutral citation:
Modiri v The Minister of
Safety and Security
(581/2010)
[2011] ZASCA 153
(28 September
2011).
Coram:
BRAND JA, MAYA JA, MHLANTLA JA, MAJIEDT
JA AND MEER AJA
Heard:
7 September 2011
Delivered:
28 September 2011
Summary: Defamation – newspaper article to the
effect that police officer informed journalist that appellant had
been suspected
by the police of serious criminal conduct – gist
of article found to be substantially true and its publication for
public
benefit – fact that policeman did not actually convey
this information to journalist and that some of the peripheral
statements
published were also untrue – found not to preclude
reliance on the defence of truth and public benefit.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
Free State High Court,
Bloemfontein (Hancke J sitting as court of first instance):
The following order is made:
a. The two condonation applications by the appellant are
granted, but the appellant is ordered to pay the costs incurred by
the
third to sixth respondents in opposing these applications.
b. The appeal is partly upheld and the third to sixth
respondents are ordered to pay the appellant’s costs of appeal.
c. The order of the court a quo is set aside and
replaced by the following:
‘
1. The plaintiff’s
claims against all six defendants are dismissed.
The plaintiff is ordered to pay the costs incurred by
the third to sixth defendants.
The third to sixth defendants are ordered to pay the
costs incurred by first and second defendants.’
________________________________________________________________
JUDGMENT
________________________________________________________________
BRAND JA
(Maya JA, Mhlantla JA, Majiedt JA
and Meer AJA concurring):
[1] This appeal has its origin in a defamation action
originally instituted by the appellant in the Free State High Court.
The appellant,
Mr Mogale Modiri, is a businessman of Bloemfontein in
the province of the Free State. On 3 March 2004, an article appeared
in the
Daily Sun newspaper which is distributed, inter alia in the
Free State province, under the title ‘Mangaung Crime
Crackdown’.
The article commenced by informing the reader that
the ‘Mangaung police are getting on top of the crime situation
in the
Bloemfontein area’. It then proceeded to convey some
general information about police business which it ascribed to a
senior
police officer, Superintendent Adam Wiese. Thereafter it
continued with the following statements which eventually gave rise to
the defamation action:
‘
Daily
Sun readers in the area are asked to help the police in catching
Stanford Modiri, who is allegedly involved in drug dealing,
cash-in-transit heists and car theft.
Wiese said: “We will catch
him, but it would be great to have some help. The problem is that he
uses other people to do his
dirty work for him.”’
[2] Departing from the premise that Superintendent Wiese
had said what the article attributed to him, the appellant at first
brought
his action against Wiese’s employer, the Minister of
Safety and Security, and against Wiese personally as the first and
second
defendants. On appeal they are the first and second
respondents, to whom I shall refer as ‘the police respondents’.
In their plea the police respondents emphatically denied, however,
that Wiese ever made the statements ascribed to him by the writer
of
the article. Following upon this denial, the appellant sought and
obtained the leave of the court a quo to join the present
third to
sixth respondents as defendants in the action. I shall refer to these
respondents collectively as ‘the media respondents’.
The
third to fifth respondents are, in the order of their citation, the
editor, the owner and the publisher of the Daily Sun. The
sixth
respondent is a newspaper journalist and the writer of the challenged
article, Ms Yoliswa Sobuwa. In their plea the media
respondents
contradicted the statement by Wiese, that he did not tell Ms Sobuwa
what she attributed to him in the article. They
insisted that he did.
In any event, they denied that the article was either defamatory,
wrongful or published with the intent to
defame.
[3] In the court a quo the trial came before Hancke J.
The first witness for the police respondents was Superintendent
Wiese. In
essence, he stood by the denial, foreshadowed in his plea,
that he ever made the statements about the appellant that Ms Sobuwa
ascribed to him in the article. What had happened, Wiese explained,
was that Ms Sobuwa came to see him in his office on 26 February
2004.
She was in the company of Mr S Z Bahumi who was known to Wiese as a
member of the National Intelligence Agency (NIA). Wiese
was not told
that Ms Sobuwa was a journalist and he assumed that she was a
colleague of Bahumi. According to Wiese, his acquaintance
with Bahumi
stemmed from a previous incident during 2001 when firearms and other
items were stolen at the police station where
Wiese was then the
commanding officer.
[4] At the time of these incidents of theft, there were
suspicions that some of the policemen at the station were involved
and that
these policemen could have some connection with the
appellant. This was recorded in a letter written by Wiese to police
headquarters
in Pretoria on 18 February 2002. According to this
letter, two of the policemen suspected of involvement in the
incidents of theft
were associated with an individual who was
employed by the appellant, while the appellant, in turn, was known in
police circles
for his alleged involvement with armed robbery,
vehicle theft and drugs. In short, Wiese confirmed in
cross-examination that there
is a close correlation between the
allegations in the letter, on the one hand, and the contents of the
impugned article, on the
other, with regard to the appellant’s
involvement in crime.
[5] Probably because of this letter, the appellant’s
name came up in the conversation between Bahumi and Wiese where Ms
Sobuwa
was present. During the course of this conversation, so Wiese
testified, Bahumi said that the NIA had a file on the appellant and
that according to information available to him, the appellant was
involved in drug dealing, cash-in-transit heists and car theft
but
that it was difficult to apprehend him because he made use of others
to do his dirty work. In short, according to Wiese’s
testimony,
the statement that Ms Sobuwa attributed to him in the impugned
article, mostly derived from Bahumi. Wiese denied, however,
that
either he or Bahumi ever invited readers of the Daily Sun to assist
the police in the apprehension of the appellant. That,
Wiese said,
could only come from the writer of the article. What also transpired
from Wiese’s evidence was that Bahumi had
passed away some time
prior to the commencement of the trial.
[6] A further witness called to testify on behalf of the
police respondents was Senior Superintendent Gerber, who was a member
of
the Organised Crime Investigation Unit of the police, known as the
Scorpions. His evidence turned on a comprehensive written application
which he prepared in July 2005 for permission to initiate an
investigation under the name project Vulindlela, into a crime
syndicate.
The application document was based on information
available to the police at the time. According to this information
the syndicate,
of which the appellant was the confirmed leader,
involved itself in motor vehicle thefts and related crimes. The
crimes referred
to in the application were committed in various
places in the country, including Bloemfontein, on a regular basis
since 1984. In
motivation of the special project, which would require
considerable expenditure and manpower, the application stated that
over
a number of years the police had been unable to apprehend the
leaders of the syndicate through conventional investigation methods.
The primary difficulty, so the application explained, was that
despite the fact that upon their arrest the actual perpetrators
of
the crimes identified their leaders, including the appellant, they
were unwilling to testify against these leaders in court.
In
consequence, the leaders were able to continue their
community-threatening illegal activities with impunity.
[7] Gerber further testified that the application to
embark upon project Vulindlela succeeded and that, as a result of the
ensuing
investigations, leaders of the syndicate, including the
appellant, were arrested in September 2005 and appeared in court on
charges
of motor vehicle theft. At the time, these arrests and
appearances were widely reported in the press. However, because the
potential
state witnesses refused to testify, the charges had to be
withdrawn. After the arrests, Gerber said, the incidence of motor
vehicle
theft in the Bloemfontein area declined from about 130 to
about 60 per month. In cross-examination Gerber could not say when
the
enquiry which preceded the application started, but that
information about the appellant’s alleged involvement had come
to
his personal knowledge when he joined the vehicle theft unit in
about 1991. Moreover, Gerber said, the information involving the
appellant as a ringleader in criminal activities had been available
in the police circles for a number of years.
[8] In the court a quo, the media respondents closed
their case without presenting any evidence. Moreover, Hancke J found
that no
criticism could legitimately be levelled against the
witnesses who testified on behalf of the police respondents.
Consequently,
he accepted that Wiese never made the statements
defamatory of the appellants that were ascribed to him in the
impugned article.
In the result the appellant’s action against
the police respondents was dismissed with costs. On appeal the
appellant did
not contend that the court a quo had erred in
dismissing his claim against these respondents but submitted that it
should have
ordered the media respondents to pay their costs. In the
result, the police respondents took no part in the appeal
proceedings.
In this court the only remaining issue with regard to
the police respondents therefore related to whether it is the
appellant or
the media respondents who should be held liable for
their costs in the court a quo.
[9] With reference to the media respondents, Hancke J
found that, although the article complained of contained a number of
inaccuracies,
the sting of the defamatory part was substantially true
and its publication for the public benefit. In the result, he upheld
the
ground of justification raised by the media respondents,
generally known as the defence of truth and public benefit. He
therefore
also dismissed the appellant’s claim against the
media respondents with costs. The present appeal against that
judgment is
with the leave of the court a quo.
[10] On appeal the media respondents no longer disputed
– in my view rightly so – that the article included
statements
that were per se defamatory of the appellant. That raised
the presumption that these statements were both wrongful and
published
with the intent to injure. The media respondents therefore
attracted the onus to establish a defence which excluded either
wrongfulness
or intent. Though at some stage there was doubt as to
the exact nature of that onus, it has by now become settled law that
the
onus on the defendant to rebut one or the other presumption, is
not only a duty to adduce evidence, but a full onus that must be
discharged on a preponderance of probabilities (see
Hardaker v
Phillips
2005 (4) SA 515
(SCA) para 14;
Le Roux v Dey (Freedom
of Expression Institute and Restorative Justice Centre as amici
curiae)
2011 (3) SA 274
(CC) para 85). In their pleadings the
media defendants denied both intent to defame and wrongfulness. But
in the absence of any
evidence on their behalf to rebut the
presumption of the former, it seems to me that intent to injure must
be regarded as being
established. It therefore matters not that,
because we are dealing with media defendants, fault in the form of
intent is not required
and that negligence would suffice (see eg
National Media Ltd v Bogoshi
1998 (4) SA 1196
(SCA) at
1214C-E;
Mthembi-Mahanyele v Mail & Guardian Ltd
2004 (6)
SA 329
(SCA) paras 44-46). By virtue of the media respondents’
failure to prove absence of intent, the appellant has cleared a
higher
hurdle of fault than the required one. The outcome of the
appeal thus turns exclusively on the element of wrongfulness. Hence
the
only question is whether the media respondents have succeeded in
establishing any one of the various grounds of justification that
they raised.
[11] In their plea the media respondents relied on a
number of recognised grounds of justification, including truth and
public benefit,
fair comment, reasonable publication, and qualified
privilege on the basis of a right or duty on their part to publish
the defamatory
statements and a corresponding right on the part of
the readers of the Daily Sun to receive the same. Any one of these
would, if
established, serve to exclude wrongfulness. The one that
found favour with the court a quo was that of truth and public
benefit.
If that finding were to be upheld, it would be the end of
the matter. I therefore turn to that enquiry. In this regard the
appellant’s
contentions as to why the court a quo erred in
upholding the defence of truth and public benefit were essentially
threefold. First,
that the media respondents did not lead any
evidence in rebuttal of the presumption of wrongfulness. Second, that
the inaccuracies
in the article precluded any reliance on the defence
under consideration. Third, that the media respondents could not rely
on the
information of the appellant’s alleged criminal
activities testified to by the police witnesses, because it had not
been
demonstrated that the article was based on that information.
[12] The appellant’s first contention seems to
depart from a confusion of the element of wrongfulness with that of
intent.
Though both the presumption of intent and that of
wrongfulness arise from a single event, that is, the publication of a
defamatory
statement, the two presumptions are essentially different
in character. The presumption of intent to injure relates to the
defendant’s
subjective state of mind. By contrast, the
presumption of wrongfulness relates to a combination of objective
fact, on the one hand,
and considerations of public and legal policy,
on the other (see eg
Neethling v Du Preez; Neethling v The Weekly
Mail
[1993] ZASCA 203
;
1994 (1) SA 708
(A) at 768I-769A;
Le Roux v Dey
2011
(3) SA 274
(CC) paras 121-125). Generally speaking, a rebuttal of the
presumption relating to the subjective state of mind of those who
acted
on behalf of the defendant will therefore require some evidence
to be led on the defendant’s behalf. By contrast, the objective
nature of the enquiry into wrongfulness signifies that the subjective
beliefs of the defendant are of no consequence. Thus understood,
it
becomes apparent, with reference to the defence of truth and public
benefit, for example, that both elements of this defence
can in
principle be established on the basis of facts not deriving from the
defendant’s own witnesses. Hence the failure
by the media
respondents in this case to call any witnesses did not automatically
preclude them from relying on this defence.
[13] As to the appellant’s second contention based
on the admitted inaccuracies in the impugned article, it is a matter
of
settled law that the defendant is not required to prove that the
defamatory statement was true in every detail. What the defence
requires is proof that the gravamen or the sting of the statement was
true. Inaccuracies in peripheral detail do not rule out the
defence
(see eg
Johnson v Rand Daily Mails
1928 AD 190
at 205-206;
Independent Newspapers Holdings Ltd v Suliman
[2004] 3 All SA
137
(SCA) paras 34-38). The underlying logic appears from the
judgment of Wessels JA in
Johnson
. The reason, he explained,
why truth and public benefit is recognised as a defence, is because a
plaintiff is not entitled to recover
damages in respect of an injury
to a reputation which he does not deserve. Consequently, the
defendant ‘need not justify
immaterial details or mere
expressions of abuse which do not add to its sting and would produce
no different effect on the mind
of the reader than that produced by
the substantial part justified’. The gist or sting of a
statement is determined with
reference to the legal construct of a
reasonable reader. It is the meaning that the reasonable reader of
ordinary intelligence
would attribute to the statement (see eg
Basner
v Trigger
1945 AD 22
at 32;
Sindani v Van der Merwe
2002
(2) SA 32
(SCA) para 11). The test is thus an objective one. Evidence
of how the plaintiff, or for that matter, any actual reader of the
article understood the statement is of no consequence.
[14] The appellant contended that on the application of
the test thus formulated, the reasonable reader would understand the
article
to convey that he was guilty of serious criminal activities
and that he used other people to do his dirty work for him. I do not
agree with this analysis. In my view a reasonable reader would
understand the article to mean that a police officer had told the
journalist that:
(a) on the basis of information available to the police,
they suspected the appellant of being involved in serious criminal
activities,
including cash-in-transit heists and car thefts;
(b) the same police officer told the journalist that,
although the police would eventually apprehend the appellant, they
were at
that stage unable to do so through lack of evidence, because
he made use of others to do his dirty work; and
(c) the police officer therefore called upon the
assistance of the Daily Sun readers to provide that evidence.
[15] In
Independent Newspaper Holdings Limited v
Suliman
[2004] 3 All SA 137
(SCA) para 24, this court declined to
accept the proposition that the reasonable reader is bound to equate
a statement that a person
is suspected by the police of committing a
crime with a statement that the person has actually committed that
crime. This is so
because the legal construct of the reasonable
reader knows that, while many persons arrested and charged with
criminal offences
are eventually convicted, guilt or innocence is
determined by a court on the basis of admissible evidence and that,
not infrequently,
the person charged is acquitted in the end (see eg
Mirror Newspapers v Harrison
[1982] HCA 50
;
(1982) 42 ALR 487
(HC of A) at
492). Though, generally speaking, it is therefore per se defamatory
to say of a person that he or she is suspected
of criminal conduct
(see eg
Hassen v Post Newspapers (Pty) Ltd
1965 (3) SA 562
(W)
at 565B-C;
Suliman
para 31), it is not the same as to say that
he or she is guilty of that crime. That must be even more so in a
case like the present
where the published statement made it clear
that, despite their suspicions, the police were not even in a
position as yet to arrest
the suspect because they lacked the
necessary evidence to do so.
[16] Understood in this way, I believe the court a quo
rightly found that the gist of the article was objectively true. The
application
by Gerber to embark on project Vulindlela confirms all
the essential elements of the impugned article; ie that the appellant
was
suspected by the police of participating in serious crime and
that he made use of others to do his dirty work. The appellant’s
counter-argument rested on the fact that the application was prepared
more than a year after the publication of the article. But
I believe
there are two answers to this counter-argument. In the first place it
is clear from the contents of the application itself
and from
Gerber’s testimony, that the application reflected information
and suspicions held by the police for a number of
years. Secondly,
the application neatly dovetailed with the letter written by Wiese on
18 February 2002, which corroborates that
these suspicions about the
appellant’s participation in serious crimes, including vehicle
theft and dealing in drugs, predated
the publication of the article.
[17] This brings me to those allegations in the article
that proved to be untrue. Of these, as I see it, there are only two.
First,
there is the allegation that Wiese asked the readers of the
Daily Sun in the area to assist in the apprehension of the appellant.
According to Wiese he never said that. But the question is whether
this untrue statement can ever be regarded as part of the sting
of
the article. I do not think so. This, I believe, can be demonstrated
by asking whether the defamatory meaning of the article
would have
been less serious if these words were omitted. As I see it the answer
to this question is clearly ‘no’.
[18] The second untrue statement in the article was the
one identifying Wiese as the journalist’s main source of
information
regarding the appellant. Again, however, I do not regard
this untrue statement as part of the sting. I find support for this
view
in the decision of this court in
Times Media Ltd v Niselow
[2005] 1 All SA 567
(SCA). The defamation complained of in
Niselow
was contained in an article published by Times Media.
It was to the effect that Prof Boffard of the Johannesburg General
Hospital
had said that the food prepared by Niselow for a large group
of children ‘smelled awful and looked appalling’. On
appeal
this court accepted that Prof Boffard never uttered these
words. Yet it held that this did not matter, because the untrue
statement
was not part of the sting. The sting of the article, so
this court held (para 25) was that the food prepared by the
respondent
smelled awful and looked appalling. What Times Media had
to prove was the truth of that statement, not that it was made by any
particular person. The same sentiment, I believe, finds application
in this case.
[19] Closely linked to this point regarding the
journalist’s source of information is the appellant’s
third contention
that the media respondents could not rely on
information which emerged from the testimony of the police witnesses
because it had
not been demonstrated that the article was based on
this information. But, as I see it, the contention raises the
rhetorical question
‘why not?’. Once the media
respondents had established that the sting of the article was true,
as in my view they did,
it matters not where the information relied
upon by the journalist came from.
[20] Turning to the further element of the defence,
namely, that of public interest, I must admit that I find this a
difficult issue
to decide. The difficulty arises from the subtleness
of the element itself. No exact definition of the concept is readily
available
in textbooks or decided cases. On the facts of this case,
the issue appears to be further complicated by the following
statements
of Marais JA on behalf of the majority in
Independent
Newspapers Holdings Limited v Suliman
[2006] 3 SA 137
(SCA) para
47:
‘
That
said, I think that the consequences of a premature disclosure of the
identity of a suspect can be so traumatic for and detrimental
to the
person concerned when he or she may never be charged or appear in
court and is, in fact, innocent, that greater weight should
be
assigned to the protection of the constitutional right to dignity and
privacy and the common-law right of reputation, than to
the right of
the press to freely impart information to the public. It is not as if
the press will be permanently deprived of the
right to identify the
suspect. Once he or she appears in court his or her identity may be
disclosed with impunity. . . . But, generally
speaking, and subject
to the considerations I have mentioned in paragraphs 45 and 46, I do
not believe it is in the public interest
or for the public benefit
that the identity of a suspect be made known prematurely.’
[21] I appreciate that these statements may be
understood to provide authority for the proposition that, as a
general rule and save
for exceptional circumstances, it will not be
for the public benefit or in the public interest to publish the
identity of a person
suspected of criminal conduct, unless and until
that person has actually been charged in open court. On the facts of
the
Suliman
case and read in the wider context of Marais JA’s
judgment as a whole, I do not believe, however, that he intended to
lay
down such an immutable rule. To do so would, in my view, negate
the role of public benefit as a constituent element of the
justification
ground of truth and public benefit (see also eg
Manyatshe v M & G Media Ltd
[2009] ZASCA 96
para
18).
[22] As explained by the Constitutional Court in
Le
Roux v Dey
2011 (3) SA 274
(CC) para 122, common law grounds of
justification play a pivotal role within the framework of our
Constitution. The reason is
that it is primarily in the province of
justification that the common law allows the courts to strike a
proper balance between
the often conflicting fundamental rights of
freedom of expression, including freedom of the press, on the one
hand, and the rights
to freedom of privacy and dignity, including
reputation, on the other. Under the rubric of truth and public
benefit, the balancing
act turns mainly on the element of public
interest or benefit. If a defamatory statement is found to be
substantially untrue, the
law does not regard its publication as
justified. Publication of defamatory matter which is untrue or only
partly true can never
be in the public interest, end of story. But,
the converse does not necessarily hold true. Our law does not regard
publication
of a defamatory statement as justified merely because it
is true, precisely because the court may, in its performance of the
balancing
act, find that in the particular circumstances of the case,
the freedom of expression is outweighed by the victim’s right
to privacy or dignity.
[23] In the case of mere suspicion held by the police
the court may well come to the conclusion, in a particular case that
the right
to dignity of the suspected person outweighed the
publisher’s right to freedom of expression. This may happen in
a case where,
for example, it is found to be true that the police
held the suspicion, but that the suspicion was based on no more than
unfounded
allegations by a meddlesome neighbour or antagonistic
police informant. If in that case publication of the unfounded
suspicion
then wrecked the reputation of the suspected person or
destroyed his or her career, the defence of truth and public benefit
is
most likely to fail. On the other hand a blanket ban against
publication of police suspicion may very well impede the press in the
performance of its vital function ‘to ferret out corruption,
dishonesty and graft whenever it may occur and to expose the
perpetrators’. (See
Khumalo v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) para 23.)
[24] In performing its balancing act the court must
therefore decide the public benefit issue with specific reference to
the facts
of the case before it. Needless to say that these factual
situations may vary infinitely. From this, I think, two consequences
must follow. First, that the courts should refrain from restricting
themselves in the performance of their balancing act by departing
from ‘starting points’ or ‘general rules’ or
‘guidelines’. Though these may be of assistance
to other
courts and practitioners, some degree of uncertainty is unavoidable,
precisely because we are concerned with a balancing
act which has to
be performed on a case by case basis in circumstances that may vary
widely. The second consequence is that a decision
as to whether or
not publication of a defamatory statement was for the public benefit
in a particular case – whether in
Suliman
or in this
case – cannot constitute any binding authority in other cases
which are distinguishable on their facts.
[25] Reverting to the facts of this case, I believe that
publication of the suspicion held by the police was for the public
benefit.
This was not an instance of suspicion derived from
information by a nosy neighbour or based on flimsy grounds. Nor was
the police
suspicion confined to a single, isolated incident.
According to the police evidence which stands uncontroverted, they
had information
from those actually involved in the commission of
crimes that the appellant was their ringleader. Moreover, as a result
of this
information the appellant had been in the sights of the
police force and apparently also of the NIA for more than ten years.
Despite
this convincing case against him, the police were unable to
apprehend the appellant, not because the evidence against him
appeared
to be unreliable, but because the witnesses were unwilling
to testify. As a result the police were compelled to launch a special
project, at substantial expense, by the Organised Crime Unit to put
an end to the community-threatening criminal activities of
the
syndicate of which the appellant was the suspected leader.
[26] If these strong suspicions proved to be true, the
further possibility was that the appellant would never appear in
court on
any charges for want of witnesses willing to testify against
him. Hence the opportunity to publish his identity as that of a
suspected
criminal, as envisaged by Marais JA in
Suliman
,
would never arise. As I see it, the appellant could not insist on
enjoying the reputation of an honest businessman who is beyond
any
suspicion, which he did not or ought not to possess. In addition, the
publication of these suspicions could serve the purpose
of persuading
members of the appellant’s community to come forward with
potential evidence against him which the police so
eagerly sought.
The fact that the police did not actually ask the journalist to
invite public assistance, plainly did not detract
from this
possibility. In consequence I find that the defence of truth and
public benefit had been rightly upheld and that the
defendant’s
claim based on defamation was therefore rightly dismissed by the
court a quo.
[27] This brings me to the costs of the police
respondents in the court a quo. In this regard it will be remembered
that the appellant
was ordered to pay the costs of all the
defendants, including the police. As to why the court a quo had erred
in doing so, the
appellant argued that his claim against the police
was based entirely on the statement in the impugned article that
attributed
the defamatory matter to Superintendent Wiese. In
addition, so the appellant argued, the media respondents maintained,
both in
their plea and throughout the trial proceedings, that the
defamatory statements were in fact made by Wiese. But for this
persistence
by the media respondents in a version which the court a
quo eventually found to be untrue, so the appellant’s argument
concluded,
he would not have pursued his action against the police
respondents.
[28] In my view the media respondents gave no persuasive
answer to these arguments. The fact that publication of the
defamatory
statements in the end proved to be justified, provides no
excuse for the media respondents’ reliance on a factual version
that their information derived from the police, which proved to be
untrue. Since it is that untrue version which led to the involvement
of the police respondents in the action and the costs resulting from
that involvement, I can see no reason why the media respondents
should not be liable for these costs, which were solely attributable
to them. To this limited extent the appeal must therefore
succeed.
But the fact that the appellant’s success on appeal is limited
does not mean that he was not substantially successful.
It follows
that in my view, the media respondents should be held liable for the
costs of appeal.
[29] What remains is the costs of the two condonation
applications by the appellant in this court. The first resulted from
the late
filing of his notice of appeal and the second from his late
filing of his heads of argument. Both applications were opposed by
the media respondents on the basis that the reasons advanced by the
appellant’s attorney for his failure to comply with the
rules
of this court, were largely unsatisfactory. I agree with this
argument. I also find some of the explanations disturbingly
inadequate. Yet, I do not believe that they were so unacceptable that
it would justify the refusal of condonation without regard
to the
merits of the appeal. In the end, the outcome of the condonation
applications therefore turned on the appellant’s
prospects of
success. Since the appeal should, in my view, be upheld in part, it
follows that that condonation applications should
also succeed.
However, because the media respondents were not unreasonable to
oppose these applications, in the light of the unacceptable
explanations, I believe they are entitled to their costs of
opposition.
[30] In the result the following order is made:
a. The two condonation applications by the appellant are
granted, but the appellant is ordered to pay the costs incurred by
the
third to sixth respondents in opposing these applications.
b. The appeal is partly upheld and the third to sixth
respondents are ordered to pay the appellant’s costs of appeal.
c. The order of the court a quo is set aside and
replaced by the following:
‘
1. The plaintiff’s
claims against all six defendants are dismissed.
The plaintiff is ordered to pay the costs incurred by
the third to sixth defendants.
The third to sixth defendants are ordered to pay the
costs incurred by first and second defendants.’
………………………
..
F D J BRAND
JUDGE OF APPEAL
Counsel
for Appellants: N W Phalatsi (Attorney)
BLOEMFONTEIN
Counsel
for Respondent: G Kairinos
C
C Bester
Instructed
by: E G Cooper & Sons
BLOEMFONTEIN