Tsedu and Others v Lekota and Another (715/07) [2009] ZASCA 11; 2009 (4) SA 372 (SCA) ; [2009] 3 All SA 46 (SCA) (17 March 2009)

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Tsedu and Others v Lekota and Another (715/07) [2009] ZASCA 11; 2009 (4) SA 372 (SCA) ; [2009] 3 All SA 46 (SCA) (17 March 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 715/07
MATHATHA TSEDU 1
st
Appellant
WONDER HLONGWA 2
nd
Appellant
MEDIA 24 (PTY) LIMITED 3
rd
Appellant
and
GERALD PATRICK MOSIUOA
LEKOTA 1
st
Respondent
JOEL SIBUSISO NDEBELE 2
nd
Respondent
Neutral citation:
Tsedu
v Lekota
(715/07)
[2009] ZASCA 11
(17 March 2009)
Coram:
HARMS
DP, MTHIYANE, NUGENT, VAN HEERDEN JJA and LEACH AJA
Heard:
19
FEBRUARY 2009
Delivered:
17
MARCH 2009
Summary:
Defamation
– whether report defamatory – quantum of damages.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from: High Court at Johannesburg (Tshiqi J
sitting as court of first instance)
The following order is made:
1. The amounts reflected in paragraphs 1 and 2 of the
order of the court below are in each case substituted with the amount
of R100 000.
2. The appeal is otherwise dismissed with costs that are
to include the costs occasioned by the employment of two counsel.
________________________________________________________________
JUDGMENT
________________________________________________________________
NUGENT JA (HARMS DP, MTHIYANE, VAN HEERDEN JJA and LEACH
AJA
concurring)
[1] The front page of the 7 August 2005 edition of City
Press – a prominent Sunday newspaper – carried an article under
the
heading ‘ANC top brass spied on one another – apartheid
agent’. The article was written by Mr Hlongwa (the second
appellant),
Mr Tsedu (the first appellant) was the editor of the
newspaper, and Media 24 (Pty) Ltd (the third appellant) was the
proprietor
and publisher.
[2] The respondents were identified by name as the ‘ANC
top brass’ referred to in the heading and their photographs
accompanied
the article. At the time the article appeared the
respondents were both prominent office-bearers of the African
National Congress
(ANC) and they also held high office in government.
Mr Lekota (the first respondent) was the national chairman of the ANC
and also
the Minister of Defence. Mr Ndebele (the second respondent)
was the provincial chairman of the party in KwaZulu-Natal and the
Premier
of that province.
[3] The respondents sued the appellants in the High
Court at Johannesburg for damages, alleging that they had been
defamed. Their
claims were upheld by that court (Tshiqi J) and
damages were awarded to Lekota and Ndebele in the amounts of R150 000
and
R112 500 respectively. This appeal is before us with the
leave of that court.
[4] The article purported to be a report of what had
been said in a book that had been published some three years
earlier.
1
In the course of a radio interview about the article shortly after it
had appeared, Tsedu remarked to the interviewer that if the

respondents ‘have problems with [what was said in the book] they
should take the author of the book to court and not City Press’.
It
is evident from that remark that he was under the impression that a
newspaper may publish defamatory statements with impunity
if they
have been originated by someone else. Well, journalists who keep
Kelsey Stuart’s Newspaperman’s Guide to
the Law
2
by their side know that that is not so from
the following passage:
‘[a] person who repeats or adopts and re-publishes a defamatory
statement will be held to have published the statement. The writer
of
a letter published in a newspaper is
prima facie
liable for
the publication of it but so are the editor, printer, publisher and
proprietor. So too a person who publishes a defamatory
rumour cannot
escape liability on the ground that he passed it on only as a rumour,
without endorsing it.’
[5] A newspaper that publishes a defamatory statement
that has made by another is as much the publisher of the defamation
as the
originator is. Moreover, it will be no defence for the
newspaper to say that what was published was merely repetition. For
while
the truth of the statement (if it is published for the public
benefit) provides a defence to an action for defamation, the defence

will succeed only if it is shown that the defamation itself is true,
not merely that it is true that the statement was made. The
authors
of
Gatley on Libel and Slander
(dealing with the tort of libel in English law, which in this and
other respects substantially coincides with our law) put that
as
follows:
3
‘The defendant must prove that the defamatory imputation is true.
It is not enough for him to prove that he believed that the

imputation was true, even though it was published as belief only. “If
I say of a man that I believe he committed murder, I cannot
justify
by saying and proving that I did believe it. I can only justify by
proving the fact of the murder”.
4
The same is true if the defendant says that he is only repeating what
others have said or that there is a rumour. So if the defendant
has
written, “A said that P had been convicted of theft”, it will be
no defence for the defendant to prove that A did tell
him so, that he
honestly believed what A said, and only repeated it. He must prove as
a fact that P was convicted of theft. “If
you repeat a rumour you
cannot say it is true by proving that the rumour in fact existed; you
have to prove that the subject matter
of the rumour is true.”
5
This is the “repetition rule”.’
[6] There are, of course, circumstances in which the
publication of even false defamatory matter is protected – for
example, when
it repeats what was said in parliament or in a court of
law, or if ‘upon a consideration of all the circumstances of the
case,
it is found to have been reasonable to publish the particular
facts in the particular way and at the particular time’
6
– and the fact that the defamatory matter is mere repetition might
in some cases be relevant to whether a defence of that kind
will be
allowed. But that does not arise in this case. The appellants have
not sought to advance any defence of that kind, which
would in any
event have been bound to fail because the statements that are now
complained of were not in the book at all. They
were fabricated by
the author of the article.
[7] No doubt there is considerable potential for slips
to be made in a busy newsroom that runs against deadlines. But when
alerted
to the fact that something might have gone wrong it would be
a wise editor who pauses for a moment to reflect on what has
occurred.
In this case the respondents’ attorney wrote to the
editor shortly after the article had appeared complaining that it was
defamatory
and factually incorrect in parts. It seems to me that it
would have been an elementary precaution in circumstances of that
kind
to call for the book and compare it to what had been said in the
article. Had that been done it would have been evident that the

statements that were said to be defamatory were not in the book. But
that was not done and instead the respondents’ complaints
were
brushed aside. It was only on the eve of the trial that wiser counsel
prevailed and a retraction and apology was belatedly
published. That
notwithstanding, the appellants persisted in contending that they had
done nothing unlawful, pinning their colours
to a submission that the
fabricated statements were not defamatory.
[8] In answering the question whether the article was
defamatory the court below – prompted by the pleadings and the
submissions
that were made before it – compared the article to the
contents of the book and found that the article grossly
misrepresented
what had been said. That finding was interwoven in the
reasons that were given by that court for its conclusion that the
article
was defamatory. In that respect the court below, and counsel
who pleaded and presented the case before the court below, were
misdirected.
[9] Whether a statement is defamatory depends upon the
imputation that it conveys: it is a separate question whether it was
unlawful
to make the defamatory statement. I have already indicated
that in some cases it might be relevant to the latter issue that the

defamatory statement was repetition, but it has no relevance to
whether the statement is defamatory. In
Gatley
on Libel and Slander
that is expressed
succinctly as follows:
7
‘The question “what is defamatory?” relates to the nature of
the statement made by the defendant: words may be defamatory
even if
they are believed by no one and even if they are true, though in the
latter case they are not, of course,
actionable.
’
[10] In those circumstances, and bearing in mind that no
defence has been advanced that might raise the question of
repetition,
the fact that the article misrepresented what was said in
the book has no relevance to this case, and I need say no more about
the book.
[11] The article commenced on the front page of the
newspaper and continued on page two. The events to which it refers
were said
to have occurred shortly before what was called the
‘make-or-break’ negotiations between, primarily, the ANC and the
government
of the former regime. Under the heading that I quoted
earlier, and accompanied by photographs of the respondents, the
article commenced
as follows:
‘Defence Minister and ANC chairperson Mosiuoa Lekota and
KwaZulu-Natal Premier and provincial ANC chairperson S’bu Ndebele

(both pictured) spied on the ANC and their own comrades –
unwittingly it would appear.
The startling revelations of Lekota and Ndebele supplying
confidential ANC information to the apartheid-era National
Intelligence
Service (NIS) are contained in a book by former
operative Riaan Labuschagne.
Masquerading as a journalist and researcher on liberation theology,
Labuschagne writes that he infiltrated the ANC to its top leadership

circles in KwaZulu-Natal. He made friends with former UDF leaders
with the help of Lekota and Ndebele at a time when the two were

chairperson and secretary of the ANC in the province respectively. He
headed Operation Jaguar, which was designed to penetrate
the ANC just
before the make-or-break negotiations before April 1994 to spy on its
strategies and activities. His activities were
stopped by ANC
intelligence operative Mo Shaik who raised concerns about his
presence.’
[12] No detail was given of the confidential information
that was said to have been supplied by Lekota to the ‘apartheid
agent’.
The article detailed some of the information that was said
to have been supplied by Ndebele and went on to report that Ndebele
had ‘denied that he gave confidential documents [to the agent]
saying that they could have been public documents anyway.’ The

remainder of the article is not material to our decision in this
appeal and I need not repeat it.
[13] In deciding whether the statements I have outlined
are defamatory the first step is to establish what they impute to the
respondents.
The question to be asked in that enquiry is how they
would be understood in their context by an ordinary reader.
8
Observations that have been made by our courts as to the assumptions
that ought to be made when answering that question are conveniently

replicated in the following extract from a judgment of an English
court:
9
‘The court should give the article the natural and ordinary meaning
which it would have conveyed to the ordinary reasonable reader

reading the article once. Hypothetical reasonable readers should not
be treated as either naïve or unduly suspicious. They
should be
treated as capable of reading between the lines and engaging in some
loose-thinking, but not as being avid for scandal.
The court should
avoid an over-elaborate analysis of the article, because an ordinary
reader would not analyse the article as a
lawyer or an accountant
would analyse documents or accounts. Judges should have regard to the
impression the article has made upon
them themselves in considering
what impact it would have made upon the hypothetical reasonable
reader. The court should certainly
not take a too literal approach to
its task.’
[14] Much has been made of the unqualified statement in
the headline that the respondents ‘spied’, which conveys in its
ordinary
meaning that the respondents ‘kept watch [on their
comrades] in a secret or stealthy manner’, that they ‘kept watch
[on them]
with hostile intent’, that they ‘made stealthy
observations with hostile motives’.
10
But words that are used in a newspaper article must not be read in
isolation – the ordinary reader must be taken to have read
the
article as a whole albeit without careful analysis. A clear
expression of the reason underlying that rule is to be found in
Charleston v News Group Newspapers Ltd,
11
in which the question whether a defamatory headline, isolated from
the text of the article, is capable of founding an action for

defamation, was confronted directly by the House of Lords. It held
that the adoption by the law of a single standard for determining
the
meaning of the words – the standard of the ordinary reader –
necessarily leads to the conclusion that it could not found
an
action. Lord Nicholls of Birkenhead expressed it as follows:
12
‘I do not see how, consistently with this single standard, it is
possible to carve the readership of one article into different

groups: those who will have read only the headlines, and those who
will have read further. The question, defamatory or no, must
always
be answered by reference to the response of the ordinary reader to
the publication.’
But he warned against the idea that a poisonous headline
may be published with impunity provided only that an antidote is
administered
in the text when he went on as follows:
13
‘This is not to say that words in the text of an article will
always be efficacious to cure a defamatory headline. It all depends

on the context, one element of which is the layout of the article.
Those who print defamatory headlines are playing with fire.
The
ordinary reader might not be expected to notice curative words tucked
away further down in the article. The more so, if the
words are on a
continuation page to which a reader is directed. The standard of the
ordinary reader gives a jury adequate scope
to return a verdict
meeting the justice of the case.’
[15] Even if the article was read only fleetingly I
think that the imputation in the headline that the respondents had
spied (in
the ordinary sense of the word) would soon have been
dispelled when the reader commenced reading the text and any
lingering doubts
would have been put to rest once the article had
been read to the end. The ordinary reader would have been struck
immediately by
the qualification in the first paragraph that the
so-called spies had been ‘unwitting’. Naturally that was a
contradiction
in terms – spying, by its nature, cannot be unwitting
– but we are not concerned with the quality of the writing. We are
concerned
with the impression that the words would have left on the
mind of the reader. In my view the ordinary reader would have known
from
the first paragraph alone, and it would have been confirmed by
the facts related thereafter, that the respondents had not acted
with
the state of mind that I have mentioned.
[16] But what the article also told the reader – and
this in unambiguous language – was that the respondents supplied
confidential
party information to a person who purported to be a
journalist researching liberation theology. That the person was in
truth an
NIS agent reflects upon the effect of their conduct, rather
than on the nature of what they had done, and in that sense it is not

really material. For I think the ordinary reader would understand
that confidential information should not have been divulged at
all,
even if the person was not an agent. I agree with counsel for the
respondents that what the article says of the respondents
is that
they breached confidences with which they had been entrusted,
imputing to them that they lacked the qualities that are
required to
be entrusted with confidences of that kind.
[17] The question whether an imputation is defamatory is
usually answered by asking whether the imputation lowers the
plaintiff
in the estimation of the ordinary reader.
14
It is not necessary in this case to revisit how that test is to be
applied when there are sectors in society that might differ
from one
another in the view that they would take of the matter.
15
To impute to the respondents, who were both in high office at the
time, that they lacked the qualities that are required to be

entrusted with the confidences of high office, would indeed tend to
lower them in the estimation of people straddling all sectors
of our
society and was defamatory. No defence to the publication of the
defamation has been advanced and it follows that it was
unlawful. I
turn, then, to the question of damages.
[18] The quantification of damages in an action for
defamation falls within the discretion of the trial court and a court
of appeal
will interfere with an award only if it is tainted by
misdirection. It is not altogether clear from the judgment what
meaning the
court below gave to the article, but there is an
indication that the court considered it to impute that the
respondents had been
spies as ordinarily understood. If that is
indeed the meaning that was given to the article the court was
misdirected for the reasons
I have given. But that apart, I referred
earlier in this judgment to the manner in which that court approached
the question whether
the article was defamatory. It was inevitable
from the adoption of that approach that the court below was under a
misapprehension
as to the nature of the defamation when the damages
were assessed. That was a material misdirection in itself and we must
assess
the damages afresh.
[19] I have pointed out that the material statements in
the article were fabrications by the author for which no explanation
has
been given. Counsel for the respondents urged us to infer that
his conduct was malicious and to take account of that in assessing

damages but I do not think it would be correct to do so. Although
there are statements to the contrary in some decided cases counsel

for the appellants accepted that the purpose of damages for
defamation is not to punish the defendant but to console the
plaintiff
through compensation for the harm that was caused.
16
What is material for that purpose is not why the defamation occurred
but rather what effect the defamation had.
[20] The imputation that was made against the
respondents, bearing in mind the offices they held at the time, was
serious and deserving
of substantial damages. Quite how widely the
defamation was circulated does not appear from the record but the
allegation in the
pleadings that City Press has a ‘large
readership’ was admitted.
[21] What is always material to an award is the extent
to which the harm that was caused was mitigated by the defendant. I
think
I have already made it clear that in this case the response by
Tsedu to the complaint that was made by the respondents soon after

the article appeared was one of indifference if not contempt. What
was published in the edition of City Press that appeared after
the
complaint had been made was no more than an article reporting that
Lekota denied the allegations that had been made (the initial
report
contained a denial by Ndebele) and adding that ‘City Press regrets
the possible wrong inference that could have been drawn
[from the use
of the word ‘spied’] that Lekota actively spied on the ANC’,
and that any ‘embarrassment so caused’ was
‘unfortunate and
regretted’. That correction did nothing to mitigate the harm,
bearing in mind that the ordinary reader would
in any event not have
read the article as saying that the respondents had spied.
[22] The editor had a further opportunity for reflection
– and once more he chose not to take it – when he was interviewed
for
radio some three weeks after the article appeared. The only
wrongdoing that was acknowledged by Tsedu in that interview was that

the word spies had not been placed in quotation marks (though why a
‘spy’ is not a spy was not explained). That the statements
that
were said to be defamatory had been fabricated by the author was
overlooked.
[23] There the matter rested for almost sixteen months
until shortly before the matter came to trial. On 12 November 2006
City Press
carried the following retraction and apology:
‘The report “ANC top brass spied on one another – apartheid
agent” of 7 August 2005, unjustly offends both Minister of
Defence,
Mosiuoa Lekota, and KZN Premier S’Bu Ndebele, which City Press
sincerely regrets.
The report discusses revelations supposedly contained in the book
titled “
On South Africa’s secret service
” by former
national intelligence operative Riaan Labuschagne.
The book does not contend, as incorrectly stated in the report, that:
“Defence Minister and ANC chairperson Mosiuoa Lekota and

KwaZulu-Natal premier and provincial ANC chairperson S’Bu Ndebele
(both pictured in the report) spied on the ANC and their own
comrades
– unwittingly it would appear”.
It follows that the heading “ANC top brass spied on one another –
apartheid agent”, is similarly incorrect.
The report also contains the following factual errors:
The book does not state that Lekota and Ndebele supplied
confidential information to the apartheid’s era National
Intelligence
Services and the statement in the report that the book
contains “startling revelations”, to that effect is erroneous.
The following statements in the book are incorrect as Lekota was in
custody from April 1985 until his release from Robben Island
on 15
December 1989, namely: “Labuschagne says his association with
Lekota gave him considerable access to ANC circles” and

“nevertheless, by the middle of 1989 I had established contacts
with, and interviewed, most members of the ANC and SACP leadership

in Durban and Pietermaritzburg through an unwitting Lekota, wrote
Labuschagne.”
City Press retracts the incorrect statements in the report and
apologises for the embarrassment thereby occasioned.’
[24] I do not think much weight can be attached to that
retraction and apology, coming as it did on the eve of a trial that
was
destined in any event to vindicate the respondents. One might
expect that the appellants, having retracted and expressed their
‘sincere regret’, would then have turned their attention to the
monetary value of the offence that they had caused, but that
was not
to be. Instead they persisted in compelling the respondents to find
their full vindication in the courts. There has been
nothing, in my
view, that the appellants have done to mitigate the harm that they
caused, and the respondents are entitled to a
full measure of
damages.
[25] Monetary compensation for harm of this nature is
not capable of being determined by any empirical measure. Awards made
in other
cases might provide a measure of guidance but only in a
generalized form and I do not think it would be helpful to recite
other
awards. In my view an award that would meet the justice of this
case would be the sum of R100 000 for each of the respondents.
[26] There remains the question of costs. The appellants
appealed against the whole of the order of the court below, including
the
amount of the award, and in the latter respect they have been
successful to a degree. Insofar as it relates to the award to Ndebele

their success has been negligible and he is entitled to his costs of
the appeal. Although their success has been greater in relation
to
Lekota I do not think that ought to affect the costs for two reasons.
First, the costs of the appeal are not capable of being
separated as
between the respondents. Secondly, the thrust of the appeal, despite
the retraction before the trial, was directed
at persuading us that
the appellant had not acted unlawfully, and the amount of the award
has played only a peripheral role. The
respondents were compelled to
resist the appeal if they were to be vindicated and I think they are
entitled to the costs of having
done so.
[27] The following order is made:
1. The amounts reflected in paragraphs 1 and 2 of the
order of the court below are in each case substituted with the amount
of R100 000.
2. The appeal is otherwise dismissed with costs that are
to include the costs occasioned by the employment of two counsel.
__________________
R.W. NUGENT
JUDGE OF APPEAL
APPEARANCES:
For
appellant: J J Roestorf
Instructed
by:
Willem
de Klerk & Ass, Johannesburg
Honey
Attorneys, Bloemfontein
For
respondent: K S Tip SC
G
L Malindi
Instructed
by:
Mohamed
Randera & Ass, Johannesburg
E
G Cooper Majiedt Inc, Bloemfontein
1
Riaan Labuschagne
On South Africa’s Secret Service: An
Undercover Agent’s Story
(Galago 2002).
2
5
ed (1990) by Bell Dewar and Hall p 43.
3
Gatley on Libel and Slander
10 ed (2004) edited by Patrick
Milmo QC and W V H Rogers para 11.4. See, too, Jonathan M Burchell
The Law of Defamation in South Africa
(1985) pp 211-212.
4
Quoting what was said in
Kerr v Force
(1826) 3 Cranch C C 8
at 24.
5
Quoting Greer LJ in
Cookson v Harewood
[1932] 2 K B 478n
at
485.
6
National Media Ltd v Bogoshi
1998 (4) SA 1196
(SCA) at
1212G-H.
7
Above, para 1.5.
8
Joubert (ed)
The Law of South Africa
(2 ed) vol 7
‘Defamation’ by F D J Brand para 239.
9
Simon Brown LJ in
Mark v Associated Newspapers Ltd
2002 E M L
R 38 para 11.
10
Oxford Shorter English Dictionary
.
11
1995 2 AC 65
(HL).
12
At 74B-C.
13
At 74C-D.
14
LAWSA
, above, para 237 as qualified in
Mohamed v Jassein
[1995] ZASCA 115
;
1996 (1) SA 673
(A) at 706H-J.
15
Mohamed v Jassein
[1995] ZASCA 115
;
1996 (1) SA 673
(A).
16
Dikoko v Mokhatla
2006 (6) SA 235
(CC) para 76. See the
discussion of the subject by J Neethling ‘The Law of Delict and
Punitive Damages’ [2008]
Obiter
Vol 29(2) 238.