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[2021] ZAGPJHC 383
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Koko v Tanton (2021/2212) [2021] ZAGPJHC 383 (7 September 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NUMBER:
2021/2212
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED: YES
07 SEPTMEBER 2021
In the matter between:
MATSHELA
MOSES
KOKO
Applicant
and
BARBARA
TANTON
Respondent
JUDGMENT
DE WET AJ:
INTRODUCTION
1.
The applicant, a former Chief Executive
Officer of Eskom Holdings SOC Limited (“Eskom”) brought
an application against
the respondent, a 72-year-old female principal
of a preschool, for the following relief:
1.1
An order declaring that the statement/s or
publications made and published by the respondent on Twitter are
defamatory, demeaning,
false and unlawful;
1.2
in the event that the court finds that the
statement/s or publications are defamatory, demeaning, false and
unlawful; the respondent
is directed to remove them from the media
platforms and to publish an unconditional public retraction and
apology for the defamatory
publications about the applicant;
1.3
the respondent be interdicted from
publishing similar defamatory, demeaning, false and unlawful
statement/s about the applicant
in future;
1.4
the respondent to be liable for damages in
the amount of R500 000,00 as solatium for the injury caused to
the applicant; and
the determination of the quantum to be postponed
sine die
.
FACTS
2.
On 16 May 2017 the applicant was placed on
special leave pending the outcome of an investigation into certain
allegations of a breach
of fiduciary duties which he owed to Eskom.
3.
The applicant is a registered user on
Twitter since July 2016. The respondent is also a registered user on
Twitter.
4.
On 25 October 2020, City Press, on Twitter,
mentioned the applicant’s name with reference to him “
refusing
to sign off 27 contracts with independent power providers that had
already been negotiated by the Government
”.
The applicant retweeted the City Press publication and endorsed his
comment thereon, which read:
“
@Eskom_SA
can generate a unit of electricity for R0,42. It is obliged to buy it
from IPPS for R2.13 & it sells
it
to its customers at R0.93.
”
5.
It is to this tweet that the respondent
posted the tweet which precipitated this application, which read:
“
you
stole so much I am so sick of your innocent ramblings.
”
6.
The applicant, being aggrieved by such
publication addressed a letter of demand to the respondent on 5
November 2020 in which he
sought:
6.1
an unconditional public retraction of the
publication and an apology for the unfounded allegations made about
the applicant;
6.2
to desist from publishing similar
defamatory statements about the applicant in future; and
6.3
to make payment of the amount of
R500 000,00 as damages for defamation and damaging his
reputation, which amount was to be
paid within 10 days from the
demand.
7.
The respondent during early January 2021
removed her tweet and closed her Twitter account.
8.
On 21 January 2021, the applicant launched
this application against the respondent.
9.
Emma Sadleir of the Digital Law Company, on
behalf of the respondent, addressed a letter to the applicant on 3
February 2021, in
which letter she proposed a settlement of the
disputes between the applicant and the respondent. Whilst this letter
was addressed
without prejudice, the contents thereof have been
disclosed as a consequence of the applicant not proceeding with any
relief in
the application save for an order for costs.
10.
In the letter the respondent proposed that
in full and final settlement of all claims between them:
10.1
The respondent shall, within one hour of
the applicant withdrawing his application, reactivate her Twitter
account for one week
and publish a tweet retracting and apologising
for her tweet;
10.2
that the respondent undertakes in writing
not to publish any further statements concerning the applicant on any
platform; and
10.3
that each party bears their own costs.
11.
It is of no little importance that the
respondent recorded in this letter that the application is destined
to be dismissed with
costs in light of the Supreme Court of Appeal’s
judgment in EFF & Others v Manuel (711/2019/[2020] ZASCA 172 (17
December
2020) in which the Supreme Court of Appeal held that
application procedure is inappropriate for a claim for damages for
defamation
even if no material dispute of fact arises. Damages for
defamation as well as the demand for an apology should be pursued
through
action proceedings. In addition, the respondent informed that
there is a material dispute of fact between the parties in the
present
case.
12.
The applicant did not accept the olive
branch extended to him by the respondent and persisted with the
application, which necessitated
the respondent delivering her
answering affidavit which is very extensive and includes a
substantial amount of documents upon which
she relies in her defence
to the applicant’s claim.
13.
Save for delivering his replying affidavit,
the applicant did not take any further steps to prosecute the relief
sought in the application.
14.
The respondent opposed the application and
raised three points
in limine
,
being that the application is an abuse of the court process and is
nothing other than Strategic Litigation Against Public Participation
(“SLAPP”), that motion proceedings cannot be used to
claim general damages and that motion proceedings cannot be brought
when material disputes of fact are foreseeable, as they were in this
application.
15.
The respondent raises five defences, which
include that the respondent’s tweet was not defamatory of the
applicant, it was
a fair comment, it was true and published in the
public interest, was so trivial that it cannot be deemed wrongful and
that the
respondent had no
animus
injuriandi
.
16.
The applicant does not proceed with any
relief save for an order that the respondent pay the costs of this
application. He did not
claim costs in the notice of motion and he
has not delivered a notice to amend the relief claimed to include a
prayer for cost.
17.
The respondent delivered her heads of
argument and practise note on 3 May 2021. The respondent brought an
interlocutory application
to compel the applicant to deliver his
heads of argument and practice note failing which his application be
struck out. The applicant
thereafter delivered his heads of argument
and practise note on 5 July 2021. The application was set down by the
respondent’s
attorneys of record.
18.
In his heads of argument as well as at the
hearing of the application, the applicant conceded that the court
cannot determine the
relief sought in regard the declaratory order on
motion and that the amount of damages to be awarded can similarly not
be determined
in motion proceedings. Despite the foregoing he did not
ask for a referral. He did not persist with his claim for an
unconditional
public retraction and apology for the defamatory
publications about the applicant or his claim that the respondent be
interdicted
from publishing similar defamatory, demeaning, false and
unlawful statement/s about the applicant in future. He explained that
in light of the removal of the offending tweet he no longer sought or
required the public apology by the respondent or the interdict
restraining her from similar unlawful conduct in future.
19.
The applicant sought an order striking out
a substantial portion of the respondent’s answering affidavit
and numerous annexures
on the grounds that it was scandalous,
vexatious and irrelevant and that the applicant will be prejudiced if
the application to
strike is not granted.
20.
On considering the numerous portions,
phrases and annexures of the respondent’s answering affidavit
which the applicant seeks
to strike, it is clear that such material
relates directly to the defences raised by the respondent. The
applicant specifically
relies on his good name and reputation for the
relief sought against the respondent. The respondent is entitled to
place facts
and evidence before the court to rebut the applicant’s
contentions. I do not find the matter which the applicant seeks to
have struck to be abusive or defamatory, that it has been included in
the answering affidavit with an intention to harass or annoy
the
applicant and neither that such matter is irrelevant. It is
inter
alia
on these facts that the respondent
wishes to rely in opposing the applicant’s claim, and upon
which she may rely at a future
hearing, should the applicant further
pursue his claim/s against her.
21.
Consequently, I am not persuaded that there
is any merit in the applicant’s application in terms of rule
6(15) of the Uniform
Rules of Court read with rule 6(11) and the
application is dismissed with costs.
22.
Mr
Moorcroft, assisted by Ms Reddy, submitted that the applicant was
entitled to his costs as the respondent’s tweet was directed
at
the applicant, intended to convey that he was a thief who
misappropriated taxpayers’ money, that such phrase is
per
se
wrongful, defamatory and insulting. The argument of the applicant is
further that the respondent bears the onus to prove the absence
of
animus
injuriandi
,
which she failed to do in that she has not rebutted the presumption
of
animus
injuriandi
.
The respondent has similarly failed to rebut the onus that she bears
in respect of her defence of truth and public interest.
[1]
23.
The applicant submitted that in removing
the offending tweet the respondent conceded the second prayer in the
notice of motion,
which rendered the application moot. The applicant
argued that the questions relating to the interplay between the
constitution
right of freedom of speech and opinion on the one hand
and the constitution right to dignity on the other hand are the
issues that
arise in this application and submits that such issues
cannot be determined by this court. He further contends that as the
respondent
removed the offending tweet he has been substantially
successful herein.
24.
This court is not required to determine the
issues raised by the applicant in light of the findings hereunder.
Accordingly, I refrain
from doing so.
25.
Mr Winks, for the respondent, submitted
that the application should be dismissed with punitive costs.
26.
The respondent contends that this
application is an abuse of the process of court and is nothing other
than a SLAPP. She maintains
that the applicant’s improper
motive of the applicant’s SLAPP against her was unmasked by the
applicant during an interview
with Cape Talk Radio that took place a
mere two court days after issuing the application. In this interview
the applicant when
asked why he instituted proceedings against the
72-year-old preschool principal, being the respondent, replied:
“
She
needs a big
klap
so
that others can learn that the time for impunity is gone
”.
27.
The applicant went to great pains in the
founding affidavit to demonstrate and expound on his not
insignificant academic and professional
achievements and success, the
umbrage which he took against the appalling manner in which the
respondent was vilifying him and
sending a wrong message to her
limited and his very extensive followers on Twitter and his exposure
to extensive reputational damage
and injury to his dignity. He
expressed concern that his pool of clients, national and
international, will be deterred from continuing
to do business with
him on a large scale as a consequence of fears that he is a dishonest
man. He concludes that it leaves him
in a precarious position, facing
an uncertain future in respect of earning a livelihood.
28.
It is against
inter
alia
this evidence of the applicant
that his conduct herein is inexplicable.
29.
The applicant did not at the hearing of the
application persist with his claim that the respondent publish an
unconditional public
retraction and apology for the defamatory
publications about him and he no longer seeks an interdict against
the respondent from
publishing similar defamatory, demeaning, false
and unlawful statements about in in future.
30.
In addition, it came to light that the
applicant declined to accept the respondent’s tender of 3
February 2021 and that he
did not accept an offer that she, within an
hour of him withdrawing the application, reactivate her Twitter
account and publish
a tweet retracing and apologising for the tweet
and neither did he accept her undertaking in writing not to publish
any further
statements concerning him on any platform.
31.
More telling, however, is the absence of
vigorous pursuit of the relief and vindication initially sought in
this application under
circumstances where he contends that he finds
himself most aggrieved by the conduct of the respondent.
32.
The respondent was obliged to oppose the
application and deliver very substantial opposing papers. In order to
advance the application
to finality the respondent filed her heads of
argument on 3 May 2021. When the applicant failed to do so the
respondent brought
an application to compel the applicant to file
heads of argument, which he did on 5 July 2021. It was indeed the
respondent who
enrolled the matter for hearing.
33.
Mr Winks submitted that, the applicant
having been the subject of numerous less than complimentary tweets
over many years, carefully
selected the respondent as a strategic
target for a SLAPP, knowing that she does not possess equal means to
meet and oppose the
applicant in a court of law. Mr Winks further
contends that upon the applicant having instituted motion proceedings
for the relief
sought herein against the respondent, he went on
public radio to announce his proceedings and to warn other citizens
that the same
fate would await them if they were to similarly express
themselves. Mr Winks submitted that the three-fold purpose of a SLAPP
having
been achieved, namely to silence the respondent, to punish her
with exorbitant legal costs which she can ill afford and to deter
other citizens, the applicant fails to pursue the relief sought in
the proceedings which he had brought.
34.
The
respondent, in submitting that the application constitutes an abuse
of the process of the above honourable court, relies on
PWC v
National Potato Co-Operative
[2]
where the Supreme Court of Appeal held:
“
It
has long been recognised in South Africa that a court is entitled to
protect itself and others against the abuse of its process
(see
Western Assurance Co v Caldwell’s Trustee
1918 AD 262
at 271;
Corduroy v Union Government (Minister of Finance)
1918 AD 512
at 517;
Hudson v Hudson & another
1927 AD 259
at 268; Beinash v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(A) at 734B; Brummer v Gorfil Brothers Investment
(Pty) Ltd en andere
1999 (3) SA 389
(SCA) at 412C-D), but no all
embracing definition of ‘abuse of process’ has been
formulated. Frivolous or vexatious
litigation has been held to be an
abuse of process …. and it has been said that ‘an
attempt made to use for ulterior
purpose machinery devised for the
better administration of justice’ would constitute an abuse of
the process (Hudson v Hudson
& another
supra
at 268). In general, legal process is
used properly when it is invoked for the vindication of rights or the
enforcement of just
claims and it is abused when it is diverted from
its true cause so as to serve extortion and oppression; or to exert
pressure so
as to achieve an improper end.
”
35.
The respondent further relied on Mineral
Sands Resources (Pty) Ltd & Another v Redell & Others and two
related cases
2021 (4) SA 268
(WCC) where the court held as follows:
“
[40]
The signature elements of SLAPP cases are the use of the legal
system, usually disguised as an ordinary civil
claim, but designed to
discourage others from speaking out on issues of public importance,
and exploiting the inequality of finances
and human resources
available to large corporations, as compared to their targets. These
lawsuits are notoriously long, drawn-out,
and extremely expensive,
legal battles, which consume vast amount of time, energy, money and
resources. In essence, SLAPPs are
designed to turn the justice system
into a weapon to intimidate people who are exercising their
constitutional rights, to restrain
public interest in advocacy and
activism, and to convert matters of public interest into technical
private-law disputes.
…
.
[43]
A SLAPP does not need to be
successful in court to have its intended effect. Proceedings can be
continued until the desired effect
and impact are achieved.
Prolonging and dragging out proceedings and shifting the debate out
of the public domain to the courts
can fulfil the intended objective.
The mere threat of being sued is sometimes sufficient to engender
fear and intimidate the target.
…
[64]
Public dialogue and debate, with
broad participation in matters of public interests, such as the
environment, must be protected
and encouraged. Any legal action aimed
at stifling public discourse and impairing public debates should be
discouraged.
”
36.
In
her letter of 3 February 2021 the respondent informed the applicant
that should he persist with his application she will oppose
the
relief sought and that material disputes of fact will be raised. She
further informed the applicant that the proceedings instituted
are
inappropriate for the relief sought and, as was found in EFF v
Manuel
[3]
.
37.
The applicant persisted with his claims
until early July 2021 when he, in his heads of argument recorded that
he would not proceed
with his relief in respect of the declaratory
order or the interdict. He conceded that the damages claim cannot be
determined in
motion proceedings. During argument he confirmed that
he no longer requires the unconditional public retraction and apology
from
the respondent. He submitted that it was no longer required as
the respondent had withdrawn the tweet. It is clear that the first
part of prayer 2 may have been resolved upon the respondent
withdrawing the tweet but by no means does it address the applicant’s
claim that she publish an unconditional public retraction and apology
for the offending publication. On specific enquiry about
this
difficulty that the applicant now faces, Mr Moorcroft submitted that
the applicant was satisfied with the withdrawing of the
tweet and
that he does not persist with the second part of the relief in prayer
2.
38.
I cannot but conclude that the applicant
was not only unwise to institute proceedings for the relief sought on
motion but further
to persist with these proceedings subsequent to
the letter of the respondent dated 3 February 2021, particularly in
light of the
reasoning of the Supreme Court of Appeal in the EFF
matter at paragraph 41:
“
It
appears that the simplistic view was taken that if one were to
provide victims of social media defamation with a quick and easy
way
of seeking and obtaining sizeable damages awards on motion, that
would bring to a quick halt these kinds of transgressions.
We do not
agree that the problem can be resolved that easily. The search for a
solution to the evils of the abuse of social media
platforms should
be carefully considered, without compromising constitutional rights,
fundamental legal principles and due process.
Careful thought should
be given to the possible dangers of the envisaged simplistic
solution. It might well incentivise the abuse
of motion proceedings
by undeserving, but well-resourced, plaintiffs and be used
in
terrorem
. It has the potential for
stifling freedom of expression.
”
39.
In light of the applicant’s failure
to accept the respondent’s tender in the letter of 3 February
2021, his persistence
with the application until the papers were
filed and thereafter his failure to take any steps to advance the
matter to hearing
and finality, his election as recorded in the heads
of argument and as was confirmed at the hearing to not proceed with
the application
save to seek costs against the applicant, all suggest
that the applicant’s conduct herein was not aimed at the
reparation
of his rights, constitutional and otherwise, and the
restoration of his reputation or to assuage his injured feelings. I
cannot
but conclude that he wished to punish the respondent but also
that he saw the opportunity to institute proceedings against the
respondent which would have the effect as expressed by him during the
talk show on Cape Radio, to teach others that the “
time
for impunity is gone
” and in so
doing prevent public comment on his conduct and/or matters of public
importance in which he may have been directly
or indirectly involved.
40.
I accordingly find that this application
constitutes an abuse of the process of court.
41.
The respondent further submitted that the
application should be dismissed as the applicant knew or ought to
have known that his
illiquid claim for damages cannot be determined
on motion and that it should have been pursued by the institution of
an action.
It is telling that the applicant persisted with his
application notwithstanding having received the letter of the
respondent of
3 February 2021 in which she specifically brought the
judgment of the Supreme Court of Appeal in EFF v Manuel
supra
to his attention. In the aforementioned case the applicant similarly
sought a declarator that the offending statement was false
and
defamatory and that the publication thereof was unlawful, that the
statement be removed from the Twitter accounts of the appellant,
a
retraction and an apology, an interdict of future publication of
defamatory statements and damages in the amount of R500 000,00.
After an analysis of the applicable principles pertaining to
defamatory statements on social media and claims such as in this
matter, the applicant sought final interdictory relief. The Supreme
Court of Appeal held as follows:
“
[91]
…. An award of damages for defamation is compensation for an
injury to dignity and reputation, under
the rubric of the
actio
iniuriarum
. Put differently an award of
damages to compensate a plaintiff for wounded feelings and loss of
reputation where, in addition,
patrimonial loss is sustained, the
aquilian action is available.
[92]
… it is necessary to consider the proper process for
prosecuting such claims. An unliquidated
claim for damages must be
pursued by the institution of an action. No less so, when an
aggrieved victim a defamatory statement
seeks compensation.
That
has always been the position and it is reflected in the Unform Rules
of Court
. Uniform rule 17(2) compels a person claiming
unliquidated damages to use a long-form summons and file particulars
of claim, and
uniform rule 18(10) obliges ‘a plaintiff suing
for damages [to] set them out in such manner as will enable the
defendant
reasonably to assess the quantum thereof’ and plead
thereto. …
[93]
This is not a mere technicality. Claims for unliquidated damages by
their very nature involve
a determination by the court of an amount
that is just and reasonable in the light of a number of imponderable
and incommensurable
factors. That exercise cannot be undertaken in
proceedings by way of application. As Harms DP said in Cadac :
‘
Motion
proceedings are not geared to deal with factual disputes – they
are principally for the resolution of legal issues
– and
illiquid claims by their very nature involve the resolution of
factual issues’
”
.
42.
The applicant has elected to pursue the
relief herein in motion proceedings which, it is trite, are the
incorrect proceedings. He
elected to proceed with his application
notwithstanding the letter dated 3 February 2021 in which he is
cautioned to not proceed
as a consequence of the numerous disputes of
facts which will no doubt arise.
43.
A further aspect of the applicant’s
conduct herein which should be considered in determining the issue of
costs, is that his
initial notice of motion did not include a prayer
for costs. His claim for costs is first raised in his heads of
argument, which
he delivered consequent upon the order compelling him
to do so. It was at this stage that he realised that the respondent
was steadfast
in her intention to oppose the relief sought and have
his application dismissed with costs, on the attorney/client scale.
Only
then did he pursue costs in this application. Such conduct again
suggests the punitive nature of these proceedings against the
respondent.
44.
Upon having considered the facts of the
matter, the defences raised, the arguments and submissions of counsel
on both sides, and
the authorities relied upon I find that the
proceedings instituted by the applicant are the incorrect process and
it ought to have
been instituted by action.
45.
In light of the above, it is not necessary
to consider the defences raised by the respondent.
46.
This court has a discretion when
determining the issue of costs of the application. The applicant
seeks an order that the respondent
pays his costs. The respondent
seeks an order that the applicant pays her costs on an attorney /
client scale. She relies on In
re Alluvial Creek Ltd 1929 CPD 532 at
535 for the order sought.
47.
The applicant herein persisted with the
application notwithstanding the respondent’s tender of 3
February 2021. It is common
cause that the respondent generally has
more resources than the respondent to sustain the litigation. The
respondent, who can ill
afford the costs of this application, was
mulcted in very substantial costs in not only having to file opposing
papers, but also
having to prepare and deliver heads of argument on
all the issues, compel the applicant to deliver his heads of argument
and thereafter
to enrol this application and attend to the hearing
thereof.
48.
The applicant at a very late stage
indicated that he has no intention to proceed in this application
with the relief sought, save
for an order for costs. At that late
stage the applicant had already incurred the greater part of her
costs and was still obliged
to set the matter down for hearing to
oppose the applicant’s ill-considered quest that she pay his
costs of the application.
Had the applicant carefully considered the
elected process, being motion proceedings, the nature of the relief
sought, the tender
of the respondent as well as heeded the caution
contained in the letter of 3 February 2021, he would have been well
advised to
not proceed with the application. I find that his motive
in pursuing the application under the foresaid circumstances and his
conduct
in this litigation was not to redress the wrong that he
contends the respondent did him, but rather to punish the respondent,
even
in the face of the substantial opposition by the respondent, in
persisting that she pay his costs of the application. Such conduct
of
the applicant is vexatious.
49.
As a consequence of the above, the
following order is made:
49.1
The application to strike out is dismissed
with costs.
49.2
The application is dismissed with costs,
the costs until 3 February 2021 on a party-and-party scale and
thereafter the costs on
the attorney/client scale.
A. DE WET
Acting Judge of the
High Court
Gauteng Local
Division, Johannesburg
Heard:
18 August 2021
Judgment:
07 September 2021
Applicant’s
Counsel:
Adv. J. Moorcroft
Instructed
by:
Ndou Inc.
Respondent’s
Counsel: Adv. B. Winks
Instructed
by:
Rupert Candy Attorneys Inc.
[1]
Joubert
v Venter
1985 (1) SA 654
(A) 696-697; National Media Ltd v Bogoshi
[1998] 4 ALL SA 347 (A).
[2]
[2004]
3 All SA 20
SCA par 50.
[3]
Economic
Freedom Fighters & others v Manuel
[2020] ZA SCA 172
;
2021 (1)
All SA 634
(SCA), par 122.