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[2017] ZASCA 33
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Media 24 Limited t.a Daily Sun and Another v Du Plessis (127/2016) [2017] ZASCA 33 (29 March 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 127/2016
In
the matter between:
MEDIA
24 LIMITED t/a DAILY
SUN FIRST
APPELLANT
THEMBA
KHUMALO
SECOND
APPELLANT
and
BEKKER
DU
PLESSIS RESPONDENT
Neutral
Citation:
Media
24 Limited v Du Plessis
(127/2016)
[2017] ZASCA 33
(29 March 2017)
Coram:
Cachalia, Petse,
Swain and Mbha JJA and Gorven AJA
Heard:
27 February 2017
Delivered:
29
March 2017
Summary:
Defamation:
liability of the media: test of: words complained of to be considered
from the point of view of the reasonable reader:
defence of
justification: truth and public benefit: only the material
allegations or sting of the article required to be substantially
true: publication of defamatory statement found not to have been
reasonable: damages: assessment: award of R80 000 excessive
justifying interference on appeal.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Tokota AJ, sitting as court of
first instance). Judgement reported
sub
nom Du Plessis v Media 24 t/a Daily Sun & another
2016
(3) SA 178
(GP):
1 The appeal is upheld to the extent
set out below and the order of the High Court is set aside and
substituted by the following:
‘
There
will be judgment for the plaintiff against the first and second
defendants jointly and severally the one paying the other
to be
absolved in the sum of R40 000 and costs of suit.’
2 Each of the parties shall pay their
own costs of appeal.
JUDGMENT
Petse
JA (Cachalia, Swain and Mbha JJA and Gorven AJA concurring):
[1]
The main issue in this appeal is whether an article published by the
appellant in the Daily Sun of 29 October 2010 is substantially
true
and in the public interest. The subsidiary issue is whether the
publication of the article was reasonable in all the circumstances.
If these issues are determined against the appellants, it will become
necessary to consider the question whether the award of damages
in
the sum of R80 000 is disproportionate to the harm caused to the
respondent. These issues arise against the following backdrop.
[2]
The respondent, Mr Bekker du Plessis, as plaintiff, instituted an
action against the first appellant, Media 24 Limited, trading
as
Daily Sun and the second appellant, Mr Themba Khumalo, as defendants,
in the Gauteng Division of the High Court, Pretoria, for
an alleged
defamation and claimed damages in the sum of R500 000.
[3]
The respondent was, on the date of publication of the article, the
director and sales agent of D W Fresh Produce (Pty) Ltd,
which was
operating at the Tshwane Fresh Produce Market. To work as a sales
agent, the respondent required a certificate issued
by the City of
Tshwane.
[4]
The statement appeared in the Daily Sun published by the appellants
on 29 October 2010 and referred to the respondent as ‘Mr
Bekker’. The full text of the statement and the photocopy of
the article as published in the Daily Sun are appended to this
judgment as addenda. The article was published under a sensational
headline that read: ‘Frozen for an onion’ and the
sub-heading stating: ‘Orel was in the cold room for two hours’.
‘Orel’ refers to Mr Orel Khoza who is the
person that was
detained in the cold room at the respondent’s behest and whose
photograph was depicted in the article.
[5]
Pursuant to the publication of the article, the respondent instituted
the aforementioned action in which he, inter alia, asserted
that the
article was wrongful and defamatory of him and was substantially
untrue. He alleged that the article was understood by
a reasonable
reader of the Daily Sun to mean that he had deliberately subjected
Khoza to cruel and potentially dangerous freezing
conditions –
for the sake of an onion. He further claimed that the article carried
the additional sting that he was ‘a
racist who [valued] an
onion more highly than the life and well-being’ of another
person.
[6]
The action was defended by the appellants. The first appellant is the
owner and publisher of the Daily Sun which is a daily
newspaper whose
targeted readers are what was described in evidence at the trial as
the ‘blue overall person’, this
being a reference to
persons in the lowest rung of the social stratum, ie someone who is
neither highly educated, nor well informed
and critical. The second
appellant was, at the time of the publication of the article, the
editor of the newspaper. It is not in
dispute that the Daily Sun
enjoys a country-wide circulation.
[7]
In their plea, the appellants admitted the publication of the article
but denied that it referred to the respondent. They also
denied that
the article was defamatory. They pleaded further that the words
complained of were, in their ordinary meaning, true
in substance and
fact and were published in the public interest. They further asserted
that the article was published on a privileged
occasion in that they
were under a duty as members of the press to inform the public of the
detention of Mr Khoza in a cold room,
and that in so doing they were
acting as the voice of an informed and socially responsible
readership. The appellants further contended
that in the
circumstances in which they found themselves, it was reasonable to
publish the article in issue.
[8]
At the conclusion of the trial, the High Court (Tokota AJ) gave
judgment in favour of the respondent for R80 000 and costs
of
suit. The appellants appeal to this court against the judgment and
order of the High Court with its leave.
[9]
As to the truth or falsity of the article the High Court found that
it was substantially untrue in a number of respects. It
held that
Khoza was falsely alleged in the article (a) to have been shoved into
the cold storage; (b) to have been detained in
the cold storage for
two hours; (c) to have shivered for two hours after his rescue from
the cold storage; (d) to have had frozen
hair when in fact his head
was bald; and (e) to have had his hands tied with a plastic strip. In
the final analysis, the High Court
found that the appellants had
failed to establish that the gravamen of the article was
substantially true, as it was replete with
inaccuracies. The High
Court concluded, incorrectly, that as the appellants had disavowed
any reliance on the defence of reasonableness
of the publication
advanced in their plea, it was unnecessary to consider this defence.
[10]
In this court, the appellants conceded the defamatory nature of the
article. In order to justify the publication of the article,
which
was prima facie wrongful, the appellants only relied on two of the
defences advanced in the High Court. These were publication
of the
truth in the public interest, alternatively, media privilege. They
contended that the article complained of was substantially
true, and
thus of public interest, alternatively its publication was reasonable
in the circumstances. The appellants accepted that
they bore the onus
of establishing these defences.
[11]
Before considering the tenor of the article and the opposing
contentions of the parties, some brief background as to how the
article came to be published is necessary. There were four main
characters that featured prominently in the events of 27 October
2010
which culminated in the publication of the article in the Daily Sun,
two days later, on 29 October 2010. They were: (a) the
respondent, Mr
Bekker du Plessis; (b) Khoza; (c) Khoza’s companion Mr Small
Makhubela; and (d) Ms Tebogo Moobi, the senior
freelance journalist
who was employed by the first appellant and had investigated the
circumstances that led to Khoza being detained
in the cold room at
the behest of the respondent.
[12]
On 27 October 2010 the respondent was at the Tshwane Fresh Produce
Market when he was alerted to the fact that Khoza had stolen
onions
in Hall A at the market. He then requested one Mr Isaac, who was the
supervisor, to prevent Khoza from leaving the market
and to confront
him about the alleged theft. Mr Isaac obliged and recovered two
onions from Khoza’s pockets. The respondent
then telephoned the
security office to alert the security personnel to what he perceived
to be theft of onions, but the telephone
went unanswered. According
to the respondent, the market was plagued by thefts which were
alleged to be prevalent and caused losses
in the order of R20 000
per month. When confronted, Khoza explained that he had picked up the
onions from the floor. As the
security personnel were engaged
elsewhere, the respondent decided to detain Khoza in the cold room.
Once Khoza was placed in the
cold room, the respondent turned his
attention to something else. The respondent’s intention, so he
said, was to leave Khoza
in the cold room until the security
personnel were available to take over and hand Khoza to the police.
The respondents’
witnesses testified at the trial that the
temperature in the cold room was set at nine degrees Celsius.
[13]
In the meantime, Makhubela, who was Khoza’s companion,
telephoned the police and reported the incident to them. The police
arrived at the market and rescued Khoza from the cold room after the
latter had been there for 45 minutes. Makhubela also telephoned
Moobi, the freelance journalist. Moobi came to the market accompanied
by a Daily Sun photographer and interviewed both Khoza and
Makhubela
to obtain their version as to what had happened to Khoza. Khoza’s
photograph was also taken inside the cold room.
Moobi then telephoned
the respondent to obtain his version as to the events that had
unfolded concerning Khoza. According to Moobi,
the respondent
initially told her that Khoza ‘was a thief and deserved to be
punished’. But the respondent denied that
Khoza was detained in
the cold room at his behest. The respondent then hung up. But shortly
thereafter, he telephoned Moobi and
told her that he had video
footage of the incident and also threatened to sue Moobi and the
Daily Sun if she went ahead to publish
the story. Moobi in turn asked
the respondent to make the footage available to her. Although the
respondent had initially agreed
to do so, he later changed tack and
said that the video footage was with his lawyers. The next day Moobi
telephoned Khoza who then
told her that he had not slept the previous
night because he suffered a nosebleed throughout the night and as a
result of this
he went to the clinic again to seek medical help. It
bears mentioning that it was not in dispute at the trial that Moobi
did not
verify what Khoza and Makhubela had told her from any other
source.
[14]
The second appellant, Mr Themba Khumalo, who it will be recalled was
the editor of the Daily Sun when the offending article
was published,
also testified. He emphasised that one of the fundamental tenets of
journalism is that news reporting must be balanced
and fair and that
the integrity of the story must be maintained at all times. He told
the trial court that the Daily Sun’s
target readership is that
category of reader who is not highly educated and sophisticated. He
further testified that the Daily
Sun, being a daily newspaper, does
not engage in investigative journalism because of time constraints.
He said that the Daily Sun
is required to publish its stories as soon
as possible after newsworthy events have occurred.
[15]
Because the appellant conceded that the article was defamatory, it is
unnecessary to examine the article to determine whether
the words
used convey a meaning defamatory of the respondent. It is, however,
convenient at this stage to briefly examine the principles
applicable
to establishing the meaning of the defamatory article, in order to
determine what the gist or sting of the article was,
in preparation
for a later examination of the defence of publication of the truth in
the public interest. The gist or sting of
the article 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 words read in the context of the article as a whole.
The test is an objective one.
And as Corbett CJ explained in
Argus
Printing and Publishing Co Ltd & others v Esselen’s Estate
1994
(2) SA 1
(A) at 20E-G, the ordinary and natural meaning of the words
takes account of not only what the words expressly said, but also of
what they imply.
[1]
[16] What Colman J said in
Channing
v South African Financial Gazette Ltd
1966 (3) SA 470
(W) is
instructive. He said (at 474A-C):
‘
From
these and other authorities it emerges that the ordinary reader is a
“reasonable”, “right thinking”
person, of
average education and normal intelligence; he is not a man of “morbid
or suspicious mind”, nor is he “super-critical”
or
abnormally sensitive; and he must be assumed to have read the
articles as articles in newspapers are usually read. For that
assumption authority is to be found in
Basner
v Trigger
1945 AD 22
at 35 -36. It is no doubt fair to impute to the ordinary
reader of the
South
African Financial Gazette
a somewhat higher standard of education and intelligence and a
greater interest in and understanding of financial matters than
newspaper readers in general have. But this, I think, is clear: one
may not impute to him, for the purposes of this inquiry, the
training
or the habits of mind of a lawyer.’
[17]
Accordingly, the pertinent question to ask is what an ordinary reader
of the Daily Sun (bearing in mind his or her station
in life as the
High Court found) would have understood the words to mean when
reading the article. The article has a sensational
headline that
reads: ‘FROZEN – FOR AN ONION!’ Below that the
words ‘Orel was in a cold room for two hours’
appear.
This is referred to as ‘the subdeck’ in media parlance.
According to the second appellant the purpose of the
subdeck is to
arouse the reader’s interest in the story. The subdeck is
immediately followed by a caption reading: ‘Shivering
. . .
Orel Khoza was allegedly handcuffed and locked inside a cold room for
two hours for having an onion inside his pocket’.
(A picture of
Khoza standing beside stacked vegetables appears as part of the
layout of the article. According to Moobi the inclusion
of Khoza’s
picture was intended to ‘put a face to the name’.) The
article further stated that Khoza was still
shivering an hour after
his rescue by the police. Thereafter, he went to the clinic for
treatment and yet bled through his nose
throughout the night.
[18]
The respondent asserted that the article implied that he had shoved
Khoza into the cold room, detained him there for two hours,
and that
as a result, Khoza’s hair was frozen. Further, that Khoza’s
detention in freezing conditions had deleterious
consequences for him
as his hair was frozen and he was still shivering an hour after his
rescue. As a result of these harmful consequences,
Khoza sought
medical assistance from a clinic and suffered a nosebleed for the
whole night. In essence, so it was contended, the
meaning which would
be attributed to the article by the reasonable reader of the Daily
Sun of ordinary intelligence was that the
respondent is a callous
person who cruelly and forcibly confined Khoza to potentially
dangerous freezing conditions which affected
his health and
well-being. This was the gist or sting of the article, being the
legal construct of a reasonable reader. In my view
the reasonable
reader of the article would have understood these statements read in
the context of the article as a whole
[2]
to have the meaning for which the respondent contended.
[19]
It was nonetheless contended on behalf of the appellants that the
meaning conveyed by the article was only that Khoza was detained
in a
cold storage against his will for allegedly stealing an onion and
there was accordingly no basis for the meaning attributed
to the
article by the respondent. Seen in this light, so continued the
argument, the article merely underscored no more than the
disproportionality between the alleged theft of an onion and the
unusual and cruel nature of the punishment imposed by the respondent.
Counsel, strongly relying on
Johnson v Rand Daily Mails
1928
AD 190
, emphasised that the reasonable reader does not indulge in
‘elaborate and overly subtle analysis’ when reading an
article.
I do not agree. To my mind the article read in context and
as a whole implied that the respondent was callous and bereft of
compassion
for fellow human beings.
[20]
Having determined the gist or sting of the article in question I turn
to examine the defences raised by the appellant. Since
the appellants
have conceded that the article was defamatory, the law presumes that
the article was not only wrongful, but also
published with the intent
to injure. The first defence raised is that the article complained of
was substantially true and published
in the public interest. And
secondly, the defence of media privilege which involves a
determination of the question of whether,
in publishing the article,
the appellants acted reasonably. The law is now settled that the
appellants bore the onus to establish
these defences on a balance of
probabilities.
[3]
[21]
In
Modiri
v Minister of Safety & Security & others
[2011]
ZASCA 153
;
2011 (6) SA 370
(SCA) this court said (para 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.’
[22] So far as the defence of truth
and publication in the public interest is concerned, the primary
enquiry is whether the court
a quo correctly concluded that the
statements set out in para 9 supra, were false. In my view, it is
clear upon a conspectus of
the evidence as a whole, as submitted by
the respondent in his heads of argument, that the article was false
and untrue, alternatively
the appellants’ failed to prove the
truthfulness of the article, in the following respects: (a) Khoza was
not handcuffed;
(b) his theft was not common practice at the fresh
produce market; (c) he was not forcibly shoved into the
fridge/cold storage
room; (d) when the police arrived, he was not
frozen nor was he shivering; (e) his hair was not frozen; (f) he had
not been shivering
in the fridge for two hours; (g) he was not
shivering when he was removed, and he was not shivering an hour or
two later; (h) he
was not so cold that he was admitted to hospital;
(i) his detention did not cause his nose to bleed for the rest of the
night.
All of these false statements were of relevance with regard to
the gist or sting of the article as determined above. They all
clearly
added to the detrimental sting of the article and were not
simply peripheral facts. In
Modiri
(para 22), this court
said the following in relation to a defence of truth and public
benefit:
‘
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.’
Thus,
nothing more need be said about the ground of justification based on
truth and publication in the public interest, save to
state that this
defence does not avail the appellants.
[23]
I now turn to consider the question whether the appellants, who bore
the onus, succeeded in establishing the defence of media
privilege,
namely that the publication was reasonable. In
National
Media Ltd & others v Bogoshi
1998
(4) SA 1196
(SCA) this court held that the publication of a
defamatory statement will not be unlawful if on a consideration of
all the circumstances
it was reasonable to publish the material in
the particular way and at a particular time.
[4]
The court went on to state that when the reasonableness of the
publication is considered, the court must take ‘account of
the
nature, extent and tone of the allegations’. Hefer JA continued
and said at 1212I – 1213A:
‘…
that
the tone in which a newspaper article is written, or the way in which
it is presented, sometimes provides additional . . .
sting. What will
also figure prominently is the nature of the information on which the
allegations were based and the reliability
of their source, as well
as the steps taken to verify the information. Ultimately there can be
no justification for the publication
of untruths, and members of the
press should not be left with the impression that they have a licence
to lower the standards of
care which must be observed before
defamatory matter is published in a newspaper.’
Thus,
if a defendant forming part of the media establishes the defence of
publication of the truth in the public interest the publication
of
the defamatory statement will not be unlawful and the defence of
media privilege need not be relied upon.
[24]
In this court, the appellants contended that the High Court erred in
failing to consider the defence of media privilege based
as it was
upon the reasonableness of the publication, upon which they also
relied. First, they asserted that the article constituted
a fair and
balanced account of the interviews that Moobi had with Khoza,
Makhubela, the respondent and her own observations when
she attended
at the market. Second, that Moobi attempted to obtain comment from
the respondent who was uncooperative and instead
chose to adopt a
belligerent attitude. Third, that the respondent had refused to allow
Moobi an opportunity to view the video footage
which he claimed to
have and which showed how the incident had unfolded. Fourth, if the
respondent had not reneged on his promise
to provide the video
footage to Moobi, the article would not have contained the falsehoods
in question.
[25]
Both counsel dealt exhaustively with an array of decided cases on the
question of the reasonableness or otherwise of the publication
of the
article. There is a broad consensus amongst those decisions that
there is no closed list of defences and that considerations
of public
and legal policy have a bearing on the question whether a particular
publication is to be regarded as lawful or not.
[5]
In this way the courts strike a fine balance between the important
role played by the media in providing information to the citizenry
on
the one hand, and the right to human dignity and reputation on the
other.
[6]
[26]
Accordingly, no purpose would be served by an exhaustive discussion
of those authorities. Suffice it to say that upon a proper
analysis,
those cases reveal not so much a divergence of opinion as to the
principles applicable to a matter such as the present,
but purely
differences of emphasis on the approach adopted in applying those
principles to a given set of facts.
[27]
The question which arises for determination on this aspect of this
case is whether the publication of the statement complained
of was
reasonable in the circumstances. In answering this question
Bogoshi
decrees that a court must take cognisance of the nature, extent and
tone of the allegations. And, as explained by Hefer JA in
Bogoshi
(at 1212I), a court must also have regard to the nature of the
information on which the allegations were based and the reliability
of their source as well as the steps taken to verify the information,
bearing in mind that ‘there can be no justification
for the
publication of untruths’.
[28]
In relation to the defence of justifiable publication of the article
in issue, and as it was expressed in
Bogoshi,
[7]
in an action for defamation against the media a defence of reasonable
publication is available to a defendant. If this defence
is upheld,
the publication of a defamatory statement will be justified. This
will be the case if on a consideration of all the
circumstances of a
given case, it is found that the publication of the statement was
reasonable. Moreover, this court stated that
the ultimate question in
each case is whether a proper balance can be struck between the right
to protect one’s reputation
(as required by the common law
remedy of defamation) and the freedom of the press as enshrined in
s 16 of the Constitution.
[29]
Accordingly, it will not be regarded as unlawful when the media
publishes false defamatory allegations of fact, if upon a
consideration of all the circumstances of the case, it was reasonable
to have published the facts in the particular manner in which
they
were published at that particular time.
[8]
The pertinent considerations that come to the fore are the nature of
the information upon which the allegations had been based,
the
reliability of the source and the reasonable steps taken
[9]
to verify the accuracy of the information supplied to them by both
Khoza and Mathebula before publishing the article. In answering
this
question it is as well to remember that the appellants bore the onus
to prove all of the facts upon which they relied to establish
that
the publication was reasonable and that they had not been negligent.
Proof of reasonableness was the substantive duty of the
appellants.
They accordingly had to prove the reasonable steps they took to
verify the accuracy of the information before the publication
of the
article. The second appellant accepted under cross-examination that
telling the truth and articulating the facts accurately
was a basic
tenet of any newspaper and that ‘stories must tell the truth’.
[30]
In this case it is not in dispute that no proper steps were taken to
verify the information obtained both from Khoza and Makhubela
as to
the events of 27 October 2010. The appellants sought to justify their
failure to do so on the ground that the Daily Sun is
not an
investigative newspaper and that it is required to publish without
delay. This was so because, as the second appellant put
it, ‘each
and every story has a deadline’ and that the Daily Sun ‘will
sit on a story for longer than two days
under exceptional
circumstances’. I agree with the submission of the respondent
that the evidence of the second appellant
and the reporter Moobi,
clearly established that the predominant interest of the newspaper
and its staff was to publish the story
as quickly as possible. No
attempt was made, for example, to verify whether Khoza’s hands
had indeed been tied or that he
had been shoved into the cold room.
Nor was the claim by Khoza that he sought medical help and suffered a
nosebleed for the whole
night verified. All of these assertions could
have been verified without undue inconvenience from the clinic at
which Khoza was
allegedly treated and also by seeking access to the
video footage which the respondent had said was with his attorneys.
The appellants
were content to rely solely on the versions of Khoza
and Makhubela despite the fact that they had, in my view, ample
opportunity
to verify those versions before publication.
[31]
To my mind, the defence of media privilege upon which the appellants
relied on appeal is unsustainable on the evidence. As
I see it, the
appellants heedlessly proceeded to publish the defamatory statement
without first bringing themselves within the
strictures enunciated in
Bogoshi
. That the respondent had mentioned to Moobi that there
was video footage which, in the normal course, would have captured
activities
at the market, should have caused the appellants to pause
and reconsider. The appellants’ indifference to the
respondent’s
right to dignity and reputation was exacerbated by
the fact that certain of the facts published were distorted. No
attempt, for
example, was made to verify the information obtained
from Khoza relating to his alleged visits to a clinic for medical
assistance.
On a consideration of all of the evidence it was not
reasonable of the appellants to have published the facts contained in
the
article, in the particular manner in which they were published
and at that particular time. Accordingly, the appellants failed to
discharge the substantive duty resting on them to prove the
reasonableness of the publication. The publication of the article was
consequently negligent and thus unlawful.
[32]
I turn now to a consideration of the appeal against the award of
damages to the respondent in the sum of R80 000. The
appellants
contended that the award is excessively disproportionate to the harm
caused because the readership of the Daily Sun
is limited to the
so-called ‘blue overall person’ and the publication of
the article did not cause substantial damage
to the respondent's
reputation because members of his community, did not read the Daily
Sun. It is trite that when it comes to
the assessment of damages a
trial court exercises a wide discretion.
[10]
Accordingly, an appellate court will not decide the question afresh.
It will interfere with the exercise of that discretion only
where it
is shown that the lower court had not exercised its discretion
judicially, or that it had been influenced by wrong principles
or a
misdirection on the facts, or that it had reached a decision which in
the result could not reasonably have been made by a
court properly
directing itself to all the relevant facts and principles, or where
its assessment differs so markedly from that
of the trial court as to
warrant interference. (Compare
Transnet
Ltd t/a Metrorail & another v Witter
[2008] ZASCA 95
;
2008
(6) SA 549
(SCA) para 12.) In
Sadler
v Wholesale Supplier Ltd
1941
AD 194
at 200 this court held that should the appellate court find
that the trial court had misdirected itself with regard to material
facts or in its approach to assessment or the trial court’s
assessment of damages is markedly different to that of the appellate
court, it not only has the discretion but is obliged to substitute
its own assessment for that of the trial court.
[33]
In
Dikoko
v Mokhatla
2006
(6) SA 235
(CC) paras 75-76, the Constitutional Court held that
equity in determining a damages award in defamation remains an
important consideration.
That consideration must, in my view, come to
the fore in this case. It is as well to bear in mind that the purpose
of damages for
defamation is not to punish the defendant but to offer
solace to the plaintiff by payment of compensation for the harm
caused
[11]
and to vindicate the plaintiff’s dignity.
[12]
[34]
In
Tsedu & others v Lekota & another
[2009] ZASCA 11
;
2009 (4) SA 372
(SCA) para 25 this court said that ‘monetary
compensation for [defamation] is not capable of being determined by
any empirical
measure’. It went on to say that awards made in
other cases are of limited value as they only provide a generalised
form
of guidance in assessing damages. (See also in this regard:
Neethling v Du Preez & others, Neethling v Weekly Mail &
others
[1994] ZASCA 133
;
1995 (1) SA 292
(A) at 301H-I where this court said that
compensation in defamation cases is essentially for sentimental loss
which is not easily
quantified in monetary terms.)
[35]
Upon consideration of all the facts that bear on the issue of quantum
in this case, it is my view that the award of R80 000
to the
respondent was excessive to a degree that warrants interference by
this court. This is particularly so, if regard is had
to the fact
that the High Court found that the respondent’s conduct in
detaining Khoza in a cold room was reprehensible.
In addition, one
must not lose sight of the fact that the respondent had for a
prolonged period distanced himself from Khoza’s
detention and
obstinately protested his innocence. He persisted in his denials on
the first day of his testimony before the High
Court. However, on the
second day he was constrained to concede under cross-examination that
Khoza had indeed been detained at
his behest. His conduct in
orchestrating Khoza’s detention, coupled with his persistent
denials, already compromised his
reputation. Our courts have for many
years emphasised that: (a) the nature of the defamation statement;
(b) the nature and extent
of the publication; (c) the reputation,
character and conduct of the plaintiff; and (d) the motives and
conduct of the defendant
are but some of the relevant considerations
to be borne in mind in the assessment of damages. And that the list
of such considerations
is by no means exhaustive.
[36] I have already alluded to the
fact that the award of damages to the respondent is excessive. In my
view, bearing in mind all
the circumstances of this case, an
appropriate award should have been in the order of R40 000. That
the respondent was awarded
R80 000 makes that award to be
startlingly disparate from the award that I consider would meet the
dictates of justice in
this case. That being so, interference with
the award of the High Court is justified. The appeal against the
award must accordingly
be upheld. I did not understand counsel to be
averse to this court itself determining the quantum of damages rather
than remitting
the case to the High Court for that purpose. (See, for
example,
Neethling v Du Preez
at 302 A-J where this court
said that the determination of the award of damages by itself might
have been an expeditious course
than remitting the case for
damages to be fixed by the trial court. And that such a course would
avoid further delays and
additional costs and eliminate the
possibility of a second appeal to this court following upon a
determination of damages by the
trial court.)
[37]
It remains to consider the question of costs. The appellants appealed
against the whole of the judgment and order of the High
Court,
inclusive of the amount of the award. They have succeeded in relation
to the latter aspect but are unsuccessful in relation
to liability.
The net effect of this partial success is that their success is not
substantial to a degree that they would be entitled
to the costs of
the appeal. Neither should the respondent be entitled to the costs of
appeal because of his successful defence
of the High Court’s
judgment in relation to the aspect of liability. In effect, each of
the parties has achieved a measure
of success. Accordingly, an
appropriate order is that each of the parties should pay their own
costs of appeal.
[38] In the result the following order
is made:
1 The appeal is upheld to the extent
set out below and the order of the High Court is set aside and
substituted by the following:
‘
There will
be judgment for the plaintiff against the first and second defendants
jointly and severally the one paying the other
to be absolved in the
sum of R40 000 and costs of suit.’
2 Each of the parties shall pay their
own costs of appeal.
_________________________
X M PETSE
JUDGE OFAPPEAL
APPEARANCES:
For
the Appellant: C Bester (with L Mtukushe)
Instructed by:
Jurgens Bekker Attorneys, Bedfordview.
c/o
Rossouws Attorneys, Bloemfontein
For the Respondent: S W Davies (with M
P Fourie)
Instructed by:
Hendrik Haasbroek Attorneys, Pretoria
c/o Honey Attorneys, Bloemfontein
ADDENDUM A
[See PDF for image]
ADDENDUM B
By TEBOGO MOOBI
A
CRISP round onion was lying on the floor and the sight of it made
Orel Khoza (28) hungry . . .
Orel,
a carrier at Tshwane Fresh Produce Market, picked it up and put it in
his pocket.
A
stall owner, known only as Mr Bekker, saw the bulge in his pocket and
asked what it was.
Khoza
told
Daily
Sun “
I
showed him the onion and told him I was going to cook it as I was
hungry.”
“
He
said I was a thief and tied my hands with a plastic strip, took me to
the other side of the market and told me I was going to
clean the
floor as my punishment”
“
But
he shoved me into a cold storage room with vegetables.”
Orel’s
friend, Small Makhubela (21) told
Daily
Sun
“We
saw Orel being put in the fridge and got worried, so we called the
cops.”
When
cops arrived they released Orel, whose hair was frozen after
shivering for two hours. An hour later, he was still shivering.
The
cops advised him to lay a charge against Bekker.
Orel
said “We often pick up loose vegetables and take them home or
cook them. I was shocked when he accused me of stealing.”
Bekker
said Orel was a thief but denied putting him in the cold storage
room. Orel went to a clinic for treatment. He said his nose
bled all
night.
He
said “I went to the police station but they needed a doctor’s
letter to open a case for me.”
Captain
Agnes Huma said Orel could lay a charge at a cop shop near him.
[1]
See also
Le
Roux & others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as Amici Curiae)
[2011]
ZACC 4
;
2011 (3) SA 274
(CC) at para 89.
[2]
F D J Brand in Joubert (ed)
The
Law of South Africa
(2 ed)
vol 7 para 239 on Defamation.
[3]
See in this regard:
Benson
v Robinson & Co (Pty) Ltd & another
1967
(1) SA 420
(A) at 432E-G;
Hardakar
v Phillips
2005 (4) SA 515
(SCA) para 14;
Modiri v
Minister of Safety & Security & others
2011
(6) SA 370
(SCA) para 10;
Le
Roux v Dey (Freedom of Expression Institute and Restorative Justice
Centre as Amici Curiae)
[2011]
ZASCA 4
;
2011 (3) SA 274
(CC) para 85.
[4]
At 1212F-G.
[5]
See in this regard:
Suid-Afrikaanse
Uitsaaikorporasie v O’Malley
1977
(3) SA 394
(A) at 402 – 403A;
Le
Roux v Dey
paras 121-125;
Jonathan Burchell
Personality
Rights and Freedom of Expression: The Modern Actio Injuriarum
(1998) at 208.
[6]
See in this regard:
Khumalo
& others v Holomisa
[2002] ZACC 12
;
2002
(5) SA 401
(CC) paras 24-28.
[7]
Idem
para
6.
[8]
Bogoshi at page
1212 G-H.
[9]
Bogoshi at page
1212 I.
[10]
Media Workers
Association of South Africa & others v Press Corporation of
South Africa Ltd (‘Perskor’)
[1992] ZASCA 149
;
1992
(4) SA 791
(A) at 800D-E.
[11]
Lynch v Agnew
1929
TPD 974
at 978.
[12]
See
LAWSA
above fn 2, para 260.