About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 320
|
|
Mangena v Independent Newspapers (Pty) Limited and Others (68142/2016) [2019] ZAGPPHC 320 (27 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
CASE NO: 68142/2016
In
the matter between:
SAMUEL
MOAGI
MANGENA
Plaintiff
and
INDEPENDENT
NEWSPAPERS (PTY) LIMITED
First Defendant
VAL
BOJE
Second
Defendant
KEVIN
RITCHIE
Third Defendant
JUDGMENT
Tuchten
J:
1
This
is a defamation action. The plaintiff seeks compensation for damage
to his reputation.
2
The
plaintiff is the principal of a secondary school (the school) in
Atteridgeville, Pretoria. The plaintiff, born in1955, has lived
his
whole life in Atteridgeville. He began teaching at the school in1981.
He was appointed deputy principal in 1991 and principal
oftheschoolin2001. The school maintains high standards, so much so
that the plaintiff was seconded to another school for a period
to
help that school improve its standards. The plaintiff is a member of
the SA Council of Educators and must comply with the standards
of
that body, which sets standards for educators in South Africa.
3
The
plaintiff has an interest in and teaches judo, karate and aerobics.
He gives extra lessons. He is a member of a Catholic church
congregation, where he is and was at the time relevant to this action
in charge of the male church choir.
4
The
plaintiff is and was at the relevant time the secretary of a civic
association concerned with the affairs of Ward 51, one of
the
municipal wards in Atteridgeville in the Tshwane Metropolitan
Municipal Council.
5
The
plaintiff is well known in his community, both by sight and
personally. He is held in high esteem in his community. Indeed,
in my
view,
the
plaintiff
is a
pillar
of the community and a role model for all.
6
The
first defendant is the publisher of a number of newspapers, including
the Pretoria
News
and
the Star. These newspapers are published daily in print form and are
also accessible electronically on
http://www.iol.co.za
(IOL). The second and third defendants are, respectively, the editors
of the Pretoria News and the Star. It is not in dispute that
the
first and second defendants are, in the present context, jointly and
severally liable for what is published in the Pretoria
News and that
the first and third defendants are similarly liable for what is
published in the Star.
7
On
the morning of Friday 11 September 2015, the plaintiff went to school
as usual. He took assembly. Nothing untoward occurred.
He returned to
his office. His telephone began to ring. He received several calls
from persons whom he knew asking whether he had
read the Pretoria
News for that day.
8
The
plaintiff had not read the Pretoria News for that day. He then did so
and found that it contained, on page 3 of its print edition,
a report
under the heading
'Sorry for courting a schoolgirl'
Councillor rues romantic fling
9
The
report in the Pretoria News consisted of text and an associated image
of the plaintiff. The text related to a councillor for
Ward 51, whom
the report named and who, the report said, regretted the
embarrassment which his, the councillor's, romantic relationship
with
a “minor school girl” had caused "his party ... ,
the City of Tshwane and his family". The text of the
report went
into a good deal of detail . It referred to two photographs of the
councillor and the schoolgirl which had "been
doing the rounds
on social media platforms ...". One of these photographs was
said to have showed the councillor and the child
"locked in a
passionate kiss" while the child appeared to have been "topless"
except for a "blue bra".
The child was described as being
"light-skinned", which, the article said, was at the
present time called "yellow-boned".
10
The
text of the report took up two columns of print and about two thirds
of the length of page three of the print edition of the
Pretoria
News. The editorial staff of the Pretoria News decided not to publish
the image they had which depicted the embrace described
in the text.
The text published was wrapped around another image which the
Pretoria News believed they had of the councillor. This
image was of
an adult man. The Pretoria News gave this image a caption. The
caption gave the name of the man in the image as the
councillor whose
conduct was the subject of the text in the report. The same material
was uploaded on the same day, Friday 11 September
2015 to the online
edition of the Pretoria News.
11
But
the image in question was not that of the councillor. It was an image
of the plaintiff.
12
The
Star newspaper is in the same stable as the Pretoria News. There is a
group policy whereby sister publications may access each
other's
material and, in their discretion, print it in their own newspapers.
The third defendant, as editor of the Star, decided
to run the report
about the councillor in the print edition of the Star on Friday 11
September 2015, and did so. The Star, however,
decided to use two
images its editorial staff believed were relevant to the report in
the text. These images were that of the couple
in the embrace, with
the features of the female participant obscured by pixilation, and
that of the plaintiff which was erroneously
believed to be that of
the councillor.
13
IOL
published the text of the article which appeared in the two print
newspapers and the image of the plaintiff, erroneously believed
to be
that of the councillor. IOL did no publish the image of the embrace.
14
The
plaintiff described how the reports upset him. He was concerned about
his reputation. I was able to observe the plaintiff in
the witness
box. He made a good impression on me. I am certain that his concern
for the damage the reports might cause to his reputation
arose
predominantly not from vanity but from a fear that if his standing in
the community were tarnished, his ability to continue
the good work
that had been so significant a part of his life would be impaired.
15
The
evidence showed that at that time, the actions of men described
colloquially as "blessers" were the subject of intense
public debate and scrutiny. A blesser is a middle-aged or older man
who provides a younger woman, or girl, with material benefits
in
return for sexual favours. I think that in other cultures, blessers
are known as sugar daddies.
16
The
plaintiff was concerned that if he, a middle-aged man who stood
in
loco parentis
to many young people,
were identified as a blesser, considerable damage to his reputation
would ensue.
17
The
editorial staff of the Pretoria News accepted on the Friday, the same
day the initial report was published, that their image
had depicted
the wrong man. They reacted swiftly to mitigate the damage. The
Pretoria News' news editor, Mr Kennedy Mudzuli, telephoned
the
plaintiff on the Friday to apologise and followed up his phone call
with an email on the same day conveying the apologies of
the Pretoria
News. The image of the plaintiff was immediately removed from the
online edition. The earliest the Pretoria News could
set the print
record straight was the following day, Saturday, 12 September 2015.
18
The
Saturday edition of the Pretoria
News
carried on page three, the same page
on which had appeared the image of the plaintiff, a report titled
Wrong picture published in error
19
The
correction report published in the Pretoria
News
stated that the image of the
plaintiff had been used in error and that the man in the embrace
image had not been the plaintiff,
who the report identified by name
and described as a "prominent Atteridgeville resident and school
principal". The text
of the correction report concluded:
The editor and staff of the Pretoria
News
regret this error and hereby unreservedly apologise to [the
plaintiff's] family, relatives and associates for this error.
20
Above
the correction report, the Pretoria
News
published two images: the image of
the plaintiff which had been erroneously used in the report in the
Friday edition, but with a
caption correctly describing the subject
of the image as the plaintiff and an image of the allegedly errant
councillor, with a
caption giving his name.
21
The
correction report was given less prominence than the original report.
Its headline, which I quoted above, was quite considerably
smaller
than the headline to the original report. The correction report was
published at the bottom of the page, rather than on
the top of the
page.
22
The
impression given by the correction report, when read together with
the initial article, is that the correction was of less importance
than the original scandalous and somewhat salacious report.
23
The
evidence does not suggest that the Star or IOL carried any correction
report or that the Star or IOL ever apologised for the
error in
publishing the image of the plaintiff in association with the text of
the report.
24
On
13 September 2015, the plaintiff attended the Sunday service at his
church in Atteridgeville. At the appropriate time during
the service,
the plaintiff went to take communion. He observed that congregants
were looking at him askance. He concluded that
they were doing so
because they considered that the plaintiff ought not to have taken
communion without first confessing, according
to the practice of his
church, the sin they attributed to the plaintiff as described in the
initial report.
25
On
the Monday after the initial report, ie on 14 September 2015, the
plaintiff took assembly at school. He saw that learners were
giggling
and attributed their conduct to the report. He was obliged to
undertake what he described as damage control. He felt weak
and
embarrassed and that the standards which he had lived and worked to
uphold were compromised.
26
One
of the people who telephoned the plaintiff pursuant to the image in
the initial report was the chair of the school governing
body, a body
on which parents, learners and staff were represented and which plays
a significant role in the administration of
the school. The chair of
this body asked the plaintiff for an explanation.
27
The
error which resulted in the publication of the plaintiffs image in
relation to the initial report came about because the Pretoria
News
night editor, Mr Jos Charle, decided that it would be inappropriate
to use the embrace image or the other image they had which
apparently
depicted the councillor and the child because they contained images
of the child. The night editor thought that the
use of these images
would convey a message that the child was to blame for what had
happened.
28
The
news editor of the Pretoria News then looked for an alternative image
depicting the allegedly errant councillor. Instead of
contacting the
man himself, he contacted a representative of the councillor's
political party, whom he also asked to verify the
contents of the
report. The party representative had no issue with the text of the
then proposed report but had no image of the
councillor on file.
29
The
Pretoria
News
news
editor searched the first defendant's own image archive but could not
identify an image of the councillor. He then searched
on the Internet
and came up with an image on the Atteridgeville community Facebook
page. There he found an image of a former Minister
of Science and
Technology taken together with a man identified on the community
Facebook page as the councillor.
30
But
in fact the community Facebook page wrongly identified the man with
the minister as the councillor. The man with the minister
was the
plaintiff and the image had been captured at a function at the school
held to celebrate Mandela Day.
31
The
Pretoria
News
news
editor scrutinised the Facebook image and compared it with the
embrace image. He and other members of the Pretoria
News
editorial staff came to the
conclusion that the man in the Facebook image and the man in the
embrace image were one and the same.
But, as we have seen, they were
wrong.
32
The
Pretoria News news editor conceded in evidence that if he had
submitted the Facebook image to the party representative, the
party
representative would probably have alerted the news editor to the
Facebook captioning error, in which case the error would
have been
averted and the plaintiffs image would not have been associated with
the conduct ascribed by the text of the initial
report to the
councillor.
33
I
need not analyse the defendants' plea because counsel for the
defendants submitted that four issues arose for decision in this
case.
[1]
I shall focus my attention on these issues. They are:
33.1
Are
the publications in the three platforms concerned defamatory of the
plaintiff?
33.2
if
the publications were defamatory of the plaintiff, have the
defendants established that they had reasonable justification for
the
publications?
33.3
If
the publications were defamatory of the plaintiff and reasonable
justification is not established, has the plaintiff suffered
any
diminution of his reputation?
33.4
If
all these questions are answered in favour of the plaintiff, what is
the quantum of damages which should be awarded to the plaintiff?
Defamation
34
The
starting point is to examine the publication complained of to
establish whether or not it conveys the defamatory meaning which
the
plaintiff seeks to place upon it. In
independent
Newspapers Ltd and others v Suliman,
[2]
the SCA held as follows:
[19] In answering that
question a court discards its judicial robes and the professional
habit of analysing
and interpreting statutes and contracts in
accordance with long established principles. Instead it dons the garb
and adopts the
mindset of the reasonable lay citizen and interprets
the words, and draws the inferences which they suggest, as such a
person would
do. It follows that meticulous attention to detail, an
alertness to and awareness of the subtle nuances in meaning of words,
a
full appreciation of the influence of context, and a reluctance to
draw inferences when they are not soundly based and fully justifiable
and amount to no more than speculation, cannot be expected. The law
reports are replete with reminders of the looseness of thought
and
low level of concentration with which even an eminently reasonable
member of society may read newspaper reports.
[20] Yet there must be
a limit to the allowances which a court should make in a claimant's
favour when engaged
in the notional exercise postulated. A defamatory
meaning should not be attributed to an isolated part of a newspaper
report If
the rest of the report would show that it is not justified.
A claimant should not be permitted to base his case upon the reaction
of readers who do not bother to read the whole of the article even
although a part of it has attracted their attention precisely
because
of its potential to lower the esteem in which society holds him. In
saying this I am aware that judges have drawn attention
to the
propensity of readers to •skim' reports in newspapers but I do
not understand that to mean that they must be taken
to have entirely
ignored everything in a report which they skim, other than that part
or those parts of it which, if viewed in
isolation, would constitute
defamatory material. Why should the writer or publisher of an article
the whole of which is intended
to be read and, if read, would plainly
not be defamatory be held liable for defamation because there may
have been lazy or careless
readers who chose to focus only upon a
particular sentence in it.
35
In
Le Roux and Others v Dey (Freedom of
Expression Institute and Restorative Justice Centre
as
Amici Curiae),
[3]
Brand AJ, writing for the majority, expressed himself as follows:
[89] Where the
plaintiff is content to rely on the proposition that the published
statement is defamatory
per se, a two-stage enquiry is brought to
bear. The first is to establish the ordinary meaning of the
statement. The second is
whether that meaning is defamatory. In
establishing the ordinary meaning, the court is not concerned with
the meaning which the
maker of the statement intended to convey. Nor
is it concerned with the meaning given to it by the persons to whom
it was published,
whether or not they believed it to be true, or
whether or not they then thought less of the plaintiff. The test to
be applied is
an objective one. In accordance with this objective
test the criterion is what meaning the reasonable reader of ordinary
intelligence
would attribute to the statement. In applying this test
it is accepted that the reasonable reader would understand the
statement
in its context and that he or she would have had regard not
only to what is expressly stated but also to what is implied.
[90]
The reasonable reader or observer is
thus a legal construct of an individual utilised by the court to
establish meaning. Because
the test is objective, a court may not
hear evidence of the sense in which the statement was understood by
the actual reader or
observer of the statement or publication in
question.
[91]
At the second stage, that Is whether the
meaning thus established is defamatory, our courts accept that a
statement is defamatory
of a plaintiff if it is likely to injure the
good esteem in which he or she is held by the reasonable or average
person to whom
it had been published.
36
Brand AJ went on to observe:
[4]
Because we are employing the legal
construct of the 'reasonable', 'average' or 'ordinary' person, the
question is whether the statement
was 'calculated (in the sense of
likelihood] to expose a person to hatred, contempt or ridicule.'
Evidence of whether the actual
observer actually thought less of the
plaintiff is therefore not admissible. The test is whether it is more
likely, that it is
more probable than not, that the statement will
harm the plaintiff.
37
In
the present case, the defendants' motive was not to defame the
plaintiff but to bring to light the admitted and reprehensible
conduct of the councillor. Does this make a difference? I do not
think it does. As Brand AJ observed in
Le
Roux:
[5]
" ••• [In] our
law motive does not necessarily correlate with intent."
38
A
case in which the facts were similar to the present situation is
Hassen v Post Newspapers (Pty) Ltd
and Others.
[6]
In that case the plaintiff's image
was in error inserted in a newspaper article. The article was about a
notorious man, one Lord
Latib, who was awaiting trial on a serious
charge and the newspaper wanted to publish an image of Mr Latib in
association with
the text of the article. The court, per Colman J,
concluded that there were people in whose minds the notoriety was
likely to attach
to the plaintiff by reason of the publication of the
plaintiff's image rather than that of Mr Latib.
39
In
Hassen v Post,
the
defendant denied that the erroneous publication of the image of the
plaintiff was defamatory. Colman J dealt with that denial
as
follows:
[7]
That denial poses, firstly, the question of
identification, and in that regard I have this to say: Although the
plaintiff has no
facial peculiarities, he has well-marked and fairly
distinctive features. And those features appeared in the photograph
clearly
enough to enable him to be recognised there by anyone who
knew him by sight. In spite of that, the photograph would not have
misled
anyone who knew Lord Latib by sight, or anyone who knew the
plaintiff well enough to be satisfied that he was not Lord Latib and
that there was therefore an error in the caption. But there remain
three classes of persons who could have been misled. They consist
of:
(a)
persons who knew the plaintiff by
sight, but not by name, and who did not know what Lord Latib looked
like;
(b)
persons who did not know what
Lord Latib looked like and who, although they knew the plaintiff by
his own name, were open to the
suggestion that he also went by the
name of Lord Latib; and
(c)
persons who did not know Lord
Latib or the plaintiff by sight, but who might subsequently meet him
and recognise him as the person
who had appeared in a Press
photograph where he was identified as Lord Latib.
40
On
that analysis, the learned judge concluded, there was a publication
inconsequence of which the plaintiff could have been identified,
then
or later, as the man who was said to have been charged with the
serious crime. And that it could hardly be doubted that this
was
defamatory of the plaintiff.
41
Hassen
v Post
was decided more than fifty
years ago and has been frequently referred to, in some instances with
approval. It has never been overruled
or departed from in this
country. The principle I extract from
Hassen
v Post
is that (a) where an image of
the plaintiff is published in a newspaper under the error that the
image is that of another person
(b) said in text associated with the
image to be a person whose conduct should attract opprobrium –
ie a wrongdoer or alleged
wrongdoer- (c) will be defamatory of the
plaintiff (d) when the evidence shows that the plaintiff could have
been identified as
the wrongdoer.
42
I
am bound by
Hassen v Post
unless
I am satisfied that it is clearly wrong. Counsel for the defendants
submitted that the case should be treated as diminished
in precedent
value because of the changes in the law of defamation in the period
since it was decided. I disagree. The logic of
the reasoning of
Colman J appears to me, with respect to the memory of the learned
judge, as lucid and timely today as when the
case was decided.
43
In
the present case, the publication of the image of the plaintiff meant
that classes of persons could have been identified as the
man whom
the publications claimed had had a relationship with a schoolgirl.
This is, in my view, defamatory.
44
In
the present case, there is no suggestion that the plaintiff might be
identified as going by the name of the councillor and category
(b) in
Hassen v Post
does
not apply. But there is no doubt that the plaintiff comes within
categories (a) and (c). It is not in dispute that the image
in
question was clear enough to enable the identification considered by
Colman J to be made.
45
In
my view, there is a further class of persons in whose eyes the
plaintiff was likely to have been diminished in reputation by
the
publication of the plaintiff's image: the learners at the school. For
reasons which I shall enlarge upon below, in relation
to this class,
it was not even necessary for the members of the class to believe
that their principal was guilty of the deplorable
conduct attributed
in the article to the councillor. There is a certain tension that
exists between a school principal and the
learners to whom he or she
stands
in loco parentis.
The
objective likelihood is that a substantial number of the members of
this class would seek to use the fact of the report to undermine
the
authority which a school principal must have to get the job done.
46
The
defamation is therefore established.
Reasonable
publication
47
This
is often called in our case law the
Bogoshi
defence, dealt with for the first
time in detail in
National Media Ltd
and Others v Bogoshi.
[8]
The SCA held in
Bogoshi:
[9]
It has been said ... that the criterion of
unlawfulness must be the legal convictions in South Africa and not
elsewhere. But the
solution of the problem in England, Australia and
the Netherlands seems to me to be entirely suitable and acceptable in
South Africa.
In my judgment we must adopt this approach by stating
that the publication in the press of false defamatory allegations of
fact
will not be regarded as unlawful 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.
In considering the reasonableness of the
publication account must obviously be taken of the nature, extent and
tone of the allegations.
We know, for instance, that greater latitude
is usually allowed in respect of political discussion ... and that
the tone in which
a newspaper article is written, or the way in which
it is presented, sometimes provides additional, and perhaps
unnecessary, 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. ... [A] high degree of circumspection must be
expected of editors
and their editorial staff on account of the
nature of their occupation; particularly, I would add, in light of
the powerful position
of the press and the credibility which it
enjoys amongst large sections of the community.
And:
[10]
Defendants' counsel, rightly in my view,
accepted that there are compelling reasons forholding that the media
should not be treated
on the same footing as ordinary members of the
public by permitting them to rely on the absence of animus
injuriandi, and that
it would be appropriate to hold media defendants
liable unless they were not negligent in the circumstances of the
case.
48
Finally, in regard to the
Bogoshi
defence:
[11]
Bearing in mind that the evidence relating to
negligence may well be intertwined with evidence on some other issue1
it is unrealistic
to expect the plaintiff to prove some of the facts
and the defendant to prove others. In my judgment it is for the
defendant to
prove all the facts on which he relies to show that the
publication was reasonable and that he was not negligent. Proof
of
reasonableness will usually (if not inevitably) be proof of lack
of negligence.
49
It
seems to me that in publishing the article, the defendants had
several purposes in mind. The first, entirely laudable, purpose
was
to draw public attention to an abusive relationship which, according
to the text in the article, a public figure had with a
schoolgirl and
which the same public figure said he regretted.
50
But
there was another purpose, which was lawful but not quite so
laudable: to titillate the public. I can see no other reason why
the
article should have referred to skin colour of the child or the fact
that the image in the possession of the news platform
in question
showed that the schoolgirl was embracing the councillor while wearing
only a blue undergarment on her upper body. Nor
can I see any other
reason for reporting the alleged
ipsissima
verba
of this abused girl, where she
had apparently declared defiantly in a social media posting that she
loved the councillor and, in
effect, that she felt that her dignity
was intact despite public discussion of her interactions with the
councillor. I could give
more examples. But these are enough.
51
With
these considerations in mind, the defendants were required to take
quite considerable care to ensure that the wrong man was
not associated with the misconduct with they were exposing.
Misconduct of this kind, between socially dominant men and vulnerable
girls is rightly regarded in this country as particularly heinous.
Indeed, there is good reason to believe that while the public
appear
more indulgent of the conduct of those in public positions who lie
and peculate, the public are generally most critical
of the conduct,
or alleged conduct, of socially dominant men towards girls.
52
The
test for the type of care the defendants ought to have taken was
authoritatively stated in
Kruger v
Coetzee:
[12]
For the purposes of liability culpa arises if -
(a)
a
diligens
paterfamilias
in the position of the
defendant-
(i)
would
foresee the reasonable possibility of his conduct injuring another in
his person or property and causing him patrimonial loss;
and
(ii)
would take reasonable steps to
guard against such occurrence; and
(b)
the defendant failed to take such
steps.
This has been constantly stated by this Court
for some 50 years. Requirement (a) (ii) is sometimes overlooked.
Whether a diligens
paterfamilias in the position of the person
concerned would take any guarding steps at all and, if so, what steps
would be reasonable,
must always depend upon the particular
circumstances of each case. No hard and fast basis can be laid down.
Hence the futility,
in general, of seeking guidance from the facts
and results of other cases.
53
And in
Herschel
v Mrupe,
[13]
it was held:
No doubt there are many cases where once harm
is foreseen it must be obvious to the reasonable man that he ought to
take appropriate
avoiding action. But the circumstances may be such
that a reasonable man would foresee the possibility of harm but would
nevertheless
consider that the slightness of the chance that the risk
would turn into actual harm, correlated with the probable lack of
seriousness
if it did, would require no precautionary action on his
part. Apart from the cost or difficulty of taking precautions, which
may
be a factor to be considered by the reasonable man, there are two
variables, the seriousness of the harm and the chances of its
happening. If the harm would probably be serious if it happened the
reasonable man would guard against it unless the chances of
its
happening were very slight. If, on the other hand, the harm, if it
happened, would probably be trivial the reasonable man might
not
guard against it even if the chances of its happening were fair or
substantial.
54
The
present is a case in which, I was at pains to point out, the harm
which might flow from a mistaken identification of the alleged
wrongdoer, a risk which ought manifestly to have been appreciated by
the defendants, was very grave.
55
The case for the defendants was that the
editorial staff of the Pretoria
News
indeed appreciated the risk and
concluded that their image was that of the right man. In coming to
this conclusion, they relied,
firstly, on the source of their
information: an Atteridgeville community. Facebook page and,
secondly, their own personal comparison
of the image they obtained
from the Atteridgeville community Facebook page with the image of the
councillor in the image depicting
the passionate embrace.
56
The
impression I got from the evidence is that the editorial staff of the
Pretoria
News
regarded
the material they got from the Atteridgeville Facebook page as highly
reliable; so much so that further checking of the
material, other
than their own considered conclusions reached after comparing the two
images in their possession, was unnecessary.
57
I disagree. The material on social media
sites is often the product of gossip and worse. The participants in a
conversation through
any social media platform, of which Facebook is
one, are under no duty or even pressure to supply accurate
information. Facebook
is not a repository of record, like the records
of a public body. It is merely a vehicle for chatter; a more or less
useful source
of potential information, generally requiring
verification from more reliable sources.
58
The evidence is clear that if the
Pretoria News editorial staff had taken the elementary step of
checking with the party official
with whom its news editor was in
regular contact, the mistake would probably have been avoided. To
communicate the concern about
the identity of the person in the image
of the plaintiff, all that was required was two clicks of a mouse
button: one to associate
the image with an email to the party
official and another to send the image to the official with an
appropriate enquiry.
59
It
follows, applying the tests in
Kruger
v Coetzee
and
Herschel
v Mrupe,
that by not making the
enquiry of the party official, the Pretoria News editorial staff were
negligent. The
Bogoshi
defence
must fail.
60
The
first defendant is therefore liable for all the damages suffered by
the plaintiff. The second defendant is jointly and severalty
liable
with the first defendant for the damages arising from the publication
in the Pretoria
News.
The
third defendant is jointly and severally liable with the first
defendant for the damages arising from the publication in the
Star.
Diminution
of the plaintiffs reputation
61
Counsel
for the defendant submitted that if the reputation of the plaintiff
was damaged, it was to a negligible extent. I do not
agree. Those who
knew the plaintiff, read the apology in the Pretoria News and were of
a mind to weigh up the evidence on the question
fairly no doubt came
to appreciate that the plaintiff was not guilty of the conduct
attributed to the councillor. But there were
probably many people who
applied the adage that there is no smoke without fire and may others
who did not, for whatever reason,
change their minds after reading
the first article. The harm to the plaintiff's reputation would not
have been mitigated by the
failure of the first defendant to publish
appropriate apologies in the Star and IOL.
62
There
is another class of persons in whom the plaintiffs reputation was
diminished and who, for reasons of their own, had an interest
in
keeping the plaintiffs reputation weakened. This members of this
class are some of the learners at the school.
63
In
Le Roux,
the
effect of a defamatory publication on the relationship between
learners and an authority figure such as their school principal
was
discussed by Brand AJi n a context somewhat different from that with
which I am presently dealing. The learned judge wrote
[14]
that the purpose of the defamatory matter in that case was to tarnish
the image of two figures representing authority and to reduce
that
authority by belittling them and rendering them the objects of
contempt and disrespect; and to subject these figures of authority
to
ridicule in the eyes of the observers who would predominantly be
learners at the school.
64
Of
course in the present case the defendants had no desire to achieve
these outcomes. But the point, as I see it, is that the harm
to the
plaintiff's reputation is the natural and probable outcome of the
publications. And schoolchildren being schoolchildren,
that harm can
be expected to endure even though it was conclusively demonstrated
that the plaintiff was not the man who was guilty
of wrongdoing. In
the hands of at least some of the learners, the publications would
constitute a weapon to subvert authority which
they would not lightly
relinquish.
65
That,
at least in part, was why there was giggling in assembly on the
Monday following the publications and why the plaintiff needed
to
carry out what he described as damage control.
66
I
find that the damage to the plaintiff's reputation caused by the
publications was substantial.
Quantum
67
All
this means that the plaintiff is entitled to damages. What should he
be awarded?
68
I
take into account that the defamation was serious but that in the
platforms most likely to be accessed by the residents of
Atteridgeville,
the damage was swiftly mitigated by the publication
of the correction and apology by the Pretoria
News.
I take into account that rio such
correction and apology was published by the Star and IOL and that the
correction and apology published
were accorded less prominence than
the defamation.
69
The
second defendant sought to justify the relatively lesser prominence
given to the correction and apology on the ground that the
news
media's mistake was "only" in relation to the image and not
to the text. I think that this wrongly approaches the
question from
the perspective of the news media, which caused the harm, and not, as
it should have been, from the perspective of
the plaintiff, as the
person who was harmed.
70
I
take
into
account too that the plaintiff will have in his arsenal to counter
the effects of the defamation a judgment of the High Court.
I mean no
disrespect to lower courts but a judgment of the High Court is more
prestigious than an equivalent judgment in a lower
court. Had that
not been so, I would have considered a higher award of damages.
71
I
have been guided too by the award in
Le
Roux
of R25 000 which, counsel
accepted, translates to R38 000 in the present value of money. I am
of course aware that each case must
be decided on its own facts. In
Le Roux,
the
lewd acts attributed to the plaintiff were perfomed with another
adult. In the present case, the misconduct was said to be with
a
minor.
72
The
effect on the plaintiff’s reputation was more pronounced in the
area served by the Pretoria News than in the others but
in those
others the harm caused by the publication was not mitigated by a
correction and apology.
73
Taking
all this into account, I conclude that each of the three defamations
should carry an award of R40 000. That translates to
a total award of
R120 000.
Costs
74
The
award I shall make falls within the jurisdiction of the regional
court. Counsel for the defendants submitted that I should award
costs
on the scale of that court if I found for the plaintiff. Counsel
referred me to
Mogale and Others v
Seima,
[15]
in which the SCA held,
obiter ,
that
the idea that defamation and other
injuria
claims may, without regard to their
monetary value, be instituted in the High Courts is outdated. No
reasons were given for this
opinion. The idea that such claims could
be brought by a plaintiff as of right in the high courts seems to me
to be grounded in
the Roman-Dutch notion that the dignity and
reputation of all persons is of equal value and as such, when
impugned, worthy of the
respect of a high court hearing regardless of
the quantum of the harm done to the plaintiff. I think, with respect,
that this consideration
is valid in our constitutional era and not
outdated at all.
75
I
have pointed to the prestige value to the plaintiff of a high court
finding in his or her favour and the effect such a finding
rightly
has in the assessment of an appropriate award.
76
In
my view, these considerations apply to the plaintiff and I shall
award him his costs on the high court scale.
Order
77 I
make the following order:
1
There
will be judgment for the plaintiff against the first defendant for
R120 000.
2
The
judgment in paragraph 1 above will be joint and several against the
second and third defendants respectively with the first
defendant for
R40 000 each.
3
The
defendants must all, jointly and severally, pay the plaintiff's costs
on the high court scale.
NB Tucnten
Judge of the High Court
27
May 2019
[1]
A special plea of a technical nature was filed by the defendants but
not relied upon in argument.
[2]
[2004] 3 All SA 137
SCA paras 19 and 20. Internal footnotes omitted
in all quotations in this judgment
[3]
2011 3 SA 274
CC
[4]
Para 91(a)
[5]
Para 131
[6]
1965 3 SA 562
W
[7]
At p 564
[8]
1998 4 SA 1196
SCA
[9]
At 1214-5
[10]
At 1214
[11]
At 1215
[12]
1966 2 SA
428
A
at 430
[13]
1954 3
SA 464
A 477
[14]
At para 107
[15]
2008
3 SA 637
SCA para 19