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[2019] ZAFSHC 215
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Jankielsohn v Booysen and Others (859/2018) [2019] ZAFSHC 215; [2020] 1 All SA 214 (FB) (11 November 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
859/2018
In
the matter between:
ROY
JANKIELSOHN
Plaintiff
and
REAGAN
BOOYSEN
1
st
Defendant
SELLO
PIETERSEN
2
nd
Defendant
THABO
MEEKO
3
rd
Defendant
THE AFRICAN NATIONAL
CONGRESS
YOUTH
LEAGUE
4
th
Defendant
CORAM:
DAFFUE, J
HEARD
ON:
13 & 14 AUGUST 2019
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
11
NOVEMBER 2019
I
INTRODUCTION
[1]
This case
is in essence about the balancing of two constitutional rights, to
wit the rights to dignity embodied in s 10 and freedom
of expression
in s 16.
[1]
[2]
A well-known and high profile politician feels aggrieved by comments
made by certain individuals in their personal capacities
and also as
members of and on behalf of the Youth League of an opposition party.
[3]
The following expression came to mind when evidence was led:
“Die hoogste bome vang die meeste wind” or as
the people
of the Free State say in Sesotho: “Difate tse telele ke tsona
tse tswarang moya o mangata.”
II
THE PARTIES AS CITED IN THE PLEADINGS
[4]
The plaintiff is Dr Roy Jankielsohn, merely cited in paragraph 1 of
the particulars of claim as a male person residing on a
farm in the
district of Bethlehem, born on […] 1967. He is therefore
51 years old. He was represented by Adv
KN Peterson, instructed
by Horn & Van Rensburg Attorneys.
[5]
1
st
defendant is Mr Reagan Booysen, the provincial
secretary of the African National Congress Youth League (“the
ANC Youth League”)
for the Free State Province.
[6]
2
nd
defendant is Mr Sello Pietersen, the provincial
spokesperson of the ANC Youth League of the Free State Province.
[7]
3
rd
defendant is Mr Thabo Meeko, a member of the Free
State Provincial Legislature.
[8]
4
th
defendant is the ANC Youth League, a duly constituted
voluntary organisation with legal personality, deriving its existence
from
its constitution. Adv IAM Semenya SC appeared for the
defendants together with Adv M Ramaili.
III
THE PLEADINGS
The plaintiff’s
case
[9]
Plaintiff pleaded in paragraph 7 of the particulars of claim that 1
st
and 2
nd
defendants acted not only in their respective
capacities as office-bearers of the ANC Youth League in the Free
State, but also
in their personal capacities.
[10]
Plaintiff pleaded in paragraph 8 that on
5 October 2017 1
st
and 2
nd
defendants jointly issued a statement on behalf of 4
th
defendant, attached as annexure “A”. On the same
date 3
rd
defendant shared and published the statement on Facebook, being a
social media platform, widely distributed across the world.
The
publication is attached as annexure “B”.
[11]
The aforesaid statements contain words
stated of and concerning the plaintiff as pleaded in paragraph 9 of
the particulars of claim,
inter alia
that he is a “racist”
and an “irrelevant white supremacist.”
[12]
In paragraph 10 of the particulars of claim it is alleged that on or
about 26 January 2018 2
nd
defendant repeated some of the
allegations pertaining to plaintiff in an article published in The
Weekly, a newspaper widely distributed
in the Free State. A copy is
attached as annexure “C.”
[13]
In paragraphs 11 – 15 of the particulars of claim allegations
are made that defendants defamed the plaintiff by using
the words
complained of which were intended and understood by readers of the
publications to mean that plaintiff is (1) a racist,
(2) a white
supremacist, (3) a clown and (4) irrelevant in the political sphere
within which the plaintiff finds himself.
Consequently R1m is
claimed from the four defendants, jointly and severally.
The defendants’
defence
[14]
The defendants’ special plea of
lis pendens
insofar as
plaintiff also instituted action in the Magistrate’s Court,
sitting as an Equality Court, has been withdrawn in
court before the
leading of evidence.
[15]
The defendants admitted the first 7 paragraphs of the particulars of
claim in their original plea filed on 11 April 2018 as
well as the
amended plea filed as recently as 16 May 2019. The significance
of the date of filing of the amended plea will
become clear later.
The
locus standi
and positions held by the 1
st
to
3
rd
defendants are admitted. It is also admitted
that 1
st
and 2
nd
defendants not only acted as
office bearers of 4
th
defendant, but in their personal
capacities as well. The ANC Youth League’s
locus
standi
as an organisation is also admitted.
[16]
In sub-paragraphs 2.1 – 2.5 of the amended plea it is averred
that plaintiff had defamed the Premier of the Free State,
Dr Ace
Magashule, and that the statement of 5 October 2017 was published “in
order to correct the politically unfounded allegations
made by the
Plaintiff.” The media statement of 26 January 2018 was
published “in response to the lawsuit against
the Defendant and
the defamatory statement against there then Premier Dr Ace Magashule,
secondly by the journalist seeking clarity
in relation to the lawsuit
by the Plaintiff.”
[17]
In sub-paragraph 2.7 it is pleaded in the alternative that “the
utterances complained about were made within the defendant’s
constitutionally protected rights and freedoms, namely the freedom of
expression contemplated in section 16 of the Constitution
….
as well as the political rights within the meaning of Section 19 of
the Constitution.”
Sub-paragraph
2.7 was inserted when the plea was amended.
[18]
Defendants plead in paragraph 3 of the amended plea to paragraphs 11
-15 of the particulars of claim, averring that “the
statements
were in essence true and those statements both in the newspaper and
on facebook were done in the public interest.”
They
further aver that as the parties were politicians and plaintiff used
the DA’s website to attack and defame the Premier,
they reacted
and therefore their statements were made “during the political
course or space, not outside the political space
or course and the
statements were germane to the issue in the political space, also the
statements were not statements of fact
but response concerning a
matter of public interest, namely allegations made against there then
Premier.”
IV
THE LIQUIDATION OF THE ANC YOUTH LEAGUE
[19]
As indicated
supra
defendants admitted the ANC Youth League’s
standing as pleaded. During the trial defendants’ senior
counsel conducted
the proceedings clearly based on instructions of
all defendants and not a word was ever said by both legal teams that
any of the
parties, and fourth defendant in particular, lacked
locus
standi
to carry on defending the action. I reiterate that
the amended plea was filed this year, to wit on 16 May 2019.
[20]
On the verge of delivering this judgment, I came across media reports
suggesting that the ANC Youth League had been liquidated
earlier. I
requested my secretary to inform both legal teams of these media
reports and directed them to deal with the issue
in writing on or
before 25 October 2019, which they have done. I was also
presented with a copy of a court order indicating
that the ANC Youth
League was finally wound up on 26 July 2018. The conclusion
reached in both parties’ written submissions
is that this court
cannot give judgment against the fourth defendant insofar as its
liquidators, if any have been appointed, have
not been joined in the
proceedings. I agree for obvious reasons, bearing in mind the
trite legal principle. Consequently
plaintiff now seeks
judgment against the three individual defendants only.
V
THE RULING ON THE DUTY TO BEGIN
[21]
Ms Peterson submitted that the defendants should start with the
leading of evidence. She relied on the averments in the amended
plea. I put it to her that the parties agreed in their rule 37
minutes that plaintiff bears the duty to begin and that he
will
begin. Mr Semenya confirmed that he accepted his brief for the
trial based on such agreement. A week before the
start of the
trial I requested my secretary to communicate with the parties via
e-mail in order to ensure that they properly comply
with the new rule
37A(10). I was informed that the rule 37 minutes complied with
the new rule. Defendants were never
requested to revisit the
agreement reached. Consequently, I did not deem it fair to make
a ruling contrary to an agreement
reached between the parties.
Furthermore, although new defences are raised in the amended plea,
defendants denied in the
original plea that the statements were made
wrongfully and with the intent to defame plaintiff.
VI
THE EVIDENCE
Roy Jankielsohn
[22]
Mr Jankielsohn was the only witness that testified in plaintiff’s
case. He testified that he is the leader of the
Democratic
Alliance (“DA”) in the Free State Provincial
Legislature. He was leader of the official opposition
in the
Legislature between 2006 and 2009 and from 2014 to date. He is
a member of the Federal Council of the DA. He
also holds
numerous other positions. Five degrees were conferred upon him,
to wit a BA, BA Honours in Political Science,
MA in International
Relations, BA Honours in English and a Ph.D in Political Science.
He is a former lecturer at the University
of the Free State. He
is the author of several academic publications and an external
examiner for Ph.D students of the Northwest
University. He was
awarded the Robert S. McNamara World Bank Scholarship for research.
[23]
On 4
October 2017 plaintiff delivered a statement in the Provincial
Legislature in his capacity as leader of the opposition.
[2]
The Premier of the province, Mr Ace Magashule, was attacked. It
was noted that the Bahcesehir University in Turkey,
a private
university, had been misled into conferring an honorary doctorate on
the Premier. According to plaintiff the university
ought not to
have conferred the degree if they had done research on Mr Magashule.
He quoted a number of reasons in this regard.
[24]
During his
testimony the plaintiff explained that the information relied upon
was in the public domain. It is not deemed apposite
to deal
with the witness’ evidence in this regard or the documentation
relied upon in any detail. The examples quoted
in the press
release are, according to the witness, substantiated by newspaper
articles, other documentation and the May 2016 report
of the Public
Protector.
[3]
[25]
Plaintiff also testified about information received upon questions
asked by him concerning the Province’s international
student
programme. He testified with reference to documentation
received from the Free State Department of Education that
millions of
Rands had been paid to several countries,
inter alia
to Turkey
in 2014/15 – R7.75m, in 2016/2017 - R32.6m and in 2017/18 -
R11.9m. Students were sent by the Province to
the particular
university and the amounts were apparently utilized for air tickets,
tuition, accommodation and the like.
[26]
Plaintiff
testified about the reaction of the defendants. The
publications are not in dispute. The initial statement
[4]
dated 5 October 2017 was issued by 2
nd
defendant and placed on the ANC Youth League’s Facebook page.
1
st
Defendant is referred to as the person to whom enquiries should be
directed. This statement contains all the words quoted
in the
particulars of claim which plaintiff alleges are defamatory. On
the same day 3
rd
defendant shared the article which was released on Facebook,
[5]
causing a wider distribution thereof. On 28 January 2018 the
Weekly newspaper published an article based on allegations made
by
2
nd
defendant wherein several of the alleged defamatory remarks were
repeated.
[6]
[27]
According to the plaintiff he was also incorrectly accused of
objecting to black students studying abroad. To the best
of his
knowledge no report was ever issued denying the correctness of the
allegations in his report. Defendants did not try
to defend Mr
Magashule by indicating that plaintiff’s report was false, but
elected to attack him by defaming his person.
He referred to
the words used in this regard, but testified that to call a white
politician a racist is the biggest insult imaginable.
It is
criminal to be racist. He also felt aggrieved for being
insulted and belittled by young people. These remarks
may
affect his political career negatively and they also have a bearing
as to how this is perceived by his family and other members
of the
community. Plaintiff testified that by referring to him as a
racist, has dangerous implications as he and his family
are residing
on a farm. Farm attacks in this country are not uncommon.
[28]
He questioned the allegation in paragraph 2.3 of the amended plea,
stating that the statement was issued to correct politically
unfounded allegations. According to him nothing was corrected
in the statement or in any other statement that he was aware
of.
He regards the defendant’s statement as an unsuccessful attempt
to defend Mr Magashule.
[29]
During cross-examination Mr Semenya emphasised that the DA and the
ANC were political opponents, competing for votes.
Plaintiff
had to concede that there was no indication within the DA that he was
not held in the same esteem as before the defendants’
publications. Also, that the accusations of being a racist were
never deemed to be accurate, otherwise plaintiff would not
be
occupying his position in the DA anymore. Mr Semenya discussed
with plaintiff the fact that he elected to be in politics
– in
the political space - and that metaphors are often used to criticise
opponents. He is also seen as the face of
the ANC’s
opposition in the Legislature. Time has been spent to deal with
the wording of ss 16 and 19 of the Constitution.
To an extent
the cross-examination was an attempt to obtain concessions from
plaintiff about the law pertaining to freedom of expression.
[30]
Mr Semenya’s reasoning that the ANC Youth League became
involved because of the fact that plaintiff had queried the studying
of black students abroad, was met with a response that his report had
nothing to do with that: studying abroad was not a consideration.
That concluded plaintiff’s case.
Thabo Piet Meeko
[31]
Defendants called only one witness, to wit Mr Meeko, the 3
rd
defendant. He is the current spokesperson of the ANC in the Fee
State and a Member of Parliament. He testified about
his
political career. The ANC Youth League has been
established to ensure that the ANC is rooted in the masses and
especially the youth. He has known the plaintiff since 2014.
The witness was called upon to explain how he defines
political
contestation and it became clear that he believes that robustness is
common while heated debates occur in the National
Assembly and the
Provincial Legislature of provinces. According to him, although
members are protected for what they say
inside Parliament, all
politicians have the right to speak outside Parliament.
[32]
The witness confirmed that the statement of 5 October 2017 was
released and that he “retweeted” it. It is
his view
that it is not uncommon for politicians to call others “racists.”
He is of the opinion that the DA wants
to install the “apartheid
legacy” and that has been the case since 1994. Therefore
plaintiff is a racist.
Anyone or any party that disagree with
the ANC or oppose its views, reflects racism and the idea that
apartheid must be “maintained.”
[33]
He testified that the word “redneck” has particular
connotation in politics. The South African struggle has
“borrowed various things from Cuba.” He
believes that the political speech relevant
in casu
did not
and could not incite violence. The word “clown” is
used for someone that disagrees with you in politics.
A “white
supremacist” is someone that advances the ideas of apartheid. A
“DA Chihuahua” is someone who
is at the forefront of
speaking DA rhetoric. Plaintiff should have recognised that his
attack on the Premier would not be
responded to “with red
roses.”
[34]
During cross-examination the witness denied that the defendants’
statement was made with the intention to defame plaintiff,
but it was
a “political reaction to a political action.” When
asked whether he would again respond in a similar
manner, he stated
that one is guided in politics by a number of issues such as time and
space whilst ideas are not static.
The defendants closed their
case after the testimony of Mr Meeko.
VI
THE CONSTITUTION
[35]
A consideration of the preamble of our Constitution should be the
starting point in any matter of a constitutional nature.
The
following extracts are of importance in this dispute:
“
Republic
of South Africa
1.
The Republic of South Africa is one, sovereign, democratic state
founded on the following values:
(a) Human dignity, the
achievement of equality and the advancement of human rights and
freedoms.
Human dignity
10. Everyone has inherent
dignity and the right to have their dignity respected and protected.
Freedom of expression
16.1 Everyone has the
right to freedom of expression, which includes-
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas;
(c) freedom of artistic
creativity; and
(d)
academic freedom and freedom of scientific research.
16.2 The right in
subsection (1) does not extend to-
(a) propaganda for war;
(b) incitement of
imminent violence; or
(c)
advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.
Political rights
19.1 Every citizen is
free to make political choices, which includes the right-
(a) to form a political
party;
(b) to participate in the
activities of, or recruit members for, a political party; and
(c) to campaign for a
political party or cause.
19.2 Every citizen has
the right to free, fair and regular elections for any legislative
body established in terms of the Constitution.
19.3 Every adult citizen
has the right-
(a)
to vote in elections for any legislative body established in terms of
the Constitution, and to do so in secret; and
(b)
to stand for public office and, if elected, to hold office.”
VII
RELEVANT LEGAL PRINCIPLES
[36]
Defamation
is the wrongful and intentional publication of a defamatory statement
concerning the plaintiff. Once the plaintiff
establishes these
elements, a presumption is created that the statement was unlawful
and intentional and it is for the defendant
to rebut this.
Several common law defences such as truth and public interest and
fair comment, to name only two, could be
raised.
[7]
A full onus rests on the defendant to rebut the presumption created
and it must be discharged on a preponderance of probabilities.
Facts must be pleaded and proved that will be sufficient to
establish the defence.
[8]
[37]
In
Khumalo
[9]
O’Regan J wrote for a unanimous court:
[21]
……..The importance of the right of freedom of
expression in a democracy has been acknowledged on many occasions
by
this Court and other South African Courts. Freedom of expression is
integral to a democratic society for many reasons. It is
constitutive
of the dignity and autonomy of human beings. Moreover, without it,
the ability of citizens to make responsible political
decisions and
to participate effectively in public life would be stifled………
[25]
However, although freedom of expression is fundamental to our
democratic society, it is not a paramount value. It must be construed
in the context of the other values enshrined in our Constitution. In
particular, the values of human dignity, freedom and equality.
The
constitutional value of human dignity
[26]
It has long been recognised in democratic societies that the law of
defamation lies at the intersection of the freedom of speech
and the
protection of reputation or good name. ……
Under
our new constitutional order, the recognition and protection of human
dignity is a foundational constitutional value.
As this
Court held in
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs and Others
2000
(3) SA 936 (CC)
[2000] ZACC 8
;
(2000
(8) BCLR 837)
at para
[35]
:
'The
value of dignity in our Constitutional framework cannot . . . be
doubted. The Constitution asserts dignity to contradict our
past in
which human dignity for black South Africans was routinely and
cruelly denied. It asserts it too to inform the future,
to invest in
our democracy respect for the intrinsic worth of all human beings.
Human dignity therefore informs constitutional
adjudication and
interpretation at a range of levels.'
[27]
In the context of the
actio injuriarum
, our common law
has separated the causes of action for claims for injuries to
reputation (
fama
) and
dignitas
.
Dignitas
concerns
the individual's own sense of self-worth, but included in the concept
are a variety of personal rights including,
for example, privacy. In
our new constitutional order, no sharp line can be drawn between
these injuries to personality rights.
The value of human dignity
in our Constitution is not only concerned with an individual's sense
of self-worth, but constitutes
an affirmation of the worth of human
beings in our society. It includes the intrinsic worth of human
beings shared by all people
as well as the individual reputation of
each person built upon his or her own individual achievements.
The value of human
dignity in our Constitution therefore values both
the personal sense of self-worth as well as the public's estimation
of the worth
or value of an individual. It should also be noted that
there is a close link between human dignity and privacy in our
constitutional
order. The right to privacy, entrenched in s 14
of the Constitution, recognises that human beings have a right to a
sphere
of intimacy and autonomy that should be protected from
invasion. This right serves to foster human dignity. No sharp lines
then
can be drawn between reputation,
dignitas
and
privacy in giving effect to the value of human dignity in our
Constitution….
[28]
The law of defamation seeks to
protect the legitimate interest individuals have in their reputation.
To this end, therefore, it is one of the aspects of our law which
supports the protection of the value of human dignity.”
(emphasis added)
[38]
In
Masuku
and another v South African Human Rights Commission
[10]
the following was said in a case dealing with the
Promotion of
Equality and Prevention of Unfair Discrimination Act, 4 of 2000
, also
known as PEPUDA or the Equality Act:
“
[16]
Since the advent of our Constitution, the right to enjoy freedom of
expression is one that has been fiercely promoted and jealously
guarded in this country. Section 15 of the interim Constitution
protected both 'speech' and 'expression'. The use of only the wider
concept 'expression' in s 16 of the Constitution has been interpreted
as signifying a deliberately expansive approach to constitutional
protection of speech and expression. None of the parties in this
appeal take issue with the liberal approach to protection
of
freedom of expression as demonstrated in the various judgments of the
courts around the country…….
[31]
In summary, the starting point for the enquiry in this case was that
the Constitution in s 16(1) protects freedom of expression.
The
boundaries of that protection are delimited in s 16(2). The fact that
particular expression may be hurtful of people's feelings,
or
wounding, distasteful, politically inflammatory or downright
offensive, does not exclude it from protection. Public
debate is noisy and there are many areas of dispute in our society
that can provoke powerful emotions. The bounds of constitutional
protection are only overstepped when the speech involves propaganda
for war; the incitement of imminent violence; or the advocacy
of
hatred that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.”
This
judgment is distinguishable from the matter at hand although the SCA
discarded the Equality Act and decided to deal with s
16(2) of the
Constitution. An application for leave to appeal the SCA
judgment has been filed at the Constitutional Court
which court will,
as informed, hear the application in due course.
[39]
In
Hotz
and Others v University of Cape Town
[11]
the
court held:
“
A
court should not be hasty to conclude that because language is angry
in tone or conveys hostility it is therefore to be characterised
as
hate speech, even if it has overtones of race or ethnicity.”
[40]
In
SAHRC v
Khumalo
[12]
Sutherland J in dealing with the Equality Act commented as follows:
“
[102]
In South Africa, however, our policy choice is that utterances that
have the effect of inciting people to cause harm is intolerable
because of the social damage it wreaks and the effect it has on
impeding a drive towards non-racialism.”
The
learned judge found that the question whether harm could be incited
by the effect of the speech on the reasonable reader or
audience and
not whether the intention of the speaker was to incite harm. He
added that the standard of the reasonable person,
applied to s 10(1)
(of the Equality Act) means, therefore whether a reasonable person
could conclude (not inevitably should conclude)
that the words mean
the author had a clear intention to bring about the prohibited
consequences. Words obviously mean what
they imply.
[13]
Again, I am mindful of the fact that the Equality Act was the
applicable Act considered in that matter and not s 16 of the
Constitution. Also the facts differ from those
in
casu
.
[41]
Brand
AJ dealt with the meaning to be given to a statement as follows in
Le
Roux and Others v Dey.
[14]
The primary meaning of a statement is the ordinary meaning
given to the statement in its context by a reasonable person.
The second meaning is an
innuendo.
When a plaintiff relies on the primary meaning, a two-stage
enquiry is followed. Firstly, the ordinary meaning of the
statement must be established and secondly it must be considered
whether the meaning is defamatory. The ordinary meaning
is
established by determining what meaning the reasonable reader
of ordinary intelligence would attribute to the words.
[15]
[42]
No
one has a licence to publish untrue statements about politicians
who also have the right to protect their dignity and reputation,
notwithstanding the finding by the SCA that “the limits of
acceptable criticism are accordingly wider as regards a politician
as
such than as regards a private individual,” as explained in
Mthembi-Mahanyele
v Mail and Guardian Ltd and Another.
[16]
Lewis
JA made it clear that freedom of expression should not be elevated
above that of dignity as there is no hierarchy
of rights.
[17]
This case is distinguishable insofar as it dealt with a claim against
a newspaper. The defendant publisher will not
be held liable
for the publication of defamatory material if it is able to show that
it was reasonable to publish.
[18]
[43]
An
objective test is applied to determine whether the reputation of the
plaintiff has been infringed on a balance of probabilities.
[19]
[44]
It
is apposite to consider the views of the CC in Le Roux v
Dey:
[20]
“
[138]
In terms of our Constitution, the concept of dignity has a
wide meaning which covers a number of different values. So,
for
example, it protects both the individual's right to reputation and
his or her right to a sense of self-worth. But under
our common
law 'dignity' has a narrower meaning. It is confined to the person's
feeling of self-worth. While reputation concerns
itself with the
respect of others enjoyed by an individual, dignity relates to
the individual's self-respect. In the present
context the term is
used in the common-law sense. It is therefore used to the exclusion
and in fact, in contradistinction to reputation,
which is protected
by the law of defamation.
[139]…….
[140]
I find myself in respectful agreement with the principle that the
same conduct should not render a defendant liable by dint
of more
than one
actio iniuriarum
. I say that for the reasons
that follow.
[141]
Traditional learning generally defines
iniuria
as
the wrongful and intentional impairment of a person's physical
integrity (
corpus
), dignity (
dignitas
), or reputation
(
fama
)…..
[142]
In view of this constant overlapping of manifestations of
iniuria
,
duplication of
actiones
would therefore have been
expected as a matter of common occurrence, if it were allowed in
principle. Yet, like Harms DP,
I am unaware of a single case where
two actions for
iniuria
were allowed on the same
facts. On the contrary, as pointed out by the majority in the
Supreme Court of Appeal, it is
recognised that an award of damages
for defamation should compensate the victim for both wounded feelings
and the loss of reputation.
I see that as an implicit
endorsement of the principle that the plaintiff will not be able to
succeed in separate claims for both
defamation and infringement of
dignity, arising from the same facts…..
[45]
In
Khumalo
[21]
the Constitutional Court quoted with approval the following statement
by Cory J in
Hill
v Church of Scientology of Toronto
:
“
False
and injurious statements cannot enhance self-development. Nor can it
ever be said that they lead to healthy participation
in the affairs
of the community. Indeed, they are detrimental to the advancement of
these values and harmful to the interests of
a free and democratic
society.”
Writing
for a unanimous court, O'Regan J also said in the same paragraph:
“
There
can be no doubt that the constitutional protection of freedom of
expression has at best an attenuated interest in the publication
of
false statements.”
[46]
Although
freedom of speech is indisputable, our courts here and abroad are
clear: what is permitted is public debate which does
not amount to
hate speech.
[22]
It is
important to understand that freedom of speech is not an absolute
right. Cameron J, writing for the majority
in
McBride,
acknowledged
that public debate in this country has always been robust, but
concluded that the Constitution does not extend freedom
of expression
to hate speech. Also, every person is afforded the legitimate
protection of his/her dignity, including their
reputation.
[23]
VIII
ANALYSIS OF THE FACTS AND THE CONTEXT IN WHICH PUBLICATION TOOK PLACE
[47]
The
publication of the statement by defendants is not in dispute.
It was published for immediate release onto the ANC Youth
League’s
Facebook page and the same day shared by 3
rd
defendant on his Facebook page. Several of the words used in
the statement to describe plaintiff are hurtful and offensive,
but in
my view acceptable in a political context. However the words
“racist” and “white supremacist”
fall in a
totally different category. In
Masuku
[24]
the SCA stated that an offending term such as “racists”
does not “connote religion or ethnicity.”
We do not
deal here with either religion or ethnicity, but with race –based
speech.
[48]
It must from the onset be pointed out that although defendants aver
in paragraph 3.1 of their amended plea that the “statements
were in essence true” and “done for the public interest,”
Mr Semenya was adamant in his written and oral submissions
that this
case is not about the usual common law defences such as truth and
public interest and fair comment. He did
not try to lay a
basis for any of the common law defences during the plaintiff’s
cross-examination. He unconditionally
relied on the defendants’
alleged protected rights of freedom of expression contemplated in s
16 and their political rights
within the meaning of s 19 of the
Constitution.
[49]
I did not understand Mr Semenya to argue with much vigour that the
statements, especially that plaintiff is a racist and a
white
supremacist, are not
per se
and
prima facie
defamatory. His main submission is that in constitutional law,
context is everything. Therefore, in the context of
defendants’
leader and Premier of the Province being accused as I set out
earlier, defendants were fully entitled to react
in the manner they
did and are entitled to the protection of ss 16 and/or 19. Mr
Semenya did not submit that plaintiff had
to disprove defendants’
defence. In my view defendants attracted a full onus to prove
that their speech was protected
in terms of ss 16 and/or 19. This
viewpoint is in line with the applicable test pertaining to the usual
common law defences mentioned
above.
[50]
I accept that politicians are supposed to be used to some robust
communication and that political debate often provoke severe
emotions. Often political role players try to score points in
the eyes of their supporters and other members of the public
and in
doing so, severe criticism may be levelled at the opposition.
Having said this, the right to dignity, which includes
reputation,
will become meaningless if persons are allowed to say whatever they
want in the name of freedom of expression.
[51]
It is trite that I must try to balance the two constitutional
rights. In doing that I shall consider the alleged
defamatory statements within the context they were published. I
shall also consider defendants’ allegation that their
reaction
was to correct plaintiff’s unfounded allegations.
[52]
The defendants’ statement kicks off with the allegation that
plaintiff’s attacks on the Premier were of a racist
nature.
This is factually incorrect. I accept that the defendants’
statement tries to convey that the Premier
was indeed deserving of an
honorary doctorate degree. The uncontested evidence of
plaintiff reveals that millions of Rands
have been paid to Turkey to
provide for the costs of South African students and that the amount
increased to a staggering R32m
in the 2016/17 financial year which
coincides with the conferral of the honorary doctorate degree.
Payments to Turkey dropped
the next financial year to just less than
R12m. However, even if the defendants’ statement was
published in order to
correct incorrect allegations, the question
still remains whether defendants were entitled to make
prima facie
defamatory remarks towards plaintiff.
[53]
Plaintiff
is referred to four times as a “racist” and even an
“inherent racist” in the document and once
as an
“irrelevant white supremacist.” The repeated use of
the word “racist” is, to borrow from Cameron
J in
McBride,
[25]
vengeful and distasteful. No steps have been taken against plaintiff
by his political party based on the allegations against him.
If
these were factually true, I have little doubt that a non-racial
political party like the DA would have acted immediately by
instituting disciplinary steps against plaintiff. The party
insiders, consisting of white and black leaders, would have done
their party a disservice if they allowed a racist to represent them
as leader of the Free State Legislature.
[54]
The test is not whether those who know plaintiff well would
necessarily be influenced by the statement. Clearly, the
statement was meant to be read primarily by members of the ANC Youth
League, followers of the Youth League and people who are Facebook
friends of the organisation and Mr Meeko, the 3
rd
defendant. If the matter is to be considered objectively –
i.e.
through the eyes of the reasonable readers of the
particular facebook pages, or put otherwise, ANC Youth League
followers and others
that do not know plaintiff well – I am of
the view that the readers would accept that plaintiff is a racist and
a white supremacist,
i.e.
a person who believes that the white
race to which he belongs is superior to other races.
[55]
It must be
one of the biggest insults to accuse a politician, or for that matter
anyone else in our diverse society, of being racist
or a white
supremacist. People are sent to jail for making racist
remarks. Racism is an extremely sensitive issue.
As
stated in
Mthembu-Mahanyele
[26]
the right to dignity is also afforded to high profile public
officers. They are entitled not to have their reputations
unlawfully
harmed
.
Plaintiff’s
right to dignity, including his reputation, has been infringed and
there can be no dispute in this regard.
Mr Semenya did not
submit that plaintiff, or for argument’s sake, anyone else, may
be called a racist without impunity.
I quote Sutherland J again
who said “utterances that have the effect of inciting people to
cause harm is intolerable because
of the social damage it wreaks.”
We, as the people of South Africa, must have respect for the dignity
of others as
“this lies at the heart of the Constitution and
the society we aspire to” as Brand AJ said in
Dey
.
[27]
He continued to state that “respect breeds tolerance for one
another in the diverse society we live in. Without
that respect
for each other’s dignity, our aim to create a better society
may come to nought.”
[56]
There is no
justification for the publication of untruths. The statement
was published recklessly and with indifference as
to whether it was
true or false. They were actuated by malice and the sole
purpose was a personal attack on the plaintiff.
In his evidence
Mr Meeko made use of generalisations and placed emphasis on the DA’s
programme since 1994 to allegedly return
to apartheid in order to
justify their attack. Plaintiff is labelled and even
stigmatised as a racist and white supremacist
and it is highly
probable that some people might have been incited to cause him and/or
his family harm. We experience this
on a regular basis in this
country. The harm inflicted on foreigners based on rumours, or
distorted facts being published,
is just one example. I
reiterate what Sutherland J said in
SAHRC
v Khumalo.
[28]
Mr
Meeko was vague during cross-examination. I understand that
context is important, but his failure to respond meaningfully
to
questions put to him as to what their reaction would be to similar
comments by plaintiff at the time he testified, speaks volumes.
His attempts to distinguish between plaintiff’s comments and
their reaction thereto did not bear fruit. Mr Meeko’s
subjective belief that defendants’ reaction could or did not
constitute incitement to cause harm is irrelevant. The
matter
must be considered objectively. Plaintiff, on the other hand,
made concessions when necessary and I find that he was
a credible and
reliable witness. However, it is not necessary to reject Mr
Meeko’s version in order to adjudicate the
dispute. It is
in essence a legal matter that has to be adjudicated based on legal
principles. I reiterate that the
parties could not present me
with any authorities dealing with the defences raised by defendants.
Masuku
relied upon by Mr Semenya and quoted above, had to be considered in
light of the Equality Act. I am satisfied that the statement
involves advocacy of hatred based on race and constitutes incitement
to cause harm. The defendants cannot successfully rely
on s
16(2) and s 16(2)(c) in particular. They failed to prove there
defence.
[57]
The reliance on s 19 of the Constitution is ill-founded. I am
not prepared to accept that a political party or one or
more of its
members may use absolute freedom of speech in order to say whatever
they want to say about opposition political parties
or their
office-bearers merely because an election is around the corner.
Surely, parties may contest for votes and do that
fairly and squarely
within their rights as such. Our country will erupt into chaos
if it were otherwise. The same principles
enunciated above when
dealing with freedom of expression and s 16(2) in particular
applies. This defence cannot succeed.
IX
SOLATIUM
[58]
The Supreme
Court of Appeal stated in
Langa
CJ and others v Hlophe
[29]
that “a judge like any member of the public, is entitled to the
consolation of damages for defamation if the publication
of the
statement cannot be justified.” The purpose of
granting compensation is twofold: firstly to vindicate
the
plaintiff’s reputation in the eyes of the public, and secondly,
to serve as conciliation to him/her.
[30]
[59]
Plaintiff
claims R1m, but the reasonableness of the claim must be considered in
the light of all the circumstances. A court
is entitled to
refer to other cases in order to consider a
solatium,
but
such cases should merely be used to guide the trial judge
.
In
Tsedu
and others v Lekota and another
[31]
R100 000.00 was awarded on appeal to each of the two plaintiffs,
the holders of high office in Government, who were accused
of having
supplied confidential party information to a third party. The
present day value of the award is R170 200.00.
[32]
Nugent JA, writing for a unanimous bench, held
[33]
that “monetary compensation for harm of this nature (defamation
in casu
)
is not capable of being determined by empirical measure” and
that “it would not be helpful to recite other awards.”
I respectfully agree with this
dictum
and find that there is no substance in Mr Semenya’s argument
that plaintiff failed to prove his entitlement to compensation.
[60]
Notwithstanding
the remarks of the SCA quoted in the previous paragraph, I considered
three other cases. In the most recent
judgment R500 000.00
was awarded to Mr Manuel, a former Minister in the National
Government.
[34]
The
statement about him was held to be understood by the reasonable
reader that he was
inter
alia
corrupt and nepotistic. I am of the view that plaintiff is not
entitled to such a substantial award. Mr Manual was
not only a
well-known National Minister for a long time, but he has established
himself as an influential role player in this country.
[61]
In
Van
der Berg v Coopers & Lybrand Trust (Pty) Ltd & others
[35]
an
amount of R30 000.00 was awarded to a senior advocate following
an admittedly defamatory statement made in court papers.
Obviously, publication was limited. The present day value
thereof is R90 270.00.
[36]
[62]
In
Media
24 Ltd t/a Daily Sun and another v Bekker du Plessis
[37]
the SCA reduced the award of the trial court to R40 000.00.
The plaintiff was a sales agent who was depicted as a racist
who
valued the value of an onion more highly than the life and well-being
of another person. This case is clearly distinguishable
as that
plaintiff does not have the same high profile as the plaintiff
in
casu.
I do not intend to repeat the plaintiff’s
impressive CV, but there can be no doubt that he is a man of
formidable
calibre.
X
CONCLUSION
[63]
In conclusion I am satisfied that plaintiff has made out a case based
on defamation. The defendants’ defences have
been
rejected. The plaintiff is entitled to reasonable compensation
which is fair and equitable. The amount of R300 000.00
is to be
awarded.
[64]
The general rule is that costs should follow the event and there is
no reason to deviate from this trite principle.
XI
THE ORDERS
[65]
Judgment is granted against 1
st
, 2
nd
and 3
rd
defendants, jointly and severally, the one to pay, the others to be
absolved as follows:
(1) Payment in the amount
of R300 000.00.
(2) Interest
a tempore
morae
on the amount of R300 000.00 from date of judgment to
date of payment.
(3) Costs of suit.
__________________
J
P DAFFUE, J
On
behalf of Plaintiff: Adv KN Peterson
Instructed
by: Horn & van Rensburg
BLOEMFONTEIN
On
behalf of Defendants : Adv IAM Semenya (SC) and Adv M Ramaili
Instructed
by: Moroka Attorneys
BLOEMFONTEIN
[1]
Of
the Constitution, 108 of 1996.
[2]
See pp 1 &2 of exhibit A for
a
copy of the press release
[3]
Contained
in exhibit B, pp 20 - 103
[4]
Exhibit
A, p 5
[5]
Exhibit
A, p 4
[6]
Pleadings
bundle, p 20
[7]
Khumalo
v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) at paras 18 – 20, relying on
National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA)
[8]
Le Roux & others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as amici curiae)
2011 (3) SA 274
(CC) at
para 85
[9]
Loc cit at paras 21 & 25 - 28
[10]
2019
(2) SA 194
(SCA) at paras 16 & 31
[11]
2017
(2) SA 485
(SCA) at para 68
[12]
2019 (1) SA 289 (GJ)
[13]
Ibid
at
paras 88 & 89
[14]
Loc cit at paras 86 -91
[15]
Ibid
at para 89
[16]
2004
(6) SA 329 (SCA)
at
paras 66 & 67
[17]
Ibid
at para 42
[18]
Ibid
at para 46
[19]
Le
Roux and others v Dey loc cit at paras 168 - 169
[20]
Ibid
at paras 138 -144
[21]
Loc
cit at para 35
[22]
The
Citizen 1978 (Pty) Ltd and others v McBride
2011 (4) SA 191
(CC) at
par 100. See also R v Keegstra
[1990] 3 SCR 697
at p 766
and Attis v Board of School Trustees, District 15
[1996] 1 SCR 825
at p 877 and Afri-Forum v Malema
2011 (6) SA 240
(EqC) para 22
[23]
McBride
loc cit at paras 99 & 100
[24]
Loc
cit at para 26
[25]
Loc
cit at para 102
[26]
Loc
cit at para 42
[27]
Le Roux v
Dey,
loc cit at para 202
[28]
Loc
cit at para 89
[29]
2009
(4) SA 382
(SCA) at para 55
[30]
Esselen
v Argus Printing & Publishing C0 Ltd
1992 (3) SA 764
(TPD) at
771F-I
[31]
2009 (4) SA 372 (SCA)
[32]
Quantum
of Damages: Quick Guide, 2019 ed at p 232
[33]
Ibid
at para 25
[34]
Manual
v Economic Freedom Fighters and others [2019] 3 All SA 584 (GJ)
[35]
2001
(2) SA 242 (SCA)
[36]
Quantum
of Damages: Quick Guide, 2019 ed at p 232
[37]
Corbett & Honey,
Quantum
of Damages, vol VII at K11-1