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[2018] ZAGPJHC 650
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Stobbs and Another v Mayathula-Khoza and Another (2017/37668) [2018] ZAGPJHC 650 (7 December 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2017/37668
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED.
7
December
In
the matter between:
STOBBS,
JULIAN CHRISTOPHER
First
Applicant
CLARKE,
KATHLEEN (MYRTLE)
And
Second
Applicant
MAYATHULA-KHOZA,
NANDI
GAUTENG
DEPARTMENT OF SOCIAL DEVELOPMENT
First
Respondent
Second
Respondent
JUDGMENT
SPILG,
J:
INTRODUCTION
1.
This is an application in which Mr Stobbs and Ms Clarke seek an order
declaring that certain statements made on the Stephen Grootes
Midday
Report
show on Talk Radio 702 (which was simultaneously aired on
its sister station, Cape Talk) by the First Respondent, who is the
MEC
of Social Development in Gauteng Province (“
the MEC”)
,
which were made in her official capacity on behalf of the Gauteng
Department of Social Development, which is the Second Respondent,
are
defamatory of them.
They
also seek an unqualified apology from, and retraction of the
statement by, the MEC to be broadcast live on the
Midday Report
show alternatively that it be published prominently in the Sunday
Times newspaper. The applicants also seek costs on an attorney-client
scale.
2.
The application was opposed on the merits, and on the technical
ground that the applicants failed to comply with the Institution
of
Legal Proceedings Against Certain Organs of State Act 40 of 2002
(“
the Act”)
.
DILATORY
DEFENCE
3.
I am
satisfied that a defamation case can be brought on motion if no
damages are sought and the underlying facts are common cause
[1]
.
In the present case the relief sought is in the form of a declaratory
order that an apology and a retraction be made.
4.
It is common cause that the offending statements were made by the MEC
acting in her official capacity. It is also common cause
that the
respondents are therefore organs of State as defined in s 1(1) (vii)
of the Act.
5.
In terms of s 3(1)(a) of the Act “
no legal proceedings for
the recovery of a debt may be instituted against an Organ of State
unless the creditor has given the Organ
of State in question notice
in writing of his or her or its intention to institute the legal
proceedings in question”.
Such notice must be given within
six months of the date when the debt arose. In terms of s3 (1) (b) an
Organ of State may consent
in writing to the institution of
proceedings against it. The applicants did not give notice and the
respondents have not consented
to the institution of the proceedings
against them.
6.
Adv Brammer
for the applicants’ submits that they are
not seeking the recovery of a debt as defined in s1 of the Act.
7.
In terms of the definition section a ‘
debt’
means:
“
any debt
arising from any cause of action-
(a)
which arises from delictual, contractual or any other liability,
including a cause of action which relates to or arises from
any-
(i) act performed
under or in terms of any law; or
(ii) omission to do
anything which should have been done under or in terms of any
law;
and
(b)
for which an organ of state is liable for
payment of damages
…
. ”
8.
Although the present proceedings are founded in delict it is clear
from the underscored words that the claim must be one sounding
in
money before the provisions of the Act are triggered. The Act is
clear. If any authority is required then an application of
Makate
v Vodacom (Pty) Ltd
2016 (4) SA 121
(CC) esp at para 92 is
decisive.
9.
The technical point is therefore dismissed.
THE
OFFENDING WORDS
10.
The applicants contend that the following utterance by the MEC is
defamatory:
“…
it is
the Dagga Couple who really are interested on one thing only; on
making millions of Rands to sell to our young people these
drugs, to
have an open-market in schools and communities, so that they can sell
billons of Rands worth of dagga …”
11.
It is common cause that members of the public would understand that
the term “
Dagga Couple
” refers to the applicants.
THE
ISSUES
12.
Adv. Bokaba
on behalf of the respondents raised the following
issues:
a. The remarks are not
defamatory;
b. The remarks amounted
to fair comment;
c. The remedy sought is
inappropriate
13.
In response the applicants dispute that the remarks were simply
comment; they contend that the MEC asserted them as facts. Moreover
they sought to rebut the defence of fair comment by raising malice.
14.
There is a further issue which is based on the manner of pleading.
In
advancing their defences to the claim the respondents’
answering affidavit sought to contextualise the circumstances in
which the remarks came to be made.
The
applicants apply to strike out these passages on the ground that the
factual background is irrelevant.
15.
In order to determine the case the respondents were called on to meet
it is necessary to first analyse the way in which the
applicants
pleaded the defamation.
THE
CASE MADE OUT BY THE APPLICANTS
16.
“
It
is trite law that in motion proceedings the affidavits serve not only
to place evidence before the Court but also to define the
issues
between the parties. In so doing the issues between the parties are
identified. This is not only for the benefit of
the Court but
also, and primarily, for the parties. The parties must know the case
that must be met and in respect of which they
must adduce evidence in
the affidavits. In Hart v Pinetown Drive-Inn Cinema (Pty) Ltd
1972
(1) SA 464
(D) it was stated at 469C--E that
'where
proceedings are brought by way of application, the petition is not
the equivalent of the declaration in proceedings by
way of
action. What might be sufficient in a declaration to foil an
exception, would not necessarily, in a petition, be sufficient
to
resist an objection that a case has not been adequately made out. The
petition takes the place not only of the declaration but
also of the
essential evidence which would be led at a trial and if there are
absent from the petition such facts as would
be necessary for
determination of the issue in the petitioner's favour, an objection
that it does not support the relief claimed
is sound.'
An applicant must
accordingly raise the issues upon which it would seek to rely in the
founding affidavit. It must do so by defining
the relevant issues and
by setting out the evidence upon which it relies to discharge the
onus of proof resting on it in respect
thereof.”
This
is the seminal statement of Joffe J in
Swissborough
Diamond Mines (Pty) Ltd and others v Government of the Republic of
South Africa and others
1999 (2) SA 279
(T) at 323G-324A with which practitioners are
familiar and which has been consistently applied.
[2]
17.
The case made out by the applicants in their founding affidavit is
that the MEC knew, or should have known, that the statements
were
untrue, by reason of court proceeding brought in the Pretoria High
Court in which the applicants, as first and second plaintiffs,
have
challenged the constitutionality of laws prohibiting the use and
possession of cannabis. It would have been evident to the
MEC from
those proceedings that the applicants have never suggested that;
a. they were interested
in making money from selling dagga;
b. they were desirous of
selling drugs to young people, or anyone for that matter; or
c. they desired an
open-market in schools and communities.
18.
The applicants accept that the respondents are not defendants in the
Pretoria action but contend that they represent the Provincial
branch
of the National Department of Social Development, the Minister of
which is a defendant in that action. The applicants also
contend that
the pleadings and documents are matters of public record.
19.
The applicants furthermore refer to the contents of the pre-trial
conference in the Pretoria case which show that they expressly
contended that the use and possession of cannabis may be legitimately
regulated by the State in a rational and constitutional manner.
20.
The
applicants therefore pleaded that the words used were
per
se
defamatory.
In view of the
ratio
in
Swissborough
it is
self-evident that the respondents were not called on to meet a case
based on innuendo or secondary meaning as it is sometimes
called
[3]
.
Nor can the court make out such a case for an applicant.
21.
If the applicants pass the hurdle of demonstrating that the words
were
per se
defamatory but the respondent succeeds in showing
that the remarks were fair comment then the applicants contend that
in the context
of the interview the utterance was made maliciously
when the MEC was caught on the back foot. It was argued that she
launched this
personal attack on the applicants in order to divert
attention from embarrassing questions the interviewer was putting to
her on
what is claimed to be an unrelated matter.
THE
RESPONDENTS’ CASE
22.
The respondents argue that the MEC’s statements cannot be seen
within the narrow compass of the Pretoria High Court action
to which
the applicants wish to confine them. The issue is much broader and
one must have regard to the way in which the applicants
promote
themselves as the self-styled “
Dagga Couple
”.
23.
It is also submitted that the MEC was not referring to school
children when she mentioned “
young people
”. This
aspect need not detain us: I am satisfied that in its context it
included school children. The conclusion is
reinforced by other
comments the MEC made during the exchange with Grootes.
24.
The respondents contend that the remarks would not be understood as
statements of truth but as a hypothesis. They contend that
it would
be so understood by the listeners of the program, who would typically
be sophisticated, have insight into domestic and
current affairs and
knowledgeable of our political and public discourses. It is contended
that the reasonable listeners of the
program would consider that the
MEC was positing a hypothetical scenario and would not consider the
remarks as defamatory.
25.
Even if they are to be found incorrect on this point, the respondents
contend that the applicants failed to identify how the
remarks
lowered their reputation and dignity in the minds of right-thinking
people.
26.
Should the
statements not be construed by the ordinary listeners as a hypothesis
but based on an underlying factual base then the
respondents rely on
the defence of fair comment and public interest.
[4]
27.
In my view
the utterance complained of is exaggerated but nonetheless is
relevant to the facts on which it is based. The underlying
factual
underpinning relied upon by the respondents is that the applicants
were arrested while allegedly in possession of 1.89kg
of cannabis,
the estimated value of which is half a million Rand. Moreover they
portray themselves on social media as
entrepreneurs who
show interest in producing cannabis on a large scale.
[5]
28.
The conclusion drawn by the MEC was that the applicants intended to
profit from what will self-evidently become, if legalised,
the
lucrative production and sale of cannabis. The MEC also claims
that statistics show that cannabis is the most common
illicit drug
used in South Africa especially among the youth. The MEC relies on
figures which allegedly reveal that 12.8% of learners
in grades 8 to
10 have used cannabis of which 9.2% had used it the month before.
29.
Other statistics relied on are that adults who have used cannabis
since adolescence show reduced brain connectivity and that
long-term
use is hazardous to the white matter of the developing brain.
These statistics are among those relied on by the
respondents in
their defence. The manner of assessing the respondent’s
contentions in the face of a denial by the applicants
is considered
next.
ASSESSMENT
OF THE FACTS
30.
The
applicants seek final relief. They chose to go by way of motion
proceedings which ensures a much speedier resolution of matters
particularly while they are still fresh in the public’s mind.
It however comes at a price. An applicant must be able to show
that
there is no genuine dispute of fact or that the exceptions referred
to in
Plascon-Evans
apply
as to when a respondents averments can be rejected, failing which the
respondent’s version will be accepted by a court.
[6]
31.
It is evident that the issue of whether the sale of cannabis should
be legalised is hotly debated and that one of the issues
is whether
there can be adequate safeguards put in place to protect school going
children whether in particularly vulnerable areas
or generally. The
potential impact on children of legalising cannabis will naturally
draw heated, robust and emotive debate.
32.
The applicants elected to enter the fray and take a position.
Moreover they have not shunned the limelight. They have engaged
in
robust debate and must accept the consequences provided it does not
exceed defined limits and descend into a personal attack
on the
individual’s value system which is untrue or humiliates and
denigrates without justification.
In
short the applicants had to develop a thicker skin than most as they
themselves have sought celebrity status on an emotionally
charged
platform which will continue to engage pro- and ante-lobbyists until
resolved.
33.
It is understandable that the applicants sought to restrict the
respondents to the confines of the Pretoria High Court papers.
The
broadening of the scope of the enquiry in order to contextualise the
respondents’ position vis a vis the applicants,
the applicants’
alleged desire to become involved in the industry if it becomes
lawful and their failure to suggest appropriate
checks and balances
in relation to senior year school children accessing or being exposed
to cannabis brings to the fore the core
issues that need addressing:
They and the measures that might have to be introduced to either
prohibit use or control access and
abuse among children are integral
elements of the debate.
34.
On the allegations relied upon by the respondents, which must
be accepted in the main as the applicants are unable to
challenge
them under
Plascon-Evans
, I am satisfied that the offending
statements based on their primary meaning amount to fair
comment and that the rebuttal
based on malice cannot succeed. Even
if the comments were made in order to turn defence into attack the
issue itself is part
and parcel of a genuine concern on the part of
the respondents requiring public engagement, and the listenership
would understand
it as such.
35.
The case may have been different if the applicants had relied on an
innuendo that the applicants were of such a character that
they would
be pushing drugs at schools if cannabis was legalised and succeeded
in demonstrating that this is how it was understood.
Presumably it
would have been raised if they believed this to be the thrust of the
remarks.
36.
Even if I were to accept that there was a defamation on the case as
pleaded, applying
Plascon-Evans
the defence of fair comment
succeeds.
COSTS
37.
This case flows from a position taken by the applicants challenging
the constitutionality of prohibiting the sale of cannabis.
On
the facts there appears to be a sufficient link to treat this case as
one where costs are determined as if it is a constitutional
matter
against an organ of State.
38.
The question is whether the applicants have acted vexatiously or in a
manner that justifies them forfeiting the immunity they
would
otherwise enjoy of not having to pay the successful party’s
costs.
39.
While the application strikes me as having some of the attributes of
seeking publicity or obtaining sympathy as a victim I cannot
be
certain. I therefore would not wish to unnecessarily penalise the
applicants.
ORDER
40.
I accordingly make the following order:
1.
The
application is dismissed
2.
Each
party is to pay its own costs
_________________
SPILG,
J
DATE
OF HEARING: 15 October 2018
DATE
OF JUDGMENT: 7 December 2018
FOR
APPLICANTS: Adv B Brammer
(Heads
of Argument drawn by Attorney P-MA Keichel
Schindlers
Attorneys
FOR
RESPONDENTS: Adv.TJB Bokaba SC
Adv
K van Heerden
Adv
T Scott
The
State Attorney
[1]
[1]
Or that the
Plascon-Evans
exceptions apply. See below.
[2]
See most recently
Hunter
v Financial Sector Conduct Authority and others
2018 (6) SA 348
(CC) at para 71
[3]
In
Le
Roux v Dey
2011(3)
SA 274 (CC) at para 87 the court confirmed that a plaintiff must;”
plead
special circumstances from which the statement derives its secondary
meaning”
.
[4]
See
The
Citizen 1978 (Pty) Ltd v McBride
2011
(4) SA 191
(CC) at 80-83
[5]
There are photographs of the applicants at a large Canadian
operation accompanied by comments attributed to them
[6]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634H – I