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[2018] ZAECELLC 9
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Soyi v Daily Dispatch and Another (EL448/2015, ECD848/2015) [2018] ZAECELLC 9 (20 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EAST
LONDON CIRCUIT LOCAL DIVISION
CASE NO:
EL448/2015 /
ECD848/2015
Date heard
:
11 to 13
September 2018
Date delivered
:
20
September 2018
In
the matter between:
MZUKISI
SOYI
Plaintiff
and
DAILY
DISPATCH
First
Defendant
MAMELA
GOWA
Second
Defendant
JUDGMENT
LOWE,
J
:
INTRODUCTION
[1]
In
this matter Plaintiff brings an action against First Defendant, the
Daily Dispatch newspaper, and Second Defendant, a journalist
in the
employ of First Defendant, claiming to have been defamed in an
article published by First Defendant written by Second Defendant,
which appeared in the newspaper on 22 July 2013, a front page cover
story with the headline “
BCM
land sold off for R300 a plot”
.
Whilst the entire article was annexed to the particulars of claim,
although not specifically referred to as such, there
are several
specific complaints set out in the particulars of claim.
[2]
I
n
essence against the headline, which describes Plaintiff, amongst
other things, as a member of the committee “
in
charge of selling the plots”
,
Plaintiff complains that his picture adjacent to the article in the
form and with the words, “
IT’S
YOURS: Mzukisi Soyi from G–G informal settlement ‘sold’
the Daily Dispatch team a shack for R300
and promised to deliver
three more sites”,
were defamatory of him, and had been published out of malice
presenting Plaintiff to be a corrupt and irresponsible community
leader who was illegally selling sites and unlawfully taking
advantage of desperate people.
[3]
Plaintiff
claims damages in the sum of R1 million.
[4]
First
and Second Defendants admitted publication of the article and the
contents thereof, but denied that the content was defamatory
of
Plaintiff, in the alternative pleading that if it was defamatory,
that there were two grounds of justification, being truth
in the
public interest and justifiable publication without negligence the,
so-called Bogoshi defence.
[5]
At
the commencement of the trial, counsel for Defendants indicated that
for the purposes of the trial they would accept that the
article in
its context was defamatory of Plaintiff, a concession properly and
inevitably made.
[6]
Defendants
again acting correctly, accepted the onus of demonstrating one or
other or both of the grounds of justification, and
the duty to
commence the leading of evidence accordingly.
[7]
In
order to appreciate what follows it is necessary to set out more
fully parts of the newspaper article, it being important that
this be
read in context in the interests of both litigants.
[8]
The
article itself has a large bold heading – “
BCM
land sold off for R300 a plot”
and below the heading is the word “
exposed”
and then the following (sections of the article omitted):
“
A SCAM in
Mdantsane where municipal land is being divvied up and sold for R300
a plot to those desperate for land on which to build
a home has been
exposed.
Police and Buffalo
City Metro (BCM) are investigating – but hundreds of shacks
have already been erected on the site at the
entrance to the
township.
...
“
The city
police are continuously monitoring the area in order to prevent
further expansion,” he said. “A case
has been
opened with the NU1 police station and is currently being
investigated.”
Despite warnings
not to build on the land and the occasional demolition of shacks by
BCM’s law enforcement agency, a person
in the community
continues to sell plots.
Last week an
undercover Daily Dispatch report paid R300 for a shack. There
was no receipt or deed proving ownership.
The reporter was
asked to pay a further R200 for an illegal electricity connection to
a nearby garage.
The money would
cover the cost of restoring the illegal connection wherever the metro
removed it.
...
The Dispatch was
directed to Mzukisi Soyi, a shack dweller on the land who claimed he
was a member of a committee in charge of selling
plots.
“
This is the
land of our forefathers, there is no problem getting a site here,”
Soyi told undercover reporters when asked
if the sale was legal.
...
The Dispatch on
Saturday confronted Soyi and another committee member, identified
only as Jazz. Defending his actions, Soyi
said ward councillors
had failed to deliver services to the people.
“
It’s
not about selling the land – that money is given to the
committee and they attend to the community’s needs.”
[9]
It
should be emphasized that there is the persistent statement that land
is “
sold”
,
on occasions this word used in inverted commas, but usually simply
without same. There is a large picture not only of Plaintiff,
but of the area concerned and shacks and again the caption refers to
plots being sold “
for
R300”
– it being emphasized that this is land belonging to the
Municipality. There is no reference in the article as to what
Jazz said, if anything, about “
plots”
being
“
sold”.
[10]
On
a proper reading of the article in its context, there is no doubt
whatsoever that the article indicates that this is an unlawful
enterprise, a scam, the sites or plots being sold to people desperate
for land on which to build a home, in circumstances where
this in
effect perpetrated a fraud on the people buying the land for the
money alleged as a purchase price. “Scam”
is
defined in the Cambridge Dictionary as “
an
illegal plan for making money, especially one that involves tricking
people”.
[11]
There
is also no doubt that it is alleged that Plaintiff was deeply
involved in the selling of such plots.
THE EVIDENCE
[12]
Defendants
led the evidence of Mr Ngcolomba, an adult male who was a friend of
Second Defendant and was taken by Second Defendant
to the place where
the sites were being sold. She stopped at the motor garage
nearby and sent the witness on her behalf to
“
investigate”
what was happening in respect of shacks, as he put it. Second
Defendant gave him a recording device which they tested and
it was
agreed that he would go to the area concerned and ask the people he
met for the person that was selling the sites and try
to “
buy”
one. It was clear that he was sent off, already put under the
impression that land was being sold to people who would buy
same,
with the innuendo that it was being held out to such people that they
would get a right to occupy (at the very least).
He said that
he went to the shacks and met a person asking how he would buy a
plot. He was advised to seek out a person bearing
Plaintiff’s
first name, which name he then heard for the first time, and that he
did so finding the Plaintiff. He then
told Plaintiff that he
stayed at NU1 with a friend and was looking for his “
own
place”.
He said that Plaintiff told him that he could “
organize
a site for R300”
,
the witness saying that he did not have material to build a shack.
He said that Plaintiff then showed him a shack and said
that he could
stay there whilst getting material for his own.
[13]
He
said that he asked Plaintiff about electricity and was told that he
could get a connection for R200 which would be kept for “
wires”.
He left saying that he would be back to confirm and that he would
return with his R300. He went back to Second Defendant,
they
checking the recording which he had made, she giving him R300 to go
back in order to pay this to Plaintiff.
[14]
He
returned to Plaintiff, on the same day, who was at his girlfriend’s
house bathing. He said that when Plaintiff came
from where he
had been bathing he handed him the R300 and told him that he had an
uncle who also required a shack, Plaintiff saying
he would be able to
arrange one for him at the same price. He emphasized that
Plaintiff had taken the R300 and given him
his cellphone number.
[15]
He
said that on another occasion he returned again with Second Defendant
posing as his girlfriend and another person who was a reporter
posing
as his uncle. They met Plaintiff who showed them the shack
where they could stay and the site, and showed the “
uncle”
another site for R300. At this stage while in the shack Second
Defendant was taking a video and sound recording with her
cellphone.
[16]
He
was cross-examined and did not come over as a particularly confident
witness, though he held up reasonably well, the only real
issue in
dispute in his evidence being whether or not Plaintiff was offered
and accepted the R300 (which Plaintiff disputes).
The recording
made of the first two meetings accords in the most part with his
evidence, although it does not reflect the handing
over or receipt of
R300, the witness saying that this was at a portion which was not
capable of being recorded and transcribed
as having been
“
indistinct”.
[17]
It
was also put that nothing was said about an electrical connection.
Importantly it was put that Plaintiff had offered him
a shack to stay
in whilst his was being erected, out of the goodness of Plaintiff’s
heart, and effectively that Plaintiff
admitted that he had been
assisting him in his hour of need.
[18]
It
should be said immediately that the recordings were transcribed and
accepted as being correct for the purposes of trial as to
what had
been recorded and transcribed. These relevant to these two
meetings generally supported this witness’s evidence
(save for
the “
indistinct”
portion referred to above) the relevant parts of which I set out
below:
First Visit
:
“
Mzukisi:
Listen
my brother while you stay in my tin house I’ll organise your
site. Do you understand what I’m saying?
Some
people pay R300 for that, did you hear about that one. [00:06:46]
Athi:
Yes,
he did mention something about the money and I’m also aware of
that as a result I do have R400 ready. [00:06:56]
Muise:
No
my brother. [00:07:03]
Tahy:
So I must have R300 to
get a site of my own? [00:07:04]
Muise:
Yes, you must have R300
my friend to get a site. The lady who brought you here knows
that I am able to organise something
for you. Like I know how
to get through to those people. You are in a good chance
because I am able to lend you my
tin house. Anything that
will follow I’ll hear it from you, you can go and check it
out. Or (unclear) Gcos.
You caught me off guard, I was on
my way my friend. [00:07:05]
...
Athi:
That
is great. [00:10:19]
Mzukisi:
Yes still here my
friend. I can give you a discount on electricity, I won’t
charge you that bad, you see we connect
it down there, but is very
cheap. [00:10:20]
Athi:
I did not know about
that. So this site is also R300? [00:10:30]
Mzukisi:
Yes when you are given a
site. When you are given a site it’s R300, you see.
But this one I’ll give it to
you till you saved enough.
Then you know as long as... You see I’m very busy they want me
now. (Phone conversation)
[Hi Mpama. Yes, listen here man I’ll
call you when I’m there, because I’m on my way there now,
there is something
that I forgot in my house, you see. I’m
going to call you when I get there and tell you that I’m at
home so that
we can go. {Silence} Where is the money, in Braelyn?
Usekhona]? Ok my friend let me take out those tin sheets for
now and
put them there by you. Until you are fine. [00:10:34]
Athi:
Can I get your numbers
sir? [00:11:36]
...
Athi:
Yes,
Jazz. He said I must look for Jazz. [00:13:03]
Mzukisi:
Do you have the R300 now?
[00:13:06]
Athi:
I was going to see the
place and then come back when I get the site and have decided that I
will take it. [00:13:08]
Mzukisi:
No problem, it’s
fine my friend. [00:13:13]
Athi:
That’s why I say I
call you at midday then I’ll come back again that time you
see. [00:13:16]
Mzukisi:
Go well then. Sure.
[00:13:19]
Athi:
Otherwise the money is
ready. [00:13:20]
Mzukisi:
Ok sure my brother, the
tin house is available, you’ll just move these out and move in
your own stuff. If you want to
buy a carpet, you’ll just
put in. [00:13:23]
...
Second Visit
:
Mzukisi:
Is
Fodbhofod Nyarha? [00:09:21]
Athi:
Yes. [00:09:22]
Mzukisi:
That’s what I
wanted to understand. Oh sure. [00:09:23]
Athi:
When will the place be
available or maybe when can I move in? [00:09:28]
Mzukisi:
No that will depend on
you my friend. [00:09:32]
Athi:
Whenever? [00:09:33]
Mzukisi:
Whenever you will
see. It depends on you my friend, as long as I give you a place
to stay you can move in my friend.
You see.
Just come and see me if you need any help. Even when you not
around gone for work, you wife can come
to Gcobisa here. Yes
[00:09:33]
Athi:
You are Mzukisi right.
[00:09:52]
Mzukisi:
Yes I am Mzukisi bra, my
surname is Soyi. [00:09:53]
Athi:
Soyi? [00:09:56]
Mzukisi:
Yes. I’m Soyi
sir. I’m from Makwayi clan, the Jola. My mother is
from the Ntandeni clan in Ndevana.
The Soyi surname is my
mother’s, I was raised up by my mother’s family but I was
circumcised in Tsholomnqa, if you
remember Tsholomnqa. [00:09:57]”
[19]
In
summary, there is no dispute between the parties as to what passed
between the two on the recordings and as also referred to
in the
evidence, save effectively two things: whether or not the R300 was
paid and received; and the electricity issue. In
my view the
issues to whether or not the R300 was paid and taken is not, in the
final determination, of crucial importance to this
matter. It
is clear that in order to have a site allocated R300 was requested.
It is also clear that Plaintiff was
attempting to assist offering up
another site which turned out to be that belonging to his brother as
interim accommodation.
It is also clear that an unlawful
electrical connection at R200 was discussed. Finally it is
clear that a further site was
proposed and discussed at the same sum
of R300 in respect of the fictitious uncle. As to whether or
not the plots were being
“
sold”
in the context set out at several places in the article, is quite
another matter, and a “
scam”
in terms of which Municipal land was “
sold”
was not established in those terms on a fair assessment of the
evidence thus far. At best for Defendants this aspect of the
matter was not discussed in any detail, at the actual purpose of the
payment not being explored.
[20]
Second
Defendant gave evidence in support of the background given by the
first witness. She was obviously not present at the
first two
meetings and can take that aspect of the matter no further, save by
confirming having given the first witness the R300,
to pay to
Plaintiff.
[21]
She
explained how she had come to institute the investigation as she
called it, people were concerned about the mushrooming shack
development on what is referred to as Municipal land (known as G-G).
She had heard that people obtained sites for R300 and
wanted to take
the matter further, and also that crime had become a problem and land
previously used for initiates made unavailable.
[22]
She
described how she planned to go there again after the first witness
had attended his first two meetings, and she decided to
take with her
a reporter to pose as the uncle, she going as the first witness’s
girlfriend. She says she recorded the
meeting but lost the
recording. This was at night, and when introduced to Plaintiff
there was a discussion, commencing with
the “
sale”
of a plot to the fictitious uncle. She asked if this was legal
and was told that this was their forefathers’ land and
there
was no discrimination and that it was R300 for a site. He
showed them the temporary shack that could be accommodated.
She
took a video recording of the meeting but he stopped her. She
said it was clear that it was R300 per site. Again
this
evidence failed to deal with the issue of whether the plots were, as
it was put, part of a scam they being “
sold”
particularly to those desperate for land.
[23]
She
then gave evidence of a further meeting, attended by herself, the
first witness and her reporter colleague, referred to in the
third
recording, the relevant portions of which are as follows:
“
Mzukisi:
Eh, so
you want to see one of the members of the competence court?
[00:02:24]
Mamela:
Yes.
[00:02:28]
Mzukisi:
Yes
sure, you can get one of them, Jazz. [00:02:29]
Mamela:
Aren’t
you a member of the committee? [00:02:32]
Mzukisi:
Yes
I am, and Jazz is a member too. [00:02:33]
Mamela:
Is
he in the committee as well? [00:02:35]
Mzukisi:
Yes.
[00:02:37]
Mamela:
Is
he available now, can we meet him? [00:02:37]
Mzukisi:
Yes
I think, I’ll call him to come. [00:02:39]
...
Mzukisi:
We
are... Ok he is calling. Hi Jazz man can you please come down
here my brother, by Yako. Ok sharp, sure. Like
yesterday
before I went to town, another guy from Daily Dispatch came. I
spoke to him, like I asked him why he is interested
to know about
this place. He did not respond. [00:05:42]
...
Mamela:
But
brother that does not justify for you to sell the land of the
municipality, do you understand that. [00:07:56]
Mzukisi:
It’s not as if we
are selling it or something like that. Like ok we do give a
person a site... [00:08:00]
Mamela:
Where
does the money go? [00:08:07]
Mzukisi:
They
say it goes to the committee. Like it takes care of something
like taps if there are no taps available. They also
use it to
buy water pipes for the one tap that is there, do you understand.
So that the people can be able to have water.
Do you understand
what I’m saying? [00:08:08]
...
Mamela:
You
are ruining, everything. [00:11:53]
Mzukisi:
Yes
I hear you, but that matter needs you and your team to go to the
committee so that it can be brought to the people’s attention.
Not I myself alone. [00:11:54]
Mamela:
That
is why I was saying I wish Jazz was also here to hear his side of the
story, you see. [00:12:05]
Mzukisi:
You
see what I mean. Because now I take you as if you came here to
investigate me. [00:12:09]
Mamela:
Yes
I am here to investigate but we would like to talk to the committee
as a whole, that’s why I asked you where is the committee
so
that we can get their views because it’s not your issue alone,
you do understand. It’s not as if because we
only know
you, then it’s your issue, no it’s not at all. [00:12:15]
...
Mamela:
Mh,
ok. Ok Jazz let me ask, is there a way possible that you can
let us talk to the committee and sit down with you, you make
understand the reason behind doing everything that you did you see?
As a person who is in the committee is that why are giving
people for
R300? Why are you connecting electricity illegally through
izinyoka? Now you are getting closer to Mtsotso,
these are
problems that are coming from this place, you see. I’m
not sure whether you can answer me about those
things, why are you
selling land for R300? Where does this money go? [00:23:13]
Jazz:
No,
we do not sell to anyone for R300. [00:23:50]
Mamela:
What do you do?
[00:23:51]
Jazz:
A person come looking for
a place, and we give them as they ask. And then a person is
given a site, you see, and then they
give a tip to the people who
clear the site for the first time, you see. He/she thanks them
with whatever amount or they
ask for a certain amount based on their
work, you see, they say because the grass was so much, we expect this
amount. And
people build for him and charge him, and they have
to, you know. It’s not that the land is sold; we do
not sell
land. [00:23:53]
Mamela:
Ok, listen Jazz......
[00:24:25]
Jazz:
And if we were selling,
there was going to be something written down then a person will have
a receipt that says this thing was
sold to me. And firstly
squatter camps are illegal. But squatter camps are forcefully
erected, that is why we occupy
municipality land because we notice
that as this small group, they do not care for us, councillor
Lwandile Vika does not care for
us, he is sending us from pillar to
post. [00:24:26]
Mamela:
Ok, you see that is what
I want to hear that there was a small group here, do you understand.
[00:24:53]
Jazz:
Yes that is why we occupy
the municipality space, because we want to be seen, be attended to,
be seen and be attended to.
[00:24:57]
Mamela:
Ok. But do you hear
yourself when you say you are clearing municipality land for people?
We have no right to do that,
do you understand that. [00:25:05]
Jazz:
Yes I understand that.
[00:25:11]
Mamela:
But why are you doing it?
[00:25:12]
Jazz:
The reason why we did
this is...and firstly, the reason we built the squatter camps we
have, - people who were going to the initiation
schools, there were
initiates here who died killed by their keepers in the initiation
schools, you see. The run and die in
the community, and then we
also get hurt because of the initiates. And people when you go
to Ristonia you via here (unclear),
you see. People going
to the firms pass here. They are mugged and get hurt here, we
cannot defend them because
we are staying on the top side.
(Unclear) we are on the top side (unclear). And then when we
come to the township
we are mugged made to drink paraffin, made to
drink soap and made to eat uncooked mealie meal. That is why we
thought we
are not seen here in Jiji, let’s try and make this
place open and wide. [00:25:14]
Mamela:
Ok, so you continue
opening it so that it is visible and wide? [00:26:02]”
[24]
Since
her evidence accorded with the recording it would serve no purpose to
repeat same. It was clear at this meeting that
both Plaintiff
and Jazz were members of the relevant committee and that they both
took the stance that they were not selling the
land and that the
money provided would go to the committee. Jazz explained that
the money went to the people who cleared
each site as a “
tip”
– emphasizing that this was not the sale of land. He
carefully explained the reason for what they were doing which
had to
do with crime control and providing places where those who did not
have land upon which to live could build a simple shack.
There
was no question from this meeting that the Plaintiff and committee’s
involvement was not fully explained to Second
Defendant from their
perspective. She ended the evidence by stating that she
believed the article was true and correct and
founded on the meetings
and transcript.
[25]
The
cross-examination did not take the matter much further, it
essentially being the line of cross-examination that the properties
were not being sold and that this had been fully explained. It
was also put that Plaintiff was singled out from the committee
and
his role highlighted in the article. It was put that the
article imputed a criminal offence, which was denied.
[26]
Defendants
having closed their case, Plaintiff gave evidence and was supported
by his co-committee member Jazz. The evidence
can be simply
summarized. It was explained that both witnesses stayed at this
particular place referred to as GG. Plaintiff
said that he had
previously been an employee at Cecelia Makiwane Hospital, security
division, but lost his job as a result of the
article (not pleaded).
Plaintiff denied receiving R300 for the site and disputed the
recording only in this regard and none
other. In essence then
what passed between the parties including himself and Jazz is common
cause but for the above.
Plaintiff was clearly deeply hurt by
the article, and expressed his anger and embarrassment and the fact
that this was particularly
so as he was attempting to help the
investigators who approached them. He attempted to steer clear
of the electricity issue
but denied that he had anytime held out that
he was selling sites.
[27]
In
cross-examination Plaintiff struggled to substantiate his claim
concerning his loss of employment on the back of the article.
He was cross-examined on the purpose of receiving or asking for R300
and had some difficulty in this regard, though in my view
the
transcript in any event deals with this for the purposes of this
matter sufficiently.
[28]
Jazz
(John Ndungani) similarly gave evidence which more or less accorded
with the transcript. He gave a clear explanation
of the
transaction in accordance with what he had said to Plaintiff and as
appears from the transcript. His cross-examination
understandably took the matter little further.
THE LEGAL ISSUES
[29]
This
matter raises the two defences referred to above.
[30]
Truth
and public benefit is accepted as a ground of justification in
respect of the publication of defamatory material which is
true and
for the public benefit. It was not contested in this matter
that the publication was in the public benefit, the
question of the
truth thereof however being in issue. Further and whilst malice
was pleaded, this was not dealt with in any
detail and need not be
considered for the purposes hereof.
[31]
Defendants
bear the full onus in this regard.
[1]
[32]
If
relying on truth, in this context, the Defendant must prove that the
defamatory statement complained of was “
substantially
true”.
It has been said that what must be proved is the “
sting
of the charge”
or the “
gist
of the defamation”.
Exaggeration on its own in the language used does not necessarily
deprive the defence of its effect.
[2]
It is worth noting that Van Der Walt and Midgley in
Principles
of Delict
[3]
state as follows: “
...except
where fraud, dishonesty or criminal conduct is attributed to the
Plaintiff, defamatory material need not be true in every
respect,
however, provided that the gist of the information is true, some
exaggeration is accepted”.
[4]
[33]
As
to the second defence – reasonable publication – this was
dealt with extensively in
National
Media Limited v Bogoshi
[5]
.
[34]
In
essence the Supreme Court of Appeal set out a new defence to rebut
unlawfulness in defamation as follows:
“
..publication in
the press of false defamatory statements 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 a particular way and at that particular time.”
[35]
As pointed
out by Midgley
[6]
:
“
The court thus
created a defence of reasonable publication. Although the
statement refers to false statements published in
the press, it
should, it is suggested, apply to all defamatory publications,
irrespective of where they are published, and whether
or not they are
true. This is clearly the way in which the constitutional court
interpreted the Bogoshi decision.”
[7]
[36]
In
Bogoshi
the
Court held the following:
“
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
(Pienaar
and Another v Argus Printing and Publishing Co Ltd
1956
(4) SA 310
(W) at 318C-E), 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.
Professor Visser
is correct in saying
(1982
THRHR
340)
that 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. (
Münchener
Kommentar zum Bürgerlichen Gesetzbuch
vol
5 at 1679.)”
[37]
As
to the relevant factors that need be considered relevant to this
defence, the Supreme Court of Appeal said the following in
Mthembi-Mahanyele
v Mail & Guardian
[8]
:
“
But where
publication is justifiable
in
the circumstances
the
defendant will not be held liable. Justifiability is to
be determined by having regard to all relevant circumstances,
including the interest of the public in being informed; the
manner of publication; the tone of the material published;
the extent of public concern in the information; the
reliability of the source; the steps taken to verify the truth
of the information (this factor would play an important role too in
considering the distinct question whether there was negligence
on the
part of the press, assuming that the publication was found to be
defamatory); and whether the person defamed has been given
the
opportunity to comment on the statement before publication. In
cases where information is crucial to the public, and
is urgent, it
may be justifiable to publish without giving an opportunity to
comment.”
[38]
LAWSA
[9]
, para 256 puts this as follows:
“
256 Media
privilege
In
National
Media Ltd v Bogoshi
the Supreme Court of Appeal accepted that publication of a defamatory
statement by the press may, even in the absence of stereotyped
defences excluding wrongfulness (for example truth for public
benefit, fair comment and privilege), be lawful if the publications
was reasonable. What would be regarded as reasonable in any
given case is dependent on all the circumstances of that case.
However, since the defence deals with defamatory statements that can
cause great harm and that are likely to be false, it is to
be applied
with great caution and restraint. The requirement of
reasonableness demands a high degree of circumspection from
editors
and editorial staff on account of the nature of their occupation, the
powerful position of the media and the credibility
which it enjoys
amongst large sections of the community. Although no
definitive list of potentially relevant factors
is possible, the test
of reasonableness includes, according to
Bogoshi’s
case,
considerations such as:
(a)
the nature, extent and tone of the defamatory allegations;
(b)
the severity of the consequences of publication;
(c)
the nature of the information on which the allegations were based and
the reliability
of their source;
(d)
the steps taken to verify the information, including the opportunity
given to the
person concerned to respond; and
(e)
the need to publish before establishing the truth of the allegations
in a positive
manner.”
THE ANALYSIS
[39]
It
must be remembered, that in considering truth and indeed the thrust
of the statement complained of, what constitutes the “
gist
or sting”
is ascertained through the lens of the reasonable reader of ordinary
intelligence.
[10]
[40]
As
already adverted to above it has not been contested, and correctly
so, that the statements made in the newspaper article, in
their
context, was certainly defamatory of Plaintiff imputing to him
a major role in a “
scam”
which involved effectively selling plots to the unsuspecting for
R300, it being insinuated that those purchases were unaware of
the
“
scam”.
Had the article, approach the matter on the basis that the sites or
plots were being provided or allocated by the committee
at the
request of an indigent person requiring a site upon which to build a
meagre shack, and that R300 was paid to facilitate
this and not to
“
purchase”
a plot being “
sold”
,
things would have been different. That would have been a
responsible and balanced approach to the entire issue, and whilst
the
occupation was unlawful, as also the electrical connection, this was
not on a balanced approach a “
scam”.
[41]
Viewed
through the lens of the reasonable reader, there can be no question,
in my view, that the article conveyed facts it out above,
that the
gist or sting of the article was the scam in selling plots to factors
relevant to unsuspecting purchasers and sellers
not having the
entitlement to pass permanent right of possession or occupation to
those buying, and that this was an unlawful scam,
a money making
scheme perpetrated by
inter
alia
Plaintiff
– effectively a fraud described as a “
sale”
.
[42]
In
judging whether this was the truth, regard must be had to the entire
series of interviews, and exchanges referred to above.
Viewed
on a balanced basis in context, there is in my view, no doubt that
Plaintiff was not purporting to be, or holding himself
out to be, the
seller of property conveying a permanent right of occupation, whether
for a the sum of R300 or any sum at all, but
rather, that sites were
being allocated (albeit unlawfully) on Municipal land by a committee
for the benefit of indigent persons,
which albeit these could not be
lawfully occupied, were cleared and made suitable for the building of
a shack for a sum paid for
work to be done. The article in no
way conveyed the interviews in a balanced manner, the articles whilst
referring briefly
to the fact that Plaintiff said that it was not
about selling the land, failed to mention Jazz, the Committee
Chairman’s
careful explanation, persisting in the sale
version. The Plaintiff’s picture and thrust of the
article and caption
was such as to present this as a criminal scam of
selling property, to uninformed and misled purchasers without giving
the other
side of the story. No one else was interviewed
and certainly not even one real “
purchaser’s”
views
explored, which seems an obvious route to follow.
[43]
This
version was in no way shown to be substantially true and the defence
of truth and public benefit cannot be established.
[44]
As
to reasonable publication, and whilst the fact that the statement was
not true is not conclusive, the question arises as to whether
it was,
upon a consideration of all the circumstances of the case, reasonable
to publish the particular facts in that particular
way and at that
particular time. In so considering I have had regard
inter
alia
to
the circumstances referred to in
Mthembi–Mahanyele
(supra)
.
It is true that the public had an interest in being informed about
the shack settlement origin and development, but this
must be
balanced against the manner of publication as already analyzed
above. Not only was the tone of the article
unfortunate
describing this as a “
scam”
and criminal conduct beyond merely the unlawful use of Municipal land
for shack building and residence, but the sting was
pointed at
the Plaintiff with an inaccurate heading and notation, imputing to
him dishonest conduct
vis-a-vis
occupation and exploitation of desperate indigent people. This
goes far beyond simply making available and assisting in the
occupation and taking over land unlawfully being Municipal land.
[45]
The
reliability and/or version of the source, Jazz was thoroughly
underemphasized, and notwithstanding his careful explanation of
what
was really happening, Second Defendant seems to have established in
her mind at an early stage that the properties were being
“
sold”
and a “
scam”
was in place, she choosing stubbornly to ignore or downplay his
version. Whilst she took some steps to verify the truth of
the
information, she then either ignored or downplayed what she
discovered when inconsistent with her preconceived idea.
Whilst
Plaintiff was given an opportunity to comment generally on the
allegations, but not on the article specifically, what he
said was
again downplayed, ignored or simply not believed, and unjustifiably
so.
[46]
Again
I should mention that Second Defendant apparently did not consider
interviewing or even attempting to interview other shack
dwellers in
the area as to how and in what manner they had acquired land, and
whether this was a scam, and gives no reasons for
not having done
so.
[47]
As
pointed out above, in the face of publication on the front page of
the newspaper with photographs of the Plaintiff moreover,
there was
potential for great harm if false, and bearing in mind that the
defence is applied with great caution and restraint,
it is far from
established in this matter.
[11]
[48]
In
the result neither defence is established in my view.
DAMAGES
[49]
In
the result, and as the defamation is established in the absence of
any defence, Plaintiff must be awarded damages accordingly.
[50]
This
constitutes an award of general damages to compensate Plaintiff for
the infringement upon his dignity and reputation.
[51]
The
Court has a wide discretion in determining the award of general
damages having regard to the circumstances of the matter and
prevailing attitudes of the community.
[52]
Any
thought of punitive damages has been rejected in our law by the
Constitutional Court.
[12]
[53]
It
is clear in our law that it has been held that robust awards have a
chilling effect on free expression, but recognizing that
a person’s
dignity has unlawfully been impugned deserves appropriate financial
recompense to assuage his or her wounded feelings.
[54]
In
considering the damages to be awarded I have had regard to the nature
of the defamatory statements; the nature and extent of
the
publication, which I accept was substantial although no evidence was
led hereon; the reputation, character and conduct of Plaintiff,
it to
be remembered that although subject to a serious defamation,
Plaintiff was nevertheless party to unlawful conduct making
available
and promoting the unlawful use of Municipal land and electricity; and
the motives and conduct of the defendants, who
justifiably sought to
get to the bottom of a rapidly developing shanty development.
It is common cause that this was unlawful
in its context and
understandably desirable that this all be brought to the public
notice.
[55]
Of
course there was no question of an apology being offered, and clear
that the Second Defendant acted out of a sense of duty.
I also
take into account that there has been persistence in the advancing of
the unsuccessful defence of truth in the public interest.
[13]
[56]
The
defendants pointed to the paucity of similar matters as to quantum
and correctly pointed out that our Courts have not been generous
in
the award of solatia. Contrary to this, Plaintiff’s
attorney sought an award of R250,000 having claimed R1 million.
[57]
Either
of those sums would be completely out of step with recent decisions
and the approach to defamation awards in recent years.
[58]
In
my view, an award of damages in the sum of R20,000 would be more than
adequate in all the circumstances, especially having regard
to
Plaintiff’s role in what must certainly be regarded as the
encouraging of unlawful land occupation, let alone reference
to
encourage unlawful electrical connection.
[59]
As
to costs, in the past and in respect of small awards of damages which
could be brought in a Magistrates Court, our Courts have
on occasion
awarded High Court costs nevertheless. More recently our courts
have cautioned that this approach has become
outdated.
[14]
In my view, and in the circumstances of this matter, it should always
have been apparent that at the very best a small award
of damages
would be achieved and this matter should not have been moved in the
High Court, Magistrates’ Court costs thus
to be awarded.
THE ORDER
[60]
Accordingly,
I order as follows:
1. First
and Second Defendants are jointly and severally to pay to Plaintiff
the
sum of R20,000;
2. First
and Second Defendants are to pay Plaintiff’s costs on the
Magistrates’
Court scale.
M.J.
LOWE
JUDGE
OF THE HIGH COURT
Obo
the Plaintiff
:
Mr Mquqo
Instructed
by
:
Mquqo Attorneys,
East London
Obo
the Defendant
:
Adv D de la
Harpe
Instructed
by
:
Cheadle
Thompson & Haysom Inc, Braamfontein
c/o Don Maree Attorneys,
East London
[1]
Khumalo v Holomisa
2002 (5) SA 401 (CC).
[2]
Independent Newspapers Holdings
Ltd. v Suliman
[2004]
3 ALL SA 137
(SCA) 154-155.
[3]
(Fourth Edition) para 126
[4]
Kemp v Republican
Press (Pty) Ltd
1994
(4) SA 261
at 264-5.
[5]
1998 (4) SA 1196 (SCA)
[6]
in
Principles
of Delict (supra)
at para
132
[7]
Khumalo
(supra)
Para 43.
[8]
[2004] 3 All SA 511 (SCA)
[9]
(Second Edition) Volume 7
[10]
Modin v Minister
of Safety and Security
2011
(6) SA 370
(SCA) para 13.
[11]
LAWSA
(supra)
para 256.
[12]
Dikoko v Mokhatla
2006 (6) SA 235
(CC).
Fose v
Minister of Security
[1997] ZACC 6
;
1997 3 SA 786
(CC) and
Le
Roux and Others v Dey
2011
(3) SA 274 (CC).
[13]
Mogale v Seima
2008
(5) SA 637 (SCA)
[14]
Mogale v Seima
(supra)
and
Mithimunye v RSP
Media
2012 (1) SA 199
(1) 27.