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[2016] ZALMPPHC 3
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Komape v Lamola (HCA12/2015) [2016] ZALMPPHC 3 (17 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
Case
No: HCA12/2015
DATE:
17 JUNE 2016
In
the matter between:
DANIEL
CHUENE
KOMAPE
.........................................................................................
APPELLANT
And
SESHUPA
BRANSBY
LAMOLA
.................................................................................
RESPONDENT
CORAM:
E.M MAKGOBA JUDGE PRESIDENT AND M MADIMA AJ
JUDGMENT
M
MADIMA AJ
[1]
This is an appeal against the whole of the judgment and order of the
learned Magistrate, Ms M.O MABOBO sitting at Seshego Magistrates’
Court on the 07
th
day of May 2015.
[2]
The Appellant instituted a civil claim in the court
a quo
for
compensation pegged at a hundred thousand rand (R100, 000-00) arising
from an alleged delict of defamation. The claim was dismissed
on
merits, hence this appeal before us.
[3]
Briefly, I refer to the relevant paragraphs in the particulars of
claim to illustrate the averments on which the claim is established
and relevant paragraphs in the plea to illustrate the defence(s)
raised.
Particulars
of claim at para 3:
‘
...
Defendant
wrote and addressed a letter in North Sotho with an English quote
dated 16/02/2011 to the Plaintiff, which letter contains
in all its
paragraphs save the last paragraph, statements which are defamatory
of the Plaintiff
…’
Averments
continue at para 5:
“
The
said letter and/or its contents were published by the Defendant to
persons who are members of the public.”
In
his plea to the particulars of claim the Respondent pleaded to
para
3
by admitting that a letter was addressed to the Appellant but
denied that contents of the said letter were defamatory and further
stated that he did not write a letter in his personal capacity.
As
regards
para 5
the Respondent denied that the statement was
published to members of the public.
[4]
I find it convenient to give an overview of the parties and the
community in which they are residents.
The
Appellant and Respondent (parties) grew up on a farm named
Rosentkranz (the community) which was bought by people living in
that
community but some of them had passed on a while ago. The community
is characterised by occurrences of factionalism. Some
community
members belong to a committee led by Lamola family of which the
Defendant is a member while other community members belong
to a
committee of which the Plaintiff was a chairman.
Because
of factionalism related problems, legitimacy of leadership is always
challenged and that problem has deepened its roots.
Thus some
community members do not recognise some leaders as legitimate leaders
and
vice versa
.
[5]
The appellant’s complaint of alleged dedict of defamation is
based on the written words and such words are as follows:
“
FROM:
LAMOLA TRIBAL COUNCIL AND THE TRIBE.”
“
SUBJECT:
ENOUGH IS ENOUGH”
“
Mr
Komape, it is long that you have been stabilizing the community of
Lamola. From the year 2007 upto date 2011. You know very well
that
all of those things that you are doing are contrary to the
Constitution of RosenKrantz Farm, which Constitution you were
complying with when you were still the chairman.”
“
1.
Ever since you left the tribal court in 2007, until today 2011 you
have not shown yourself at the tribal court.”
“
2.
You are using the letterhead of the Lamolas to write letters to
people and you sign such letters claiming to be the chairman.”
“
3.
Efforts by the community to discuss with you have failed.”
“
4.
Royal committee wrote you a letter requesting you to meet with it, on
21/12/2010. The letter was delivered to you by the Sheriff,
but you
undermined that request. “
“
In
the circumstances, in terms of the Constitution of the community 5.2:
Termination of Residency stipulates that residency of a
member can be
terminated if:
5.2
(a) He refuses to comply with rules and regulations of the farm and
his behavior jeopardizes the maintenance of law and order.
(b)
He convenes secret meetings with total disregard of the Chief
Lamola’s autherity (sic) and plats against the Chief Lamola
and
the Rosenkrants tribe.
(c)
He collaborates with the tribes enemies or dissidents against it.”
“
In
the circumstances we as the community of Lamola regret to have
resided with a person of your behaviour, you Mr Komape.”
“
Now
the time has arrived for the community to say enough is enough. You
are requested to count thirty (30) days from the date on
which the
Sheriff will deliver a letter to you and to vacate the farm of Lamola
after those thirty days.”
[SIC]
[6]
Freedom of expression is not unlimited, hence “
the
law of defamation, both criminal and civil, is designed to protect
the reputation of people
...’
[1]
[7]
At common law, a person alleging defamation can only succeed in
proving such a claim if the following elements are satisfied,
namely:
[2]
(a)
the wrongful and
(b)
intentional
(c)
publication of
(d)
a defamatory statement
(e)
concerning the plaintiff.
[8]
The Appellant contended in his particulars of claim that all
contents of the above letter, except the last paragraph which
has the
effect of evicting the Appellant from the community, were defamatory.
It was only during presentation of arguments before
us that Counsel
for the Appellant stated that a complaint of defamatory words is
constrained to para 2 of the above letter-alleging
that Appellant
writes letters to people using the letterhead of the Lamolas and
signs such letters in his capacity as the chairperson
whereas he is
not.
[9]
Common cause facts:
9.1.
The Respondent wrote a letter addressing it to the Appellant,
9.2.
The letter was served personally on the Appellant by Sheriff, and;
9.3.
The Appellant convened a meeting at which he published contents
of the letter to members of the public.
[10]
Issues in dispute:
10.1.
Whether contents of the letter contained defamatory words, and if so;
10.2.
Whether there was a publication of the contents of the letter to the
public by the Respondent.
[11]
In disposing of the first issue in dispute, the courts have employ an
objective test by asking the question which in
National
Education, Health and Allied Workers Union and another v Tsatsi
[3]
was
posed as follows ‘…
Whether
the statements complained of tend to lower the plaintiff in the
estimation of the ordinary reader of the report.”
In
Heroldt
v Wills
[4]
the
court referred to the judgement in
Jansen
van Vuuren and Another NNO v Kruger
[5]
where
the SCA affirmed the principle that “…
the
test, for determining whether the words in respect of which there is
a complaint have a defamatory meaning, is whether a reasonable
person
of ordinary intelligence might reasonably understand the words
concerned to convey a meaning defamatory of the litigant
concerned
.”
In
order to properly adjudicate and give judicially appropriate answers
to the issue in dispute I should consider the facts, as
rightly and
aptly stated by Corbett CJ in
Financial
Mail (Pty) Ltd and Others v Sage Holdings
Ltd
and Another
[6]
when
he said “
In
demarcating
the boundary between the lawfulness and unlawfulness in this field
[infringement of personal privacy], the Court must
have regard to the
particular facts of the case and judge them in the light of
contemporary boni mores and the general sense of
justice of the
community as perceived by the Court…
”
As
I have indicated in para 4 of this judgement that in that community
where the parties are residents, some leaders are not given
recognition as such by a particular group of members of the community
while in the eyes of other members they are recognised as
legitimate
leaders. Disputes of this nature are in public domain in that
community.
Such
can be deduced from the evidence of Moabelo Arnold, called as a
witness for the Appellant at the court
a
quo
when he said “
When
I was growing up at our village there was a problem, because people
would say this is the headman, he is the headman, referring
to
different people. It is the problem now, because I cannot even say
who the real headman is
”
.
[7]
Against
this factual background, it is only logical to conclude that
reference to the Appellant as a person who is ‘…
using
the letterhead of the Lamolas to write letters to the people and
…….claiming to be the chairman
’
did
not have the effect of lowering the Appellant in the estimation of
ordinary people in his community. To my mind, the phrase
‘
claiming
to be the chairman
’
has the
effect of not giving the Appellant recognition, he deems to be due to
him, of his leadership and nothing else. I am not
persuaded that the
statement bears a defamatory meaning.
[12]
It also clear from evidence that the Appellant did not appreciate the
meaning of the words directed to him and this appears
from the
following passage:
Question
by Appellant’s Attorney: “
The
Defendant says these words which are contained in this letter which I
went through with you, are not defamatory of him?
”
Answer
by the Appellant: “
They
do have a defamatory fact, because when he is saying that I am
causing the confusion in the community he must specify as to
what I
did.”
[8]
Regarding
the uncertain meaning of a purported defamatory statement, the court
in
Pestana
v Du toit
[9]
considered
the words of the authors, Neethling, Potgieter, and Visser of the
book ‘The Law of Personality’ and more
particularly the
following: “
If
the words have a double or ambiguous meaning-one defamatory and the
other non-defamatory-the meaning inferred must be the one
most
favourable to the defendant in terms of the maxim semper in dubiis
benigniora praeferenda est. Therefore there is a presumption
that the
words are innocent until the plaintiff proves the contrary on a
balance of probabilities.
If
the plaintiff fails, the defendant goes scot-free.
”
The
Appellant’s evidence-inviting the Respondent to explain what he
meant by the words he (Appellant) complain of lays the
basis for my
view that the words contained double or ambiguous meaning. Following
this the Appellant had a burden to prove on a
balance of
probabilities that the words were not innocent but defamatory. When
he was given a chance to prove that the words were
defamatory,
Appellant still wanted the Respondent to explain what he meant by
those words and he wanted to use the court
a quo
as a forum to
get the true meaning of the words from the Respondent. I find that to
be unacceptable and his evidence was short
of the defamatory meaning
of the words, and for that, borrowing the words from Neethling,
Potgieter, and Visser; the Respondent
goes scot-free.
[13]
In disposing of the second issue in dispute relating publication, the
evidence proves that the words in the letter were read
by the
Appellant who later on and of his own accord published it to members
of the public for their consumption. The above, coupled
with the
Appellant Counsel’s concession that there was no publication of
the contents of the letter to members of the public
by the Respondent
leads me find that the Appellant failed to prove on a balance of
probabilities an act of publication.
[14]
It is my considered view that the Appellant’s appeal should
fail and I, in the circumstances, propose as I hereby do
the
following:
1.
Appeal is dismissed with costs.
M
MADIMA AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
I
agree and it is so ordered
E.M
MAKGOBA JP
JUDGE
PRESIDENT OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on : 10 June 2016
Judgment
delivered on : 17 June 2016
Counsel
for Appellant : D. Mahapa
Instructed
by : David Mahapa Attorneys
Counsel
for Respondent : T. Meyer
Instructed
by : Diamond Hamman & Associates
[1]
Hoho
v The State (493/05)
[2008] ZASCA 98
(17 September 2008) at para 31
[2]
Khumalo
and Others v Holomisa 2002(5) SA 401 (CC) at para [18]
[3]
([2006)]
1 All SA583(SCA) at para [8])
[4]
2013(2)SA
530(GSJ)
[5]
1993(4)SA
842(A) ([1993]) 2 All SA 619
[6]
1993(2)
SA 451(A) at 464
[7]
Paginated
page 45: lines 5-9
[8]
(See
page 29, paragraphs 9-14 of the record)
[9]
(A
554/2011) [2012] ZAGPPHC 154 (8 August 2012) at [40]