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[2016] ZAGPPHC 3
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Thaba v Haffajee and Another (49831/11) [2016] ZAGPPHC 3 (5 January 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 49831/11
5/1/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
JOHN
THABA PLAINTIFF
and
FERIAL
HAFFAJEE 1
ST
DEFENDANT
NEWS24 2
ND
DEFENDANT
Coram:
HUGHES J
JUDGMENT
HUGHES
J
[1]
The plaintiff's action against the defendant's is for damages arising
from deformation. The defendant's having published a defamatory
article about the plaintiff on 11 January 2011 in one of its
newspapers, the City Press, which is widely read and distributed in
South Africa.
[2]
The plaintiff alleges that the article so published was wrongful and
defamatory. At the time that the article was the published,
the
plaintiff was a councillor for ward 60 of the Ekurhuleni Metropolitan
Municipality. As a result of the publication he was withdrawn
as a
candidate for re-election as a councillor.
[3]
The plaintiff pleads that the defendants were aware or ought to have
been aware that the publication of such untruth and defamatory
remakes would result in the plaintiff being withdrawn as a candidate
or that it would lead to the public questioning his integrity
and
sincerity.
[4]
There were two claims by the plaintiff. The first being a claim for
special damages, in the amount of R1,2 million, under the
Aquilian
action, for loss of earnings and the second claim was for general
damages of R200 000.00, under the
actio iniuriarum
for
defamation.
[5]
At the close of the plaintiff's case the defendant's sought
absolution from the instance which was granted in respect of the
claim for special damages. The reasons for the granting of absolution
are incorporated herein below.
[6]
The article that the plaintiff places reliance upon, that is untrue
and defamatory, is set out below as per paragraph 5 of his
particulars of claim:
"Community
members
are
up in anns in ward 60 Katlehong, Ekurhuleni, over
claims that Councillor Thaba gave out chicken packs, money and
alcohol to win
votes in Sphamandla infonnal settlement. At least
eight community members confinned the chicken bribe claims... A
community member
warned that councillors
are
taking advantage
of poor people. After Sphamandla residents were fed on the evening of
January
8,
they
were then transported in
a
truck to
a
local school
where they voted in favour of Thaba, said
a
source."
[7]
The defendants have admitted that the article in question contains
defamatory allegations and accepts that it bears the onus
to show
that the publication of the defamatory article was not wrongful.
[8]
In dealing with the claim for special damages, the plaintiff
testified that he was in fact the chairperson for the African
National Congress (ANC) of ward 60 and a councillor of that ward. At
that stage he earned a monthly salary of R25 408.00 which was
paid by
the municipality. He saw the article on the front page of the City
Press on Sunday 30th January 2011. He testified that
he was angry
about the publication to such an extent that he could not even chair
a meeting that was scheduled for the same day
as the publication. In
addition his colleagues made inquiries from him as regards the
article at this meeting.
[9]
He testified that on 28 January 2011 he had received a call from a
journalist who asked him to comment about the allegations
that he had
supplied voters with alcohol, chicken and money for them to vote in
his favour. Though the person who called advised
that he was a
journalist he was not sure whether it was the author of the article
published on 30 January 2011.
[10]
Mr Thaba was removed as a councillor on 18 May 2011 and has not been
employed as such since his removal. He believes that his
removal came
about as a result of the fabricated allegations in the article. The
removal of him as a councillor has now left him
in the position of
just an ordinary member of the ANC.
[11]
He further, testified that the
"damages done to him are such
that he will not be in active politics any longer".
He
stated that because of the article the ANC will not revisit his
position as an ordinary member.
[12]
With regards to the timing of his removal as a candidate for
re-election as a councillor he testified that he was removed after
the screening committee had convened. He confirmed that he it had
been this committee that had recommended his removal as a candidate
for re-election as a councillor.
[13]
In cross examination, it was pointed out to him that the screening
committee had met at 4pm on 27 January 2011 when the decision
to
remove him was taken. This was prior to the article been published on
30 January 2011. When this was put to him the plaintiff
advanced no
comment.
[14]
In the plaintiffs pleadings the case made out for special damages
placed reliance on two articles, the one mentioned above
of the 30
January 2011 and another of 20 March 2011. The later article deals
with the allegations that he was removed as a candidate
for
re-election as a councillor, the caption of the article reads"
"Chicken man axed from ANC".
The plaintiff states
that this publication was also untrue, wrongful and defamatory as it
leads a reader to believe that he was
allegedly buying votes (which
is contrary to ANC policy) and by doing so he was exploiting the poor
for his own selfish needs.
Further, that he was a cheat and corrupt.
THE
SPECIAL DAMAGES CLAIM
[15]
In
Media 24 Ltd and Others v SA Taxi Securitisation (Ply) Ltd
2011(5) SA 329 (SCA)
at para [10], Brand JA sets out how a claim
for special damages ought to be couched:
"[10] The
respondent's contention was that, although its claims for both
special and general damages were couched in the form
of a defamation
action, its claim for special damages contains the four well
known elements of an
Aquilian
action, namely, (a) a wrongful
act or omission, (b) fault (in the form of either
do/us
or
culpa),
{c) causation and (d) patrimonial loss. In support of
this contention, which found favour with the court a quo, the
respondent referred
to allegations in its particulars of claim that
the publication of the professed defamatory article was intentional
and wrongful
and that the respondent suffered the damages claimed as
the result of that publication."
[16]
On the pleadings alone the plaintiff has not made out a case in line
with that required in an
Aquilian
action. He has not in any
way set out the facts that he places reliance upon to demonstrate any
of the elements mentioned above.
See
Telematrix (Ply) Ltd tla
Matrix Vehicle Tracking v Advertising Standards Authority SA
2006 (1)
SA 461
(SCA)
at para [2]:
"...The case does
not therefore have to be decided on bare allegations only but on
allegations that were fleshed out by means
of annexures that tell a
story. This assists in assessing whether or not there may be other
relevant evidence that can throw light
on the issue of wrongfulness.
Imention this because, relying on the majority decision in
Axiam
Holdings Ltd v Deloitte
&
Touche/
the plaintiff argued
that it is inappropriate to decide the issue of wrongfulness on
exception because the issue is fact bound.
That is not true in all
cases. This court for one has on many occasions decided matters of
this sort on exception. Three important
judgments that spring to mind
are
Lillicrap, lndac
and
Kadir.
Some public policy
considerations can be decided without a detailed factual matrix,
which by contrast is essential for deciding
negligence and
causation."
[17]
In the pleadings and the evidence adduced by the plaintiff, in my
view, the plaintiff has failed to set out or even prove causation,
as
he alleges that the defamatory publication was the reason for his
removal as a councillor. In the circumstances he has not succeeded
in
demonstrating his claim for patrimonial loss of income as a
councillor.
[18]
This is especially so if I take into account the fact that the
decision of removal of the plaintiff's name as a candidate for
councillor took place prior to the article being published. Thus, the
article could not have been the cause of him being removed
as a
councillor. The screening committee had taken this decision on 27
January 2011 and as at then would not have had any knowledge
of the
article that was only published on 30 January 2011.
[19]
As the article was not a
sine qua non
for the removal of the
plaintiff as councillor and no evidences, whatsoever, has been
adduced by the plaintiff, for me to come a
conclusion otherwise and
find in favour of the plaintiff. The plaintiff has failed in his
pleadings as well as in his testimony
to make out a case for the
special damages.
[20]
In the result I am not convinced that there is any evidence before me
upon which, if I applying my mind reasonably to such
evidence, might
lead me to finding for the plaintiff. See
Claude Neon Lights (SA)
Ltd v Danie/1976 (4) SA 403 (A)
at 409G - H. Thus in the
circumstances absolution from the instances is granted.
THE
DEFORMATION CLAIM
[21]
Turning to deal with the claim for the defamatory article the parties
are
ad idem
that the article does in deed contain defamatory
allegations. However, the defendants aver that the article was not
wrongful in
the circumstances. The defence raised by the defendants
is that the publication was reasonable in the circumstances.
[22]
The onus rests with the defendant to show this reasonableness and I
now deal with the evidence adduced by the defendants.
[23]
The author of the article, Cedric Mboyisa, testified for the
defendant. He stated that the climate within in which the article
was
written was political as it was during highly contested local
municipal election. The plaintiff was one of the contenders,
ANC
chairperson and a councillor. He obtained a tip off from his
'sources' and acted upon it by going to ward 60 to verify that
information obtained from the source.
[24]
He testified that during the course of him verifying the information
obtained from his source he interviewed members of the
community of
ward 60 and spoke to, Brian Sokutu, the ANC spokesperson about the
allegations that had been made. In his discussion
with Mr Sokutu, he
was advised by Mr Sokutu that
"if these claims are brought to
our attention we should be able to investigate them."
He
further attempted, telephonically, to obtain a comment about the
allegations from the plaintiff himself before he wrote and published
the article.
[25]
The plaintiff refused to comment regarding the allegations of him
having given member of Sphmandla informal settlement chicken,
alcohol
and money in exchange for voting support. Mr Mboyisa's evidence is
that the plaintiff knew that he was speaking to a journalist
when the
comment on the allegations was sought. He had not in any way denied
or disputed the allegations that a comment was sort.
Instead it
emerged during the plaintiffs evidence that he expected Mr Mboyisa to
rather seek an audience with him, in person, to
discuss the
allegations.
[26]
Mr Mboyisa even further, in that, he went to the store where the
chicken had been allegedly purchased and confirmed with an
employee
of the store, that indeed all the chicken in the store had been
purchased by a group of people, which was a first for
the store.
[27]
In dealing with the plaintiff s claim for general damages I am
mindful of the
dicta
of Brand JA set out in
Media 24 Ltd
and Others v SA Taxi Securitisation (Pfy) Ltd supra
at para [21]:
"As appears from
these judgments, the underlying reasoning went along the following
lines:
defamation derives from the
actio iniuriarum.
This Roman remedy was available. not to recover economic
loss, but for the protection of personality rights consisting of
physical
integrity
(corous),
dignitv
(diqnitas)
or reputation (
fama
)
. In the same
way as a corporation has no
corpus,
it can have no
dignitas
nor
fama
in the sense of a personality right. What it can
have is a reputation in the sense of 'goodwill'. But that reputation
is not a personality
right. It is an integral part of the
corporation's patrimony. Damage done to the reputation could
therefore constitute a patrimonial
loss for which compensation could
be claimed under the
actio /egis Aquiliae
and not the
actio
iniuriarum."
[My emphasis underlined]
[28]
The defendant raises the defence of reasonableness of the publication
and reliance is placed on that stated in
National Media Ltd
&
Others v Bogoshi
1998 (4) SA 1196
(SCA) at 1212:
"In
my judgment we must adopt this approach by stating that the
publication in the press of false defamatory allegations of
fact will
not be regarded as unlawful if, upon a consideration of all the
circumstances of the case, it is found to have been reasonable
to
publish the particular facts in the particular way and at the
particular time. In considering the reasonableness of the publication
account must obviously be taken of the nature, extent and tone of the
allegations. We know, for instance, that greater latitude
is usually
allowed in respect of political discussion (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."
[29]
The defendant's argues that as the publication involved the media as
a defendant and a politician being the plaintiff, the
defence of
reasonableness can be raised. The defendant further argues that it is
afforded both the media privilege and the political
privilege, as
both are in existence in this case. In these circumstances more
latitude is grant as long as the defendants do not
lower the standard
of care when writing and publishing such articles. See
Mthembi-Mahanyele v Mail Guardian
Limited
2004 (6) SA 329
(SCA)
where Lewis JA had the following to say about politics,
politicians and political privilege:
'[65] Freedom of
expression in political discourse is necessary to hold members of
government accountable to the public. And some
latitude must be
allowed in order to allow robust and frank comment in the interest of
keeping members of society informed about
what government does.
Errors of fact should be tolerated, provided that statements are
published justifiably and reasonably: that
is with the reasonable
belief that the statements made are true. Accountability is of the
essence of a democratic state: it is
one of the founding values
expressed in s 1(d) of our Constitution: 'Universal adult suffrage, a
national common voters roll, regular
elections and a multi-party
system of democratic government,
to ensure accountability,
responsiveness and openness'
(my emphasis). And see further s
92(3)(a) read with s 195 (1)(a) to (f) and s 195(2) of the
Constitution which govern the basic
values and principles of public
administration. In
Holomisa
Cameron J said: 'Our
constitutional structure seeks to nurture open and accountable
democracy. Partly to that end, it encourages
and protects free speech
and expression, including that practised by the media. If the
protection the Constitution affords is to
have substance, there must
in my view be some protection for erroneous statements of defamatory
fact, at least in the area of "free
and fair political
activity".'
[30]
It is trite that in considering the defence of reasonableness regard
needs to be had of the interest of the public, the nature,
extent and
tone of the allegations, the nature of the information upon which the
allegations are based, the reliability of their
source, the steps
taken to verify the source, the opportunity given to the person
concerned to respond and lastly the need to publish
before
establishing the truth of the content in a positive manner. See
National Media Ltd
&
Others supra
at 1212H- 1213C.
[31]
Did the publication have to be published as and when it was without
positive establishment of the truth of the contents?
[32]
The defendant responds in the affirmative and to this end explains
that the climate at the time was of local municipal elections
with
the allegations made pertaining directly to these elections. The
public in that climate had a right to know of the manner
in which one
of its candidates, being a chairperson of the ANC and prominent
figure, was obtaining voter to vote for him.
[33]
The ANC spokesperson, Brian Sokutu, had been advised of the
allegations and had promised to look into the allegations if such
claim was brought to their attention. Which they did, if one takes
into account that the plaintiff was eventually removed as a
councillor and is now merely an ordinary member of the ANC.
[34]
In conclusion of this specific aspect, it must also be remembered
that Mr Mboyisa makes it clear from the outset that these
are
"allegations from community members"
and he did not
make them out to be the truth.
[35]
With regards to the source of the information, Mr Mboyisa testified
that he received a tip off from his source however allegations
were
corroborated by the information from the different community members
themselves that he had interviewed. As stated above he
even went so
far as to verify the purchase of the chickens. The manner, in which
he went about dealing with the information, the
source, the community
and the employee at the store, to my mind, is in tune with keeping
the standard of care as regards the source
and its reliability in
check.
[36]
The plaintiff testified that he was asked to comment on these
allegations but declined to do so. On the other hand the defendants
states that the plaintiff was angry and said it did not matter if the
allegations were published as he would win anyway. In the
circumstances, in my view, it matters not which one of the two
scenarios are accepted, the fact remains that the plaintiff was
given
an opportunity to comment and failed to do so, at his own peril.
[37]
I agree with the defendants that it is evident from the article
published that these are merely allegations made by the community
members and are not conclusive. These allegations were still open to
robust debate in the specific climate that prevailed at the
time that
they were published. Therefor the tone, in my view, was in line with
the prevailing climate of local municipal elections.
[38]
Lastly, the plaintiff has not dispelled these allegations and that
the defendants view as being reasonably true. This is further
compounded by the fact that in the trial the plaintiff was unable to
even advance a response when asked 'what more did he expect
of the
defendants prior to them releasing the article so published'.
[39]
In the circumstances set out above I find that the defendants have
succeeded in demonstrating that the article so published
was not done
wrongfully and that it was reasonable to publish the allegations at
that particular time and manner. The plaintiffs
claim for general
damages must fail.
[40]
Consequently the following order is made:
[1] The plaintiff's
claims for both special damages and general damages are dismissed
with costs on a party and party scale.
________________________
W.
Hughes
Judge
of the High Court