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[2016] ZAGPPHC 1123
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Mkhabela v Xaba and Others (27235/2014) [2016] ZAGPPHC 1123 (1 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 27235/2014
DATE:
1/12/2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
DR.
EBBY BONGANI
MKHABELA PLAINTIFF
And
MAZWAI
XABA 1
ST
DEFENDANT
JEREMY
GORDIN 2
ND
DEFENDANT
ON
THE DOT MEDIA AND MONITORING 3
RD
DEFENDANT
CC
t/a ON THE DOT
PAARL
COLDSET
4
TH
DEFENDANT
JUDGEMENT
NKOSI
AJ
INTRODUCTION
1.
Plaintiff is Dr. Ebby Bongani Mkhabela, a medical
practitioner, who practiced as such in Mpumalanga Province. This is a
claim for
defamation against the Defendants sued jointly and
severally the one paying the other to be absolved: arising from an
article published
in the Daily Sun dated 26 September 2013 under the
heading:
"family sues doctor
over botched circumcision"
2.
It is common cause that the Second Defendant was the
publisher at the lime of the publication of the Daily Sun. the Fourth
Defendant
was the printer for the Daily Sun at the time of the
publication.
3.
Plaintiff action emanates from this publication and he
bore the duty to lead evidence in support of his action.
4.
The action was defended and was set down for 3 days. It
could not be finalised on these 3 days. It was partly-heard and
postponed
sine die
and
later set down tor another 3 days. On conclusion of the hearing the
parties were given an opportunity to file their written
heads of
arguments by 16 September 2016.
ISSUE
TO BE DETERMINED
5.
Whether aforesaid publication amounts to a defamation as
applied in our legal system and whether an affected party, the
Plaintiff
in this case can sue for damages. If successful the court
can order a fair compensation after a legal consideration of all
evidence
and submissions by both parties to the action following a
due process of the law
6.
The Plaintiff had a duty to prove its case on a balance
of probabilities to succeed. The Defendant had corresponding duty to
raise
its defence by leading admissible and relevant evidence to
sustain its defence.
THE
PARTIES EVIDENCE AND ARGUMENTS UNDER OATH
7.
The Plaintiff is Dr Ebby Bongani Mkhabela testified in
person. The Plaintiff claims for an amount of R3 million for
compensation
resulting from
the above-mentioned publication
carried out by
the Defendants.
8.
He testified that he qualified as a medical practitioner
after graduation
at the Medical
University of South Africa (MEDUNSA) and has
been
practicing as such for a period of more than 13 years.
He had acquired experience and learnt a lot in the treatment of
HIV/AIDS,
circumcision programmes in the country and as a provincial
co-coordinator on health issues helped to educate other medical
officers
in the HIV/AIDS management, mental care use and
the
well-out
of strategies health
care. He also ran his own private circumcision clinic
and assisted in different hospital.
9.
During his tenure as a medical practitioner he did not
receive any complaints. He left his position as a provincial manager
in the
state
hospital to
pursue his career in private practice at Mkhago
with
his
cousins. That is where he mostly
concentrated on circumcision of male patients between the age of 15
years and
above,
and
later accommodated
patients
of
7 years-14 years old.
10.
In the year 2013 he assisted the provincial department of health on a
voluntary circumcision project where more than 500 000 patients
were
assisted.
11.
This culminated to him submitting a proposal with the Department of
health Mpumalanga Province to assist male patients on male
voluntary
circumcision project.
12.
It was his testimony that on or about 26 September 2013 he got a
shock of his life when his sister called him with regard to a
newspaper publication about an alleged claim or legal suit of Rl0.7
million against him.
13.
The publication from the newspaper was headed as "family sues
doctor over botched circumcision. On his elaboration he stated
that
it appeared to be a boy who was circumcised at the Barberton hospital
where he was employed together with other medical officers
in the
year 2008.
14.
He testified to the effect that he had never been served with summons
commencing an action in his entire life and the newspaper
publication
was unexpected. On further enquiry he recalled the 5 years old
Bonginkosi Nhlabathi a patient who was assessed by doctors
at the
Outpatient Department of Barberton Hospital on the date in question.
The necessary administrative procedure was followed
including signing
of a consent form by his mother. He was admitted and prepared for
theatre procedures where himself (Plaintiff),
Dr. Motsitsilane and
four nurses came on the circumcision.
15.
It was his evidence that no complications was experienced before and
after the circumcision operation was concluded, except for
the slight
bleeding referred to as frenulum. This was however attended to by
putting a catheter for a short while.
16.
After the whole process the nurses made a note in the bed letter and
called the ward nurses to collect the child to be seen by
a
pediatrician. He was monitored and discharged two days later. The
parent was advised to take the child to the local clinic, on
daily
basis, for cleaning
and bandage. He further testified
that was the last time he heard about this patient in the year 2008
until it was published by
the Daily Sun newspaper in 2013.
17.
He vehemently denied that he was ever sued or served with summons for
Rl0.7 million, it was his views that he was singled out by
the
publication which, to him, amounted to defamation and character
assassination. He only worked for the Department of Health
during the
period of 2008, and the child's operation was done by a group of
doctors including himself. He requested for a copy
of the summons
about a "botched circumcision" but was never sent to him.
He further enquired as to whether he was cited
as a party to the
legal suit or not to no avail
18.
He further testified that his company, Mkhago Healthcare Services was
unfairly linked to the Barberton case plus 16 other Tonga
cases of
haring botched circumcisions.
19.
It was his evidence that the publication was so prejudicial to his
reputation and as a result of such his practice started going
down
and other colleagues could no longer send referrals as a result of
the alleged R10.7 million legal suit referred to in the
Daily Sun
newspaper.
20.
He further testified that he operated almost 2/3 of the Mpumalanga
Province and this bad publication made him to suffer. This further
resulted in him moving his practice and eventually resigned and
closing his of practice.
21.
Plaintiff caused his legal representative to issue a letter of demand
dated 11 November 2013 to the Editor: Eye News Service where
it was
referred to the published article which stated that:
1. "Dr E.
Mkhabela is being sued for more than R10.7 million by the family of a
boy who lost the tip of his
penis in a botched circumcision"
2. "Circumcisions
have left 18 young men in severe pain after they were circumcised by
a government approved
facility linked to Mkhabela's company Mkhago
Health Services"
3. "Bad
procedures can lead to patients losing their penis"
22.
These words were published in Daily Sun of the 26th of September 2013
which was widely distributed in South Africa and read by
the general
public.
23.
The aforementioned wording was described as unlawful, wrongful and
defamatory and the Plaintiff suffered damages in this fashion:
"1.
Dr Mkhabela's integrity and good standing was seen tarnished, no
longer has confidence of any patients and stands to lose
a potential
loss of income of R3 million
.
2.
Mkhago Health Care Service have likewise suffered the loss of
patients who have indicated their unwillingness of being treated
due
to the negative report and have suffered a potential loss of income
of RS million.
24.
The letter was directed to African Eye News Services as supplier of
news to Daily Sun, amongst others, which made the publication.
They
were not cited as a party to the proceedings and Mkhago Health Care
Services were not joined or cited as a party hereto. Daily
Sun
accepted the request from African Eye News Agency and went on to
publish it.
25.
After some interactions the Daily Sun published an article under a
#matter of fact v/s Botched Circumcision" which never refer
to
Dr Mkhabela which was printed on a font smaller than the first
publication.
26.
The correction or date of the publication was not sent to the
Plaintiff. On page 103 of the Plaintiff's trial bundle the Daily
Sun
dated 3 December 2013 published an articles as follows:
"Matter of facts: on
26 September 2013, Daily Sun published an article entitled: "Family
sues doctor over botched circumcision"
on page 8.
The story sourced from
African Eye News Services, incorrectly reported that Dr. Ebby
Mkhabela is facing a R10.7 million lawsuit
for a botched circumcision
when he worked for the health department in 2008. The family is suing
the provincial and national departments
of health and not Dr. Ebby
Mkhabela or Mkhago Health Care Service.
27.
Prior to this article the Plaintiff wrote an email to African Eye
News Services dated 23 October 2013 requesting a copy of a summons,
date, time and place about the alleged lawsuit and 5 more questions
on page 1-12 of the paginated document.
28.
One must pause to clear the issue of the 4th Defendant
which was no longer in dispute and the 3rd Defendant as a non legal
entity.
The publisher was not disputed.
29.
It was Plaintiff's evidence, further that after this publication and
its effect on him losing his reputation he remained jobless
and
relocated to Limpopo Province and later managed to secure a job in
tenting in a Tuberculosis Hospital where he is currently
plying his
trade as a medical practitioner.
30.
On cross-examination by Defendant's counsel first focused on the
tender issue awarded to Mkhago Health Care Services. He was
questioned
about his wife's involvement, as a former director of
Mkhago Health Care Services, her investment or possible investment or
potential
influence on
the tender to Mkhago in issues
raised by Corruption Watch in another issue unrelated to Plaintiff's
case of defamation.
31.
He admitted on further cross-examination that something wrong have
happened after circumcision for example the failure to change
the
bandage. The child was discharged with a normal penis. The child's
discharge was written by one Dr. F. Erwee who was
working at Barberton Hospital.
32.
It was put to him that he refused to be interviewed before the
publication and he denied that. He indicated that he was called
by
Mandia Khoza from the African Eye News Services about the article
whom requested to have his questions in writing.
33.
It was further put to him that Mandia Khoza did send the written
questions on 13 September 2013 and by 16 September 2013 did not
have
answers not a reply either in writing or telephonically.
34.
The publication went through on 26 September 2013 after he had failed
to respond.
35.
It was further put to him that he only called African Eye News
Services on 8 October 2013 for the first time about the publication.
36.
On re-examination the Plaintiff cleared the possible
causes of a glans falling off that it can be accidental, or if the
bandage
was too tight stopping the blood flow after the operation or
it could be sepsis if the wound was not properly cleaned leading to
bacterial infections.
37.
Plaintiff closed his case without calling any witness.
38.
Defendant's counsel wanted to have an opening address which was
refused due to the fact that it cannot be after the Plaintiff has
led
evidence and cross-examined. The court however accepted to the
request in terms of Rule 39 of the uniform Rules of practice
to
address the court on the pleadings only. Plaintiff had no objection
to it.
39.
Basically the plea sets out Defendant's denial of almost all
averments or material averments by the Plaintiff and that if the
court finds that there was defamation defendant relies on privileged
occasion in that the publication of the article was reasonable
on
occasion of the following circumstances:
PRIVILEGED
OCCASION
-
that Defendants were under a duty, as member of the
press and concerned citizens of the Republic of South Africa, to
inform the
public of the botched circumcision taking place in
Mpumalanga and problems emanating from the State's voluntary medical
male circumcision
programme;
-
they were entitled following their role as the press,
and acting as a voice of an informed and socially responsible
leadership to
raise the awareness of the botched circumcision in
Mpumalanga;
-
the readership of Daily Sun had a corresponding right to
be informed of such information, inter alia, in terms of section 16
(1)
(b) of the Constitution of the Republic of South Africa 108 of
1996 to receive information concerning the botched circumcision
taking place in Mpumalanga and problems emanating from the State's
voluntarily medical male circumcision so as to make educated
and
informed decisions regarding any circumcision practices to which they
may or may not subscribe;
-
in the alternative, that the publication was reasonable in that
-
the Defendant did not publish the article recklessly or negligently
and the Defendant would
rely on the following facts:
(a)
that the
article constituted a fair and balanced account of the interviews,
enquiries and investigations conducted into the
subject matter of the
said articles; the journalist who wrote the article was a suitably
qualified and responsible journalist;
(b)
the
Defendant complied with the standards of investigative reporting
applicable in the journalistic profession;
(c)
the
Defendants could take no further reasonable steps to ascertain the
truth and veracity of the information, save for the
in depth
investigation into the botched circumcisions in Mpumalanga;
(d)
the
conduct of the journalist, in investigation and in writing the
article was reasonable in that he took reasonable steps
to establish
and/ or investigate the truth of the allegations and made enquiries
from persons who in their capacities, would had
knowledge of the
truth of the allegations;
(e)
that the
article constituted fair comment and the publication was not wrongful
not published with the intention to injure,
animoiniuriandi
and
that it was not negligent;
(f)
the Defendants denied any liability towards the Plaintiff either as
it was alleged or at all nor that he suffered
any damages as claimed
or at all.
40.
APOLOGY
(a) post publication of the
article in the Daily Sun the Defendants were made aware of the error
of incorrect report that
Plaintiff was facing a R l 0.7 million on a
result of botched circumcision which took place in 2008 when he
worked for the Department
of Health;
After verification of the
aforesaid error, the Departments, without unreasonable delay,
published on apology to the Plaintiff on
or about 13 December 2013
following a publication dated 26 September 2013; (delay)
The Defendants admitted
their error and indicated that any impairment of the Plaintiff's
human dignity was restored by the apology
and that no damages should
be awarded to the Plaintiff and prayed that Plaintiff's claims be
dismissed with costs.
The first three days
allocated for this matter was consumed by time and the parties agreed
to have this matter postponed to another
three days after arranging
such with the office of the Deputy Judgment President.
(b) The partly-head matter
resumed on 24 August 2016 and the parties were ready to proceed as we
did.
(c) The Defendants called its
first witness Dr. Isak van Heerden, who qualified as medical
practitioner and as a specialist
in urology since 1987 and based at
Steve Biko Hospital. He specializes mainly on pediatric urology which
involves male genetalia
or diseases.
41.
He described the modus operandi on circumcision and read from the
extract or notes of the doctor(s) who conducted the
circumcision
at the Barberton Hospital. That circumcision is done under general
anaesthatic or under gases and lignocare anaesthatic.
He observed
that, on the patient's records, there was a urethral minor distal
rapture, a small cut. This led to a small bleeding
in the urethra
which necessitated the doctors, in Barberton Hospital, to put a
catheter to allow the urethra to heal. Normally
a catheter is not put
on or after circumcision. It was his view that it implied that the
catheter was meant to prevent the urine
not to go the bladder but to
the catheter or outside.
42.
His testimony was based on what happened from a local hospital and
the patient was brought to him at Steve Biko Academic Hospital
with a
cut-off from the penis. This note was properly covered in the court
papers. On the written note from the Barberton Hospital
the doctor
indicated that the mother came with a glans which had fallen-off.
43.
This witnesses observation was that no infection was discovered and
the child could urinate normally. He further testified that
the cause
of the glans falling-off could be that the blood supply to the penis
was affected by a dead tissue: it was not cut-off.
This was not a
first case in history. It could have been an overzealous deep cut to
the urethra impliedly during the circumcision.
44.
On his own expert testimony he further observe that there was no
negligence on the part of the doctors who operated the child.
It was
a complicated circumcision. The final diagnosis was to do a penal
reconstruction for the amputated penis which was successfully
done.
45.
He further elaborated that the cause of the problem could have been
the bad application of the bandage, though it was not mentioned
in
the medical hospital note. This could lead to the loss of blood flow
to the tip of the penis as a result of a too tight bandage
causing a
smell and short supply of blood. Sepsis could also be contributing
factor. His final analysis was that the patient could
urinate
properly and could have normal sexual activity (at the right time).
46.
On cross-examination by Plaintiff's counsel he could not cast doubt
on Plaintiff's ability to do a successful circumcision. He
was asked
to give clarity on what "botched" is meant in medical
language. He indicated that this was not a medical terminology
but a
layman's referral to trauma as a negative term.
47.
He denied ever called by a journalist on this issue and even if he
did it was not his practice to give medical opinion on the phone.
He
conceded that the catheter was put on the patient on 8 July 2009 and
removed the next day and from the hospital medical note
it was made
clear that the child was discharged without bleeding, was able to
walk and the mother was taught on healthcare and
that if the bandages
area, after circumcision, is not kept clean can cause bleeding.
48.
Dr. Erstee, who discharged the child from Barberton Hospital on the 9
July 2008 and his work and could not say anyone to have been
negligent. He was excused from cross-examination.
49.
The 2nd Defendant's witness was Tswarelo Aaron Mokgakane who
testified under oath that at the time of the publication in question
he was a sub-editor for the African Eye News Service and had vast
experience in the field of news syndication agency
training
rural journalists and to supply information to main publication of
news including but not limited to Daily Sun, Sunday
Independent, City
Press, on-line news 24 nationally and to zivraphi, Nkomazi Voice and
Bushbuckridge regionally the elaborated
on his qualifications and the
training and experience acquired in the field of investigation
reporting and how they sought information
from rural journalist
assigned on specific projects, interviewing witnesses, asses the
information received, checking spelling
and grammar before sending to
potential events who also have their own editor who will evaluate the
stories received
50.
He confirmed that his chief-editor would be the last person to assess
information before sent to clients, Daily Sun in this matter,
after
satisfying himself/herself of the content, and thereafter sent for
publication if there is no further enquiry. Amongst his
junior staff
was Siphiwe Nyathi and Mandia Khoza.
51.
He further testified about his involvement in the publication which
led to this Legal suit: -
-
Gcina Ntsaluba, a senior investigative journalist of an
organization called Corruption Watch visited our office on 26 August
2013.
-
it was his testimony that Mr. Ntsaluba was on duty or mission to
investigate a contract which was wrongly awarded by the Mpumalanga
Department of Health and he then invited Mandia Khoza, as a health
reporter, to be part of their meeting with Mr. Ntsaluba:
-
it was at this meeting where Mr. Ntsaluba gave them a list of 18
males injured on "botched" circumcision.
-
this document he received from his sources about septic
circumcision from the affected person treated at Tonga with various
wounds
linked to the investigation he was doing.
-
Mr. Ntsaluba was busy with the "corruption" of
the tender awarded to a service provider Mkhago Health Care co
owned
by Dr. Mkhabela or the Plaintiff which was conducting
circumcisions in the area called Mzinti in the Nkomazi region.
52.
Mr. Mokgakane did not have a prior knowledge of the Plaintiff until
when he met Mr. Ntsaluba. Mr. Ntsaluba gave him the list of
18 males
referred to above and informed him and Mr. Khoza that Dr. Mkhabela
was involve in botched circumcision in Barberton Hospital
and that he
was facing R 10.7 million and that Dr, Mkhabela's wife was employed
by the Department of Health Mpumalanga. It was
this information which
was under investigation by Corruption Watch for a possible link or
influence which might have placed a role
in getting a voluntary
circumcision tender without following the tender process.
53.
He, Mr. Mokgakane, and Mr. Khoza went on to interact with the
department of health to sought more information through its
spokesperson.
On their own further investigation they could not link
a legal suit directly to the Plaintiff or Mkhago Health Care (not
party
to the proceedings). He did not do the investigation himself
and could not take the court any further by referring to people who
were not going to be called as witnesses to corroborate his testimony
except for Mr. Khoza.
54.
What is crucially important is that Mr. Mokgakane said in his own
words that: "corruption Watch "scooped" us about
Mkhago Health Care on-line. He clarified it that they were overtaken
by
events by Corruption Watch breaking the story before
them and they were disappointed.
55.
It was his further evidence that the scoop went on publication by the
Sunday Independence newspaper, their client, on 8 September
2013.
Corruption Watch published it on 9 September 2013: Saying*Corruption
Watch is investigating the Mpumalanga Health Department's
decision to
award a multimillion rand contract "without a tender'' to
circumcise 260 000 boys and men in the Province and
the Sunday
Independence reported on the weekend to *Mkhago Health Care Services,
owned by Ebby Bongani Mkhabela, a doctor linked
to a circumcision
procedure on a 4 year old Mpumalanga boy five years ago, who is the
subject of a R10.7 million legal suit.
56.
He further indicated that Mr. Mandia Khoza was instructed to work on
this story and to give Dr. Mkhabela and his wife an opportunity
to
comment on this allegation before the publication or publications.
57.
The Plaintiff gave Mr. Khoza his email address where he could direct
his queries. It was his further evidence that the Plaintiff
failed to
respond to questions and their information was handed to Daily Sun
for publication which took place on 26 September 2013.
58.
The Plaintiff started complaining on 17 October 2013 saying that it
was untrue that he was sued for R10.7 million in a botched
circumcision and wanted the correspondent AENS to retract the article
and to apologies.
59.
Mr
.
Mokgakane's exact words on record on this complaint was:
"we are happy to ask the Daily Sun to print erratum that you are
not
personally sued but the Department of Health."
60.
It was clearly spelt out that the exchange of emails was between
Mkhago (not a party to these proceedings) and Mr. Khoza. It emerged
that other doctors, who took part in the 2008 circumcision operation,
were not contacted nor published any article about them.
The
investigation was all about Mkhago Health Care Services and the
alleged "botched circumcision" as a top up.
61.
On cross-examination by Plaintiff's counsel he confirmed that
Corruption Watch scooped their story on 9 September 2013 and further
confirm that Corruption Watch's article did not mention the
Plaintiff's name. He did not see any summons commencing on action
against the Plaintiff. It was put to him that he ignored the
Corruption Watch articles before publishing their article about the
Plaintiff.
62.
He further acceded that Corruption Watch was probing a dodgy
circumcision contract and not a "botched" circumcision.
It
was further put to him that Plaintiff did not botch any circumcision
and it was further put to him that the circumcised child
was
discharged from Barberton Hospital without a problem or complication.
He was brought back to hospital ten days later with a
glans have
fallen off the penis and not botched.
63.
He was further confronted with the question as to what made them as
journalist or reporter not to dig more or investigate
where
or why the child lost the tip of his penis? Whether on discharge from
the hospital or not? Did he establish whether a case
was opened
against the Plaintiff? Under what case number, from which court and
whether summons were served on him before causing
the publication by
Daily Sun?
64.
The period between the published article by Sunday Independence and
Corruption Watch on-line publication on 8 and 9 September 2013
and
Daily Sun publication on 26 September 2013 could have allowed a
reasonable journalist or reporter to investigate before the
publication. It was further put to him that rushing to publish a 2008
in 2013 without full investigation was not reasonable. He
reacted by
saying that we had been "scooped" already.
65.
The apology by Daily Sun did not say there was no botched
circumcision. He further conceded that he did not see article before
its publication by Daily Sun and only saw it after.
66.
Defendant called its 3rd witness Mr. Reggie Moalusi who also
testified under oath that he is the editor in chief for the Daily
Sun
and Sunday Sun for a period of two years and has been a qualified
journalist with a combined period of 15 years. He has been
with
reputable media houses holding servor positions.
67.
He confirmed that African Eye News Service was a news supplier to
Daily Sun for the past l O years and had a reliable relationship
with
them. It was his evidence that he did not edit the published story
which led to this litigations. It was published by Daily
Sun after it
was completely checked. On cross-examination he conceded that there
was no tangible
evidence on "botched"
circumcision, but later stated that they received the information
from African Eye News Agency after
establishing its accuracy. He did
not elaborate what he meant with accuracy. He did not take this
matter any further on defence.
68.
Mandia Doctor Khoza was the last witness called by the Defendant. He
testified that he is a senior reporter employed by African
Eye News
Services doing investigation on health related issues, public health
in hospitals and clinics etc. Before the publication
of this matter
he reported and published HI treatments of patients, operations
like botched circumcisions both medical and
traditional circumcisions
on males. He further testified that he reported the deaths of 31
initiates in the Ekangala, Gert Sibande
and the Enhlanzeni regions of
Mpumalanga Province.
69.
It was his evidence that on or about August2013 he was told of a
contract of doing voluntary male medical circumcision to a doctor
without a tender process. He got this information from Mr. Ntsaluba
who was doing on investigation into this alleged irregular
contract
on behalf of Corruption Watch. He made his own investigation by
calling one Ronnie Masilela who was the department spokesperson
by
then.
70.
He was given a list of 16 boys and two men who were circumcised at
Mzinti clinic named Mkhago Health Care Services allegedly
partly-owned
by the Plaintiff. His evidence was mainly on patients
treated at the Mkhago Health Care Services and the questions on the
process
of the tender allegedly awarded to Mkhago and where
Plaintiff's wife
worked before joining the Mpumalanga
Department of Health. His questions to the Plaintiff regarding the
tender could not be satisfactorily
answered between 13 September and
26 September 2013.
71.
On cross-examination he conceded that he become aware of the
"botched" circumcision on 26 August 2013 from Mr. Ntsaluba
from Corruption Watch about a doctor who being sued for R10.7
million.
72.
On enquiry whether he was shown proof of the patient's name he could
not give an answer except for a note about the patient with
the
surgeon's name. On further enquiring whether on the medical note, was
there an indication of "botched" circumcision
the answer
was no.
73.
The Mzinti's 18 patients did not mention or link the Plaintiff
personally or directly to any circumcision which went wrong. Mr.
Khoza conceded that there was a deadline to meet in a specific date
before publication.
74.
The Defendant closed their case without further witnesses. The
parties agreed to file their written closing arguments by 16
September
2016.
75.
WEIGHING OF THE PARTIES EVIDENCE
(a) The first question that I
had to determine is whether there was a case of defamation and what
stage did it take place.
(b) It is common cause that a
publication of an alleged "botched" circumcision and a
doctor facing a legal suit
of R10.7 million appeared in the Daily Sun
of 26 September 2013. The Plaintiff was the person indirectly
referred to as the person
facing the legal suit. His locus
standi
was not placed in dispute.
(c) The publication was not
denied and the Defendant raised their defence as clearly outlined in
their plea, and supplemented
by various witness in defence of this
action. There was dispute with regard to their
locus standi.
76.
THE CURRENT APPLICABLE LAW ON DEFAMATION
(a)
Our court recognizes that: the delict of defamation is aimed at the
protection of a person's reputation, that is the public
estimation of
the worth or value of a person, as opposed to the individual's
personal sense of self-worth or self-esteem, and it
is an essential
element of the delict that the defamation statement is published or
was published, or made known, to other person
or persons other than
the person defamed. LAWSA volume 72nd Edition. According to Amler's
precedents on Pleadings page 134 of the
6th edition: "The
Plaintiff must set out the words alleged to have been used by the
Defendants and must prove them. It has
been an accepted norm that
where publication taken place in a publicly distributed document, it
is not necessary to list the name
or names of readers because it is
factually presumed that publication did take place. See
Pillay v
Naidoo
1916 WLD 151.
(b)
The general rule was further expressed in the case of
SA
Associated
Newspapers v/s
Estate Pelser
1975 (4) SA 797
(A) at 810: "in every defamation action the Plaintiff must
allege and prove that the defamatory words were published of and
concerning to him...."
(c)
In Sindoni v/s Van
Der Merwe
2002 (2) SA 32
SCA it was further
cleared that the Plaintiff must allege that although the published
statement was defamatory, it is a question
of law whether the words
complained of are reasonably capable of conveying to the reasonable
reader of meaning which defames the
Plaintiff. The court agrees with
this view as it was stated.
(d)
The editor, proprietor, printer and publisher of a newspaper, journal
or other document circulated generally may be liable
for defamatory
statements appearing in the newspaper, journal or document, if there
is no acceptable defence.
(e)
In the matter of
Khumalo and other
v/s
Holomisa
2002
(SJ SA
401 at paragraph 17-20 and 43 the Constitutional
Court looked at the principles of the law of defamation and confirmed
that the
right to reputation or fama in the aspect of personality
that was protected by the law of defamation.
(f)
It further re-iterated that once a Plaintiff has established that
defendant has published a defamatory statement
concerning the
Plaintiff it is presumed that the publication was both unlawful and
intentional.
(g)
There is no closed list of defences to rebut the unlawfulness but if
the publication is true and in the public benefit or
constituted fair
comments and made on a privileged occasion can sustain the defence.
It was held in
Bogoshi
v/s
National Media Ltd
and
others
1998 (4) SA 1196
(SCA) that the Plaintiff is required
to allege that the defendant acted
unlawfully and with
animo iniuriandi. It further held that the publication of false
defamatory allegations of facts 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. It was considered as a
valid to properly to look at the
nature of the information on which
the allegations were based and the reliability of their sources as
well as steps taken to verify
the information. See
Mthembi
Mahanye/e
v/s
Mail 4
Guardian
2004 (3) ALL SA 511
(SCA).
(h)
Defendants can easily escape liability on presentation of positive
evidence to support its plea. Bare denial cannot sustain
a defence in
this type of suit.
77.
CONSIDERATION OF EVIDENCE & ARGUMENTS
It
was submitted that the Plaintiff have shown on a balance of
probabilities that;
(a) The article complained of
was wrongful in that it is defamatory per se on the plain reading of
the article as a whole
and contained the implied meaning that;
-
That
the Plaintiff was sued for R10.7 million in his personal capacity as
a result of a botched circumcision.
-
Was
the sole cause that the 10 years old lost the tip of the penis.
-
Was
responsible for the other 18 men being hospitalized as a result of
the Plaintiff's conduct.
-
Employs
bad procedures in the medical circumcisions which lead to patients
losing their penises or part thereof.
-
That the
Plaintiff is generally unprofessional as a healthcare professional.
-
Cannot be
trusted as a healthcare professional.
(b)
When one has
regard to the normal dictionary meaning of the word "botched"
it means inter alia: unprofessional, incompetent,
made a mess,
mangle. Objectively this is the meaning of the said word used word
used in the heading. This much has also been conceded
by every
witness for the Defendants. There can reasonably speaking be no other
meaning attribute to the word it was submitted.
(c)
It was further
submitted that there was wide publication of the news articles and
that the Daily Sun newspaper is in fact published
nationally.
(d)
It is further
evident that the article only mentions one Doctor's name, being the
Plaintiff's name. In this regard the article clearly
concerns the
Plaintiff personally. Even the heading makes this clear from the
start that this is a personal attack on the Plaintiff's
dignity.
(e)
It was
submitted that the article was defamatory in nature as the normal
reasonable reader would think less of the Plaintiff after
reading the
reading the article. The article lowered the Plaintiff reputation in
the province and this is supported by the fact
that he even had to
relocate to Gauteng to find a new job in 2014. When put to the
witness of the Defendant if they would send
their child to this
doctor for treatment they refused to answer. In this regard the old
maxim that no answer is in fact the clearest
answer, is applicable in
any general discourse.
(f)
It was
submitted that the onus then shifted to the Defendants to show some
lawful justifications or excuse. In this regard the Defendants
raised
several defences.
i.
FAIR COMMENT (TRUTH AND PUBLIC INTEREST):
(a) The requirements of this
defence are: the statement must amount to a comment or opinion and
not be a statement of fact,
the comment must be fair and free from
malice and exaggeration, the facts upon which the comment is based
must be substantially
true, the facts upon which the comment is based
must expressly be stated in the in the material containing the
comment, the comment
must relate to a matter of public interest.
(b) In this instance the article
is clearly a statement of fact if one has regard to the plain reading
of the article and
the testimony of the witness. None of the
Defendant's witnesses ever merely expressed their opinion. They took
the article as being
factual and correct.
(c) THE ARTICLE IS NOT FREE FROM
MALICE AND CARRIES ADDITIONAL STING IN THAT THE Doctor is vilified
and isolated in the articles.
The doctor never even conducted
circumcisions in Mzinti on the other 18 boys ut yet this is
attributed to him. The Plaintiff never
botched any
circumcision.
The word botched has a very negative connotation and is purely used
to sensationalise the unfortunate situation of
the young boy. What is
even more appalling is the fact that this sensationalism is created
purely in an attempt to make the article
more attractive to
publishers/clients. Not one piece of evidence showed that this
circumcision was botched by the doctor. Not even
the defendants own
expert witness could say this ex
post
facto.
(d) The material facts of the
story are simply not true. The Plaintiff never botched a surgery, he
was never sued and the
young boy did not lose the tips of his penis
at the Hospital. No proof of legal suit against him was shown to this
court.
(e) The facts upon which the
factual statement was made is not stated in the article. It was
testified that there was no medical
evidence to base this article on.
There was only one answer from the Provincial Spokesperson, Ronnie
Masilela upon which this article
was based, in which Masilela simply
stated that the matter is under investigation. He was not called as a
witness though.
(f) In the circumstances
the defendant did not prove this defence on a balance of
probabilities.
ii.
PRIVELEGED OCCASION
(a) The requisites for the
defence are that the occasion is privileged, that the communication
is relevant to the purpose
of the occasion, that the person is not
activated by malice. The test is objective, in line with the general
criterion of reasonableness.
A test of a reasonable man comes into
picture not for the first time.
(b) The interest must be
legitimate and in this case it is not. The legitimate interest here
was to inform the public of the
alleged corrupt tender process.
Instead the Defendants sensationalise the story and made it a
personal attack on the Plaintiff
professional competency. In Mr
Mokgakane's own words (the Sub Editor of AENS) he stated that the
purpose was to:
"show the kind of
men who received the contract"
(c) On reading the style, tone
and grammar of the article this demonstrates the clear malice and
intent towards the Plaintiff.
The purpose was not to write a factual
correct article informing the public of a "health situation as
alleged in fact numerous
untruths were published in order to connect
the Plaintiff in his personal capacity with a so called botched
circumcision. Without
the untruths the Plaintiff would not have even
been mentioned in the article.
(d) It was clear however that
the Defendant's defence was not clear to the issues raised by the
Plaintiff.
iii.
REASONABLE PUBLICATION
(a) This is the so-called
Bogoshi defence that was developed in the Bogoshi case by the SCA.
(b) This defence was summarized
by Heter AJ as follows *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 consideration the
reasonableness of the publication
account must obviously be taken of
the nature, extent and tone of the allegations, for which I agree.
(c) There is however a further
qualification that Heter AJ added *Ultimately there can be no
jurisdiction 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.
(d) In this article there was
publication of several untruths as submitted by Plaintiff's counsel.
The Plaintiff was never
sued by any family. The young boy never lost
a tip of his penis at the hospital. The Plaintiff did not botched the
circumcision.
The doctor did not perform an operation on one of the
18 young mentioned later on in the article.
(e) The next question that the
Defendant then needs to answer is why the Daily Sun published there
untruths. This is done
by looking at the steps that the Editors took
in obtaining and verifying information received from the journalists.
The editor
is responsible for the final check of grammar and content.
(f) Mr. Mogakane, the
sub-editor of AENS at the time, correctly stated, that the only
information the article was based
on is one paragraph in a reply to
an email by Mr. Masilela. This email is evident on B38 (B refers to
the Defendant's trial bundle
and 1 to the relevant page). The email
was received on 11 September 2013.
(g) Mr. Mogakane further
correctly conceded that the said email does not confirm or deny
anything with regards to the botched
circumcision or the conduct of
the Plaintiff.
(h) At this point in time Mr.
Mogakane was also aware and read the story of Corruption Watch (at
page 35 of the Defendant's
bundle) where it is patently clear that
the Plaintiff was never mentioned by name. Yet he felt no need to
check why his so called
facts were different.
(i) One would expect the
Editor to at the least try ascertain why his journalist stated that
the Plaintiff is being
sued. Especially, knowing that Corruption
Watch is a well respected publication.
(j) The evidence
available at trial could also easily have been established before the
publication by the Defendant.
In this regard the Defendants witness,
Mr.
Moalusi (Deputy Editor of the Daily Sun) correctly
conceded, that knowing the facts now they would not have published
the article.
The Defendant's only saw it fit to get an expert's
opinion on the matter in the middle of this trial, that of Dr. Izak
Van Heerden.
(k) It is further ironic that
the Defendant's expert stated under oath that he would not have been
inclined to give his expert
opinion on the circumcision in 2013 but
yet clearly has no more restriction doing it at trial some three
years later. This illustrates
the objective fact that the Defendant's
should have at the very least attempted to get such an expert opinion
before publication.
The failure to take steps to acquire such an
expert opinion shows the unreasonableness of the Defendant's conduct.
If it was possible
to get the opinion now, it should have been
acquired before publication. Dr. Izak Van Heerden's evidence does not
even support
the Defendant's case. He admitted that from the records
he saw (most of which the Defendant's had before publication) one can
simply
not say that the Plaintiff botched the circumcision. How Mr.
Mandia Khoza then could state that it was botched on the heading of
the article is incomprehensible.
(l) It is also
important to note the publisher was the Daily Sun Newspaper and not
AENS. In this regard the editor
of the Daily Sun was extremely
argumentative when confronted with the fact that the editor of the
publication complained of did
not attempt to confirm anything in the
article. In fact they simply shortened the article ("sub-edited)
and then printed it.
They took no steps of their own to verify the
content of the article. Only afterwards did they phone
AENS with some questions.
(m)This "I don't care attitude"
was done with the full knowledge that the article contained serious
allegations and is
a direct negative imputation on the Plaintiffs
reputation as a respected doctor. Mr. Moalusi admitted under
cross-examination that
the allegations were serious and that they
were dealing here with the reputation of the Plaintiff.
(n) The Defendant testified that
they received *B1 (page 1 of the Defendant's bundle) from Mr.
Ntsaluba. Yet no attempt was
made to ask for the complete medical
records, especially the discharge form. If Mr. Ntsaluba could obtain
a copy of B1 he could
get copies of other documents from the
Hospital. The fact that *Bl" could be obtained shows that the
Defendants were not telling
the truth when they testified that the
rest of the medical documents could not be obtained due to doctor
patient confidentiality.
*Bl" is part of the medical documents.
(o) No attempt was made to speak
to any of the support personnel that were involved in the operation
although the information
was readily available. In the words Mr.
Mogakane expressly stated that he didn't care to speak to them.
(p) No attempt was made to visit
the Barberton Hospital or to speak to the personnel there.
(q) No attempt was made to get
an expert opinion on whether the circumcision was botched. In light
of Dr. Izak Van Heerden's
testimony at trial this clearly was
possible.
(r) The information that
the Defendant had were wholly incomplete and inaccurate. The only
information that the Editor
had sight of before publication was page
1, 27, 37 and 128 (of the Defendant's bundle). These documents can
simply never corroborate
the serious allegations made in the article
against the Plaintiff.
(s) As Mr. Mogakane conceded
that these documents do not confirm that the Plaintiff botched the
circumcision or that the young
boy lost the tip of his penis at the
hospital or that the Plaintiff was sued.
(t) What is even worse for
Mr. Mogakane is the fact that he did not even attempt to phone Mr.
Isaac Ngomane, the VMMC
programme Coordinator. His name appears at
the end of page 30 (of the Defendant's bundle) and he complied the
information.
(u) Mr. Moalusi stated that the
Daily Sun has no limitations nd or constraints when they investigate
a story. Money is further
not an issue, there is no budget
constraints.
(v) In this regard the Daily Sun
who published the articles took no reasonable steps to ascertain the
truth in this matter.
(w) The Defendant is however of the
view that they afforded the Plaintiff an opportunity to state his
side of the story by asking
seven questions in an email. These
questions however all relate to one thing namely the
contract and tender process, the essence was corruption. The essence
of the
article was completely different and was an attack on the
Plaintiff abilities as a doctor. The story was clearly one sided and
not aimed at Corruption.
(x) Not one question in the
email relates to the detail of the operation or any complication
during the surgery.
(y) The Plaintiff simply never
had a chance to respond to the defamatory statements.
iv.
DAMAGES:
(a) It was submitted that all the
witnesses agreed that the Plaintiff is a well-qualified doctor with
no complains at the Health
Professions Council.
(b) The Plaintiff was jobless for a
year to the direct result of the articles. At every interview the
article was hanging over him
like a dark cloud.
(c) The publication took place
nationally and was wide spread.
(d) The Plaintiff had to move to a new
province and could only obtain work as a GP. He previously held
managerial positions.
(e) The Defendant (the Daily Sun)
never attempted to apologies. Only the correspondent attempted to do
so, in a very questionable
manner. No reference in apology's
heading
to the Plaintiff nor for the fact that they said the Plaintiff
botched the circumcision. It was merely done in a desperate
attempt
to avoid liability. Even then after acknowledging under
cross-examination that the article is untruthful there is no tender
for a proper apology.
(f) The Defendants showed
no respect to the Plaintiff, they acted at all times with the full
knowledge of what the effect
of this publication would have on the
Plaintiff's reputation.
(g) In this matter it is clear from
the evidence and submissions that the Plaintiff was defamed. The
publication on the 26th of
September 2013 could not be justified by
any fact nor supported by any evidence and therefore stands to fall.
(h)
Even if the defendant
was to rely on the constitutionally entrenched right to freedom of
expression it could be hampered by the
limitation clause. The manner
in which Mr. Khoza reported the situation was filled with fabrication
and goes beyond what is permissible
in terms of constitutionally
entrenched right to freedom to expression. An objective evaluation of
the published articles doe have
the effect of tarnishing the
Plaintiff's reputation as a person and a medical doctor whom members
of the public relies on for health
related issues and a public figure
and that has done something unethical in destroying a young boy's
potentially reproductive organ.
(i)
The
determination on the question of damages is complex. In my view the
plaintiff was a good witness; he was consistent in what
he told the
court. It is clear in my view that the accolades and respect he
received to those successfully circumcised cannot be
fabricated or
destroyed on stroke of a pen.
78.
CONCLUSION
Having
heard all the parties and their witnesses the court is of the view
that the Plaintiff had succeeded in proving its case on
balance of
probabilities and Defendant's evidence is rejected on the basis that
the journalists acted on expediency to cover the
story which they
felt they were overtaken by the Sunday Independence 8/9/2013 and
Corruption Watch 9/9/2013. Their failure to properly
investigate the
veracity and reliability of the information before rushing to publish
was to counter the scoop by Sunday Independence
and Corruption Watch.
It was my considered view again that should there been no scoop the
African Eye News Services reporters/
journalist could not have put
themselves into an unnecessary pressure to counter the scoop. It is
my finding that the failure to
finalise the investigation before
publication was unreasonable and could not justify the rush to
publish such defamatory article.
It could not be found to have been
done on a privileged occasion and Defendants defence is dismissed.
79.
Having made a finding on facts and law the court will consider a fair
compensation resulting from defamatory publication by the
Defendants.
There is no exact mathematical calculation of
an amount
as compensation to proven defamation. Courts have, over years, done
good work depending on similar or almost similar work
depending on
similar or almost similar precedents or decisions within their
jurisdictions. In
Gray v Poutsma & Others
1914 TPD 2013
Mason J, by then, that awarding
of damages as part of compensation, by way of
solatuim,
to the Plaintiff is and has always been
debatable. The court hearing a matter and all submissions will be
seized with the powers
and discretion to assess reasonable
compensation to accentuate the plaintiff from his injured feelings
(emanating from the defamation).
The time when the wrongful act was
done and the time of the conclusion of the trial also plays a role in
determining a fair consideration
as one of the tools at the courts
disposal, amongst the others like the character of the Plaintiff; the
extent of the publication
in the circulation of the defamation matter
as an important factor that may affect the quantum of damages; the
nature of the imputation
and standing of the Plaintiff in the
community; consideration of the apology made by the Defendants:
whether it was prompt and
received the same prominence as the
offending publication. There is no closed list of considerations
except that each court is
duly bound to weigh and consider all
submissions and evidence presented as I have done in this matter. I
am therefore of the
view that huge amounts cannot serve a good
purpose but a reasonably fair amount can bring closure on this
matter.
80.
In the premise, the following order is made in favour of the
Plaintiff against the Second and Fourth Defendants jointly and
severally,
the one paying the other to be absolved for,
1.
Payment
in the amount of R250 000.00;
2.
Interest
at the rate of 15.5% a
tempore morae:
3.
Cost of
suit.
SIGNED
AND DATED IN PRETORIA:
1
st
December 2016
VRSN
NKOSI
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
PARTIES
REPRESENTATIVES
PLAINTIFF'S
COUNSEL: ADV. C. J WELGEMOED
BRIEFED BY WIEKUS DU
TOIT ATTORNEYS
DEFENDANT'S
COUNSEL: ADV. C.C
BESTER
BRIEFTED BY JURGENS
BEKKER ATTORNEYS