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[2016] ZAGPPHC 1018
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Hechter v Benade (20595/2016) [2016] ZAGPPHC 1018 (5 December 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 20595/2016
5/12/2016
Not
reportable
Not
of interest to other judges
Revised.
In the
matter between:
PAUL
HECHTER
PLAINTIFF
And
M
BENADE
DEFENDANT
JUDGMENT
KHUMALO
J
INTRODUCTION
[1]
This is an undefended action for damages. The Plaintiff is claiming
an amount of Rl.3 Million from the Defendant. His cause
of action is
that the Defendant has defamed him. The amount is for damages for the
impairment of his dignity and reputation, for
which he has claimed
R650 00.00 for each class of damages.
BRIEF
BACKGROUND
FACTS
[2]
The Plaintiff and Defendant are both residents and neighbours in the
Midstream estate in Centurion. A spat ensued between the
two of them
after the Plaintiff lodged several complaints with the Body Corporate
against his neighbours, the Defendant and her
husband, for keeping
chickens in their property that were making a noise and for later
substituting the chickens with nearly 50
to 60 rabbits whose smell
the plaintiff also complained about. The Plaintiff alleges to have on
several occasions taken photos
of the chickens and the rabbits to
highlight the conditions under which they were being kept.
[3]
A short version of his cause of action as outlined in the particulars
of claim is that: After the spat, in retaliation the Defendant
published a statement on facebook starting a smear campaign against
him, accusing him of being a peeping tom. The Defendant took
a photo
of him and posted it on facebook calling him a perverse neighbour, an
idiot and an ugly piece of shit." The facebook
message was
accessed by friends of the Defendant and third parties to whom he
refers as a hundred other people. His name and residence
were
mentioned. He alleges that the publication of the statement on
facebook was wrongful and defamatory and was made with the
intention
to defame, injure his reputation and his dignity. It is per se
defamatory of him and was understood to that extent by
the persons to
whom it had been published, and had been meant so to be by the
Defendant. As a result of the defamation and insult
to his dignity,
his dignity has been impaired, his reputation has been damaged and he
has suffered damages as claimed. He therefore
claims payment of the
amount of Rl.3 million rand as compensation.
[4]
The Plaintiff has made an affidavit to indicate how his good name was
affected in the estate where he resides and to his business
and
friends. Indicating that the residents in the estate were warned to
be careful when they send their children to the resident
pool as the
Plaintiff will be watching them, implying that he was a paedophile.
The post elicited messages from other facebook
users like "shoot
the bastard in the face with a pelletgun, the ugly two faced jurk".
Others said as a pervert he should
be reported to the police. He was
called a "flippen gemors" (scum), "a sick bleksem",
"a monster",
"a disgusting piece of shit".
[5]
Plaintiff complains that this affected his business and his
reputation as a businessman and as a well-known resident of the
estate. Affected was also his good name and standing in the
community. The business he runs with his brother and fiancee in the
estate lost clients. The situation became so worse that he also began
to receive death threats from a facebook friend of the Defendant
threatening that him and his biker friends will sort the Plaintiff
out for being a child molester and a paedophile. He was therefore
fearing for his own safety and that of his fiance. He had to move to
another residence in the estate and also obtain an order from
the
court interdicting the Defendant, ordering her to retract her
statement and remove his picture from the facebook. The Defendant
only did that on her private facebook account. The Defendant also
changed residence and moved right next to him. She remains a
neighbour.
[6]
In filing his affidavit for damages he now also referred to other
damages he has not claimed in his particulars of claim. He
mentions
expenses for relocation he paid in the amount of R18 500 instead of
R16 000, the deposit he paid on his previous residence,
and the R20
000 he paid on the new residence. An amount of R40 000 and R70 000
for his billable hours and the legal expenses for
the time he spent
with his lawyers. He says he borrowed the money for his relocation
from his brother.
[7]
Furthermore he was shocked and traumatised by the mala fide and
unlawful conduct of the Defendant and finding it difficult to
regain
confidence in other people, to sleep and feeling depressed all the
time. His constitutional right to privacy and dignity
were infringed.
He says he feels violated and severely infringed.
[8]
It is in this affidavit where he explains at length what he had gone
through as a result of the facebook defamation. He had
to endure the
suspicious looks from other residences, losing clientele in his
business within the estate, losing money and also
subjected to
threats of harm to his person by the Defendants' allies. How he was
perceived by other residents and the community
at large. Which was
reflected from the responses on facebook. He therefore dealt
extensively with factual allegations to show how
injury to his person
and his reputation was orchestrated by the Defendant.
[9]
Plaintiff then dealt in the affidavit with the financial loss
elaborating on how he lost the money and the amounts as a result
of
Defendant's actions. However in his particulars of claim there is no
claim for financial loss as he now claims in his affidavit.
Regrettably financial loss is not part of his cause of action.
[10]
On the other hand he has conformed to the requirements of defamation
by establishing the two basic elements he is required
to prove,
namely: that viewed fairly by a reasonable man, the published
statement:
(a)
refers to
him; and
(b)
is
defamatory of him and caused injury to his personality as well).
Defamation
being generally defined as 'the unlawful, intentional, publication of
defamatory matter (by words or conduct) referring
to the Plaintiff,
which causes his reputation to be impaired" in Burchell and
Hunt'
The Law of Defamation in South Africa
at 35.
[11]
A defamatory statement is said to be one which lowers the person to
whom it refers in the estimation of ordinary, right thinking
persons,
generally. Whether if construed in their secondary or primary
meaning, the words or statement complained of are reasonably
capable
of conveying to a reasonable reader a meaning defamatory of the
Plaintiff (eg, insulting, offensive, derogatory, libellous
or
contemptuous).
[12]
The Plaintiff was without a doubt injured to his dignity and his
reputation, which is gathered from the kind of response the
facebook
statement instigated, which was insults and threats. It also placed
the Plaintiff's life in danger and doubt to his self-worth.
[13]
The approach to be followed in the determination of what is fair and
adequate compensation for the injured party for the
sequelae
for
his or her injuries has been explained by Bosielo AJA in
Minister
of Safety and Security v Tyulu
2009 (5) SA 85
(SCA) at
paragraph 26, as follows:
"the primary purpose is not to enrich the aggrieved
party but to offer him or her some much needed
solatium
for
his or her injured feelings"
Whilst
Nugent JA in
Minister of Safety and Security v Seymour
2006
(6) SA 320
(SCA) at paragraph [17] had stated that:
"the assessment of awards of general damages with
reference to awards made in previous cases is fraught with
difficulty. The
facts of the case need to be looked at as a whole and
few cases are directly comparable. They are a useful guide to what
other
courts have considered to be appropriate but they have no
higher value than that"
[14] At
the end of the day due regard of what is fair and adequate is in the
discretion of the court; see J Neethling, JM Potgieter
& PJ
Visser
Neethling's Law of Personality
2ed. I have compared the
awards made in the authorities where similar facts are applicable
against the factors normally to be taken
into consideration in
determining the amount, that is, sex, designation and social standing
of the Plaintiff. Also, the falsity
of the statement, improperness of
the motive, the effect it had to Plaintiff personally and publicly as
seriously impacting on
the ultimate award to be made.
[15] I
have noted that the Plaintiff has split the acts of defamation asking
for a specific amount for each, for impairment of dignity
and
reputation. The court recognises the closeness of the injury to
Plaintiff's personality and reputation as defamation violates
a
person's dignity, (more correctly put, that persons
fama
or
reputation; see Amler Precedents of Pleadings, 8th Edition by Harms)
They are in essence incidences of each other and the external
effect
of each on the Plaintiff virtually indistinguishable. I have also
taken that factor into consideration in determining what
is fair and
a reasonable.
[16]
Under the circumstances, I make the following order
[16.l] The Plaintiff's claim is upheld. The Defendant is
ordered to pay the Plaintiff an amount of R350 000.00 damages for
defamation
of his dignity and reputation.
[16.2] Interest at the rate of 9% per annum payable 14
days from date of judgment to date of payment
[16.3] Costs of suit.
____________________
N
V KHUMALO J
JUDGE
OF TIIE HIGH COURT
GAUTENG
DIVISION
PRETORIA
On
behalf of the Plaintiff:
W J BURGER
Instructed
by:
D P DU PLESSIS INC
Ref: P
Du Plessis