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[2012] ZAGPPHC 154
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Pestana v Du Toit (A554/2011) [2012] ZAGPPHC 154 (8 August 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA /ES
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: A554/2011
DATE:08/08/2012
IN
THE MATTER BETWEEN:
YVONNE
PESTANA
......................................................................................
APPELLANT
AND
RUDOLPH
JOHAN DU
TOIT
..........................................................................
RESPONDENT
JUDGMENT
PRINSLOO.
J
[1]
This is an appeal against the judgment handed down by the learned
magistrate for the district of Wonderboom in the Pretoria
North
magistrate's court on 26 August 2010.
[2]
In the court below, the respondent sued the appellant for damages
flowing from an incident which took place on 25 October 2009
when the
appellant allegedly defamed the respondent. The amount claimed by the
respondent was R100 000,00.
[3]
In her concise judgment, the learned magistrate held that the
appellant did defame the respondent, and awarded damages in the
amount of R7 000,00.
[4]
The appellant launched this appeal against both the merits of the
finding of defamation and the quantum of the award.
The
respondent launched a cross-appeal against the quantum, on the basis
that the award was inadequate.
[5]
Before the commencement of the proceedings before us, the
cross-appeal was abandoned and the appellant also abandoned her
attack
on the quantum of the award. What was left before us, was to
decide whether or not defamation had taken place.
[6]
At the commencement of the proceedings, we also had to decide and
pronounce upon two condonation applications: the appellant
launched a
substantive application for condonation for the failure to comply
with the requirements of Transvaal Rule 6 in that
there was a late
application for a date of hearing. The respondent applied for
condonation for the late filing of his heads of
argument. Neither
application was opposed. We granted both the applications for
condonation and ruled that the costs flowing from
those applications
would be costs in the appeal.
The
pleadings
[7]
It is convenient to quote the contents of the particulars of claim
for illustrative purposes:
"1.
Op 25 Oktober (no year was mentioned but it was 2009) en te die
Strydfontein restaurant, President Steynstraat, Pretoria
Noord het
die Verweerderes luidrugtig en in ?n aggressiewe stemtoon die Eiser,
wat in die gemelde restaurant saam met mnr Oelofse,
fn sakekennis van
horn was, aangese om die restaurant te verlaat.
2.
Op die Eiser se vraag na die rede waarom hy die perseel moet verlaat,
het die Verweerderes horn luid toegevoeg: f... want die
polisie
soekjou'.
3.
Die gebeure wat in paragrawe 1 en 2 uiteengesit is, het in
teenwoordigheid en ten aanhore van personeel van die Verweerderes,
waaronder me Naomi Kruger, en ander gaste in die restaurant, wie se
name nie aan die Eiser bekend is nie, plaasgevind.
4.
Die Verweerderes se opdrag aan die Eiser om die restaurant te verlaat
en die stelling dat die polisie horn soek, is wederregtelik
en
lasterlik.
5.
Die bovermelde gedrag van die Verweerderes en die woorde wat sy die
Eiser toegevoeg het, het opsetlik geskied en dui daarop dat
die Eiser
die een of ander misdaad of misdade gepleeg het wat so ernstig van
aard is dat die polisie horn soek en sy teenwoordigheid
in die
Strydfontein restaurant derhalwe nie geduld kan word nie.
6.
Die Eiser het skade gely deurdat sy aansien, goeie naam, waardigheid
en reputasie deur die optrede van die Verweerderes geskend
is.
7.
Die skade en/of nadeel wat die Eiser gely het as gevolg van die
lasterlike bewerings wat deur die Verweerderes aangaande horn
geuiter
is, beloop R100 000,00.
8.
Die Verweerderes weier en/of versuim, ten spyte van 'n aanmaning om
die Eiser vir sy skade of nadeel te vergoed."
There
was a prayer for judgment in the amount of R100 000,00, costs and
interest a tempore morae at 15,5% per annum.
[8]
In her plea, the appellant admitted that she asked the respondent to
leave the restaurant but denied that she did so in an aggressive
manner or in a loud voice.
She
admitted having uttered the words "want die polisie soek jou"
and then offers
the
following in paragraph 2.2 of her plea:
"Die
verweerderes ontken egter dat sy enige opset gehad het om die eiser
te belaster. Die verweerderes sal aanvoer dat sy slegs
die rede
verskaf het soos deur eiser versoek was."
The
appellant, in her plea, also admitted that the words she uttered were
heard by her employee, Naomi Kruger. She pleaded that
it was Naomi
Kruger ("Naomi") who told her that the respondent had
supplied her brother (the brother of Naomi) with drugs.
[9]
In her plea, the appellant also denied that her conduct was unlawful
and defamatory. Moreover, she denied that she had the intention
to
defame the respondent and, at the commencement of the proceedings
before us, applied to amend paragraph 5 of her plea (containing
the
denial of intent to defame) by adding the following: "verweerderes
ontken voorts dat haar optrede onregmatig was".
This application
for an amendment was not opposed, and granted. In my view the
amendment was superfluous and unnecessary, because
in paragraph 4 of
the plea the allegation of unlawfulness was expressly denied. That
allegation was made, as will appear from the
quote, in paragraph 4 of
the particulars of claim.
The
appellant also denied that her conduct adversely affected the good
name, dignity and reputation of the respondent, she denied
that the
respondent had suffered damages, and placed the quantum of the claim
in issue. Demand for payment was admitted but any
liability to make
payment was denied.
[10]
In the evidence, reference was made to what appears to be requests
for particulars for trial and answers thereto, but these
pleadings
were not placed before us as part of the record. Nothing turns on
this.
Brief
synopsis
[11]
In my view, what follows is a fair summary of the weight of the
evidence and the important features thereof.
[12]
The appellant is a 49 year old widow who owns the Strydfontein
restaurant and a small superette adjoining the restaurant. She
grew
up in Pretoria North. She spends most of her time in the superette,
and allows some of her employees, including Naomi, to
run the bar and
restaurant. Naomi has been with her for some time and she considers
Naomi to be a reliable and trustworthy employee.
[13]
The respondent is a businessman operating in the Pretoria North area.
His main business consists of the letting of storage
facilities. In
addition, he manages a guest house and his brother is his partner in
both businesses. Finally, he is a philatelist,
and markets his stamps
commercially, in the sense that he buys stamps and sells them at a
profit.
[14]
The respondent visited the appellant's restaurant from time to time.
In the process, he got to know Naomi. Naomi also referred
to him as
"Rudi".
[15]
There was an incident when the respondent was telephoned by Naomi's
youngest brother, Juan, from a shopping mall to say that
he was not
feeling well. This emerges from the respondent's evidence in chief.
The respondent advised him to walk to a nearby hospital
where the
respondent joined him and also paid the account for his admission and
treatment. It is common cause that the medical
advice was that Juan
had taken an overdose of drugs. The respondent also knows Naomi's
family because he testified that he had
the telephone number of the
parents on his cell phone.
[16]
In the period leading up to the events of 25 October, the respondent,
according to Naomi, conducted himself badly on a number
of occasions
when visiting the restaurant. The appellant did not witness these
incidents. In her evidence, Naomi described these
incidents as
follows: on one occasion the respondent, accompanied by three
friends, ordered four Black Label beers. The beers were
opened and
presented to the respondent and his guests. When Naomi asked for
payment, the respondent said that they were not going
to pay for the
beers which had not been consumed at that stage. The respondent also
told Naomi that the beers could not be re-sold
because he had spat
therein. The beers had to be disposed of. On another occasion, the
respondent placed a chair on top of a table
and stood or sat on the
chair, claiming that he wanted to be the king or queen of the
gathering. There was some uncertainty in
the evidence as to whether
or not the respondent had expressed this wish himself, or whether
Naomi was told by the respondent's
friend, Oelofse, who also
testified, that the respondent wanted to be the king or the queen of
the gathering. Naomi had to ask
the respondent to get off the table.
The respondent also made a nuisance of himself by improperly
approaching some of the male
guests and kissing them in the neck. The
guests were upset and some of them left.
When
the respondent was reprimanded by Naomi, he insisted on seeing the
owner, which is the appellant. The appellant had left by
then.
[17]
It is common cause that before the incident of 25 October, the
appellant did not know the respondent. The respondent only knew
her
from a distance. It was never disputed that the respondent knew that
the appellant was the owner of the restaurant and the
supermarket.
The reason why the appellant did not know the respondent, was because
she worked in the superette and not in the restaurant
and the bar.
[18]
As to the overdose of drugs taken by Juan, Naomi testified that her
parents reported to her that it was the respondent who
had supplied
the drugs to Juan, which led to him taking the overdose. This is why
he paid the hospital account. Naomi also testified
that Juan had laid
a charge against the respondent with regard to the supply of drugs
with the Pretoria North police. The information
that Naomi had was
that the police were busy investigating the case and she testified
that she told the appellant that the police
were looking for the
respondent.
[19]
It is not in dispute that Naomi reported to the appellant, as her
employer, about all the incidents of misbehaviour on the
part of the
respondent in the bar and restaurant and also, about the alleged
supply of drugs by the respondent to Juan and the
subsequent overdose
and hospital treatment.
[20]
When the respondent was confronted in cross-examination with his
alleged improper behaviour in the restaurant, he simply denied
having
behaved as alleged. He offered no more than a bare and, in my view,
feeble, denial. He testified that he had never had any
difficulties
with Naomi and the only reason he could offer for her fabricating
such evidence, was that she may have been protecting
her employer. I
consider this evidence to be unconvincing. The learned magistrate did
not analyse the evidence. In my view it is
improbable that Naomi
would have fabricated evidence about such conduct, in such detail,
describing some rather unusual behaviour,
if the incidents did not
take place. On the probabilities, I am persuaded that the evidence of
Naomi in these respects ought to
prevail.
The
appellant, in her testimony, also confirmed that Naomi reported these
details to her before the incident took place. At that
stage, there
was no question of Naomi having to "protect her employer".
This corroborates the evidence of Naomi.
[21]
As to the issue of the alleged drug supply by the respondent to Juan,
the respondent, in cross-examination, confirmed that
he went to the
hospital and paid the account, but said that he simply did so as a
gesture of goodwill. I find this inherently improbable.
What is
clear, is that the respondent was well acquainted with Juan, his
parents and the rest of the siblings, including Naomi.
[22]
Importantly, when the respondent was cross-examined about this
alleged drug issue, there was an objection on the ground that
the
evidence put to the respondent was based on hearsay. The learned
magistrate asked the cross-examiner whether Juan would be
called as a
witness which the cross-examiner confirmed. Later, and after the
appellant and Naomi had testified, the attorney of
the appellant
asked for a postponement in order to present the testimony of Juan.
The appellant (as defendant) tendered to pay
the wasted costs flowing
from such a postponement. It was the first time that the matter was
on trial so that it would have been
a first postponement. The
application for postponement was opposed, on the ground that Juan
should have been subpoenaed timeously.
The appellant's attorney
explained that Juan had recently taken a new job so that it was not
anticipated that he would not be able
to attend. The learned
magistrate refused the postponement and the appellant had to close
her case. I consider this decision of
the learned magistrate to have
been unreasonable, and not in the interests of justice. While it can
be argued that Juan's evidence
that the respondent supplied him with
the drugs (this much was conveyed to the court by the appellant's
attorney with regard to
what his evidence would be) would not have
been directly relevant to the pure issues flowing from the defamation
action, it is
fair to assume that Juan's evidence may well have
seriously impacted on the credibility of the respondent.
[23]
Turning to the incident of 25 October, both Naomi and the appellant
testified that Naomi reported to the appellant that the
respondent
and his friend Oelofse had arrived at the restaurant. It is clear
from the general tenure of Naomi's evidence, that
she wanted the
appellant to take steps against the respondent. The appellant also
testified that Naomi reported to her that the
respondent was there
and that he was not welcome because of previous incidents that had
happened.
[24]
Naomi then related the events as follows:
"Toe
hy nou gevra was om die perseel te verlaat? --- Toe ek vir Yvonne
gaan roep het?
Ja.
— Rudi en die outjie wat nou nou net hierso was.
Mnr
Oelofse? — Ja. Hulle het in die bar ingestap, ek het nie met
hulle
gepraat
om te hoor wat hulle wil drink of iets nie. Ek het direk na Yvonne
toe
gestap. Sy was besig by die lotto gewees. Toe se ek vir Yvonne, 'Die
ou
wat moeilikheid maak is by die bar. Hulle is hierso by die bar.'
Net
so bietjie? — Toe se Yvonne ja sy is nou daar. Toe loop ek en
sy
saam
na Rudi daar. Toe staan Rudi en die ou by die bar.
Watter
ou, Oelofse? Oelofse getuig dat hy was daardie stadium in die toilet
gewees? — Nee hulle altwee was daar by die bar
gewees. Hulle
altwee was by die bar gewees. Rudi het aan die regter kant gestaan en
hy het aan die linker kant gestaan by die bar.
In die hoek. Ek het
daar gestaan en toe se Yvonne vir horn asseblief gaan uit. Twee keer.
Toe wou hy nou die rede he hoekom Yvonne
vir horn se hy moet gaan.
Toe se sy, 'die polisie soekjou'. Toe loop hy. Toe loop Yvonne terug
lotto toe."
[25]
Naomi denied that the appellant spoke to the respondent in a loud or
aggressive tone.
"Yvonne
ken horn nie eers nie. Dit is die eerste keer wat sy horn gesien het.
Ek het vir haar gewys hoor hier dit is die ou.
Hoekom
se jy, hoekom het sy vir horn gese die polisie soek horn? — Oor
my boetie wat 'n saak teen horn het. ...
Vertel
vir die hof wat jy gese het vir haar? — Ek het na Yvonne toe
gestap
en
toe se ek vir haar, 'Yvonne die ou wat hier is, Rudi, my boetie het
'n
O.D.
gekry oor horn'.
Wat
is 'n O.D? — O.D. is 'n overdose.
Op
wat? — My pa het gese moon flower.
Drugs?
— Drugs ja drugs. Hy het 'n O.D. gekry daar, my ma het my gebel
engehuil ..."
[26]
Naomi also testified
"So
jy het vir Yvonne gese hy het jou broer ?n O.D. gegee en die polisie
soek horn? — Ja hulle is besig met horn."
[27]
In essence, this evidence was corroborated by the appellant. The
evidence of the appellant goes like this:
"Naomi
came to call me, to tell me that Mr ...
Du
Toit? — was not welcome because of previous incidents that
happened. So I came to the bar and I said to him, sir will you
please
leave. I have repeated myself twice, sir will you please leave. Then
he said he wants a reason. So I said because the cops
are looking for
you. He still flashed Rl 00,00 and he said he wants to buy something.
I said no I don't want your money. Go buy
somewhere else. I don't
want you here. ..."
[28]
On the question of whether the appellant intended to defame the
respondent (the question of animus iniuriandi) her testimony
goes as
follows:
"Now
when you uttered those words, the cops are looking for you, what was
your intention by using those words? — I just
said that, you
are not welcome. Not only, I don't want you in here. The cops are
looking for you but I have no other intention.
I mean he is a
customer.
You
have heard the evidence this morning that he said that it was your
intention to defame him? — Not at all. Why? What would
I gain
out of that?
And
you damaged his reputation and his dignity? — None at all. I
tried to protect my restaurant.
Was
it ever your intention to do him some harm? — No I don't know
Mr Du Toit and I am always in the supermarket side and I
don't know
him personally. So why would I want to do anything against him
personally. It is common cause that he asked you a reason
and you
gave him the reason? — The reason, because the cops are looking
for you because I mean he drugged Naomi's brother.
Obviously the cops
are looking for him."
The
appellant said she spoke in both languages but thought the "polisie
soek jou" was in Afrikaans instead of "the
cops are looking
for you". In my view nothing turns on this for present purposes.
[29]
The appellant testified repeatedly that she wanted to protect her
restaurant. It is a family restaurant visited by children
in the
company of their parents where liquor is served during the meal. The
police warned her that restaurants are places where
drugs are
peddled. She wanted to protect her family restaurant.
[30]
In my view, she stuck to her guns in the face of intensive
cross-examination. It was argued on behalf of the respondent that
at
one point the appellant admitted that she defamed the respondent. I
do not agree with this interpretation of her evidence. It
appears on
p67 of the record. She insisted that she did not intend to personally
harm the respondent but she wanted to protect
her other customers. In
any event, she would not have appreciated the legal implications and
technicalities of the rather vexed
subject of defamation. On her
evidence as a whole, she persisted with her version that she did not
have the intention to harm or
defame the respondent: she was
requested by her trusted employee of many years, in the face of a
series of complaints about the
respondent's conduct, to ask him to
leave. She did not know him before that. She did what she considered
to be her duty as the
owner. Her admission in cross-examination that
a request for someone to leave because the police was looking for
him, would amount
to a suggestion that the person had committed a
crime otherwise the police would not be looking for him, should be
seen against
the background of the circumstances as I have attempted
to describe them.
[31]
It is clear that at least Naomi and Oelofse heard the appellant
uttering the words "die polisie soek jou". The required
publication has therefore been established.
[32]
I am not persuaded, on the evidence, that the appellant acted in a
loud or aggressive manner. Her evidence in this regard is
corroborated by Naomi. Oelofse, who said that he was approaching the
scene when he heard this particular utterance, said nothing
about
aggression or a loud voice. He did, however, say that the impression
on the appellant's face indicated to him that "daar
is
probleme". He said "Al wat ek gehoor het is 'die polisie
soek jou'."
[33]
It is common cause that the respondent and Oelofse then left the
restaurant. A few more remarks about the evidence.
[34]
It appears from the respondent's evidence that he made use of
extensive notes "Dit is my papiere om my getuienis te help
waar
my geheue my sou in die steek laat." In cross-examination he was
asked to refrain from doing so. He admitted that he
read from these
notes extensively when giving evidence in chief "Maar ek sien u
het die heeltyd daar afgelees nie waar nie?
— Dit is korrek."
It is clear that, in his evidence in chief, he made use of these
notes to express his feelings and
the alleged impairment of his
dignity as a result of the alleged defamatory utterances of the
appellant. He made allegations about
his constitutional rights which
had been infringed. All this appears to have been prepared notes
which he extensively used during
his evidence in chief.
[35]
What is significant, in my view, is that it clearly appears from the
evidence of the respondent in cross-examination that he
felt insulted
because he was asked to leave the restaurant rather than because of
the alleged defamatory words.
"As
ek u getuienis reg verstaan meneer dan gaan dit eintlik vir u hierso
oordat u voel gekrenk en u voel nou seergemaak oor
die feit dat sy
vir u gese het dat sy vir u se jy moet haar perseel verlaat? —
Absoluut edelagbare. En dit is eintlik die
rede hoekom ons vandag
hier in die hof staan. Is omdat sy vir jou gese het verlaat, jy voel
dit is jou grondwet is daardeur, grondwetlike
regte is daardeur
geskaad? — Absoluut edelagbare. U voel sy was onbillik teenoor
u gewees. Dit is wat u netnou vir ons gese
het hierso, om vir u te se
u moet die perseel verlaat? — Dit is hoe ek voel ja edelagbare.
U
voel deur vir u te se verlaat die perseel het sy u disrespekvol
hanteer? — Die manier hoe sy dit gese het edelagbare was
disrespekvol. U se ook sy tree partydig op om vir u te se u moet die
perseel verlaat? — Absoluut edelagbare.
En
u se ook om vir u te se verlaat die perseel is u vryheid u ontneem? —
My vryheid van beweging."
In
re-examination, an attempt was made to rectify this state of affairs
but it was not convincing. It seems to me that the main
thrust of the
evidence of the respondent was not aimed at the alleged defamatory
words, as pleaded, but at the fact that he was
asked to leave the
premises for, allegedly, unfounded reasons.
[36]
It emerged from the cross-examination of the respondent that he could
not demonstrate any tangible consequences, adverse to
him, flowing
from the alleged defamatory statement: his businesses were not
affected, his good friends remained good friends and
he could only
assume that some of those present in the bar who may have heard the
utterances of the appellant may have held negative
views of him as a
result thereof. It is true that Oelofse said that a proposed business
deal between him and the respondent was
discontinued by Oelofse when
he heard from the appellant that the police were looking for the
respondent. This involved the proposed
purchase of a foreign
registered truck stored by the respondent with the view to using the
truck for transport services, with Oelofse
being the driver. Oelofse
said that when he heard about the police possibly looking for the
respondent he felt there may have been
irregularities with the
registration of the truck. There is no clear evidence of any tangible
prejudice flowing from this alleged
cancellation of the deal for the
respondent. Moreover, Oelofse and the respondent had been friends for
many years and, when they
testified, they were still good friends. It
is doubtful whether the evidence of Oelofse can be seen as objective
under these circumstances.
[37]
The learned magistrate did not deal with any of these aspects neither
did she analyse the evidence in any detail.
Brief
remarks about the legal position
[38]
I consider it convenient to briefly refer to a few remarks by the
author Kinghorm on Defamation in LAWS A vol 7, 2nd ed, paragraphs
232
and further.
In
paragraph 234, the following definition of defamation is offered:
"The
delict of defamation is the unlawful publication, animo iniuriandi,
of a defamatory statement concerning the plaintiff.
A statement is
defamatory if it has the effect of injuring a plaintiffs reputation.
A plaintiffs reputation is injured if the statement
tends to lower
the plaintiff in the estimation of right thinking members of society.
The elements of the delict can therefore be
summarised as the
unlawful or wrongful publication, animo iniuriandi, of a defamatory
statement concerning the plaintiff. ... Once
a plaintiff establishes
that a defendant has published a defamatory statement concerning him
or herself, it is presumed that the
publication was both unlawful and
intentional. A defendant wishing to avoid liability for defamation
must then raise a defence
which rebuts either unlawfulness or
intention."
[39]
The first issue for decision is whether the respondent had
established and proved that the words "die polisie soek jou"
were defamatory in these circumstances.
It
is doubtful whether the words lowered the plaintiff in the estimation
of Naomi and Oelofse. Naomi already had a bad impression
of the
plaintiff (the respondent) and this utterance was made at Naomi's
instance so that it could not have any effect of lowering
the
plaintiff in her estimation. Indeed, she herself told the appellant
that the police were looking for the respondent. As far
as Oelofse is
concerned, he had been a good friend of the respondent for many years
before this incident and remained so up to
the time when he
testified. It is doubtful, on the probabilities, whether these words
would have lowered the plaintiff in his estimation,
although he made
some attempts to suggest that this was the case when he testified.
There is no clear evidence that any other people
present heard the
utterances or that they caused the plaintiff to be lowered in their
estimation. One JP, to whom the respondent
said he was speaking
before the appellant spoke to him, asked Naomi afterwards what the
appellant had said. This evidence is undisputed.
[40]
I also consider the following words of the authors Neethling,
Potgieter and Visser The Law of Personality on pi49 to be of
relevance for purposes of the present enquiry:
"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." - See the authorities quoted in footnote 89 on pi49.
It
was argued by Mr Brand on behalf of the appellant that the words "die
polisie soek jou" are not per se defamatory.
It can mean, for
example, that the police want to contact the individual for
investigation purposes or to get a statement from
him. As it was put
in Minister of Justice v SA Associated Newspapers Ltd
1979 3 SA 466
(C) at 474, quoted by the learned authors in footnote 89,
"For
the words to be defamatory ... the implication must be one that must
inevitably be drawn and be the only one that can
reasonably be drawn
by the ordinary reasonable reader."
For
these reasons, it appears to me that the words are ambiguous and,
where there is a presumption that the words are innocent until
the
contrary is proved by the plaintiff, it seems to me fair to conclude
that the appellant, in these particular circumstances,
ought to
receive the benefit of the doubt. I am not persuaded that the
plaintiff discharged the onus, on a balance of probabilities
under
these circumstances.
[41]
In addition, Mr Brand offered another argument altogether: he argued
that where the alleged defamatory statement was made at
the
insistence of the respondent himself, where the respondent demanded a
reason for the appellant's decision to ask him to leave
and where the
respondent must have anticipated that such a reason could not have
been flattering or favourable towards him, he
consented to being
prejudiced by the utterance which may follow and, in the
circumstances, it is not open to him to proceed with
this damages
action. It is a case of volenti non fit iniuria. In support of his
argument, Mr Brand relied on the case of Jordaan
v Delarey
1958 1 SA
638
(TPD). The facts in that case may be slightly distinguishable.
The plaintiff insisted that the defendant should repeat the insult
in
front of the police, which he did at her request. He also did so at
the request of the police before the plaintiff, having summoned
the
police, was present. The learned judge found that the defendant only
complied with the plaintiffs request and the alleged injuria
took
place with the assent of the plaintiff and the learned judge granted
absolution from the instance after finding that the maxim
volenti non
fit iniuria applied - at 639A-C.
In
my view, there is much to be said for the argument of Mr Brand on the
basis that the respondent was requested twice to leave
the restaurant
and insisted on an explanation before doing so. I agree with the
argument that the respondent must have anticipated
that the reply or
the reason, when given, would not be flattering and may well be
derogatory or insulting. Moreover, for the reasons
mentioned, there
was no evidence to show, on the probabilities, that any of those
within earshot would have considered these words
to have lowered the
reputation of the respondent in their estimation.
In
the circumstances, I have come to the conclusion that the plaintiff
(respondent) failed to discharge the onus of having to establish
a
defamatory statement.
[42]
On the assumption that I may be wrong in this conclusion, I turn to
the question whether the appellant managed to avoid liability
for
defamation by raising a defence "which rebuts either
unlawfulness or intention" - as per Kinghorm, supra,
atpara234p231.
[43]
As to the question of unlawfulness, Mr Brand referred us to the
judgment of Le Roux v Dey
2011 3 SA 274
(CC) where the following was
said at 315A-D:
"In
the more recent past our courts have come to recognise, however, that
in the context of the law of delict:
(a)
the criterion of unlawfulness ultimately depends on a judicial
determination of whether - assuming all other elements of delictual
liability to be present - it would be reasonable to impose liability
on a defendant for the damages flowing from specific conduct;
and
(b)
that the judicial determination of that reasonableness would in turn
depend on considerations of public and legal policy in
accordance
with constitutional norms."
In
Argus Printing & Publishing Co Ltd v Inkatha Freedom Party
[1992] ZASCA 63
;
1992 3
SA 579
(AD) the following was said at 588H-I:
"As
defences excluding lawfulness, their boundaries are determined by
applying a general criterion of reasonableness... The
criterion of
reasonableness necessarily introduces considerations of public and
legal policy."
In
Le Roux v Dey, supra, at 315D-F, it was also held that the more
recent approach of our courts is that there is no numerus clausus
of
justification grounds when it comes to the question of unlawfulness.
In
the present case, we are dealing with a 49 year old widow, the owner
of a restaurant and superette, approached for guidance and
assistance
by a trusted employee telling her that the "troublemaker"
was not welcome in the restaurant, reporting in
detail about the
conduct of the respondent including the fact that he had allegedly
caused the employee's brother to suffer an
overdose, and, acting on
that request, doing her duty to politely ask the "troublemaker"
to leave the restaurant, as
she was entitled to do. She also said
repeatedly that she wanted to protect her restaurant particularly
from the point of view
of the child patrons. She had been warned by
the police that drugs are pedaled in restaurants.
In
my view, "considerations of public and legal policy", in
this instance, as per Le Roux v Dey, would dictate that the
conduct
of the appellant was not wrongful.
[44]
For this reason, also, the action of the respondent in the court a
quo should have failed.
[45]
Turning briefly to the question of whether or not the appellant had
managed to rebut the presumption of intention {animus)
in order to
escape liability as intended by the legal requirements spelt out by
Kinghorm, supra, I have dealt in some detail with
the evidence of the
appellant in this regard. For practical purposes, this evidence was
undisputed. She did not even know the respondent.
She had no
intention of defaming him or causing him prejudice. She said so
repeatedly, even in cross-examination. She was only
doing her duty by
her employee and protecting her patrons and her restaurant. In my
view she succeeded in discharging the burden
resting upon her in this
regard in order to avoid liability.
Conclusion
[46]
In all the circumstances, and for the reasons mentioned, I am of the
opinion that the plaintiffs (respondent's) action in the
court a quo
should have failed. I am of the view that the learned magistrate
erred in finding that a defamatory statement had been
proved, and, if
I am wrong in that regard, I am of the view that the learned
magistrate misdirected herself by finding that the
actions of the
appellant were unlawful and that she acted animo iniuriandi.
The
order
[47]
I make the following order:
1.
The appeal is upheld with costs.
2.
The order of the learned magistrate a quo is set aside and replaced
with the following: "The action is dismissed with costs."
W
R C PRlNSLOO
JUDGE
OF THE NORTH GAUTENG HIGH COURT
A554-2011
I
agree
JUDGE
OF THFTNORTH GAUTENG HIGH COURT
HEARD
ON: 15/6/2012
FOR
THE APPELLANT: C F J BRAND
INSTRUCTED
BY: ANDRE GROBLER ATTORNEYS
FOR
THE RESPONDENT: A VAN NIEKERK
INSTRUCTED
BY: NIC PRETORIUS ATTORNEYS