Modiri v Minister of Safety and Security and Others (2680/2004) [2009] ZAFSHC 114 (5 November 2009)

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[2009] ZAFSHC 114
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Modiri v Minister of Safety and Security and Others (2680/2004) [2009] ZAFSHC 114 (5 November 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 2680/2004
In
the
matter
between:
MOGALE
WINSTON STANFOR
D
MODIRI
Plaintiff
and
THE
MINISTER OF SAFETY AND SECURITY
1
st
Defendant
SUPERINTENDE
NT
ADAM WIESE
2
nd
Defendant
THEMBA
KHUMALO
3
rd
Defendant
(
in
his capacity as the Editor of
DAILY SUN NEWSPAPER)
MEDIA
24 LIMITED
4
th
Defendant
(in
its capacity as the owner, printer and
Distributor of DAILY SUN
NEWSPAPER)
DEON
DU PLESSIS
5
th
Defendant
(in
his capacity as the publisher of
DAILY SUN NEWSPAPER)
YOLISWA
SOBUWA
6
th
Defendant
_____________________________________________________
HEARD
ON:
3
& 4 MARCH 2009
20,
21 & 23 OCTOBER 2009
_____________________________________________________
JUDGMENT
BY:
HANCKE,
J
DELIVERED
ON:
5
NOVEMBER 2009
_____________________________________________________
[1]
This
is a defamation action in which the plaintiff claims from the
defendants an amount of R4,2 million being:
R600
000,00 in respect of past lost of income
;
R3,6
millio
n
in respect of general damages,
occasioned by the alleged
negative publicity that resulted from an article published in Daily
Sun Newspaper on Wednesday, 3 March
2004.
The
action is based on an article written by the sixth respondent
(Yoliswe Sobuwe) a journalist and published by the fifth defendant

(Daily Sun Newspaper) under the title “The Mangaung Crime
Crackdown” and had as its subject matter, the ongoing efforts of

the police in reducing crime in the Mangaung area.
[2] In the said article
the following was stated:
“
Daily
Sun
readers
in the area are asked to help the police in catching Stanford Modiri,
who is allegedly involved in drug dealing, cash-in-transit
heists and
car theft.
Wieser said: ‘We
will catch him, but it would be great to have some help. The problem
is that he uses other people to do his
dirty work for him.’”
[3] Mr.
Phalatsi, on behalf of the plaintiff, conceded that the plaintiff did
not prove that the second defendant made any defamatory
statements;
therefore he also conceded that the first and second defendants
cannot be held liable for defamation against the plaintiff.
In view
of this concession I do not propose to deal with the
merits
of the plaintiff’s claim against the first and second defendants.
[4] The
defences relied upon by the third to sixth defendants in their
amended plea are as follows:
1. The
said words, in the context of the article, were substantially true
and published in the public interest.
2. The
contents of the article were fair comment.
3. The
publication of the article was reasonable.
4. The
statements complained of were made on a privileged occasion in that:
4.1 The
said defendants, acting as members of the press and concerned
citizens of the Republic of South Africa, were under a duty
to assist
the police in combating crime and in particular were under a duty to
inform members of the public of the plaintiff’s
alleged involvement
in the
crimes
mentioned in the article.
4.2 The
readers of Daily Sun enjoyed a corresponding right to be informed of
such information,
inter
alia
,
in terms of section 16(1)(a) and (b) of the Constitution and to
receive any appeal for assistance and explanatory information.
5. The article concerned
a matter of public interest.
[5] I can just mention
that no criticism was levelled against the witnesses called by the
first and second defendants. In contrast
the plaintiff’s evidence
was unconvincing in several respects, he contradicted himself and he
did not impress me as a witness.
It is therefore not necessary to
analyse their evidence in detail. The credibility of the witnesses
in this case does not play
an important role, save with regard to the
quantum of damages, if applicable.
[
6] Where
in defamation proceedings, the publication of a defamatory statement
is proved, as in the present case, two presumptions
arise, namely
that the publication was unlawful and that the defendant acted
animo
iniuriandi
.
The onus is then upon the defendant to establish either some lawful
justification as excuse, or the absence of
animus
iniuriandi
.
1
The question is whether the evidence led during the course of the
trial establishes a basis for one of the said defences to rebut
the
unlawfulness of the publication or reason to accept the absence of
animus
iniuriandi
.
[7] The
press can be held liable for non-intentional but negligent mistakes.
Neethling
et
aliae
,
Law
of Delict
,
5
th
ed (2006) summarise the legal position in this regard as follows on
p. 317:
“Although
animus
iniuriandi
is traditionally required for defamation, negligence has in the
course of time been accepted as the fault requirement for certain

forms of defamation.”
The
authors then refer to cases dealing with the liability of the press
and mass media as examples where liability has been based
on
negligence.
2
[
8] As
far as the defence of truth and public interest is concerned, it is
not required of the press to establish literal truth,
but merely that
it is substantially true or that the gist of the charge was true.
3
It is also permissible to make “mistakes here and there” as long
as it makes no substantial difference to the quality of the
libel or
in the justification pleaded for it.
4
It is therefore important to decide whether the report was
substantially correct in view of the fact that, according to the
evidence
of the second defendant he never asked the assistance of the
community to “catch” the plaintiff.
5
[
9] I
agree with Mr. Bester, counsel for the third to sixth defendants,
that it was not necessary for them to demonstrate the guilt
of the
plaintiff in respect of any of the crimes mentioned in the article as
would be the case during criminal proceedings, but
rather to show
that the plaintiff is alleged to be involved in serious criminal
activities and that he used others as instruments
in the commission
of crimes.
[
10] It
is important to note that the article does not make a definitive
statement of fact holding that the plaintiff was involved
in these
crimes but merely stated that he was
allegedly
involved in drug-dealing, cash-in-transit heists and car theft.
[11] As
far as the plaintiff’s alleged involvement in criminal activities
is concerned, it is necessary to have regard to the
evidence led
during the trial. Senior Superintendent Gerber testified that he
knew about the plaintiff’s alleged involvement
in criminal
activities since 1991 at which time he was stationed at the vehicle
theft unit. The plaintiff was a well-known figure
in criminal
circles, that his history spoke for itself. Gerber had information at
his disposal at a time showing the plaintiff’s
alleged involvement
in criminal activities. The plaintiff had several criminal charges
pending against him at the time dating
back a number of years and he
was the kingpin of his criminal organisation.
[12] Gerber
prepared a report in motivation of the registration of project
Bulindlela under the auspices of the Organised Crime
Intelligence
Unit Bloemfontein. According to this report plaintiff was involved
in numerous instances of vehicle theft, fraud,
money laundering and
other activities including corruption. Gerber testified that prior
to the arrest of the plaintiff (that culminated
in the bringing of a
number of charges against the plaintiff relating to armed robbery and
violations of the
Prevention of Organised Crime Act, 121 of 1998
) and
others suspected of involvement in his organisation during September
2005, approximately 130 vehicles were stolen on a monthly
basis.
Subsequent to the arrest, the number of vehicle thefts in and around
Bloemfontein decreased to about 60 instances of theft
per month.
Gerber also testified that some of the charges that were pending
against individuals that worked with the plaintiff,
pertain to
racketeering and could be linked to the plaintiff. According to his
evidence these individuals did not act in isolation
but under the
guidance and supervision of the plaintiff and with his approval. He
confirmed that conventional policing methods
in securing the arrest
of the plaintiff and his associates had been unsuccessful and had
appeared to be futile.
[13] According
to the testimony of Superintendent Mayiki, from the Office of the
Provincial Police Commissioner at the time of the
publication of the
article, the plaintiff had been suspected of being involved in
criminal activities at the time of the publication
of the article,
that his name had come up from time to time during crime intelligence
meetings, that he had attended and that he
has no reason to doubt the
accuracy and correctness of the statements made in Wiese’s letter
addressed to Superintendent Boning
dated 18 February 2002 in which it
was noted that the plaintiff is well-known in criminal circles and
that he is involved in armed
robbery, motor theft and drugs.
[14] It
appears from the evidence of the second defendant, Superintendent
Wiese, that the plaintiff was well-known in criminal circles,
that
the police had unconfirmed reports that the plaintiff was involved in
various crimes and that he was suspected of being involved
in armed
robbery, theft of motor vehicles and drugs due to information which
had come to his attention during the course of his
time as station
commissioner of the Kagisanong Police Station.
[15] Although
no evidence was adduced by or on behalf of the third to sixth
defendants the evidence led during the course of the
trial
established that the plaintiff was allegedly involved in the crimes
or similar crimes referred to in the article. Apart
from the fact
that the plaintiff has three previous convictions (one for assault in
1983 and two for theft in 1986, the evidence
also demonstrated that
the plaintiff was suspected by the police of being involved in crimes
not mentioned in the article such
as corruption and racketeering.
The information about the plaintiff’s alleged criminal activities
was obtained from three sources
in the police that operated within
the police’s formal structures over a number of years but
completely independent from one
another and out of different offices:
Wiese (Station Commissioner of Kagisanong Police Station), Gerber
(Captain in the Organised
Crime Investigation Unit) and Mayiki
(Communication Officer). Also important is the evidence of Wiese to
the effect that Bahumi
of the National Intelligence Agency had made
it plain that the plaintiff was involved in criminal activities.
[16] The
net result of project Bulindlela was that the plaintiff was
ultimately arrested during September 2005 and charged on five
counts
of motor vehicle theft and one charge of racketeering in terms of
POCA. There is no reason to doubt that the suspicion
of the police
was genuine and not feigned.
[1
7] It
appears from the aforegoing that sufficient factual grounds exist for
concluding that the plaintiff was allegedly involved
in the crimes
referred to in the article and that his associates often perpetrated
crimes on his behalf.
[18] There
is no doubt that considerable
public
interest
in the police apprehending persons suspected of criminal activities
exists.
6
More so where the police have made little headway in convicting
persons suspected of criminal activities as the arrest of such

persons will further the safety and security of society at large.
The public interest is furthered in the publication of material
that
might render assistance to the police in apprehending persons
suspected of criminal activities. It is in the public interest
that
Daily Sun inform its readers of persons that the police suspect of
being involved in drug-dealing, cash-in-transit heists
and car thefts
and in respect of which the police certainly would have welcomed
assistance in their apprehension. The third to
sixth defendants had
a legitimate interest in making the publication while readers of
Daily Sun certainly had a right to receive
the information about the
plaintiff. The media is in a special position in modern society,
namely to serve and further the public
interest.
7
Having regard to the circumstances of the case the third to sixth
defendants have rebutted the unlawfulness of the publication.
[19] Even
if I am wrong in reaching this conclusion, the third to sixth
defendants have other defences available. As far as
fair
comment
is concerned, it is important to note that in making public
statements about the plaintiff’s involvement in various crimes, the

third to sixth defendants were not making factual assertions but
rather engaging in comments and the expression of an opinion based
on
what sixth defendant learned from the discussions that took place
between second defendant and Bahumi. Despite the fact that
the sixth
defendant was not called as a witness I am of the view that enough
evidence was led during the course of the trail to
establish both the
truthfulness of what was contained in the comments and the public
interest in publishing the comments.
8
[20] The
third to sixth defendants also pleaded that the publication of the
article was reasonable. The question is whether they
have availed
themselves of the defence of reasonable publication as was stated by
Hefer J A in
NATIONAL
MEDIA LTD AND OTHERS v BOGOSHI
,
supra
,
at p. 1212 H – I:
“In
considering the reasonableness of the publication account must
obviously be taken of the nature, extent and tone of the allegations.

We know, for instance, that greater latitude is usually allowed in
respect of political discussion (
Pienaar
and Another v Argus Printing and Publishing Co Ltd
1956 (4) SA 310
(W) at 318C--E), and that the tone in which a
newspaper article is written, or the way in which it is presented,
sometimes provides
additional, and perhaps unnecessary, sting. What
will also figure prominently is the nature of the information on
which the allegations
were based and the reliability of their source,
as well as the steps taken to verify the information.”
[2
1] It
is important to note that the format and comment contained in the
article was not unreasonable while the tone of the article
was cast
in neutral terms as evidenced by the fact that the sixth defendant
was careful enough to employ the word “allegedly”
in reference to
the crimes which the plaintiff was said to have been involved with.
The objective facts as discerned from the
article itself make it
plain that there was no unnecessary sting contained therein. It is
also important that the article appeared
somewhat inconspicuously on
page 7 of the 3
rd
March 2004 edition of Daily Sun while nothing about the headline made
mention of the plaintiff or was directed at stimulating reader

interest in him by referring him either directly or indirectly. Any
reference to the plaintiff was a subtheme of the article which

appeared in only the final two paragraphs of the article, which dealt
with the ongoing efforts of the police in reducing crime
in the
Mangaung area.
[22] Insofar
as the nature of the information on which the allegations were based
and the reliability of the sources, the sixth
defendant was entitled
to regard Wiese and Bahumi as reliable sources in the context of
disclosing sensitive information of this
nature, especially in view
of the respective offices they held having been privy to the exchange
of information gathered in respect
of plaintiff’s alleged criminal
activities. The position of Wiese was already discussed above. As
far as Bahumi is concerned,
according to the evidence he was employed
by the National Intelligence Agency at the time of the article’s
publication. Both
were therefore inherently reliable sources. Under
the circumstances there was therefore no obligation on the part of
the sixth
defendant to verify the information beyond what had been
told to her by either Wiese or Bahumi.
[2
3] It
follows from the aforegoing that the publication of the said article
was neither unlawful nor negligent on one or more of
the grounds
discussed above. The plaintiff’s claim can therefore not succeed.
[24] There
is another matter outstanding. Both first/second defendant and third
to sixth defendants filed a notice of motion in
terms of Rule 47(3)
of the Uniform Rules of Court, applying for an order against the
plaintiff to provide security for their costs
of suit. Both
applications were based on the fact that the plaintiff was in a dire
financial position in view of the fact that
he was currently
unemployed with no fixed income and his inability to satisfy a writ
of execution issued in respect of a court
order. The law is clear
that as a general rule the inability of the plaintiff who is an
incola
to satisfy a potential costs order against him is insufficient to
justify an order that he furnish security for his opponents’
costs.
Something more is required.
9
In this regard the defendants relied on the fact that the
plaintiff’s claim was vexatious and unsustainable. The application

was brought at a stage when the matter was partly heard. At that
stage I was unable, and it would be inappropriate for me, to
make a
finding on the merits. Counsel for the defendants did not advance
any submissions in this regard. Both these applications
were
unfounded and are to be dismissed with costs.
[25] Accordingly
the following orders are made:
1. The plaintiff’s
action is dismissed with costs.
2. The
defendants’ applications in terms of Rule 47(3) are to be dismissed
with costs and the defendants are ordered to pay the
plaintiff’s
costs jointly and severally, the one paying the other to be absolved.
________________
S.P.B. HANCKE, J
On
behalf of the plaintiff: Mr. N.W. Phalatsi
Instructed
by:
Phalatsi
& Partners
BLOEMFONTEIN
On
behalf of
first
and second
defendants:
Adv.
B. Knoetze SC
Instructed
by:
State
Attorney
BLOEMFONTEIN
On
behalf of third to sixth
defendants: Adv.
C. Bester
Jurgens
Bekker Attorney
Instructed
by:
c/o
EG Cooper Majiedt Inc
BLOEMFONTEIN
/sp
1
The
Law of South Africa
,
vol 7 par 245.
2
SUID-AFRIKAANSE
UITSAAIKORPORASIE v O’MALLEY
1977 (3) SA 394
(A) at 407;
MTHEMBI-MAHANYELE
v MAIL & GUARDIAN LTD AND ANOTHER
2004 (6) SA 329
(SCA) at 349 – 350;
NATIONAL
MEDIA LTD AND OTHERS v BOGOSHI
1998 (4) SA 1196
(SCA) at 1210 – 1211.
3
“It
would not have to prove every allegation provided that it is able to
prove that the general charge is substantially true...
or at least
that it is reasonable in a sense that the facts relied upon were
properly sourced.” (Cachalia J in
LIEBERTHAL
v PRIMEDIA BROADCASTING (PTY) LTD
2003 (5) SA 39
(W) at 47 H – I).
4
SUTHERLAND v STOPES
1925 AC at p. 79, quoted with approval in
SMIT
v OVS AFRIKAANSE PERS BPK
1956 (1) SA 768
(O) at 772 H – 773 H.
5
“We are then to consider the evidence and say whether it is
substantially correct... Hence the courts have modified the general

rule by saying that the defendant need only justify the main charge
or gist of the libel, – ‘he need not justify immaterial
details
or mere expressions of abuse which do not add to its sting and would
produce no different effect on the mind of the reader
than that
produced by the substantial part justified’ Gatley p. 496).”
(Wessels J A in
JOHNSON
v RAND DAILY MAILS
1928 AD 190
at 205 – 206).
6
“Where the person publishing the defamatory matter is under a
legal, moral or social duty to do so or has a ligitimate interest
in
so doing, and a person to whom it is published has a similar duty or
interest to receive it, then the occasion of the publication
would
be privileged.” (
EHMKE
v GRUNEWALD
1921 AD
575
at 581. See also
DAVIS
v JACOBS
1914 TPD 220
at 224.
7
The
general principle is whether public policy justifies the publication
and requires that it be found to be a lawful one. As the
test is an
objective one it involves an application of the ‘general standard
of reasonableness’ but it relates to the sense
of justice
prevailing in South Africa as opposed to that in other countries and
systems.” (Coetzee J in
ZILLIE
v JOHNSON AND ANOTHER
1984 (2) SA 186
(W) at 195 C – D)
8
MARAIS v RICHARD EN 'N
ANDER
1981 (1) SA 1157
(A)
9
Erasmus,
Superior
Court Practice
,
B1 - 341