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[2007] ZAWCHC 1
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Roberts v Johncom Media Investments Limited (8677/04) [2007] ZAWCHC 1 (8 January 2007)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO.
8677/04
In
the matter between:
RONALD
SURESH ROBERTS
Plaintiff
and
JOHNCOM
MEDIA INVESTMENTS
LIMITED
Defendant
J U D
G M E N T
WEINKOVE,
A.J.
1.
On 3 October 2004, the defendant published
an article about the plaintiff under the title “The Unlikeable
Mr. Roberts”
which was written by Mr. Barron, a freelance
journalist. The article appeared in the “Insight and
Opinion” section
of the Sunday Times newspaper, owned and
published by the defendant.
2.
The plaintiff’s ultimate complaint is
that the article published by the defendant was defamatory of him in
two respects.
Previously he had complained about many other
respects: in fact, eleven in total, but by the stage of
argument had reduced
to two respects.
3.
The first respect relates to this passage:
“
His
firm arranged for Johannesburg law firm Deneys Reitz to give him a
job. After three months he left, saying he wouldn’t
be
the firm’s “smiling native”. In effect, he
was told to leave when it was found he’d been making
private
business arrangements that created a conflict of interest for Deneys
Reitz.
He was lucky.
Had he been a South African lawyer, steps would probably have been
taken to have him struck from the roll.
Roberts says he left
because he was “bored”. Either way, his colleagues,
who had found him insufferable, cheered
his departure.”
4.
The second complaint relates to the
following passage in the article:
“
Roberts’
obsessiveness goes beyond politics, however. His pursuit of
anyone who says anything against him is so notoriously
obsessive that
few people are prepared to be quoted on him.
He
pursued the SABC relentlessly for months after it unwittingly
included someone charged with child abuse on a programme.”
5.
The action for defamation protects every
person’s right to a good name and unimpaired reputation.
That right is also
protected by our Constitution.
6.
Defamation has been defined as the unlawful
publication
animo injuriandi
of a defamatory statement of and concerning the plaintiff. A
statement is defamatory if it tends to lower the plaintiff in
the
estimation of other right-thinking members of society.
7.
In the matter of
Khumalo
and Others v Holomisa
,
[2002] ZACC 12
;
2002 (5)
SA 401
(CC) at 418 ff
, the
constitutional court reaffirmed the recognition and protection of
human dignity as a fundamental constitutional value.
In
paragraph [27] the court said,
“
The
value of human dignity in our Constitution is not only concerned with
an individual’s sense of self-worth, but constitutes
an
affirmation of the worth of human beings in our society. It
includes the intrinsic worth of human beings shared by all
people as
well as the individual reputation of each person built upon his or
her own individual achievements. The value of
human dignity in
our Constitution therefore values both the personal sense of
self-worth as well as the public’s estimation
of the worth or
value of an individual. It should also be noted that there is a
close link between human dignity and privacy
in our constitutional
order. The right to privacy, entrenched in s 14 of the
Constitution, recognises that human beings have
a right to a sphere
of intimacy and autonomy that should be protected from invasion.
This right serves to foster human dignity.
”
8. As
far as the media is concerned, the supreme court of appeal in the
case of
National Media Ltd v Bogoshi
,
1998 (4) SA 1196
(SCA)
substituted the
requirement of
animus injuriandi
with strict liability unless there is an absence of negligence on the
part of the media. The basis of this decision is the
view that
because the media occupies such a powerful position, they should not
be treated on the same footing as ordinary members
of the public.
They are thus strictly liable unless they are not negligent in all
the circumstances of the case.
9.
Whether or not a statement is defamatory depends on the ordinary
meaning of the words used. The test to be applied is an
objective one and relates to what meaning would be attributed by an
ordinary reasonable reader with ordinary intelligence in the
context
of the statement that has been made. In certain circumstances a
secondary meaning, or an innuendo, can convert an
otherwise innocuous
statement into a defamatory one.
10.
There are commonly accepted defences to rebut what otherwise might
appear to be an unlawful statement. They include, in
the
context of the present matter, that the statement is fair comment
upon facts which are true and in the public interest.
As far
as the media is concerned, the
National
Media Ltd v Bogoshi
case,
supra
,
endorsed the additional defence, which allows the press and the media
to establish that it was reasonable to have published the
statement
because of the circumstances of the case.
11.As
far as truth and public benefit is concerned the defendant must show
that the statement was true, or substantially true.
See
Crawford v Albu
SA
1917 AD 102
at 131
.
As far
as public benefit is concerned, generally speaking publication of the
truth will be for the public benefit unless its publication
was made
animo injuriandi
.
12.Where
the media is concerned, their powerful position and the credibility
that they enjoy among large sections of the community
are factors
that require editors and editorial staff to exercise a high degree of
care in publication of matter that is potentially
defamatory.
13.
After the advent of the new Constitution and the fact that it
protects not only an individual’s right to his reputation
and
good name, but at the same time protects freedom of speech and
freedom of the press, a balance has to be struck between these
competing rights. This was done in the decision of
Khumalo
and Others v Holomisa
supra
419 C-
D.
The effect is that in addition to the standard defences, such as
truth and public benefit, the press can also escape liability
if the
publication of the defamatory statement is justified as being
reasonable in all the circumstances. The onus naturally
rests
on the defendant to prove that the publication is reasonable in all
the circumstances.
14.In
paragraph 43 of the judgment, at (424) the court said,
“
However,
the defence of reasonableness developed in that case does avoid a
zero-sum result and strikes a balance between the constitutional
interests of plaintiffs and defendants. It permits a publisher
who can establish truth in the public benefit to do so and
avoid
liability. But if a publisher cannot establish the truth, or
finds it disproportionately expensive or difficult to
do so, the
publisher may show that in all the circumstances the publication was
reasonable. In determining whether publication
was reasonable,
a court will have regard to the individual’s interest in
protecting his or her reputation in the context
of the constitutional
commitment to human dignity. It will also have regard to the
individual’s interest in privacy.
In that regard, there
can be no doubt that persons in public office have a diminished right
to privacy, though of course their
right to dignity persists.
It will also have regard to the crucial role played by the press in
fostering a transparent and
open democracy. The defence of
reasonable publication avoids, therefore, a winner-takes-all result
and establishes a proper
balance between freedom of expression and
the value of human dignity. Moreover, the defence of reasonable
publication will
encourage editors and journalists to act with due
care and respect for the individual interest in human dignity prior
to publishing
defamatory material, without precluding them from
publishing such material when it is reasonable to do so.
”
The court also quoted,
with approval, the following passage in the
Bogoshi
judgment. See
415 F
:
“
If
we recognise, as we must, the democratic imperative that the common
good is best served by the free flow of information and the
task of
the media in the process, it must be clear that strict liability
cannot be defended and should have been rejected in
Pakendorf
.
”
15.At
416 G-H
,
the constitutional court observed the following in the
Khumalo
case:
“
Freedom
of expression is integral to a democratic society for many reasons.
It is constitutive of the dignity and autonomy
of human beings.
Moreover, without it, the ability of citizens to make responsible
political decisions and to participate
effectively in public life
would be stifled.
The
print, broadcast and electronic media have a particular role in the
protection of freedom of expression in our society.
Every
citizen has the right to freedom of the press and the media and the
right to receive information and ideas. The media
are key
agents in ensuring that these aspects of the right to freedom of
information are respected. The ability of each citizen
to be a
responsible and effective member of our society depends upon the
manner in which the media carry out their constitutional
mandate.
”
The court went on to
state, at
417 B
:
“
The
media thus rely on freedom of expression and must foster it. In
this sense they are both bearers of rights and bearers
of
constitutional obligations in relation to freedom of expression.
”
At
para 24 (417)
of the judgment, the court stated as follows:
“
In
a democratic society, then, the mass media play a role of undeniable
importance. They bear an obligation to provide citizens
both
with information and with a platform for the exchange of ideas which
is crucial to the development of a democratic culture.
As
primary agents of the dissemination of information and ideas, they
are, inevitably, extremely powerful institutions in a democracy
and
they have a constitutional duty to act with vigour, courage,
integrity and responsibility. The manner in which the media
carry out their constitutional mandate will have a significant impact
on the development of our democratic society. If the
media are
scrupulous and reliable in the performance of their constitutional
obligations, they will invigorate and strengthen our
fledgling
democracy. If they vacillate in the performance of their
duties, the constitutional goals will be imperilled.
The
Constitution thus asserts and protects the media in the performance
of their obligations to the broader society, principally
through the
provisions of s 16.
”
16.The
defendant has correctly argued that the plaintiff is a public figure
who, on the evidence has been engaged in robust public
discord,
including harsh venomous criticism of other public figures. He
has publicly attacked Nadine Gordimer, William Gumede,
Judge Raymond
Leon and others, and in doing so, has set a standard which
legitimately constitutes an invitation to be used in judging
him.
17.Our
courts have laid down that, in interpreting defamatory statements,
the court is to adopt the mindset of an ordinary reasonable
lay
person and give words their ordinary everyday meaning.
See
Independent Newspaper Holdings v
Suliman
,
2004 (3) All SA 137
(SCA) paras 19 and 29
and
Times
Media v Niselow
,
2005 (1) All SA
567
(SCA) paras 9 and 10
.
18. As
a matter of convenience in dealing with the evidence adduced, the
second complaint will be dealt with first.
19.The
defendant contends that the statement complained of is not
defamatory, that it was true and its publication was in the public
interest. The defendant further submits that, in any event, the
publication of the statement was reasonable in the circumstances
and
that it was published without any negligence.
20. In
regard to the statement itself, the plaintiff contends that there is
an innuendo in that statement, namely that he hounded
or conducted a
vendetta against persons who criticised him and in so doing conducted
himself in an obsessive and unreasonable manner,
and that he
instituted the complaint against the SABC without justifiable or
probable cause and he pursued that complaint in circumstances
in
which it would have been unreasonable for him to do so and in respect
of which he should have desisted.
21. I
find nothing defamatory in the passage complained of. I will
deal more fully with the facts of the SABC complaint, but
would
observe that Barron’s statement about this complaint was
probably inaccurate. The plaintiff did not pursue a
complaint
against the SABC because it unwittingly included someone charged with
child abuse on their programme. It is more
likely that he
pursued a complaint against the SABC because the person it included
in its programme referred to an allegation that
had been made in a
custody dispute that the plaintiff was alleged to have abused his
[……..] children.
Any
ordinary reader reading the text of the article published by the
defendant would come to the conclusion that the plaintiff
relentlessly pursued a complaint against the SABC because it had
“unwittingly” included a person on a programme who
had
been charged with child abuse. To my mind, a complaint of this
nature depicted the plaintiff as a person who obsessively
defended
the rights of children and that conduct does not carry any defamatory
implication. If anything, that statement was
laudatory of the
plaintiff because he was pursuing a virtuous cause against the SABC
for ineptly including a person charged with
child abuse on a
television programme. There is no clear implication in the
statement by Barron that the plaintiff was unjustified
in pursuing
this complaint and I do not read that complaint as being defamatory.
The word “unwittingly” could
mean “innocently”
but it could equally mean “stupidly” or “carelessly”
in the context of the
publication.
22. I
also do not regard the word “obsessiveness” as being
defamatory in the context of his criticism of political figures
and
in his defence of himself against those who are prepared to criticise
him. There is nothing in the article to say that
the plaintiff
was obsessive in regard to
justifiable
criticism against him and I do not
accept that it carries any defamatory innuendo.
23. If
however I am wrong and there was some defamatory innuendo or meaning
that could be attached to the above statement, I do
not regard that
statement as being anything other than true and of interest to the
public.
24.
The evidence in this matter disclosed that, on 18 June 2003, the SABC
aired a programme on “parental alienation syndrome”
(PAS). The producers of the programme included the plaintiff’s
[…..], a Mr. S., in that programme. At
the time, it had
become fashionable to give the PAS label to a syndrome commonly
encountered by practitioners in the family law
field. A parent
who had been awarded custody of a child sometimes, for reasons other
than the best interests of the child,
pursued a policy of
deliberately alienating that child from the non-custodial parent.
This behaviour has become a problem
with which the courts from time
to time have had to deal with.
25.
The programme concerned was aimed at debating this syndrome for the
benefit of the viewers. It would appear that S. (that
is his
real surname) was brought in as a last-minute substitute as an
“aggrieved parent” in the programme.
26. I have been referred
to the transcript of the statement made by S., which appears at p.290
ff of Exhibit C. In the programme,
S. made the following
statement:
“
The
situation is that I felt that my children weren’t being looked
after as I would have them, but there were some allegations
of sexual
abuse on the part of my ex’s [….] etc and I felt I had
to get involved. I got involved with this Child
Protection Unit
etc and I brought a case to court, to the Supreme Court myself, but
basically from the relationship there were
difficulties, since there
was ….
”
This
statement was made in the context of the question as to whether he
had a difficult custody battle.
27. He
went on to say that his [……] had used the children to
get back at him.
28.
The plaintiff stated that he heard about this broadcast when friends
and family advised him that they had seen S. on television
and they
apparently reported to the plaintiff what had been said. The
plaintiff maintains that S.’s face was recognisable
and that he
was using his actual name, although it is quite common to use “S.”
as a
nom de plume
.
He maintained that the SABC should apologise for this broadcast of
defamatory matter and their introducing and allowing
a person such as
S. to appear on a programme of this nature.
29. I
do not propose to comment on the rights or wrongs of the plaintiff’s
complaint against the SABC. The Broadcasting
Complaints
Commission heard that complaint. What is instructive, however,
is the manner in which the plaintiff pursued his
complaint against
the SABC and the lengths to which he went to bring that complaint.
30. It
is common cause that although the complaint was made in the
plaintiff’s [……..] name all the correspondence,
without exception, was authored by the plaintiff. He
relentlessly pursued his complaint by writing letters on a daily
basis,
often more than once a day.
31.
The complaint itself ran into almost 120 pages in length. The
defendant’s counsel submitted that the documentation
exhibited
the hallmark of “an unbalanced, paranoid and obsessed
complainant”. I agree. I found the correspondence
to show signs of excessive emotionality, inappropriate and
provocative behaviour. I found that the plaintiff had an
unreasonable
expectation of especially favourable treatment and he
was contemptuous and impatient with others. I found him to be
haughty
and arrogant not only in his manner of correspondence but
also in his manner in court. He displayed a grandiose sense of
self-importance and an unreasonable expectation of especially
favourable treatment. He engaged in name-dropping and he
purported
to enjoy the patronage of people who occupy high positions
in the corridors or power and influence in the new South Africa.
He listed among his “patrons” the Mandela family, former
Minister Kader Asmal and President Thabo Mbeki.
32. He
accused the SABC of having committed “several criminal
offences”, including contraventions of section 12 of the
Divorce Act, offences under the Child Care Act and contempt of
court. At the outset, in his first letter of complaint, he
claimed that liability attached not only to the SABC but also to the
producers of the programme. He demanded an apology and
produced
a script of the apology that had to be broadcasted, concluding that
the SABC should advise the viewers that the producers
of the
programme had been instructed to undergo further training in the
requirements of the
sub judice
rule and the principles of contempt of court as also in relation to
Section 12 of the Divorce Act and the requirements of the Child
Care
Act.
33. In
a letter written the following day he referred to the broadcast as
constituting defamation involving “unmitigated tortuous
infliction of emotional distress”. He impeached the whole
Board of the SABC, claiming that they were set on a collision
course
with criminal law. He went on to say that he intended to refer
their conduct to the Human Rights Commission and the
Gender
Commission.
34. In
another letter, he accused the SABC of airing the views of a
“potential paedophile”. He said
“
This
occurrence is surely unprecedented in the global experience of public
broadcasters
”
(Exhibit
C at p.16).
He consistently
maintained that the directors of the SABC are equally to blame for
what had happened as was the presenters and producers
of the
programme.
He stated in terms that
he was referring the matter to the Scorpions and was immediately
submitting a copy of his complaint to the
relevant officials within
the National Prosecuting Authority (Exhibit C, p.33).
He went on to prescribe
the sentences which he felt would be appropriate in the matter,
concluding that maximum penalties should
be imposed, including prison
sentences.
He
extended his complaints to include legal advisers of the SABC, as
also the presenter of the programme. He went on to say
that
after the complaint had been disposed of, he intended to refer the
matter to the Law Society of the Northern Province to have
the SABC’s
legal adviser removed from the roll of attorneys (see Exhibit C,
p.37).
35. In
a letter dated 2 July 2003 (Exhibit C, p.39 ff), the plaintiff stated
“
I
despise name-dropping and object to the idea that who-one-knows
should matter in any legal dispute …
”
.
The
plaintiff, having disavowed any wish to “name-drop”,
proceeded to respond to a demand he said was made via the SABC’s
Ms. Shibanbo to “tell her who I am”. In replying to
that demand, the plaintiff took the opportunity to mention,
inter
alia
, that he had joined the law firm
of Tiego Moseneke in 1994 (an issue which will be dealt with later in
this judgment) and went
on to mention Kader Asmal, Louise Asmal,
President Nelson Mandela, Nadine Gordimer, the Irish Nobel Prize
Laureat Seamus Heaney,
Dr. Vincent Maphai (the current chairperson of
the SABC), Thabo Mbeki (who was then Deputy President). The
letter itself
is copied to then Ministers Kader Asmal, Essop Pahad
and Mr. Bheki Khumalo (presidential spokesperson). He also
placed on
record that he intended to request the National
Intelligence Agency to investigate the conduct of the producers of
the programme.
36.
Despite being asked not to do so, the plaintiff insisted on
addressing further correspondence directly to Mr. Peter Matlare,
the
chief executive of the SABC, in which he made threats against various
persons employed by the SABC.
37. In
one of his letters, dated 21 July 2003, Exhibit C p.46 at p.47, he
made threats to report his complaints to the Public Protector,
the
Human Rights Commission, the Commission for Gender Equality, various
Ministers in the Government and the Minister of Education.
In a
letter dated 24 July 2003, he told Matlare (Exhibit C p.52) that he
was handing his complaints over to the Scorpions and he
insisted on
being given two copies of the videotape of the offending broadcasts,
threatening that if they did not do so it would
constitute an
obstruction of “my civil recourse and the criminal
investigation”.
38.
In a letter by the attorneys for the SABC a useful
summary of the plaintiff’s excessive and outlandish behaviour
is chronicled
at p.53 ff of Exhibit C.
39.
The threat by the plaintiff to refer this matter
to the Scorpions is bandied about in a number of letters written by
him to the
SABC and to Peter Matlare in particular.
40.
The actual complaint submitted to the Broadcasting
Complaints Commission is an outlandish document that exposes the
plaintiff’s
excessive conduct in dealing with this objection by
him to the television broadcast. As previously stated, this
document
runs from p.62 to p.181 of Exhibit C. In that document
the plaintiff not only complains about the broadcast, but arrogates
to himself the prerogative to dictate to the Complaints Commission
the kind of penalties that should be imposed.
41.
The plaintiff complains about the conduct of some 25 people and
institutions. Furthermore, the plaintiff demands that
the
Commission return 46 separate findings against the persons who he
lists as offenders. He makes accusations of criminal
conduct of
various kinds, demanding wide-ranging relief against these people.
He suggests that fines of R40 000,00 per
person (aggregating
almost a million Rand) should be imposed and suggests that
imprisonment would be an appropriate penalty in
certain cases.
42.
A South African PhD student at Oxford University,
Mr. James Myburgh, disclosed on a freedom of expression website that
the plaintiff
had been one of the complainants in the case upon which
the Broadcasting Complaints Commission had ruled, and gave an
internet
link to the Broadcasting Complaints ruling.
43. His conduct unleashed
a vindictive and venomous attack by the plaintiff upon Myburgh.
He said that referring the public
to the Commission’s ruling
revealed the identity of the children and he gave a convoluted
explanation of how members of the
public could acquire this
knowledge. He pursued Myburgh and now accused him, too, of
child abuse in correspondence both to
him and to his supervisor,
Professor Beinart, at Oxford University and to various other
persons. He lodged a formal complaint
with the Dean of the
Oxford college where Myburgh was studying and, in an e-mail dated 10
June 2006 sent to Myburgh, he made the
following statements about
Myburgh (see Exhibit C, p.346, paras 7, 8 and 9):
“
You
abused a [….] child, then aged […..], in a manner
fairly to be described as depraved.
You further abused a
[……] child, then aged [……], in a manner
fairly to be described as depraved.
You
abused an adult […..] in a manner constituting criminal
conduct in that it violated the criminal laws of South Africa.
”
44.
I find the plaintiff’s conduct in the above
respects to be vindictive and venomous and I agree with the
defendant’s
counsel’s suggestion that he was obsessive in
his relentless pursuit of Myburgh. He was cross-examined in
respect of
this conduct and it was suggested to him that his
complaints and conduct was zealous and “over the top”.
Initially
he denied this, but later conceded it was perhaps over the
top and later said that, on reflection, his complaints were
“laughable”.
I do not find anything
amusing in the manner in which these complaints were formulated and
the way he pursued them.
Throughout
his cross-examination he denied that he had relentlessly pursued the
“wrongdoers”.
45.
In my view, the plaintiff’s conduct was
obsessive and I can quite believe, having regard to this behaviour on
his part and
other behaviour which I will set out later, that few
people would be prepared to be quoted on him as most of them would be
intimidated
and fearful of him. I would consider that his
pursuit of the SABC was “relentless”.
46.
The plaintiff’s counsel submitted that the article as a whole
had nothing nice to say about the plaintiff, save for factual
details
concerning his academic qualifications. He described the
article as a “character assassination”.
For the
reasons set out in this judgment, I consider that any harm done to
the plaintiff’s reputation was self-inflicted.
47. In
the result, I would consider that the publication of these
allegations was justified as true and in the public interest.
In any event, I consider that the Sunday Times acted reasonably in
publishing these statements not only because they represented
fair
comment on the plaintiff, but because they were borne out by Barron’s
research. In addition, Barron was known
to the Sunday Times to
be a careful and meticulous journalist. He testified that most
of the people to whom he had spoken
did not want to be identified
because they were afraid of the plaintiff and the way he would react
to criticism.
48. In
all the circumstances of the matter, I consider that the
probabilities favour Barron’s evidence in this respect.
In any event, the complaint against the SABC was known and did
receive publicity.
49.
Finally, and for the reasons already set out, I
consider that the defendant’s publication of the statement
complained of was
not negligently done and I do not consider that
there was any fault on the defendant’s part sufficient to
render it liable
for damages for defamation.
50.
I now propose to deal with the plaintiff’s
complaints as contained in the passage complained of in the first
complaint.
51. It
is common cause that the statement itself is defamatory. The
question is, has the defendant succeeded in showing that
the
publication was nevertheless true and in the public interest, or that
its publication was reasonable in the circumstances,
or that its
publication was not negligent?
52. In
his pleadings, the plaintiff has relied upon three innuendos
contained in the publication. These are:
(a)
that the passage suggests he has been engaging in private business
which created a conflict of interest for
his employers;
(b)
that he conducted himself in a manner which was dishonest and/or
unbecoming;
(c)
that he was not a fit and proper person to be an
attorney and/or to be employed by a firm of
attorneys.
53. The plaintiff has
urged me to find that the statement that “in effect he was told
to leave” when it was found that
he had been making private
business arrangements that created a conflict of interest for Deneys
Reitz, was false. To my mind,
that sentence must be read
together with the last two sentences that I have referred to above,
namely that
“
Roberts
says he left because he was “bored”“. Either
way, his colleagues who had found him insufferable
cheered his
departure.
”
On an
ordinary reading of the above passage together with the last two
sentences, the words “in effect” which introduced
the
statement that he was told to leave qualifies that statement.
On an ordinary reading, the writer is saying that the plaintiff
was
effectively told to leave and it is conceded by the writer that the
plaintiff had a different version of his leaving.
This
different version was clearly acknowledged by the writer who went on
to say that, either way, his colleagues found him insufferable
and
were pleased to see him go.
54.
It seems that the statement complained of
was substantially true and the publication was not unlawful. It
was certainly established
in the trial that the plaintiff had
accepted an appointment with the Whitney Houston organisation during
the visit by Mr. Platt
to South Africa in the period from 7 to 9
October 1994.
55. By
accepting that appointment, the plaintiff created the risk of a
conflict of interest between himself and his employers, Deneys
Reitz.
56. I
have been referred to a number of letters written by the plaintiff
during October 1994, after his appointment, that demonstrate
that he
had a substantial role as an executive member of Houston
Enterprises.
57.
The most significant of these letters is dated 18 October 1994, which
is to found in Exhibit B(1) at p.81(1) where he wrote
to the firm of
attorneys, Moseneke & Partners and in particular to Tiego
Moseneke, the senior partner of that firm. In
that letter he
wrote as follows:
“
Since
we met a couple of weeks ago Whitney Houston Enterprises, Inc. has
appointed me their South Africa Projects Director.
As you may
know, Ms. Houston is the largest individual (i.e. non corporate)
investor in Egoli Beverages, the entity that is reintroducing
Pepsi
to the South African market. Additionally, Houston Enterprises
contemplates a range of ongoing involvements in South
Africa both
within and beyond the entertainment industry.
Houston Enterprises is
interested in working with you on a number of projects, and I am
authorized to take our discussions further.
I
suggest that we meet soon.”
58.
According to the pleadings, the plaintiff moved
straight from Deneys Reitz to work for the firm Moseneke &
Partners on the date
of his resignation on 7 November 1994. In
cross-examination he changed that evidence and then remembered that
in fact he
had not immediately moved across to Moseneke &
Partners but had stayed with Whitney Houston Enterprises until the
end of her
tour in South Africa and only joined that firm some time
later. He was at pains to assure the court that no work for
Houston
Enterprises was passed on to the firm Moseneke &
Partners.
59.
The plaintiff’s case was that he only took the appointment with
Houston Enterprises after he had cleared his appointment
with Deneys
Reitz and with Mr. Raney (one of its directors) in particular.
Raney denied that evidence and I prefer his evidence
on this issue.
60. I
found the plaintiff to be evasive, argumentative and an opportunistic
witness. He spent more time trying to score points
off the
cross-examiner than in answering the questions truthfully. He
was unconvincing and his evidence was shown to be contradictory.
I agree with counsel’s submission that his version was
completely discredited. He was forced, in cross-examination,
to
concede that a meeting that he originally claimed had taken place
with himself, Raney and Platt, did not take place. His
explanation for his contradictions and retraction of previous
evidence was unconvincing. That earlier evidence was
untruthful.
61. The new version that
he then presented was however equally unacceptable and was similarly
discredited in cross-examination.
In a letter from Platt to
Raney dated 17 October 1994 the new version was flatly contradicted.
In Exhibit B2, p.80, third
paragraph, the opening sentence reads:
“
You
should also be aware that because of Ronald’s capabilities we
have appointed him as acting director of our client’s
projects
in South Africa”.
This
is quite contrary to the plaintiff’s version in
cross-examination that Platt had telephoned Raney in the course of a
meeting with him to inform him that the plaintiff had been given this
appointment and that Raney had given his blessing to that
appointment.
62.
Counsel for the defendant is correct in
submitting that this language is incompatible with the plaintiff’s
second version
because it merely notified Raney of a deal which had
already been effected and was inconsistent with the plaintiff’s
version
that Raney had already consented to this appointment.
It follows therefore that the plaintiff was secretly appointed to act
for the Whitney Houston group and that Deneys Reitz was only advised
of this situation sometime later.
63.
The plaintiff’s conduct in this regard was quite improper.
His letter to Moseneke at that time was similarly improper.
He
was in effect hawking an offer of work to a competing firm of
attorneys. It is fair comment to suggest that the Law Society
would at least investigate a South African lawyer for conduct of this
nature.
64.
I find that the plaintiff’s various versions
of the circumstances of his departure from Deneys Reitz were
contradictory and
untrue. In his pleadings and in a letter of
demand dated 3 October 2004, Exhibit B(2) p.343 at p.344, the
plaintiff alleged
that he resigned from Deneys Reitz because he
wished to assist an emerging historically disadvantaged legal firm.
In evidence
in chief he confirmed this version. Under
cross-examination, he began to adapt that evidence because of the
letter dated
18 October 1994 (quoted in full above), where he was
hawking his connection with Whitney Houston in breach of his duties
to Deneys
Reitz. At the end of the day, he retracted the
statement that he moved straight from the Deneys Reitz payroll to the
payroll
of Moseneke & Partners.
65.
The versions he gave in court are also
contradicted by his letter to Lindley dated 7 November 1994, Exhibit
B(1), p.105, where he
explained to Lindley his reasons from resigning
from Deneys Reitz. In that letter he said nothing about joining
an historically
disadvantaged legal firm and he made no mention of
what he described as Raney’s unacceptable conduct at the
meeting at the
Carlton Hotel. The letter states in clear terms
that his reason for leaving Deneys Reitz was because of the exciting
new
opportunities that had been offered to him by the Whitney Houston
organisation.
66.
In the circumstances I hold that the statements
contained in the first complaint are substantially true. The
plaintiff was
in effect told to leave Deneys Reitz because he was
making private business arrangements. He created a conflict of
interest
between himself and Deneys Reitz. That conduct is
serious and a South African lawyer would have been exposed to steps
to
have him censured by the Law Society and, depending on its
findings, might have led to his suspension from practice.
67.
In any event, I consider that the statement
complained of was reasonable in all the circumstances of this matter
and represent a
fair reflection of the information that Barron had
obtained in his investigations. It was reasonable for Barron to
rely on
the facts that he had collected in connection with this
matter and although Raney does not directly support Barron in this
respect,
there were other partners and other people who had given
Barron information in regard to the matter. Raney did confirm
that
Deneys Reitz regarded Plaintiff’s resignation as a problem
that had solved itself.
68. The plaintiff
complains that Barron had not put this version to him and had not
given him an opportunity to give his version
as to why he left the
firm.
In the first place, it is
quite clear that when the plaintiff was asked why he left, he said he
left because he was bored.
I see no merit in the suggestion
that this explanation should not have been accepted as the
plaintiff’s explanation and that
Barron should have gone
further and put to him that he had been asked to leave because of the
conflict of interest which he had
created for himself by accepting
the Whitney Houston appointment.
In any
event, Barron published the plaintiff’s explanation, which
turned out to be false. Furthermore, even in court,
with the
benefit of hindsight and access to all the documentation relating to
this matter, the plaintiff gave contradictory versions
and
explanations concerning this incident. He was discredited in
cross-examination and one can only wonder what other explanations
he
might have given to Barron.
69. It
was put to Barron that he should have put Raney’s version to
the plaintiff. I accept his explanation that he
was concerned
that Raney would be bullied and intimidated by the plaintiff if his
identity was disclosed. Indeed, the plaintiff
traced Raney
through Barron’s telephone records and did threaten and harass
him. The plaintiff’s conduct in using
the telephone
records (which he obtained by a
subpoena
process) for this purpose is questionable.
70.
Finally and in any event, the defendant acted quite reasonably in
publishing a researched article by Barron. It was entitled
to
rely upon him as a careful researcher based on its own knowledge and
experience of him as a reliable and meticulous journalist.
Ms.
Oppelt, the editor of Insight and Opinion section of the Sunday
Times, stated that Barron was one of the most professional
freelance
journalists she had known. She said that he was meticulous and
detailed in the work that he did and his work was
excellent and fully
professional. The defendant had frequently used him to
write articles. I accordingly hold
that the defendant acted
reasonably in all the circumstances in its decision to publish
Barron’s article. The article
was also published without
negligence or fault on the defendant’s part.
71. In
the result, I am not satisfied that the defendant is liable to the
Plaintiff in damages for defamation in respect of either
of the two
passages complained of in the article. The plaintiff’s
claim for damages is accordingly dismissed with costs,
such costs to
include the costs occasioned by the employment of two counsel.
72. In
respect of the interdict application, the question of costs was
directed to stand over for determination in this matter.
73.
Initially, I was of the view that inasmuch as the defendant had given
an undertaking to the plaintiff to remove the offending
article from
its website and inasmuch as it had failed to do so, the plaintiff was
entitled to approach the court for an interdict.
It seemed to
me that, whether or not the publication was defamatory, the plaintiff
had no other recourse but to go to court to
obtain an interdict to
prevent further publication of the article, notwithstanding the
defendant’s undertaking to ensure
that this article would not
be posted on the website again.
74. Having read the
affidavits filed in the interdict application, I however consider
that the further publication of the article
on the website was
unintended and was the result of a technical error on the defendant’s
part and the manner in which the
Internet publication had been
programmed. In the result, I cannot find that the defendant
knowingly breached its undertaking
not to allow the offending article
to be republished on the web. The publication occurred as a
consequence of a
bona fide
and unintentional error and not as
a consequence of any blameworthy conduct on the part of the
defendant.
The
defendant’s submission that if neither section of the article
was defamatory and if it follows that the original publication
of the
article was entirely lawful, its republication on the Internet should
be equally lawful.
75. I am persuaded that a
complete defence to the plaintiff’s claim for defamation should
also result in the dismissal of
the interdict application because the
court hearing the interdict would ultimately have dismissed that
application once it had
been proved that there was a complete defence
to the defamation claim. I did not understand the plaintiff’s
counsel
seriously to challenge this line of reasoning.
In the result, the
plaintiff is also ordered to pay the costs of the interdict
application, such costs to include the costs occasioned
by the
employment of two counsel.
_________________________
Weinkove,
A.J.
8
January 2007