In the High Court of South Africa
(Western Cape Division, Cape Town)
Case number: 17211/2023
LATARI HOUSE (PTY) LTD First plaintiff
VIRON PAPADAKIS Second plaintiff
JOHN PAPADAKIS Third plaintiff
FREDDY KALENGA Fourth plaintiff
and
THABISO DANCA First defendant
JORDAN PELSER Second defendant
CHRISTOPHER MICHAEL LOGAN Third defendant
JUDGMENT DELIVERED ON 13 NOVEMBER 2024
OFF ICE OF THE CH IEF JU!io-n CE
REPUBLIC OF SOUTI I A.FR.lCA
Introduction
1. This is an application for default judgment following the institution of a
defamation action. The first to third plaintiffs seek damages against the third
defendant.1
2. It is necessary to mention the circumstances in which default judgment is
sought.
3. The action was instituted during October 2023 . The combined summons was
duly served on the third defendant on 16 February 2024. He failed to enter
appearance to defend.
4. An application for default judgment was accordingly enrolled for hearing in the
unopposed motion court on 24 July 2024. The second and third plaintiffs were
present to give oral evidence. On that day, an attorney appeared on the third
defendant’s behalf with instructions to defend the action. The attorney asked
for a postponement to allow the third defendant to bring a substantive
application for the upliftment of the bar, and to deliver a plea. In terms of an
order subsequently granted by agreement between the parties, the matter was
postponed to 18 October 2024 to enable the third defendant to bring such
application and to plead his case in defence of the action. The application for
the upliftment of the bar was to be instituted before 20 August 2024.
5. The third defendant did not take any further steps. On 2 October 2024 he sent
an email to the plaintiffs’ attorney, claiming that his attorney had only been
briefed to represent him on 24 July 2024, and that due to financial constraints
he was unable t o secure legal representation. He claimed further that in a
related Equality Court matter, where he did have legal representation, there
1 The progress of the litigation between the fourth plaintiff and the first and second defendants is
not relevant for present purposes.
would be an attempted mediation. The Equality Court proceedings were,
according to the email, to be heard on 19 October 2024, which was a Saturday.
6. The third defendant’s attorney was informed of the email communication. He
first responded, on 2 October 2024, by stating that his brief had come to an end
in August 2024. He followed this up with another email on the same day to the
effect that he had been briefed only to appear on 24 July 2024, and that he
would deliver a notice of withdrawal as the third defendant’s attorney of record.
7. No notice of withdrawal had been delivered by the time of the hearing of the
action on 18 October 2024.
8. There was no further communication from the third defendant. On the day of
the hearing he was present in court. He asked for a po stponement of the
matter because he wanted to defend the action , and stated further that the
parties could come to an agreement in the course of the pending Equality Court
proceedings. He stated that he had been working in the United States of
America since earlier this year, and that he ha d not been able to give attention
to this matter.
9. Having considered the third defendant’s submissions, the Court was not
amenable to granting yet another postponement of the matter. The initial
postponement, and the more than ample time period afforded th e third
defendant to apply for the upliftment of the bar, was agreed with his attorney on
the third defendant’s behalf. The attorney in question was still on record as the
third defendant’s attorney. He moreover enjoyed legal representation in the
Equality Court proceedings. The third defendant gave no satisfactory
explanation for his failure to comply with the provisions of the agreed order.
The fact that he had been working overseas is no excuse , given the importance
of the matter and his integral role in it. His conduct pointed to a last -minute
attempt yet again to delay the hearing of the action . The proceedings in this
Court are not a game, and neither is the third defendant’s significant
involvement in the serious events set out in the particulars of claim and referred
to below. There is no running away from it.
10. In the circumstances, the oral application for a postponement was denied and
the plaintiffs proceeded to furnish their evidence. The third defendant took no
further part in the proceedings.
The events leading to the institution of this action
11. At the time relevant to these proceedings, t he first plaintiff operated two
establishments in central Cape Town, namely Hanks Olde Irish Pub ("Hanks")
and Love Thy Neighbour ("LTN"). The second and third plaintiffs , who are
brothers, were at that stage the co-owners of the first plaintiff.
12. The origin of the dispute was the following: At about 23:00 on Thursday, 1
December 2022 the fourth plaintiff did duty as a doorman at the first plain tiff’s
premises. Part of his duties was to not allow persons younger than 18 years old
to enter the premises. There was an incident involving the first and second
defendant and the fourth plaintiff. The first defendant wanted to enter the
premises. The f ourth plaintiff was unsure whether the first defendant was of
legal age to enter the premises and requested the first defendant to remove his
cap and to produce his identity document to verify his age.
13. The first defendant appeared to be inebriated and was upset because he was
being stopped by the fourth plaintiff. He (the first defendant) became
aggressive and made racial and xenophobic statements to the fourth plaintiff
within hearing distance of other people in proximity. The gist o f these
statements was that the fourth plaintiff was a racist, that he discriminated
against the first defendant and did not want to allow him to enter the premises
because he was black, that South Africa was not fourth plaintiff's home and that
he (the fourth plaintiff) was an idiot who should go back to his home country.
14. Neither the second nor the third plaintiff was aware of this incident at the time.
15. In the late afternoon of Friday, 2 December 2022, a group of about six persons,
including the third d efendant, entered the first plaintiff’s premises. The third
defendant demanded to speak to a manager. When greeted by the manager on
duty, the third defendant began yelling words to the effect that the first plaintiff
was a racist establishment because of the alleged incident of racism that had
occurred towards the first defendant the previous day, 1 December 2022 . The
third defendant's tone was aggressive, and he was swearing.
16. The third defendant then demanded to speak to the owner, and t he manager
got hold of the second plaintiff telephonically. The third defendant started yelling
at the second plaintiff over the phone , repeating that the first plaintiff was a
racist establishment , and demand ing that the second plaintiff come to the
premises. Upon the second plaintiff's arrival at the premises, the third
defendant continued yelling the same accusations of racism.
17. The third defendant threatened to get the mainstream media (Sunday Times)
involved who "will have a field day with this " and to get protesters and the EFF
on the premises. He threatened that Hanks would become like Clicks
overnight, referring to looting and damage done by protesters at that store.
18. This incident was videotaped on a cell phone by one of the persons in the third
defendants' group. Segments of the cell phone video were widely published by,
inter alia, the third defendant on various mainstream online news platforms , as
well as the social media platform, YouTube. Several articles appeared on the
SABC News website, the SABC News YouTube channel, the News24 YouTube
channel, the News24 website , the Newzroom Afri ca YouTube channel , the
ENCA website, and the ENCA YouTube channel over the period 4 December
2022 to 7 De cember 2022. These articles and videos were published and
accessible by the public using television or the internet, and were widely viewed
or read by the general public.
19. On 4 December 2022, for example, SABC News published an online article
under the title “Cape Town Hank's Old Irish Pub called out for a racist incident”.
In this article, there is a video of a SABC News TV presenter who reports on
and interviews the first and third defendants inter alia on an alleged incident of
racism that those defendants claimed occurred at the first plaintiff’s premises of
first plaintiff on 1 December 2022, the incident that was videotaped on 2
December 2022, and the events thereafter.
20. The article was also published on t he SABC News's YouTube channel under
the title "Cape Town Hank's Old Irish Pub called out for a racist incident:
Thabiso Danca & Christopher Logan", and has been viewed more than 107 000
times. In the article, which contained parts of the cell phone video taken on 2
December 2022, the first and third defendants state the following concerning
the plaintiffs:
21. In the video t he t hird defendant, in a loud voice , says the following to the
second plaintiff (this occurred on 2 December 2022):
''This is what happened, okay this man right here, Thabiso, came in yesterday okay,
moments after Jordan came in, moments after, okay, your bouncer stop him and said,
why are you going in who are you going into, okay. He said why are you asking me?
He said you can't come in here unaccompanied without a white person. He said
"what?" He said you can't come in here without a white person. If you come in here, I
know what you like, you steal, you guys' cause trouble, you n eed to come in here with
a white person. He asked who decides this? This this is what the bosses have told me.
Then Jordan, not knowing where Thabiso is, goes out and sees the bouncer re-explain
this and says it to him again and says it's not me who decides it's the policy?"
22. The first defendant says the following when questioned by the TV presenter , for
the purposes of the article:
"As soon as I walked into Hanks, I was stopped to go in because my friends were
already inside and the bouncer said to me uh mustn't go in if I'm not accompanied with
a white friend. I'm like, I was like, no I don't understand what really you saying to me.
And said no, if I ... if it's jus t me I can't go in and luckily my friend came back. And he
also heard what the bouncer was saying to me and um the bouncer said it again to my
friend Jordan that uh if I'm ... if it's just me, myself I can't go in, because people of
colour they steal and they go in there and in the bar and they cause trouble."
23. The first defendant, when asked by the TV presenter: "Did he say categorically
to you that that is the policy of the pub or what the owners of the pub or the
bosses wish to be in place?" responded by saying:
"That was what I was very concerned about because I asked him that, is he telling me
that personally or is what he was told to do? And he like, he said yeah, he's doing what
he's told to do by his bosses. And my friend can confirm that because h e was there
when he said it again to me, that he can't let me in because I will go in there and cause
trouble because I'm black."
24. The third defendant then joins the conversation:
"/ think it would be wrong for a business, like Hank's to scapegoat the bouncer. A
bouncer is hired under a specific pretext with specific instructions about who to admit
and how to admit them and the bouncer answers to the owners and that's who pays
his salary. And it's very convenient f or them to say, this is just the policy, the thoughts
of one individual bouncer, but that wasn't articulated by the bouncer and that wouldn't
be within his power to decide who they're going to let in. You're hired, you're informed,
and you implement what y ou've been told to do, and I felt very strongly that they're
simply trying to scapegoat the bouncer."
25. The t hird defendant continues by saying : "That's unacceptable kind of shows
that there is no remorse that this was a clearly thought-out thing."
26. On a qu estion by the TV presenter whether the first and third defendants
believe that first plaintiff is a racist institution, th e third defendant answers: "100
percent”. Later in the interview the third defendant states the following: "The
biggest issue here is that there is clear institutional racism at this place and that
it's not unique to Hanks. This is a very specific example where it's documented,
but there is a culture of this in South Africa and in Cape Town specifically and I
think damage should be the main attention of this event."
27. The gist of the allegations made in the article on 4 December 2022 was
repeated time after time over the ensuing days, in colourful language. The third
defendant took centre stage in the videos and articles as the first defendant’s
protector and in denouncing the plaintiffs.
28. On 5 December 2022 , a news clip was published on News24's YouTube
channel under the title "/ felt embarrassed and dehumanised: Hanks Pub patron
refused entry because he is black". This clip contains extracts of the cell phone
video taken by a person in third defendant's group on 2 December 2022 , and
was viewed more than 28 000 times. The third defendant is heard on the video
berating the first plaintiff, in strong language, for being a racist establishment.
29. On 6 December 2022 a clip was published on Newzroom Afri ca's YouTube
channel under the title "Logan describes Hank's Olde Irish Pub racist incidenf' .
In this clip a Newzroom Africa TV presenter reports on and interviews the third
defendant inter alia on the alleged incident of racism that first and third
defendants claimed occurred at the premises of the first plaintiff on 1 Dece mber
2022, the incident that was videotaped by a person in third defendant's group
on 2 December 2022, and the events thereafter. Whilst this interview is being
conducted with the third defendant, extracts of the cell phone video are being
shown. This clip has been viewed more than 4 800 times.
30. In this clip the TV presenter, by way of introduction, says the following:
"Government has condemned an alleged racist incident which took place at Hank's old
Irish pub in Cape Town. Thabiso Danca was reportedly barred from entering the
establishment allegedly because he wasn't in the company of a white person. Now the
victim's friend Christopher Logan intervened, and an altercation ensued. Logan joins
us now for more on the story."
31. The third defendant then declares inter alia the following:
“… before starting to confront the owner was a sense of complete outrage that
someone, I care about so much that's so close to me and that I consider a brother had
received treatment like this in a place that I can walk into freely and without anyone
saying anything to me. Uh it incensed me, it's I could see no justification and I believe it
had to be confronted head on … if you hear something like this, and then the reaction
we were expecting was that maybe a more apologetic and maybe a commitment to
retrain the staff and take responsibility for this incident, this is unacceptable but rather
we were told that they reserved the right of admission and that, is essentially
standing by this, um is the sense that we've got."
32. On a question from the TV presenter whether this was the first time that the
third defendant came across such a situation, the third defendant responded
"Yes, it was definitely a first time hearing about this at Hanks, ... this is maybe, a very
explicit example of this sort of terrible racist behaviour ... I hope this incident ca n draw
more attention to and that this is bigger than Hanks ... "
33. On 7 December 2022 an article was published on the ENCA website unde r the
title "Cape Town pub under spotlight for racism". This article also contains a
video, which was also published on ENCA's YouTube channel, under the same
title. In this video the third defendant states that ".. . what's most important here
and that's to do with racism, racism that Thabiso faced racism and Hanks ... "
34. On a comment by the reporter that the first plaintiff’s owners (the second and
third plaintiffs) released a statement saying that the allegations of racism are
unfounded and unproven and that in the last 30 years they have had no racist
incident at their premises, the third defendant responded:
"... fro m the moment this thing star ted they, all they've done is double down. You
know, the response by denying everything, by trying to go on the counterattack, um it's
just an attempt to try to diver t from what's actually going on here. When this whole
thing started their first response is we reserve the rights of admission which basically
means that they think they have the right to do this sort of thing so honestly, I think the
approach that they're taking from beginning to now has been totally incorrect and the
fact that this has gotten to this h eight they're clearly not reckoning with the magnitude
of it. … It's time to wake up and apologise for what's happened and commit to making
serious play, put serious commitments in place to address this. Doubling down,
denying everything, saying, going on the offensive, is not going to make it away . It's
infuriating South Africa more, because this is touch something very deep within the
psyche of many people i n South Africa and it needs to be addressed. If they hope to
move forward they've got to get serious about this, and that's what I would say is that
you've got to face this thing head on with an emotional intelligent way that doesn't just
double down and that's what we hope from Hanks."
35. The furore went on for days. I t is unnecessary to repeat all of the impugned
statements that are on record. An investigation into the matter has since
confirmed that the alleged racist incident on 1 December 2022 did in f act not
occur - the fourth plaintiff merely wanted to verify the first defendant’s age.
There was no merit in the third defendant’s tirade against the plaintiffs on 2
December 2022 and thereafter.
The consequences of the statements
36. The result of the deb acle was, unsurprisingly, a severely negative response
from the public, including protests by, amongst others, members of the
Economic Freedom Fighters (EFF) outside the first plaintiff’s premises for an
entire day soon after the event . Threats of violenc e were made against the
plaintiffs. The cell phone video went viral on social media, and there was a
public outcry against the plaintiffs. The second and third plaintiffs feared for
their safety and that of their employees and patrons, and were scared, too , of
damage being caused to the premises. They decided to close the businesses
for a period - Hanks was closed and did not trade from 5 December 2022 to 13
December 2022, and LTN was closed and did not trade from 4 December 2022
to 4 January 2023. This was over one of the busiest trading periods for the
business in general.
37. Defamation has been defined as the wrongful, intentional publication of words
or behaviour concerning another person, which has the effect of injuring his
status, good name or reputation. Publication entails the communication or
making known to at least one person other than the plaintiff. Once a plaintiff has
established the publication of de famatory matter concerning himself, it is
presumed that the statement was both wrongful and intentional. The defendant
has a full onus to rebut this presumption.2
38. The plaintiffs plead, and I agree, that the third defendant’s statements we re
wrongful and defamatory of plaintiffs, and were made with the intention to
defame the plaintiffs and to injure them in their reputation . The statements
meant, were intended to mean, and were understood by those to whom they
were published to mean that the first plaintiff was an establishment which has a
racist admission policy, and thus that the first plaintiff discriminates against
persons on the basis of their skin colour or membership of a particular racial or
ethnic group.
2 Le Roux v Dey 2011 (3) SA 274 (CC) at paras [84]-[86].
39. As regards the second and third plaintiffs as owners of the first plaintiff, the
statements meant, and were understood to mean, that the second and third
plaintiffs had implemented a racist policy in terms of which black persons were
only allowed entrance to the first plaintiff’s premises if they were accompanied
by a white person , and thus that the second and third plaintiffs discriminate d
against persons on the basis of their skin colour or membership of a particular
racial or ethnic group.
40. Given inter alia the importance and re levance of the topic – racism in our
society – and the inflammatory nature of social media, the statements were
published or caused to be published with the knowledge and with the intention
that they would be republished, and further reported on and discussed by and
in the public domain.
41. The second and third plaintiffs both presented oral evidence at the hearing of
the action. Mr Viron Papadakis testified that he and his brother had been
operating businesses in Cape Town for the past 30 years. They also have a
registered Non -Profit Organisation (NPO) called Bread for Life. In all of the
years there have never been any complaints against them or their businesses
on the basis of racism or discrimination of any kind.
42. On the contrary, they have always focused their efforts to the service other
people. In this regard they have, through the NPO and partnered with other
NPOs, served homeless communities, refugee communities and those living
with disabilities for the past 15 years.
43. The plaintiffs had enjoyed a good reputation and standing in the community.
This has now been obliterated because of the defamatory statements published
by the third defendant. Their businesses, including the first plaintiff, and their
NPO relationships have also suffered. They have struggled to keep their
commitments to those in need because of the marked decline in the first
plaintiff’s income.
44. Mr Papadakis testified that his involvement in the community is based on his
faith and the conviction to serve others. The defamat ory statements
contradicted his Christian beliefs and the values that he upholds in the
community. Being labelled a racist (or racist institution in the case of the first
plaintiff) in the mainstream media and on many social media platforms has
caused people to believe that he and his brother are fake and phony Christians,
and persons who discriminate on the basis of race. Their good names and
reputations as upstanding, honest persons with integrity who unselfishly serve
the community have been damaged an d lowered in the estimation of right -
thinking members of society. He has had to leave the first plaintiff’s business
as a result of financial difficulties experienced following the incident, and he
does not know whether people will ever trust him again.
45. They are now recognised in public because of the incident, and have been at
the receiving end of hate messages on social media. Because of the trauma
they have experienced during and after the incident, they have had to see a
therapist to help them cope with what had happened.
46. Mr John Papadakis confirmed this evidence. He is now the sole owner of the
first plaintiff. He testified that he lived by his father’s words, namely “ In
business and in life, it is better to lose your eye than your name ”. His goo d
name, and that of the other plaintiffs, was taken away due to no fault of theirs.
Their names have been smeared to such an extent that their long -standing
business partners severed ties with them. They lost many friends. The
reputation that they had built up over many years was lost in the blink of an eye.
47. It is clear that, as a result of the publication of the statements, the plaintiffs were
severely embarrassed and publicly degraded. The second and third plaintiffs’
demeanor in the witness box confirmed the damage done to them. They were
injured in their names, reputations and standing in the community, and were
(and still are) liable to be treated with severe aversion, suspicion, dis trust and
hostility. They have been, and will be, prejudiced in their professional and
private endeavours, and it is unlikely that they w ill ever fully recover their
respective reputations.
The plaintiff’s general damages
48. Awards in defamation cases serv e a specific purpose, namely commensurately
to compensate someone for the injury to his or her reputation, integrity and
dignity. Awards do not serve a punitive function, and are characterised by low
monetary amounts as a result. This is a fundamental prin ciple of the
jurisprudence on defamation awards and has been cited with approval in
various courts, most notably in Mogale v Seima. 3 The Supreme Court of
Appeal captured the principle, with reference to Esselen v Argus Printing and
Publishing Co Ltd,4 in the following terms:
"In general, a civil court, in a defamation case, awards damages to solace plaintiffs'
wounded feelings and not to penalise or to deter the defendant for his wrongdoing ...
Clearly punishm ent and deterrence are functions of the criminal law, not the law of
delict... To sum up: having regard to the foregoing and the general trend in recent
times and the fact that our courts have not been generous in their awards of solatia ...
a practice that is to be commended."5
49. Calculating the quantum of the award depends on the particular facts of each
case. It requires a realistic assessment of what is just and fair in the
circumstances.6 There is a range of factors that a Court may rely on to
determine what is just and fair in the circumstances. Those factors include, inter
alia, the nature and gravity of the defamatory words, the nature and extent of
3 2008 (5) SA 637 (SCA) at paras [9] -[12], and [18].
4 1992 (3) SA 764 (T) at 771G -I.
5 Mogale supra at para [18].
6 Van der Berg v Coopers & Lybrand Trust (Pty) Ltd 2001 (2) SA 242 (SCA) at para [48].
the publication, the rank or social status of the parties, the intentions of the
defendant, and the absence or nature of an apology.7
50. The defamatory statements in the present matter were of a serious nature and
were aimed at causing great hurt to the plaintiffs' dignity, good name and
reputation. The second and third plaintiff s were defamed as me mbers of the
white class who owns and runs a "racist institution" (the first plainti ff) and the
plaintiffs were called out for a "racist incident" that in fact never occurred.
51. The defamatory statements were published and circulated nationally. They
spread like a wildfire. Within less than a week, the third defendant appeared in
several television interviews conducted by the mainstream media where the cell
phone video was shown . The third defendant repeated and elaborated on the
initial defamatory statements made in respect of the plaintiffs. These interviews
were republished in the social media and were viewed by tens of thousands of
people.
52. The severe damage to the plaintiffs’ reputation and standing in the community ,
as well as on their business and social lives, has been detailed earlier in this
judgment. The second and third plaintiffs referred to the experience as life -
altering.
53. Although the third defendant did not witnes s the alleged incident on 1
December 2022, he attended the first plaintiff’s premises deliberately, accusing
the plaintiffs of being racist and a racist institution. This confrontation was
recorded by the persons accompanying the third defendant , and circulated on
social media. During the confrontation the second plaintiff was shouted at, and
not provided an opportunity to respond. The third defendant was aggressive,
confrontational, and using foul language. His threats of involving the media and
the EFF became a reality.
7 Mogale supra at paras [13]-[16].
54. It seems that the third defendant and his group were not interested in the truth
but their motive and conduct were to make the incident on 2 December 2022 as
sensational and emotionally laden as possible so that the video they were
recording of the incident could go viral on social media.
55. The third defendant has not apologized for his conduct.
56. The first, second and third plaintiffs each claim s damages in the sum of
R500 000,00. Given the conservative approach espoused in the relevant case
law, I am of the view that this sum, despite the undeniable seriousness of the
defamation, is too high. In the exercise of my discretion I regard the sum of
R250 000,00 as appropriate in relation to each of the plaintiffs.
Special damages suffered by the first plaintiff
57. The first plaintiff suffered, in addition, damages as a result of a loss of income
during the period its businesses were closed.
58. Because of the defamatory statements and the r epeated publication thereof,
and the subsequent closing of Hanks and LTN, the first plaintiff has suffered a
sharp decline in income since December 2022. The businesses have since
received several one -star reviews on review platforms such as "Google
reviews", "Zomato" and "Trip Advisor" . The second and third plaintiffs both
testified as to the troubles experienced in the business since the incident
because of the fact that the establishment is now regarded as racist.
59. Spreadsheets submitted into evidence detailed the individual and combined
income, expenses and net profit (or loss) of Hanks and LTN for the period July
2022 to July 2023. In comparing the net profit (loss) from December 2022 to
July 2023 with the five mo nths preceding the incident, it is clear that the first
plaintiff suffered a loss of income far in excess of the sum of R500 000,00 as
claimed in the particulars of claim.
60. The first plaintiff has not amended its particulars of claim to seek the higher
amount proved . I am accordingly satisfied that it should be awarded special
damages in the sum of R500 000,00.
Costs
61. The plaintiffs seek costs on a punitive scale. Given the nature of the matter and
the circumstances discussed in the course of this judgme nt, I agree that such
an award would be appropriate.
Order
62. In the premises, I make the following order:
The third defendant shall pay to the first, second and third plaintiffs
the following:
a. The sum of R500 000.00 to the first plaintiff as special damages.
b. The sum of R250 000.00 to the first plaintiff as general damages.
c. The sum of R250 000.00 to the second plaintiff as general damages.
d. The sum of R250 000.00 to the third plaintiff as general damages.
e. Interest on each of these amounts at the prescribed legal rate a
tempore morae.
f. Costs of suit on the scale as between attorney and client.
___________________
P. S. VAN ZYL
Acting judge of the High Court
Appearances:
Counsel for the first to third plaintiffs: M. Botha, instructed by Nel &
Associates
No appearance for the third defendant