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[2020] ZASCA 172
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Economic Freedom Fighters and Others v Manuel (711/2019) [2020] ZASCA 172; [2021] 1 All SA 623 (SCA) ; 2021 (3) SA 425 (SCA) (17 December 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 711/2019
In
the matter between:
ECONOMIC
FREEDOM
FIGHTERS FIRST
APPLICANT
MBUYISENI
QUINTIN
NDLOZI SECOND
APPLICANT
JULIUS
SELLO
MALEMA THIRD
APPLICANT
and
TREVOR
ANDREW
MANUEL RESPONDENT
MEDIA
MONITORING AFRICA
TRUST AMICUS
CURIAE
Neutral
citation:
EFF and Others v Manuel
(711/2019)
[2020] ZASCA 172
(17
December 2020)
Coram:
NAVSA, WALLIS, SALDULKER and MOLEMELA JJA and
POYO-DLWATI AJA
Heard
:
2 November 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the
Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down of the judgment is deemed to be 09h45 on
17 December
2020.
Summary:
Defamation – defences –
lack of animus iniuriandi – whether established - reasonable
publication in relation to
media defendants – requirements of –
whether extending to individuals using social media – whether
interdict
appropriate – whether order for apology competent –
whether damages claimable in proceedings by way of application
ORDER
On
appeal from:
Gauteng Division of High
Court, Johannesburg (Matojane J, sitting as court of first instance),
judgment reported
sub nom Manuel v
Economic Freedom Fighters and Others
2019
(5) SA 210
(GJ);
[2019] 3 All SA 584
(GJ):
1. The application for leave to appeal in relation to paragraphs 1 to
3 and 5 of the order of the court below is dismissed with
costs,
including the costs of two counsel.
2. In relation to paragraphs 4 and 6 of the order of the court below
the application for leave to appeal is granted.
3. The appeal in relation to paragraphs 4 and 6 of the order of the
court below is upheld with costs, including the costs of two
counsel.
4. Paragraphs 4 and 6 of the order of the high court are set aside
and replaced with the following order:
‘
1
The determination of the quantum of the damages suffered by the
applicant is referred to oral evidence.
2
The high court will determine in conjunction with its determination
of the quantum of damages whether an order for the publication
of a
retraction and apology should be made.’
JUDGMENT
Navsa
and Wallis JJA (Saldulker and Molemela JJA and Poyo Dlwati AJA
concurring)
[1]
On 27 March 2019, it was announced that a
committee chaired by the respondent, Mr Trevor Manuel, formerly a
member of parliament
and South Africa's longest serving Minister of
Finance, and at present the chair of a listed public company, had
recommended to
the President that Mr Edward Kieswetter be
appointed as the new Commissioner of the South African Revenue
Service (SARS) in
terms of the South African Revenue Service Act 34
of 1997 (the SARS Act). That same day, the first applicant, the
Economic Freedom
Fighters (the EFF), the third largest political
party represented in the National Assembly, issued a media statement,
saying that
it objected to 'the patently nepotistic and corrupt
process of selecting 'Mr Kieswetter', which it characterised as
'secret', and
adding:
'It has now emerged that the reason
is that, one of the candidates who was interviewed, and favoured by
the panel, is a dodgy character
called Edward Kieswetter, who is not
only a relative of Trevor Manuel, but a close business associate and
companion.'
[2]
The statement was issued by the second
applicant, Dr Mbuyiseni Ndlozi MP, in his capacity as the national
spokesperson of the EFF
and published on the party's Twitter account.
It was also published on the Twitter account of the third applicant,
Mr Julius Malema
MP, the Commander in Chief of the EFF. We will refer
to them and the EFF collectively as the applicants. To gauge the
extent of
its publication, the EFF has over 725 000 Twitter
followers and the statement was retweeted 237 times from that
account. Mr
Malema has over 2 million Twitter followers,
although one assumes that there would be considerable overlap between
his and
the EFF's followers. We do not know how often it was
re-tweeted. The statement also attracted extensive coverage in
conventional
media and in online channels of media communication.
[3]
Mr Manuel regarded the statement as being
defamatory of him and, demanded that it be withdrawn. After this
demand was rejected,
he instituted an application in the Gauteng
Division of the High Court, Johannesburg, claiming a declaration that
the allegations
made about him in the statement were false and
defamatory and that its publication was and remained unlawful. By way
of consequential
relief, he sought: (a) an order that it be removed
from all EFF media platforms and in particular the Twitter accounts
of the EFF
and Mr Malema; (b) an order for the publication of a
retraction and an apology; (c) an interdict against future and
further publication;
(d) damages in an amount of R500 000; and
(e) costs on an attorney and client scale. In relation to the claim
for damages
Mr Manuel sought, in the alternative, that it be declared
that the respondents were jointly and severally liable to pay him
damages
and that the quantification thereof be referred to oral
evidence.
[4]
The application came before Matojane J
who granted the relief claimed, subject to varying the terms of the
interdict claimed
by Mr Manuel. He refused leave to appeal. On
application to this court, an order was granted referring the
application for oral
argument in terms of s 17(2)
(d)
of the
Superior Courts Act 10 of 2013
. That is the matter before us.
The parties were directed, if called upon to do so, to address the
court on the merits. The Media
Monitoring Africa Trust (the Media
Trust) applied to be admitted as an
amicus
curiae
. They were admitted as such on
the basis that they could deliver written heads of argument and
could, with the leave of the presiding
judge, be permitted to present
oral argument. Such leave was given at the hearing. We heard argument
from the parties on both the
application for leave to appeal and the
merits. The amicus presented argument in relation to the dangers of
the publication of
falsehoods on social media platforms and on
extending media protection to individuals.
The
facts
[5]
The statement by the EFF bore the heading
:
‘
THE EFF REJECTS SARS
COMMISSIONER INTERVIEW PROCESS’
The
full text read:
‘
The Economic Freedom Fighters
objects to the patently nepotistic, and corrupt process of selecting
the South African Revenue Services’
Commissioner.
In February 2019, the EFF sent a letter, and
Parliamentary questions to the outgoing President Mr Cyril Ramaphosa
and Mr Tito Mboweni,
to specifically ask why they are conducting the
SARS selection process in secret. It is confirmed that a panel
chaired by former
Minister, Trevor Manuel, conducted secret
interviews to select the SARS Commissioner, and this goes against the
spirit of transparency
and openness.
It has now emerged that the reason is that, one of the
candidates who was interviewed, and favoured by the panel, is a dodgy
character
called Edward Kieswetter, who is not just a relative of
Trevor Manuel, but a close business associate and companion.
Kieswetter used to be a Deputy SARS Commissioner,
unlawfully appointed to that position by Trevor Manuel, when Pravin
Gordhan was
SARS Commissioner. Kieswetter was in SARS during the time
of the illegal intelligence unit established by Pravin Gordhan, to
hound
off political opponents and commit corruption.
After SARS, Kieswetter joined Alexander Forbes, and was
subsequently removed from the company due to alleged corruption and
unethical
conduct. After Alexander Forbes, Kieswetter became a
vice-chancellor of an institution whose academic credentials are
questionable.
This is now a candidate whom Trevor Manuel and Tito
Mboweni want to impose into SARS.
The EFF is profusely (sic) opposed to the imposition of
a secretly assessed candidate by conflicted individuals, and we will
do
everything in our power to stop and reverse the appointment of
Kieswetter as SARS Commissioner. We will immediately write a legal
letter to Mr Ramaphosa and Mr Mboweni, to demand disclosure of all
processes that were followed in the process of selecting a SARS
Commissioner.
Furthermore, the EFF will explore legal options to
invalidate the unlawful appointment of SARS Commissioner.
The EFF is particularly concerned about SARS, because
our Elections Manifesto states that, part of our immediate plan when
we take
over Government will be capacitation of SARS so that it can
maximally collect revenue. The EFF particularly advocates for a SARS
that will decisively fight against illicit financial flows, base
erosion and profit shifting. A secretly chosen SARS Commissioner
with
clear connection to the white capitalist establishment will not
maximally collect taxes.
The EFF therefore demands that the process to select
SARS Commissioner should be restarted and be opened to public
scrutiny. This
should be so because, a Commissioner of the ultimate
Revenue Collector in South Africa should be beyond reproach and must
stand
public scrutiny. SARS has over the years been involved in a lot
of illegal and unlawful activities, and taxpayers deserve to know
who
will be responsible for the institution.
We also caution Mr Ramaphosa and Mr
Mboweni to not engage in activities that led to the downfall of Mr
Zuma. If they become arrogant,
and ignore the EFF’s logical
demands, they must know that they too will fall very hard on their
own sword.’
[6]
Mr Manuel took the view that the sting of
the statement was that, as chair of a panel selecting the next SARS
Commissioner, he conducted
a corrupt, unlawful and clandestine
process, which led to the unlawful appointment of Mr Edward
Kieswetter, who was said to be
a relative and a close associate of
his. He complained that the statement accused him, when he was
Minister of Finance, of unlawfully
appointing Mr Kieswetter as
Deputy Commissioner of SARS and charged him with acting contrary to
the best interests of SARS
with corrupt intent. Finally, he said that
the statement accused him of acting contrary to the best interest of
SARS by virtue
of his connection to a 'white capitalist
establishment'. All this, he said, cast aspersions on his character
and integrity. He
was adamant that the offensive allegations were
devoid of truth. He insisted that they could not be justified.
[7]
Mr Manuel said that Mr Kieswetter was
neither a relative nor a business associate. He denied that secret
interviews were conducted
and denied any kind of nepotism or
corruption. He pointed out that the selection panel, which he
chaired, could only make a recommendation
about who should be
appointed as Commissioner of the South African Revenue Service and
that the power to appoint the SARS Commissioner,
in terms of the
applicable legislation, was solely vested in President Ramaphosa.
[1]
[8]
Attorneys acting for Mr Manuel wrote to the
EFF and Dr Ndlozi demanding that the applicants remove the statement
from their social
media platforms and apologise unconditionally in
terms set out in the letter. They refused to do so. Mr Manuel then
approached
the high court on motion seeking certain relief. His
stated purpose was:
'[I] seek various orders aimed at vindicating my good
name, putting an end to the ongoing and anticipated unlawful
publication of
the allegations in the statement, and compensating me
for the harm suffered.’
He
was not seeking to convey that he had suffered pecuniary loss for
which he was seeking compensation, because he indicated that,
if
awarded damages, he would donate the entire amount to a worthy cause.
[9]
Mr Manuel provided details of his lengthy
political career, stretching from the beginning of his involvement in
the ANC, to the
long period of time he served as National Minister of
Finance. He described the positions he had held in a number of
well-known
international organizations and set out his involvement in
business and his association with academic institutions. He also
provided
details of a number of international and local awards he had
received in recognition of 'my contribution to the country and to
principles of democratic governance'. It was this commitment to
country and democracy, so he asserted, that led to his participation
in the selection panel.
[10]
The selection panel that Mr Manuel chaired,
the legitimacy of which was not attacked by the applicants in the
statement set out
above, had its genesis in the removal from office
of the former SARS Commissioner, Mr Tom Moyane, pursuant to the
recommendations
of the Nugent Commission of Inquiry into Tax
Administration and Governance at SARS. On 9 November 2018 the Nugent
Commission, in
its Second Interim Report, recommended a specific
process for the appointment of the next Commissioner of SARS. It
recommended,
inter alia, that the candidate or candidates chosen or
nominated by the President should be subjected to interview by an
apolitical
panel, comprising persons of high standing who would
inspire confidence across the tax paying-spectrum. It also provided
baseline
criteria against which potential candidates should be
evaluated. Although saying that the process 'for the purposes of
providing
input to the President, or the Minister, as to the
suitability for office of the candidates' should be 'open and
transparent',
the Nugent Commission recommended that the candidates
should submit to a private interview by a panel of four or more
members selected
by the President and that the function of the panel
was to evaluate candidates against the prescribed criteria.
[11]
It was undisputed that President Ramaphosa,
whilst recognising that it was ultimately his prerogative to appoint
the Commissioner,
accepted the Nugent Commission’s
recommendation. He appointed the present Minister of Finance, Mr Tito
Mboweni, to oversee
the recommended process, including the
appointment of the panel, which it was envisaged would shortlist
interviewees and submit
a list, recommending suitable and competent
persons for consideration. On 7 February 2009 Mr Mboweni
announced the appointment
of the interviewing panel. The panel
comprised seven members, including Mr Manuel as chairperson. The
other six members were
well-known individuals, who no-one suggested
did not meet the criteria set by the Nugent Commission. It is for
present purposes
unnecessary to set out their personal and
professional particulars.
[12]
Applications for the position of
Commissioner were called for and a shortlisting process ensued. The
panel ultimately selected seven
candidates to be interviewed, but one
withdrew. Five candidates were interviewed on 9 February 2019 and the
last candidate, who
had been travelling overseas, was interviewed on
21 February 2019. Before Mr Kieswetter was interviewed, Mr Manuel
disclosed that
he had, in the past, worked with him, although they
had not interacted, other than, at arms-length and professionally.
This took
place when Mr Manuel was Minister of Finance and Mr
Kieswetter, Deputy Commissioner of SARS. During that time the
Ministry met
with senior management of SARS once a fortnight to
discuss matters of mutual interest.
[13]
The other panel members considered this
disclosure, but did not think there was a conflict of interests,
requiring him to recuse
himself. Nonetheless, according to Mr Manuel,
out of an abundance of caution he merely observed Mr Kieswetter being
interviewed,
but did not participate in the questioning. Following
the interview process three candidates were recommended to proceed to
competency
testing. Standard reference and security checks were
performed. Intense competency checks were conducted, and psychometric
assessments
were undertaken by an outside consulting company. After
all the information had been gathered the panel deliberated and Mr
Kieswetter
was unanimously recommended for appointment as SARS
Commissioner.
[14]
The applicants’ response was to set
out what they considered to be the proper context within which the
statement complained
of was published. They explained that the EFF
had serious concerns regarding the removal of the previous
Commissioner and was concerned
about the abuse of state institutions.
They pointed out that the EFF was the third largest political party
in South Africa and
it was thus 'materially interested' in the
appointment of the new Commissioner. According to them, the EFF was
intent on ensuring
that the individual to be appointed as
Commissioner and the process leading up to the appointment, be beyond
reproach. The EFF,
so it was said, wanted to see to it that the
process employed would withstand ‘robust scrutiny’. In
this regard it
referred to past corruption in the Public Service.
[15]
The applicants emphasized that they were
acting, not for personal or private gain, but in the public interest
at the time of a national
general election. The EFF was adamant that
President Ramaphosa be held to account and that there be no blind
acceptance of decisions
made by him. They asserted forcefully that
they were committed to the Rule of Law and the Constitution. They
were adamant that
the court should be concerned about political free
speech and that defences open to media defendants should be available
to them.
The following is a material part of their answering
affidavit:
'The respondents disclose to this Court that its
statement was motivated by certain disclosures made to it by a source
whose identity
and details the respondents are not at liberty to
disclose. Suffice it to say, this source had intimate knowledge of
the intended
appointment process, including the appointment of the
Panel, and informed the EFF that this was to occur largely out of the
public
gaze.'
The
information provided by the source featured large in an assertion
that it was reasonable for the EFF to publish the statement
and we
will consider it in greater detail later in this judgment.
[16]
While accepting that s 6 of the SARS Act
was not prescriptive of how the President should go about appointing
the SARS Commissioner,
the applicants were concerned by the exclusion
of parliament from that process. It was the lack of public scrutiny
in relation
to the selection process that the applicants contended
motivated the statement complained of. They put it thus:
'So, when the EFF received the confidential tip-off,
both in respect of the process occurring in secret, and the
possibility that
the interviews would be run under the applicant and
that he was related to one of the applicants, the EFF was galvanized
into action
as it should as a major political party.'
They
described the statement as being in the 'typical robust rhetorical
style' of the EFF’.
[17]
The applicants submitted that the statement
by them that Mr Manuel was related to Mr Kieswetter was
substantially true, on
the strength of what was imparted to the EFF
by its confidential source. They contended that in any event they
genuinely believed
the statement was true. They did not challenge Mr
Manuel's assertion that he and Mr Kieswetter were not relatives
in the common
familial sense of being related by blood or marriage.
However, they said that it was ‘common cause’ that Mr
Manuel
and Mr Kieswetter were related, due to the past relationship
that Mr Manuel disclosed to the committee and which led to him
partially
recusing himself during Mr Kieswetter's interview. It was
submitted that the nepotism they referred to in the statement, should
be widely construed to include this past relationship. Similarly, the
corruption alleged in the statement should also be seen in
this
light.
[18]
In seeking to justify the statement, the
applicants contended that the publication of the statement in
question was reasonable in
the circumstances and should be considered
akin to statements by whistle-blowers. Additionally, they adopted the
position that
the statement complained of was fair comment. Lastly,
the applicants warned that censoring and prohibiting statements like
the
one in question would have a chilling effect on political speech.
The
high court's judgment
[19]
The high court was called upon to
adjudicate the disputes crystallised from the preceding paragraphs.
Initially it dealt with and
rejected certain ‘preliminary
objections’. It noted that, there was no attempt to show that
the sting of the article
was not as contended by Mr Manuel and held,
after applying the two-stage test laid down by the Constitutional
Court in
Le Roux v Dey
,
[2]
that the statement was defamatory of Mr Manuel. Accordingly, the
court said that its publication was presumed to be wrongful and
intentional and that the applicants bore the onus of rebutting either
wrongfulness or intention.
[20]
The judge dealt with all of the defences
raised by the applicants under the general heading of defences to
rebut unlawfulness. Whether
that was a correct classification is an
issue to which we will need to return. He dealt with them under four
headings, namely,
truth and public interest; reasonable publication;
fair comment; and public interest. As regards the last of these, he
said that
it was not a defence in itself, but an element of other
defences.
[21]
Each defence was examined and all of them
were rejected on the basis that the applicants had not established
the factual basis for
any of them. As far as truth and public
interest was concerned, the judge held that the sting of the charge
had to be shown to
be substantially true. The fact that interviews of
candidates would take place privately was part of the Nugent
Commission's recommendations
and known before the interviews were
held, so the process was open and transparent, even though the
interviews were not public.
He held that Mr Kieswetter was neither a
relative of, nor a close business associate of and companion to,
Mr Manuel. The latter's
recusal from active participation in
Mr Kieswetter's interview did not in substance establish the
truth of these allegations.
[22]
The high court based its approach to the
defence of reasonable publication on the judgment of this court in
Bogoshi
[3]
as approved by the Constitutional Court in
Khumalo
.
[4]
Those cases dealt with publication in the media – both involved
newspaper articles – and the rejection of the decision
in
Pakendorf v De Flamingh,
[5]
which held the media strictly liable for defamatory publications. The
high court applied the defence to publication by private
individuals,
saying simply that there was no justification for the press enjoying
a privilege of freedom of expression greater
than that enjoyed by a
private individual. In doing so it did not consider whether it was
extending the possible range of defences
open to private individuals,
or imposing upon them the constraints that apply to the broadcast and
press media. Be that as it may,
the judge held that the applicants
had failed to show that it was reasonable for them to publish the
statements made about Mr Manuel.
[23]
The high court relied on the approach by
the Constitutional Court in
McBride
,
[6]
that the defence of fair comment required that the comment not be
made maliciously and be based on facts that were fairly stated
and
substantially true. The judge held that anything constituting comment
in the statement was not based on facts fairly stated.
Furthermore,
he held that the applicants were actuated by malice because they
published the statement with reckless indifference
to whether it was
true or false.
[24]
That took the high court to the question of
remedy. It dealt first with the issue of damages and awarded a sum of
R500 000.
Without any great discussion it held that Mr Manuel
was entitled to the interdictory relief he sought, as well as a
declaratory
order and a retraction and apology. Its reasons will be
considered later in this judgment.
[25]
In the result Matojane J made the following
order:
'1 The allegations made about the applicant, Trevor
Andrew Manuel, in the statement titled 'The EFF Rejects SARS
Commissioner Interview
Process' dated 27 March 2019 are defamatory
and false.
2 It is declared that the respondents' unlawful
publication of the statement was, and continues to be, unlawful.
3 The respondents are ordered to remove the statement,
within 24 hours, from all their media platforms, including the first
and
third respondent's Twitter accounts;
4 The respondents are ordered, within 24 hours, to
publish a notice on all their media platforms, on which the statement
has been
published, in which they unconditionally retract and
apologise for the allegations made about the applicant in the
statement.
5 The respondents are interdicted from publishing any
statement that says or implies that the applicant is engaged in
corruption
and nepotism in the selection of the Commissioner of the
South African Revenue Service.
6 The respondents are ordered jointly and severally to
pay damages of R500 000 to the applicant.
7 The respondents are ordered jointly and severally to
pay the applicant's costs on an attorney and client scale.'
The
issues
[26]
A number of issues fall to be considered in
this case. The first is whether leave to appeal should be granted.
Although that is
a threshold issue it requires consideration to some
extent of the merits of Mr Manuel's case and the merits of the
defences advanced
by the applicants. For that reason, we will only
deal with leave to appeal at the end of the judgment. The defence of
reasonable
publication was considered for the first time in the
context of publication by a private individual and a political party,
rather
than the media. The court recognised it as a defence, so it
will be necessary to consider to some extent, if not necessarily
definitively,
whether that development of the law is appropriate. All
the defences were dismissed on the basis of the judge's factual
findings.
There is thus the question of how we view those
conclusions.
[27]
If the publication was defamatory of Mr
Manuel and the proffered defences were correctly rejected by the high
court, there remain
issues regarding the relief granted by the court.
Before us there was a general attack on the quantum of the award of
damages,
but there is an anterior question whether it was permissible
for the court to make that award without hearing oral evidence. This
is an issue of principle in regard to a change of procedure having a
substantive effect, because, so far as we are aware, this
and one
case that followed it,
[7]
were the first occasions on which courts made awards of damages for
defamation, or any similar
injuria
,
in application proceedings. Whether that is a permissible approach
requires consideration for the guidance of litigants and the
profession generally.
[28]
Lastly, there is the question of whether
the declaratory and interdictory relief and the order to publish an
apology were appropriate
or should be amended. The applicants
contended that they should not have been ordered to remove the
statement in its entirety but
only those portions that adversely
reflected on Mr Manuel's reputation.
[29]
In considering all of these issues we will
throughout be conscious that we must do so against the background of
the right to freedom
of expression, guaranteed in s 16 of the
Constitution, the political rights in s19 of the Constitution and the
right to dignity
in s 10 of the Constitution. We say this at the
outset to avoid oft repetition of what is fundamental to the proper
adjudication
of this type of case.
The
defamation
[30]
Determining whether a statement was
defamatory involves a twofold enquiry.
[8]
First, one establishes the meaning of the words used. Second, one
asks whether that meaning was defamatory in that it was likely
to
injure the good esteem in which the plaintiff was held by the
reasonable or average person to whom the statement was published.
Where the injured party selects certain meanings in order to point
the sting of the statement, they are bound by the selected
meanings.
[9]
The meaning of the statement is determined objectively by the legal
construct of the reasonable reader and is not a matter on which
evidence may be led.
[10]
[31]
We received some interesting submissions
from the Media Trust concerning the approach to the legal construct
of the reasonable reader
in the context of social media platforms,
such as Facebook, Twitter and Instagram, in the light of two cases
from England.
[11]
Useful though those may prove on some future occasion, the
publication on Twitter in this case was a publication of the whole
statement that had been circulated as a media release to the
established media. It was not confined to a limited number of
characters
or written in a form of shorthand. Even a cursory read by
social media users would have conveyed to them the essence of the
charges
made by the EFF against Mr Manuel. In those circumstances,
the fact that the statement was published on Twitter does not require
us to evolve a new approach to the reasonable reader.
[32]
Mr Manuel identified nine respects in which
he said the statement was defamatory of him. They were that he was
corrupt; nepotistic;
conducted himself unlawfully; conducted 'secret
interviews' and participated in a secretive process to select the new
SARS Commissioner;
that the secretive process was a deliberate
attempt to disguise his familial relationship and business
association with Mr Kieswetter;
that he conducted an unlawful
appointment process; and that he had previously made unlawful
appointments to positions at SARS when
he was Minister of Finance.
More generally, he contended that the statement meant that he had
acted contrary to SARS' interests
with corrupt intent, and was
connected to a 'white capitalist establishment' that acted contrary
to the best interests of SARS.
[33]
An analysis of the statement almost
completely justified Mr Manuel's contention. In the opening paragraph
the process of selecting
the new Commissioner was described as
patently nepotistic and corrupt. In the following paragraph the panel
chaired by Mr Manuel
was said to have conducted 'secret' interviews.
That this was intended to convey that there was something clandestine
and untoward
about the interviews becomes clear when one reads the
third paragraph, which said that:
'It has now emerged that the reason is that, one of the
candidates who was interviewed, and favoured by the panel, is a dodgy
character
called Edward Kieswetter, who is not just a relative of
Trevor Manuel, but a close business associate and companion.'
The
point of this being patently nepotistic and corrupt was then hammered
home in the following paragraph, where it was said that
Mr Manuel,
when Minister of Finance, unlawfully appointed Mr Kieswetter as a
Deputy SARS Commissioner.
[34]
The statement went on to say that Mr Manuel
and Mr Mboweni were trying to impose on SARS someone with a dubious
background involving
corruption and unethical conduct. The
individuals who assessed him for this post, of which Mr Manuel and Mr
Mboweni were the only
ones specified by name, were described as
'conflicted' and the appointment was described as 'unlawful'. The
only complaint by Mr Manuel
that was possibly not justified was
that he was tied to a 'white capitalist establishment' that acted
contrary to the best interests
of SARS. That statement was made about
Mr Kieswetter and could at most possibly have had only an indirect
impact upon Mr Manuel.
We will disregard it.
[35]
There can be no doubt that the effect of
these statements would in the eyes of the reasonable reader diminish
the esteem in which
any person about whom they were made was held by
others in the community. That is defamatory, and apart from a
short-lived, and
patently unfounded, endeavour to suggest that
'relative' did not mean a familial relative, counsel accepted that it
was defamatory.
Wrongfulness
and intention
[36]
Once the publication of defamatory matter
has been proved, it is presumed that the publication was wrongful and
intentional, that
is, published with the intention to injure (the
animus iniuriandi
).
[12]
A defendant wishing to avoid liability must raise a defence that
excludes either wrongfulness or intention. The publisher of the
defamation bears the onus of rebutting either wrongfulness or
intention. They must adduce the evidence necessary to achieve that
purpose.
[13]
In this case the onus rested on the applicants to establish either
that the publication was not wrongful, or that it was not published
with the requisite intent.
Truth
and public interest
[37]
Truth and public interest and fair comment
are two defences that have long been recognised as rebutting the
presumption of wrongfulness.
A defendant relying on truth and public
interest must plead and prove that the statement is substantially
true and was published
in the public interest.
[14]
This defence can be disposed of in short order. The applicants made
no attempt to establish that the defamatory statements about
Mr
Manuel were true. The furthest they went was to claim that they
believed to be true what they had been told in a WhatsApp message
by
a whistle blower, whose identity they kept secret. There was no
attempt to refute Mr Manuel's statements that he was not
related to
Mr Kieswetter and that they were neither business associates or
companions. As those factual propositions were the foundation
for the
entire statement and its attack on Mr Manuel the failure to establish
that they were substantially true was fatal to the
defence. It was
correctly rejected by the high court and not surprisingly it was not
pursued in argument.
Fair
comment
[38]
Turning to fair comment, it has four
elements. The defamatory statement
(a) must be a comment and not a statement of fact;
(b) it must be fair, by which is meant only that it must be an
honestly-held opinion, not that it is balanced or temperate;
(c) the facts on which it is based must be true and must be clearly
stated or clearly indicated, or matters of public knowledge;
and
(d) the comment must relate to a matter of public
interest.
[15]
If
the comment is made maliciously, that is, with an improper motive, as
opposed to being no more than the expression of an honestly-held
opinion on a matter of public interest, it is wrongful and the
defence is not available.
[16]
Where malice is alleged the evidence led to establish it may also be
directed at rebutting the claims that the opinion was bona
fide and
that the matter was one of public interest.
[39]
Not all of the defamatory matter in the
statement can be regarded as a comment. At best for the applicants
the description of the
process in the opening paragraph as 'patently
nepotistic and corrupt' may be regarded as comment. But that comment,
if it be such,
was expressly based on what was stated in the third
paragraph, that Mr Kieswetter was Mr Manuel's relative, business
associate
and companion. That was all untrue. That sufficed to
dispose of the defence of fair comment. It was correctly rejected by
the high
court and, like the defence of truth and public interest,
was not pursued in argument.
Reasonable
publication
[40]
The third defence going to wrongfulness
advanced by the applicants was that of reasonable publication. Before
us the argument on
the merits revolved around this and accordingly it
requires more detailed treatment than the other defences. The
applicants advanced
it on the following basis. Since the judgment of
this court in
Bogoshi
,
[17]
the media have been entitled to establish that the publication of a
defamatory statement was not wrongful by proving that they
reasonably
believed in its truth and that it was in the public interest that it
be published. The applicants contended that this
defence was
available to them, albeit that they are not part of the media. The
high court recognised the defence, but held that
the publication was
not reasonable.
Animus
iniuriandi
[41]
In order to evaluate the contentions in
this regard it is necessary to undertake a brief excursion into our
jurisprudence in relation
to the requirement of
animus
iniuriandi
in the context of defamation
and the developments that followed upon the comprehensive review of
the law on this topic by De Villiers
AJ in
Maisel
v Van Naeren
.
[18]
The claim of defamation arose from aspersions cast on Mr van Naeren's
conduct as a tenant in a block of flats contained in a letter
addressed by Mr Maisel to the Chairman of the Rent Board, Cape Town.
A defence that the letter was published on a privileged occasion
failed because the block of flats was not subject to rent control.
However, the claim was dismissed on the basis that Mr Maisel's
bona
fide but erroneous belief that the letter was written on a privileged
occasion rebutted the presumption that it had been published
animo
iniuriandi
. De Villiers AJ said;
'… I can see no reason why an
erroneous belief in the existence of a so-called "privileged
occasion" could not
in fit circumstances protect a defendant …'
[42]
In
Jordaan v
Van Biljon
[19]
Rumpff JA said that in order to avoid misunderstanding and
unnecessary confusion the expression 'malice' that had been used in
earlier cases should not be used. Once it was accepted that it was
open to a defendant to rebut
animus
iniuriandi
in any manner, in the light
of the facts set out in the plea, confusion in regard to defences
with special names would be avoided.
[20]
The requirement of
animus iniuriandi
was
reaffirmed in
Craig v Voortrekkerpers
Bpk,
[21]
although on the facts it was held that the defendant had not
discharged the onus of showing that the occasion was privileged in
accordance with its plea.
[43]
Nydoo v Vengtas
,
was the last of this trilogy of judgments, all authored by Rumpff JA.
The legal position in regard to a defence based on
the absence of
animus iniuriandi
was set out in the following terms:
[22]
'Evidence that a defendant honestly
thought that his defamatory words were published with a lawful
purpose, although in accordance
with an objective standard the
purpose was not lawful, would justify an inference that he did not
have the intention to injure.'
(Our translation)
[44]
In
O'Malley
[23]
this court considered a plea by the country's national broadcaster
that it had published a news report on the basis of information
from
reliable sources and without the intention to injure the plaintiff.
While reasserting the need for an intention to injure
and
consciousness of the wrongfulness of the publication as essential
elements of defamation, Rumpff CJ raised the possibility,
without
deciding, that, in the case of the media, absence of
animus
iniuriandi
might not be a defence and
instead that strict liability might apply to owners, publishers,
editors and printers, but not to distributors.
[24]
That possibility became the law with his judgment in
Pakendorf
v De Flamingh
.
[25]
[45]
To sum up, the legal position at this stage
appeared to be that when confronted with a claim for defamation, a
defence could be
raised that the defamation had been published
without
animus iniuriandi
.
Defendants were not constrained by specific categories of defence,
such as that the publication took place on a privileged occasion,
but
could rely upon their own bona fide error in believing that the
defamation had been published lawfully, although in the above-cited
cases such a defence had been upheld only in
Maisel
v Van Naeren
.
[26]
This defence was not open to the media, both print and broadcast.
Their liability, outside of the limits of a defence of publication
on
a privileged occasion, was strict. However, in what might be viewed
as a retreat from the pure principle articulated in the
earlier
trilogy of judgments,
Pakendorf v De
Flamingh
reserved for later decision
the question whether a defendant could acknowledge that the
publication was defamatory, but contend
that due to mistake there was
an absence of knowledge of unlawfulness. It said that it was unclear
whether this issue and its resolution
belonged with the requirement
of fault or intention.
[27]
That set the stage for
Bogoshi
.
[46]
Bogoshi
overruled
Pakendorf v De Flamingh
insofar
as it imposed strict liability on the media. It held that there had
been an over-emphasis on the issue of intention and
insufficient
regard had been paid to the question of lawfulness. A new defence was
recognised that publication of defamatory matter
by the media would
not be unlawful if the publication was reasonable. Hefer JA
formulated the defence in the following language:
[28]
'
the
publication in the press of false defamatory allegations of fact will
not be regarded as unlawful if, upon a consideration of
all the
circumstances of the case, it is found to have been reasonable to
publish the particular facts in the particular way and
at the
particular time
.'
[47]
Bogoshi
recognised
that the new defence of lawful publication by the media raised the
question, left open in
Pakendorf v De
Flamingh
, whether absence of knowledge
of wrongfulness could be relied upon as a defence of absence of
animus iniuriandi
,
if the lack of knowledge of wrongfulness was due to the defendant's
negligence.
[29]
Because the new defence was explicitly based on the lawfulness of the
publication, and negligence might be determinative of its
lawfulness,
[30]
Hefer JA said that if media defendants could raise the same
negligence as a basis for claiming absence of
animus
iniuriandi
'it would obviously make
nonsense of the approach … to the lawfulness of defamatory
untruths'.
[31]
He explained that absence of
animus
iniuriandi
was concerned with ignorance
or mistake regarding one or other of the elements of defamation. The
Bogoshi
defence is based on the reasonableness of the publication. In short,
unreasonable publication of defamatory matter by the media
is
unlawful, and the corollary is that a defence of absence of
animus
iniuriandi
, based on negligent absence
of knowledge of wrongfulness, is not available to the media. The
result is that in principle the media
and non-media defendants stand
on a different footing as appears from this concluding passage:
[32]
'… there are compelling
reasons for holding that the media should not be treated on the
same footing as ordinary members
of the public by permitting them to
rely on the absence of
animus
injuriandi,
and
that it would be appropriate to hold media defendants liable unless
they were not negligent in the circumstances of the
case.'
[48]
Whether defendants other than the media can
rely on a defence of absence of knowledge of unlawfulness due to
their own negligence,
and hence an absence of
animus
iniuriandi
, was again left open in
Bogoshi
,
but there was an indication that they might be entitled to do so,
because, after explaining that media defendants could not rely
on
that as a defence, Hefer JA said:
'
The
resultant position of media defendants may not in this respect be so
different from that of other defendants because
Pakendorf
left
open the question whether any defendant can rely on a defence of
absence of knowledge of unlawfulness due to negligence.
However,
we have not been called upon to decide the question in relation
to other members of the public.'
The
endorsement of
Bogoshi
by the
Constitutional Court in
Khumalo
[33]
did not take this any further and it has not been addressed in
subsequent cases.
Other
jurisdictions
[49]
In formulating the defence of reasonable
publication, Hefer JA had regard to developments in Australia and the
United Kingdom as
well as a statement of the law in the Netherlands.
Internationally the law has moved on since then. For example, he
referred to
the decision of the Court of Appeal in the UK in
Reynolds
.
[34]
The appeal from that judgment was heard after the judgment in
Bogoshi
and referred to it in a comprehensive survey of the approach taken in
the United States, Canada, India, Australia, South Africa
and New
Zealand to issues of the media's liability for defamation in regard
to public figures, political expression and the requirement
of
reasonable care in publishing defamatory matter in respect of such
public figures. Given that these judgments were based on
widely
differing constitutional provisions, local statutes and developments
of the common law from widely differing bases, it is
no surprise that
in the leading speech for the majority Lord Nicholls of
Birkenhead concluded that the solutions were not
uniform and each was
not without its critics in its home country.
[35]
In regard to the Court of Appeal's decision on which Hefer JA had
placed some reliance it was said that its 'formulation of three
questions gives rise to conceptual and practical difficulties and is
better avoided'.
[50]
The end result was that the House of Lords
in
Reynolds
declined,
by a narrow majority, to create a new category of occasions when
privilege derives from political information alone. It
held that the
existing defence of qualified privilege was sufficiently flexible to
accommodate the problems encountered by the
media in reporting on
matters of public concern, whilst giving appropriate protection to
reputation. Lord Nicholls said that in
determining whether the
occasion on which publication occurred was privileged, a range of
matters ought to be taken into account,
of which ten were mentioned
as illustrative only, namely:
[36]
'1.
The seriousness of the allegation.
The more serious the charge, the more the public is misinformed
and the individual harmed,
if the allegation is not true.
2.
The nature of the information, and
the extent to which the subject-matter is a matter of public
concern.
3.
The source of the information. Some
informants have no direct knowledge of the events. Some have their
own axes to grind,
or are being paid for their stories.
4.
The steps taken to verify the
information.
5.
The status of the information. The
allegation may have already been the subject of an investigation
which commands respect.
6.
The urgency of the matter. News is
often a perishable commodity.
7.
Whether comment was sought from the
plaintiff. He may have information others do not possess or have
not disclosed. An approach
to the plaintiff will not always be
necessary.
8.
Whether the article contained the
gist of the plaintiff's side of the story.
9.
The tone of the article. A newspaper
can raise queries or call for an investigation. It need not adopt
allegations as statements
of fact.
10.
The circumstances of the publication,
including the timing.
This
list is not exhaustive. The weight to be given to these and any other
relevant factors will vary from case to case. Any disputes
of primary
fact will be a matter for the jury, if there is one. The decision on
whether, having regard to the admitted or proved
facts, the
publication was subject to qualified privilege is a matter for the
judge. This is the established practice and seems
sound. A balancing
operation is better carried out by a judge in a reasoned judgment
than by a jury. Over time, a valuable corpus
of case law will be
built up.'
[51]
Although this was expressed as outlining
the scope of the existing defence of qualified privilege in English
law, it created greater
flexibility in regard to reporting matters of
public interest and the possibility of reasonable error in such
reporting. It was
'concerned to provide a proper degree of protection
for responsible journalism'.
[37]
Because the English law of defamation does not draw the same
distinctions as our law in regard to wrongfulness and
animus
iniuriandi
, it was not expressed in
terms easily transferable to this country.
[52]
In
Jameel,
[38]
the leading speech on behalf of a narrow majority in the House of
Lords was delivered by Lord Hoffmann. He pointed out that the
Reynolds
defence,
as it had come to be known, was not the same as the existing defence
of privilege,
[39]
because it was the material that was privileged, not the occasion on
which it was published. The issue of 'malice', which in South
African
legal parlance is largely equivalent to the intention to injure,
[40]
did not arise as a separate issue because it was dealt with in the
requirements for reasonable publication. The final curial development
of the
Reynolds
defence
came in
Flood
,
altering the defence from privilege to one of public interest based
on whether there was some real public interest in having the
information in question in the public domain.
[41]
It was also said that the defence was not reserved for the media,
although it was the media that was most likely to invoke it.
[42]
[53]
The most recent development in England has
been the passage of s 4 of the Defamation Act 2013 (c24), which
enacts a defence
of 'Publication on matter of public interest' in the
following terms:
'
Publication on matter of public
interest
(1) It is a defence to an action for defamation
for the defendant to show that—
(a) the statement complained of was, or formed
part of, a statement on a matter of public interest; and
(b) the defendant reasonably believed that
publishing the statement complained of was in the public interest.
(2) Subject to subsections (3) and (4), in
determining whether the defendant has shown the matters mentioned in
subsection (1),
the court must have regard to all the
circumstances of the case.
(3) If the statement complained of was, or
formed part of, an accurate and impartial account of a dispute to
which the claimant
was a party, the court must in determining whether
it was reasonable for the defendant to believe that publishing the
statement
was in the public interest disregard any omission of the
defendant to take steps to verify the truth of the imputation
conveyed
by it.
(4) In determining whether it was reasonable
for the defendant to believe that publishing the statement complained
of was in the
public interest, the court must make such allowance for
editorial judgement as it considers appropriate.
(5) For the avoidance of doubt, the defence
under this section may be relied upon irrespective of whether the
statement complained
of is a statement of fact or a statement of
opinion.
(6) The common law defence known as the
Reynolds defence is abolished.'
This
defence has been the subject of recent analysis by the Supreme Court
in
Serafin v Malkiewicz.
[43]
[54]
The new defence in
Bogoshi
went further than the original
Reynolds
defence as articulated by Lord Nicholls
in the House of Lords, in treating it as a separate defence,
unconfined by the traditional
defence of qualified privilege.
However, it did not create a general defence of public interest
publication available to persons
other than the media. Nor did it
diminish the ability of persons outside the media from pleading and
proving that in certain circumstances
publication of defamatory
matter in consequence of error could support a defence of publication
without
animus iniuriandi
.
[55]
We have traced these developments in
English law because they illustrate the need to develop the law
within the framework of a country's
own jurisprudence. The fact that
there is now a general defence of publication on matters of public
interest in England may be
of assistance in a proper case in
developing our common law, but it cannot be assumed that our law
should parallel theirs. For
the same reason it is helpful to refer to
the Australian solution to the problem of publication of untrue
defamatory matter on
matters of public interest, provided we bear in
mind that its rule is based on a constitutional principle that 'each
member of
the Australian community has an interest in disseminating
and receiving information, opinions and arguments concerning
government
and political matters that affect the people of Australia'
and the media has a concomitant interest in disseminating it.
[44]
The requirement of reasonableness in publishing is a statutory one,
that the court held did not infringe the constitutional right.
[56]
As a final illustration of the diversity of
approaches to this issue and the fluidity of the law in that regard,
we refer to the
position in New Zealand. There the defence of
qualified privilege was expanded in
Lange
v Atkinson
[45]
to include publications concerning Members of Parliament, or those
seeking election to Parliament, if the allegations concerned
their
fitness for office, but not importing the Australian requirement of
reasonable publication. In a subsequent decision the
court declined
to follow the House of Lords by adopting the
Reynolds
defence.
[46]
This comparatively cautious approach has recently changed with the
adoption by the same court of a new defence of public interest
communication that extends to all matters of significant public
concern, but subject to a responsibility requirement. In regard
to
the need for the latter, the court said:
[47]
'
The
emergence of social media and the “citizen journalist”
which has radically changed the nature of public discourse.
Bloggers
and those who comment on blogs, tweeters, and users of Facebook and
other social media are modern phenomena largely unknown
to the Court
in
Lange
.
While the mainstream New Zealand media may still be as responsible as
the Court in
Lange
considered
it was, the proliferation of unregulated bloggers and other
commentators who can be reckless means that the imposition
of a
responsibility requirement is highly desirable and a necessary
safeguard for reputation and privacy rights. It would also
provide
much needed clarity and certainty in an unregulated world. The other
alternative would be to deny the defence altogether
to anyone other
than the mainstream media but we do not consider that drawing such a
distinction would be justified either as a
matter of logic, policy or
principle. Non-media commentators have an important role to play.
[57]
This brief review of developments in other
jurisdictions reflects a convergence of judicial thinking about the
important role of
the media in modern democracies, the proper
boundaries of freedom of expression, the public interest and the
recognition of the
right to dignity in respect of reputation. Our own
jurisprudence in cases such as
Bogoshi
and
Khumalo
is
part of that convergence. The rise of social media will continue to
focus attention on this area of the law. Significant in this
judicial
convergence is that all societies are facing similar issues, but each
has found it necessary to address it in its own
way in accordance
with its own legal principles. Some have addressed the problem by
developing common law principles, some have
resorted to statute and
others have found the answers by a blend of constitutional principle
and common law development. Any development
of our common law will
likewise have to be undertaken in accordance with the legal
principles of the
actio injuriarum
and
in the light of our constitutional values.
Development
of the common law
[58]
Section 173 of the Constitution mandates
the development of the common law by the high court, this court and
the Constitutional
Court, taking account of the interests of justice.
In doing so we are enjoined by s 39(2) to promote the spirit,
purport and
objects of the Bill of Rights. This is a structured
process. In
Mighty Solutions
[48]
the Constitutional Court said:
'
Before
a court proceeds to develop the common law, it must (a) determine
exactly what the common law position is; (b) then consider
the
underlying reasons for it; and (c) enquire whether the rule offends
the spirit, purport and object of the Bill of Rights and
thus
requires development. Furthermore, it must (d) consider
precisely how the common law could be amended; and (e) take
into
account the wider consequences of the proposed change on that area of
law.'
A
few years thereafter, in
MEC for Health
and Social Development, Gauteng v DZ OBO WZ
,
[49]
the Constitutional Court again dealt with how an enquiry into the
development of the common law should proceed:
[50]
‘
To start the enquiry one must
be clear on (1) what development of the common law means; (2) what
the general approach to such development
is; (3) what material must
be available to a court to enable the development; and (4) the limits
of curial, rather than legislative,
development of the common law.’
[59]
The Constitutional Court explained that the
common law developed incrementally, through rules of precedent, which
ensured that like
cases are treated alike. Development occurs not
only when a common law rule is changed altogether, or when a new rule
is introduced,
but also when a court needs to determine whether a new
set of facts falls within or beyond the scope of an existing rule.
The development
of the common law cannot take place in a factual
vacuum.
[51]
Finally, in
DZ obo WZ
the Constitutional Court, as it had in
Mighty
Solutions
, set out the proper approach:
‘
The general approach to
development of the common law under s 39(2) is that a court must: (1)
determine what the existing common
law position is; (2) consider its
underlying rationale; (3) enquire whether the rule offends section
39(2) of the Constitution;
(4) if it does so offend, consider how
development in accordance with section 39(2) ought to take place; and
(5) consider the wider
consequences of the proposed changes on the
relevant area of the law.’
[52]
[60]
Where it is suggested that there is a
deficiency in the common law that is not at odds with the Bill of
Rights, then that deficiency
might be addressed by the court relying
on its inherent power in terms of s 173 of the Constitution.
[53]
Again, the deficiency must be specifically identified and a viable
solution proposed.
[61]
The need to follow this process imposes
duties on litigants when they seek to persuade a court that a
development of the common
law is required. They have a responsibility
to present to the court their understanding of the current state of
the law and the
reasons for it by reference to the relevant
authorities. The current rule must be assessed in the light of the
spirit, purport
and objects of the Bill of Rights. The parameters of
the proposed development must be clearly expressed and the
consequences of
amending the law in that way examined. Very often
this will require evidence to enable the court to determine what the
likely consequences
will be.
[62]
This process was not followed by the
parties and they did not provide the necessary input to enable the
court to determine whether
a development of the common law was
required and, if so, what it should be. The answering affidavit of Mr
Malema, characterised
the defence as 'reasonableness' on the basis
that the EFF's conduct was reasonable because their actions were akin
to those of
a whistle-blower. It said that they had been given
information by a confidential source in circumstances where the
secrecy of the
appointment process and the failure to obtain
satisfactory answers to questions posed to the President and the
Minister of Finance
meant that they were not in possession of all the
facts. It was submitted that the correct test for determining whether
the statement
was unlawful
[54]
was whether there was a bona fide belief by the EFF in the truth of
the statement and whether its conduct was reasonable. In the
heads of
argument there was no analysis of the legal position and the only
authorities referred to were
Bogoshi
and
a case on the importance of political speech.
[55]
[63]
The respondent's approach in the heads of
argument was to say that the defence in
Bogoshi
was a defence afforded to the media. It
noted that the high court had developed the law in the applicants'
favour by extending that
defence to non-media defendants, but pointed
out that it had not been followed in
Gqubule-Mbeki
.
[56]
It was submitted that if we upheld the high court's finding that a
defence of reasonable publication was not established it would
be
unnecessary for this court to decide whether the extension was
warranted. No submissions were made against the eventuality of
this
court not upholding the approach of the high court. Nor did we
receive any submissions addressing the curious concept of a
defence
being dismissed on the facts, even though its existence and ambit had
not been determined.
[64]
The high court did not engage in any
detailed analysis of the background to
Bogoshi
,
or the manner in which it was situated in the context of wrongfulness
and intention in the law of defamation. No doubt this was
because the
issue was not explored in argument. It was not referred to the line
of authority flowing from
Maisel v Van
Naeren
that indicated that a bona fide
belief that publication of defamatory material was lawful was capable
of rebutting the
animus iniuriandi
.
It noted that, because of social media platforms, ordinary members of
the public now have publishing capacities that are capable
of
reaching an audience beyond those of the print and broadcast media.
It held that there was no difference between an ordinary
person
communicating matters of public interest or concern to the general
public on social media and a journalist doing the same
in a
newspaper. That led to the conclusion that:
'There is no justification as to why
the press should enjoy the privilege of freedom of expression greater
than that enjoyed by
a private individual. The liberty of the press
is no greater than the liberty of any individual. There is,
therefore, no justification
for limiting the defence of
reasonableness as it pertains to both wrongfulness and fault to the
media alone. In my view this limitation
cannot be justified under
section 36 of the Constitution.'
[65]
With respect, this conclusion proceeded
from the basis that
Bogoshi
had afforded media defendants a defence to claims for defamation that
was not available to non-media defendants and thus disadvantaged
non-media defendants. As we have shown, that was not a correct
reading of
Bogoshi
,
which left untouched the defence of absence of
animus
iniuriandi
for non-media defendants and
did not extend that defence to the media. The principle of strict
liability was rejected. If untrue
defamatory material was published
in circumstances where it was reasonable to publish those particular
facts in that particular
way at that particular time the media were
afforded a new defence of reasonable publication. This rebutted the
prima facie unlawfulness
of the publication. Whether publication was
reasonable would involve an assessment of a number of factors,
including the reliability
of the source and the steps taken to verify
the information. It goes without saying that it would have to be
shown that they were
satisfied that the information was true. The new
defence was accordingly hedged around with qualifications that were
particularly
pertinent to publications by the media, but not
necessarily to non-media defendants. By extending
Bogoshi
to non-media defendants the high court may inadvertently have
restricted the defences available to such defendants, which was
clearly not its intention.
[66]
We were not presented with a satisfactory
basis upon which to be asked to develop the common law.
Bogoshi
dealt with wrongfulness and the
lawfulness of publications of untrue defamatory material by the
media. It carefully distinguished
that from the defence of absence of
animus iniuriandi
available
to non-media defendants, while recognising that the latter defence
might afford non-media defendants a defence in circumstances
similar
to media defendants. It also recognised that it would make a nonsense
of the defence based on lawfulness to make a defence
of absence of
animus iniuriandi
available
at the same time to the same defendant. Making
Bogoshi
applicable to non-media defendants
would have the effect of depriving non-media defendants of the
defence that defamatory material
was not published
animo
iniuriandi.
[67]
None of these issues were explored in the
high court or in the arguments before us. This is not a case in which
to engage in the
task of developing the common law, because we do not
have the benefit of a properly structured approach to the suggested
development.
Development of the common law would notionally involve
an assessment of whether the present bifurcated system properly
protects
the constitutional right to freedom of expression of both
media and non-media defendants in the light of the public interest in
receiving information about matters of public concern, especially in
the political arena. It would involve a consideration of the
EFF's
contention in oral argument that one cannot apply the same level of
reasonableness to a political party as to the media.
We were not
provided with any submissions as to how and where the lines would be
drawn. A development must assess whether it is
desirable to place
media and non-media defendants on the same footing and the potential
impact of depriving non-media defendants
of the defence of the
absence of
animus iniuriandi
.
The situation of a single member of the public, like Mr Maisel,
as well as prominent players on the political stage, such
as the EFF
and Mr Malema, requires consideration. Whether publications on social
media platforms are in some respects at least
to be equated with
publications by the formal media, must be weighed. We have had none
of the evidence and none of the submissions
that would enable us to
make a proper determination of these questions.
[68]
Fortunately, the facts of this case are
such that it makes no difference to the outcome whether we approach
the defence of reasonable
publication on the basis that it is a
defence that seeks to rebut
animus
iniuriandi
, or that it is a defence on
the lines set out in
Bogoshi.
On
either basis, the circumstances of the publication of this statement
were not such as to sustain the defence. We turn then to
examine the
facts.
Was
the publication reasonable
[69]
We have dealt above with the defamatory
content of the statement issued by the EFF. At its heart lay the
factual statements that
Mr Manuel and Mr Kieswetter were relatives,
close business associates and companions. All of this was factually
untrue, but it
was the foundation for the description of the process
as nepotistic and corrupt. It also underpinned the suggestion that to
prevent
these facts from being disclosed, the interviews were not
conducted in public.
[70]
The foundation for these allegations was a
'tip-off' in a WhatsApp message sent to Mr Floyd Shivambu, the deputy
leader of the EFF,
which read:
‘
Cde DP, the SARS Commissioner
interview process is full of intrigue. One of the shortlisted
candidates is one Prof Edward Kieswetter,
a relative and close friend
of the Chair of the interviewing panel Trevor Manuel. Kieswetter is
former SARS deputy commissioner
under Parvin (sic) Gordhan when
Manuel was the Finance Minister. He left to run Alexander Forbes and
then was forced off by the
board and he went to be one CEO of the Da
Vinci Institute. Maria Ramos, Trevor, Kieswetter and Martin Kingston
fly often first
class to London, not only as friends but also as
business associates …we wonder whether this apparent conflict
of interest
has been declared to Tito Mboweni.’
[71]
Neither the source of this message, nor the
date when it was sent, were disclosed in the redacted version annexed
to an affidavit
by Mr Shivambu. The source was described as a
colleague of Mr Kieswetter and a 'senior person who has been
employed in
the executive structures of a State Owned Company'.
Keeping his name confidential was justified by a perceived threat to
'his current
and future prospects' were his identity to be revealed.
It was submitted that the non-disclosure of his identity should 'do
nothing
to affect the reliability and credibility' of the source.
[72]
Although the date on which the message was
sent was not revealed its terms indicate that it was sent prior to
the interviews of
the shortlisted candidates. The names of several of
those to be interviewed, including Mr Kieswetter, were published
on the
BusinessLive website on 8 February 2019 and all bar
one of the interviews took place on 9 February 2019, so it can
safely be accepted that it was sent about that date. On
13 February 2019 Mr Shivambu had written to the Minister of
Finance, Mr Mboweni, asking about the recruitment process; the names
of the applicants; the criteria for short-listing; the names
of those
short-listed and whether interviews had been conducted. He said that
the EFF was concerned about the secrecy surrounding
the process and
added:
'We are also concerned about the attempt to impose an
incompetent and unqualified person'.
In
the absence of any suggestion that this referred to one of the other
applicants, the inference is that it was a reference to
Mr Kieswetter
and flowed from the WhatsApp message.
[73]
Mr Shivambu was advised by the Minister to
address his questions via parliamentary channels and question posed
to the Minister by
another member of the EFF asked the basis upon
which the members of the panel had been selected and whether
potential conflicts
of interest had been taken into account before
the selection. The Minister's response, given on 5 March 2019,
referred to the recommendations
of the Nugent Commission as the basis
for the appointment of the panel. It explained that the panel was
advisory in nature and
was required to make non-prescriptive
recommendations to the President. It was not making the decision on
who to appoint as Commissioner.
As regards conflicts of interest, it
was stated that all members were requested to disclose any possible
conflicts of interest
when being appointed to the panel and again
when interviewing candidates. Given the terms of the WhatsApp message
in Mr Shivambu's
possession it seems clear that the questions about
conflicts of interest were particularly directed at Mr Manuel and the
alleged
relationship between him and Mr Kieswetter.
[74]
Counsel for the applicants characterised
these answers as a denial of relevant information that ought to have
been made public.
They submitted that the applicants were not
themselves vouching for the accuracy of the statements and described
the untruths that
appeared in the statement as the product of 'loose
language' and were 'peripheral'. In addition they stressed that the
EFF's criticism
of the process was legitimate. They submitted that it
was unreasonable to expect the EFF to seek information from its
political
opponents in order to ascertain the correctness of the
allegations against Mr Manuel in the WhatsApp message.
[75]
The immediate problem confronting the
applicants is that the source was not reliable and the information
given to Mr Shivambu and
incorporated in the public statement on 27
March 2019 was false. The EFF relied on the untested word of its
source without taking
any steps to verify the correctness of the
statements they made. Contrary to its counsel's submissions, there
were many simple
things that could have been done in this regard. It
should have asked its source where he obtained this information. That
would
have enabled it to check its reliability. Had the answer been
along the lines of 'it's common knowledge' or 'I've been told' that
would have opened up other lines of enquiry. An active political
party would be able to approach members of the community who knew
the
two men to look for information. In a world driven by technology the
internet is usually a fruitful source of information and
one could
have ascertained whether they had attended the same school or
tertiary institution, belonged to the same church, served
in public
bodies or were linked in any other way. Given Mr Manuel's
political profile it should not be difficult for a political
party
such as the EFF to ascertain whether there were long-standing
political links between the two men. Business links could be
investigated by reference to the records of CIPC and well-known
business directories.
[76]
Counsel stressed that the EFF is a
political party with significant representation in Parliament and a
role to play in uncovering
corruption and maladministration in
government entities. The Commissioner's role is an important one.
There should be no suspicion
attaching to the person appointed to
this role. All this we accept. But it emphasised the necessity for
the EFF to take steps to
confirm the correctness of the allegations
made by the source. If true there was a real risk that the
appointment of Mr Kieswetter
might be seen in the public's eyes as
tainted. That was the very charge levelled in the EFF statement.
[77]
Had steps been taken to check the accuracy
of the source's information and no basis for them discovered, that
would have dictated
the need to take far greater care before
publishing. Other routes of enquiry could have been explored. The
obvious one would have
been to address Mr Manuel or Mr Kieswetter
directly and ask whether the allegations were true. Counsel
pooh-poohed that suggestion,
saying that it was impolitic to ask an
opponent – by which it meant Mr Manuel – for such
information. We fail to see
why. If he refused to respond that might
have justified their going public with the allegations. If he
admitted them in whole or
in part there could have been a demand that
Mr Manuel withdraw from the panel. An admission not followed by a
withdrawal, would
have provided political ammunition for them to
employ in order to discredit the process in the eyes of the
electorate and make
political capital for the upcoming election.
[78]
The problem for the EFF in approaching Mr
Manuel directly was that, if the answer was that the allegations were
untrue, it would
remove a potential political weapon from their
arsenal. No question of urgency arose. There was ample time between 8
February and
27 March to make enquiries. The tenor of the questions
posed to Mr Mboweni reflected an intention to exploit the source's
'facts'
for political advantage. Making an enquiry and being told the
correct facts risked turning a possible bombshell into a damp squib.
[79]
The issue was squarely raised in Mr
Manuel's replying affidavit where he said that the EFF was evasive as
to the nature and content
of the disclosures by its source and as to
the steps it took to satisfy itself as to the reliability of the
source and the truth
of the allegations. That prompted the filing of
another affidavit by Mr Malema and one by Mr Shivambu. Mr Malema
explained that
these were tendered because Mr Manuel had raised a
dispute about the EFF's version of reliance on a source and disputed
the credibility
of the information supplied to the EFF by the source.
The affidavits were tendered to demonstrate that the EFF had a
reasonable
basis upon which to make the statements and to demonstrate
that its conduct was not unreasonable in the circumstances. He
acknowledged
that he had not had direct contact with the informant
and the latter's 'suspicions', as he described them, were conveyed to
him
by Mr Shivambu.
[80]
There is nothing in Mr Shivambu's affidavit
about steps taken to confirm the accuracy of the source's
information. He said that
the 'high office which the informant held,
coupled with the intimate knowledge he reasonably knows (sic) about
Mr Kieswetter given
their proximity, is a valid basis upon which the
EFF could make its statements'. Mr Shivambu's contention about the
source's information
being incorrect, was:
'That he turned out to be incorrect
in the strictest sense in how he suspected the applicant and Mr
Kieswetter to be related to
each other is not sufficient to discard
the information communicated to the EFF [and] is no basis to sanction
it.' (Our insertion)
[81]
Viewing these facts from the perspective of
a contention that the statement was published without the
animus
iniuriandi
they fell woefully short of
discharging the onus on that issue. It is clear that the EFF
published the statement accusing Mr Manuel
of nepotism and corruption
on the basis of statements made by its source that it made no attempt
to check. Even if it were given
the same benefit that the
conventional media are given in regard to non-disclosure of their
sources, that would not assist its
case. The allegations it made were
clearly defamatory and concerned a public figure given the
responsibility of interviewing people
and advising the President on
the appointment of the Commissioner of SARS. That is a most serious
allegation. To do so on the basis
of a message of this type without
any endeavour to confirm the truth of the allegations is inconsistent
with the absence of an
intention to injure. It demonstrates a
willingness to wound irrespective of the truth of the allegations.
[82]
The position was made worse in regard to
the continuing publication of the statement after 27 March 2019 when
Mr Manuel had said
that the facts were false and demanded a
retraction and its removal. He issued a statement demanding the
production of evidence
for three claims, namely, that there were
'blood ties' between him and Mr Kieswetter; that there were business
relationships between
them; and that he had previously appointed Mr
Kieswetter as Deputy Commissioner of SARS. (The latter allegation was
made in the
statement but did not appear in the WhatsApp message.) Mr
Malema's response on Twitter when a journalist drew this statement to
his attention was: 'He can go to hell, we are not scared of him.'
This attracted 396 retweets and 1460 likes.
[83]
The response to the letter of demand
addressed by Mr Manuel's attorneys to the EFF and Dr Ndlozi was
equally defiant. It said that
they stood by the statement and refused
to publish an apology. Any proceedings would be vigorously defended.
Then, on the basis
of a media report concerning Mr Manuel recusing
himself from active participation in Mr Kieswetter's interview, it
proceeded to
demand answers to no less than 46 questions, only two of
which bore, and then only indirectly, upon the assertions concerning
his
relationship with Mr Kieswetter. The EFF knew that Mr Manuel
insisted that the material parts of their statement were false. Yet
it did nothing to verify their accuracy either then or before
delivering their answering affidavit in the litigation. Instead,
it
claimed that there was a personal relationship between him and Mr
Kieswetter and that its criticism of the process was justified.
It
asked that the application be dismissed with an order for attorney
and client costs.
[84]
It is impossible to reconcile this
attitude, persisted in to the bitter end in the high court, with an
absence of
animus iniuriandi
.
The EFF knew that the statement they published was defamatory of Mr
Manuel. The claim that they were genuinely mistaken about
the
accuracy of the information on the basis of which they assailed Mr
Manuel's reputation is inconsistent with an attitude that
they would
persist in those allegations – the statement was not removed
from either Twitter account – irrespective
of whether or not it
was accurate.
[85]
The alternative argument based upon
Bogoshi
falls at substantially the same hurdle.
Seriously defamatory statements were made based upon a single rather
cryptic WhatsApp message,
without any endeavour to check the
correctness of the facts in that message. No reason of urgency or
pressing public importance
justified the failure to investigate
further to confirm the truth of the facts they were relying on. The
attempt to justify it
on the basis of political free speech amounts
to little more than adopting the old adage 'All's fair in love and
war'.
[86]
For those reasons, whether the defence of
reasonable publication is approached as a denial of publication
animus iniuriandi
,
or as a development of the common law along the lines indicated in
Bogoshi
,
it could not succeed and there is no reasonable prospect of the
judge's conclusion to that effect being overturned. That is also
the
fate of the other defences advanced by the applicants. On the merits
therefore there is no basis upon which to grant leave
to appeal. We
turn then to deal with the contentions in regard to the relief
granted by the high court.
The
relief granted by the court below
Declaratory
and interdictory relief
[87]
The first question to be addressed in
relation to the relief afforded Mr Manuel, consequent upon the
court’s conclusion that
the statement by the EFF was defamatory
and unlawful, is whether the declaratory and interdictory relief
granted by the court below
was appropriate. The difficulty with
interdictory relief is that it may prevent speech that will be
published in the future.
In
Midi
Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions
(Western Cape)
[57]
this court dealt with the danger attendant upon orders for the prior
restraint of publication. It had regard to the decision of
this court
in
Hix Networking Technologies v System
Publishers (Pty) Ltd and Another
[58]
where a temporary interdict was sought. At para 20 of
Midi
the following appears:
‘
Where it is alleged, for
example, that a publication is defamatory, but it has yet to be
established that the defamation is unlawful,
an award of damages is
usually capable of vindicating the right to reputation if it is later
found to have been infringed, and
an anticipatory ban on publication
will seldom be necessary for that purpose. Where there is a risk to
rights that are not capable
of subsequent vindication a narrow ban
might be all that is required, if any ban is called for at all. It
should not be assumed,
in other words, that once an infringement of
rights is threatened, a ban should immediately ensue, least of all a
ban that goes
beyond the minimum that is required to protect the
threatened right.’ (Citations omitted.)
This
was dealing with a restraint on anticipated publication, while the
issue here is repetition of publication that has already
taken place.
[88]
In the present case, the statement
complained of was first published more than two months prior to the
matter being heard by the
court below. Despite protestations by Mr
Manuel, the applicants remained defiant and drew even more attention
to the original publication
that had been retweeted, by their
emphatic, if somewhat designedly crass, public response. By the time
of the hearing in the court
below, the defamatory statement had still
not been removed and Mr Manuel, understandably, sought interdictory
relief in relation
to the continued future publication. The court
below was not approached for an interim interdict. Mr Manuel sought
declaratory
and interdictory relief in final terms. The court
below held that the statement was defamatory and thus unlawful. We
have
shown that, on that score, the conclusions of the court below
were well founded. The defences advanced by the EFF, whether based
on
the lawfulness of the publication, or an absence of
animus
iniuriandi
, were all properly rejected
on the papers. Where defamation is established and the defences to a
claim for an interdict are shown
on the papers to be without
substance, the grant of a final interdict is permissible.
[59]
Conversely, where the opposition to an interdict is based on a
colourable defence based on facts advanced in the answering affidavit
that cannot be rejected on the papers and require oral evidence, a
final interdict may not be given.
[60]
Whether any interim relief can be granted will depend on the
application of the well-established rules in relation to interim
interdicts.
[89]
In circumstances where the applicants were
obdurate, and where the integrity of an institution of state was
being undermined on
the basis of Mr Manuel’s alleged corrupt
and nepotistic conduct, an award of damages, in due course, could
hardly be said
to be a viable and compelling alternative to an
interdict prohibiting further publication. Mr Manuel satisfied the
requirements
for the final relief he had sought, which was granted by
the court below. The applicants’ reliance on this court’s
decision in
Tau v Mashaba and Others
[61]
is misplaced. That case concerned an application for interim relief,
pending an ‘action for defamation and damages’.
The court
below, in that case, before allowing for possible defences to be
addressed, granted a declaratory order and an interdict
in final
terms. This court, predictably, set those orders aside. That case is
far from the facts of the present application. In
the present case,
Mr Manuel satisfied the requirements for the declaratory and
interdictory relief sought. Consequently, those
orders are not liable
to be set aside.
[90]
Insofar as it was suggested that those
parts of the statement that were unobjectionable could be clinically
excised from the defamatory
portions, our response is as follows: It
is not for this court to recast the statement so that it might be
unobjectionable and
coherent. We decline the invitation to do so.
The
damages award
Purpose
and proper procedure and developing the law
[91]
We now turn to deal with the propriety of
the award of damages by the court below. We begin, first, by looking
at the purpose of
such an award. An award of damages for defamation
is compensation for an injury to dignity and reputation, under the
rubric of
the
actio iniuriarum
.
[62]
Put differently, an award of damages is to compensate a plaintiff for
wounded feelings and loss of reputation.
[63]
Where, in addition, patrimonial loss is sustained, the Aquilian
action is available.
[64]
[92]
Second, as presaged above, it is necessary
to consider the proper process for prosecuting such claims. An
unliquidated claim for
damages must be pursued by institution of an
action.
[65]
No less so, when an aggrieved victim of a defamatory statement seeks
compensation. That has always been the position
[66]
and it is reflected in the Uniform Rules of Court.
[67]
Uniform Rule 17(2) compels a person claiming unliquidated damages to
use a long form summons and file particulars of claim, and
Uniform
Rule 18(10) obliges ‘a plaintiff suing for damages [to] set
them out in such manner as will enable the defendant
reasonably to
assess the quantum thereof’ and plead thereto.
[68]
In respect of damages claims for personal injury the rule requires
even greater specificity. Summary judgment proceedings, regulated
by
Uniform Rule 32, are limited to claims based on a liquid document, a
liquidated amount in money, the delivery of specified movable
property, and ejectment. It is not a remedy available in respect of
claims for unliquidated damages.
[93]
This is not mere technicality. Claims for
unliquidated damages by their very nature involve a determination by
the court of an amount
that is just and reasonable in the light of a
number of imponderable and incommensurable factors. That exercise
cannot be undertaken
in proceedings by way of application. As Harms
DP said in
Cadac
:
[69]
'
…
motion
proceedings are not geared to deal with factual disputes – they
are principally for the resolution of legal issues
–
and illiquid claims
by
their very nature
involve the resolution of factual issues.'(Emphasis added.)
[94]
In
Grindrod
(Pty) Ltd v
Delport
and Others
[70]
the court, in dealing with Uniform Rule 18(10), said that it ‘enjoins
any party claiming damages to provide sufficient information
to
enable the opposing party to know why the particular amount being
claimed as damages is in fact being claimed’.
[71]
Failure by a plaintiff to meet the requirement of this rule might
well compel a defendant to resort to the provisions of Uniform
Rule
18(12), in terms of which the pleadings, because of the deficiency,
are deemed to be an irregular step.
[95]
A defendant could, in the light of proper
pleading, be motivated to make a tender or settle a claim. It is true
that claims for
damages based on defamation, as the many reported
cases attest, are frequently opposed, both on the merits and in
relation to the
quantum of damages allegedly sustained. However, some
are settled and those that are contested often take place against the
background
of a secret tender.
[96]
In contested cases, following on the close
of pleadings, evidence is led in an attempt to justify the amount
claimed. A defendant
is entitled to challenge that evidence and
present countervailing evidence. How else would a court be able to
determine an appropriate
award? Relevant evidence has to be presented
and fully explored. The factors to be considered by a trial court in
determining an
appropriate award include: the character and status of
the plaintiff; the extent of the defamatory publication; its
envisaged and
actual impact on the plaintiff; and the subsequent
conduct of the person who made the defamatory statement, including
his or her
efforts, if any, to make amends after the publication.
[72]
This list is not exhaustive.
[97]
In
Gelb v
Hawkins
[73]
the victim of a defamatory statement claimed damages for
contumelia
and loss of reputation. After oral evidence was adduced by both
plaintiff and defendant, the trial court and this court considered
whether the plaintiff had proved his entitlement on either, or both
grounds.
[74]
This included a consideration of whether the plaintiff, who was an
attorney, had been adversely affected in his practice due to
his loss
of reputation. Unlike
Caxton
,
there was no claim for patrimonial damages in
Gelb
.
As can be seen, there has to be purposeful, specificity of pleading,
followed by sufficient oral evidence, in order to enable
the trial
court to determine an appropriate award.
[98]
In
De Flamingh
v Pakendorf
[75]
the plaintiff testified about the effect upon him of a defamatory
statement. The court heard from him about the hurt he had
experienced.
He testified about how, within social circles, he had
been questioned concerning what had been said about him and the
impact on
his professional life. He testified that the defamatory
statement had caused his colleagues to approach him with a measure of
suspicion.
These aspects all featured in the determination of the
amount of damages awarded by the trial court.
[76]
[99]
Even in undefended cases, in which
unliquidated damages are claimed, the position dictated by the
applicable rules of court, has
always been that oral evidence is
required before an award can be made. Uniform Rule 31(2)
(a)
,
dealing with default judgments, reads as follows:
‘
Whenever in an action the
claim or, if there is more than one claim, any of the claims is not
for a debt or liquidated demand and
a defendant is in default of
delivery of notice of intention to defend or of a plea, the plaintiff
may set the action down as provided
in subrule (4) for default
judgment and the court may,
after
hearing evidence
,
grant judgment against the defendant or make such other order as it
deems fit.’ (Emphasis added.)
[100]
Thus, in undefended actions in which
unliquidated damages are claimed, our courts, have insisted on
hearing
viva voce
evidence in order to make a proper assessment and issue an
appropriate award. In
Venter v Nel
[77]
the court, in dealing with a claim by a plaintiff for damages she
sustained as a consequence of being infected with HIV during
a sexual
encounter, noted that it was dealing with an undefended action, and
said the following:
‘
The practice in this Division
is to hear some evidence on claims for damages, but inevitably the
enquiry is not as detailed or controversial
as it would be were the
matter defended, were the defendant represented by counsel and were
the evidence of the witnesses who testified
for the plaintiff tested
by way of cross-examination and by the defendant leading
countervailing evidence.’
[78]
[101]
In
Dorfling v
Coetzee
,
[79]
faced with a claim for damages flowing from a motor vehicle
collision, in the form of an application for default judgment, the
court said the following in relation thereto:
[80]
‘
Damages may be recovered on
the basis of numerous causes of action, and one can envisage cases,
especially in cases of breach of
contract, where the court can
determine damages without any reference to evidence in relation to
the cause of action. On the other
hand, where the cause of action is
delictual, damages can in most cases only be determined after
evidence has been led also in
relation to the cause of action, for
instance in respect of assault, defamation, etc.’
In
essence, the court held that in cases where damages are claimed in
delict one would, in the normal course, require evidence in
relation
to the damages allegedly sustained. In motor collision cases, of
course, questions arise concerning negligence, contributory
negligence and, where applicable, the apportionment of damages, in
relation to all of which oral evidence is required.
[102]
In
New Zealand
Insurance Co Ltd v Du Toit
,
[81]
dealing with an application for default judgment, the court, in
special circumstances, permitted proof of damages by affidavit.
The
plaintiff was the insurer under the Motor Vehicle Insurance Act 29 of
1942, of a motor vehicle owned by Du Toit. The latter
was involved in
a motor vehicle collision, which resulted in one Fourie being
severely injured. Fourie consequently instituted
action against the
plaintiff, which was settled by payment of R5000 damages. In
consequence of his non-compliance with certain
provisions of the
statute Du Toit was liable to pay the plaintiff the amount to which
Fourie was entitled. It sued him alleging
that Fourie's damages were
'not less than R5000' and the action was undefended. The plaintiff
needed to prove that Fourie had been
entitled to damages of at least
R5000.
[103]
In exceptionally permitting the evidence on
affidavit of a doctor in relation to the nature of Fourie’s
injuries, his pain
and suffering and the disability sustained by him,
the court in
New Zealand
said the following:
‘
At the hearing of this matter
counsel sought leave to prove the amount of damages by tendering an
affidavit of Dr Wolfowitz which
sets out the nature of the injuries,
the pain and suffering and the disabilities which Fourie sustained.
Although I think it would
be dangerous to allow this type of practice
I have nevertheless come to the conclusion on the affidavit of Dr
Wolfowitz that I
would be erring if I did not grant the order as
prayed. The affidavit places it beyond question that the amount of
damages suffered
by Fourie was, to say the least, R5000 and if I
insist on verbal evidence I think I would merely be causing
unnecessary costs for
which defendant is liable. On the facts of this
case, and bearing in mind that the defendant was served with the
summons and combined
declaration in which his attention is drawn to
the fact that R5000 was claimed and that he has not seen fit to make
representations
to this court, I will accordingly grant judgment as
prayed.’
[82]
[104]
It must be emphasised that in that case the
court cautioned against not requiring verbal evidence in undefended
cases and was careful
to set out its reasons for the exception in
that case.
New Zealand
does not dislodge the rationale for insisting on oral evidence, as
set out earlier, so as to enable a proper determination of damages
in
undefended cases and especially in opposed matters. On the contrary,
New Zealand
reiterated that oral evidence is the rule.
[105]
Motion proceedings are particularly
unsuited to the prosecution of claims for unliquidated damages,
whether in relation to defamation
or otherwise. We enquired of
counsel representing Mr Manuel whether they could refer us to
any case law, in terms of which
damages for defamation were claimed
and determined in motion proceedings. They cited
Gqubele-Mbeki
.
[83]
But, in that case, the court, relied on the judgment of the court
below in
this
case, to hold that there is no hard and fast rule against using
motion proceedings in a damages suit. Furthermore, so the court
there
said, the rule only applied if disputes of fact arise and that in the
case before it what the claimants said was ‘largely
undisputed’
and that if the matter went to trial the deponents would merely
repeat them. Neither judgment dealt with the
established procedure or
the necessity for oral evidence. In the present case the novelty of
the procedure was not dealt with in
the judgment and it can hardly
serve as authority for the approach in
Gqubele-Mbeki
.
Neither case can be seen as authority for departing from established
procedure and permitting damages claims based on defamation
to be
pursued in motion proceedings without the need for oral evidence.
[106]
That brings us to an issue that arose
during oral argument before us. Counsel representing Mr Manuel, faced
with the difficulty
of having employed motion proceedings to claim
damages, informed us that, in the court below, they had submitted
that since the
defamation complained of implicated Mr Manuel’s
right to dignity and since, in terms of s 38 of the Constitution he
was entitled
to appropriate relief, they had urged the court to
develop the common law in terms of s 8(3) read with s 39(2) of the
Constitution,
to provide effective and expeditious relief, in the
form of permitting them to claim damages on motion, notwithstanding
established
practice and precedent. We were informed that this was
part of a sustained effort on the part of Mr Manuel’s attorney,
to
achieve that object for the benefit of existing and prospective
litigants. The court below, perhaps because of the manner in which
it
approached the question of damages, did not deal with that aspect at
all.
[107]
In relation to suggested developments of
the common law and the need to follow a structured approach, we
referred in para 58 to
the judgments of the Constitutional Court in
Mighty Solutions
[84]
and
DZ obo WZ
,
[85]
where the Constitutional Court set out how an enquiry into the
development of the common law should be undertaken. Given that what
is being suggested is a novel approach to the procedure to be used in
pursuing claims for damages for defamation, it might be thought
that
we are not being asked to develop the common law, but to exercise our
inherent power to protect and regulate our own process.
But there is
a reason why developing the common law and protecting and regulating
the process of courts are both dealt with in
s 173 of the
Constitution. It is that they are frequently opposite sides of the
same coin, in that the development of the
one affects the development
of the other. It is appropriate therefore, when a change to the
long-established procedure for resolving
claims for unliquidated
damages is advanced, that a similar process is followed to a proposed
development of the common law.
[108]
We enquired of counsel representing Mr
Manuel whether, when the court below was urged to develop the common
law in relation to the
award of unliquidated damages in application
proceedings, the steps mandated by the Constitutional Court were
followed. More specifically,
whether an analysis of the existing
position had been undertaken on behalf of Mr Manuel, the rationale
addressed, and a suggested
development proposed, taking into account
the wider consequences in this area of the law, including impinging
on the applicable
rules of court. Equally, if the suggestion was that
there was a deficiency, whether it was identified, and a solution
proposed.
Counsel replied that this had not been done.
[109]
These aspects were not foreshadowed, even
tangentially, in Mr Manuel’s affidavit in support of his case.
In these circumstances
it would have been unfair to have required the
court below to have addressed the question merely by way of
generalised submissions
from the bar. It would have been equally
unfair on the applicants.
[86]
[110]
The
amicus
,
in generalised terms, supported the approach of the high court in all
of its facets, including the award of damages. Its submissions
were
premised on its concern about the dangers of misinformation and
disinformation being spread on social media platforms, which
caused
harm to individuals or groups or to the public in general. It
contended that when a person, aggrieved by defamatory statements
published on social media platforms, sought legal redress on the
basis of the infringement of a constitutionally entrenched right,
such as the right to dignity, a court was obliged to provide
effective and expeditious relief. It supported the submissions
on behalf of Mr Manuel, that victims of defamation of the kind
complained of by him should be able to approach a court on motion
to
seek relief, including the recovery of damages.
[111]
There is, of course, no problem with
persons seeking an interdict, interim or final, against the
publication of defamatory statements
proceeding by way of motion
proceedings, on an urgent basis, if necessary. If they satisfy the
threshold requirements for that
kind of order, they would obtain
instant, though not necessarily complete, relief. There is precedent
for this in the well-known
case of
Buthelezi
v Poorter,
[87]
where an interdict was granted urgently in relation to an egregious
piece of character assassination. Notably, however, the question
of
damages was dealt with separately.
[88]
In appropriate circumstances persons following this route might, as
pointed out earlier, be required to overcome the barriers to
prior
restraints and have to deal with the availability of alternative
measures, as a potential bar, to achieving redress. However,
seeking
damages, instantly, on application, is problematic for the reasons
provided above. Counsel for the
amicus
,
like counsel for Mr Manuel, did not provide a proper basis for
departing from the established position of requiring evidence and
did
not propose how damages might otherwise, especially in opposed
matters, be determined. In argument he indicated that if we
held that
a claim for damages could not be pursued on paper, we should
nevertheless reiterate that an interdict, retraction and
apology
could be ordered.
[112]
We accept that the spread of misinformation
and disinformation on social media platforms is, notoriously, a
worldwide concern. This
is especially so in the European Union and
the United States of America, where legislative intervention and
state regulation is
being touted. We were informed that the
amicus
was opposed to such intervention and regulation. The spread of
falsehoods that threaten or infringe the rights of individuals and
the public at large is a legitimate concern. If there are curial
means of addressing those concerns, distinct from legislative
intervention, those should be presented by litigants in a
constitutionally acceptable fashion and a court can then address
them.
In the present case that was not done.
[113]
It appears that the simplistic view was
taken that if one were to provide victims of social media defamation
with a quick and easy
way of seeking and obtaining sizeable damages
awards on motion, that would bring to a quick halt these kinds of
transgressions.
We do not agree that the problem can be
resolved that easily. The search for a solution to the evils of the
abuse of social media
platforms should be carefully considered,
without compromising constitutional rights, fundamental legal
principles and due process.
Careful thought should be given to the
possible dangers of the envisaged simplistic solution. It might well
incentivise the abuse
of motion proceedings by undeserving, but
well-resourced, plaintiffs and be used
in
terrorem
. It has the potential for
stifling freedom of expression.
[114]
We now deal with the alternative relief
sought by Mr Manuel in his notice of motion, namely, the referral of
the issue of quantum
to oral evidence. It is true that a court, in
motion proceedings, in terms of Uniform Rule 6(5)
(g)
,
has a discretion to direct that oral evidence be heard on specified
issues with a view to resolving a dispute of fact or, in appropriate
circumstances, to order the matter to trial. Generally, however, a
court will dismiss an application when, at the time that the
application is launched, an applicant should have realised that a
serious dispute of fact was bound to develop.
[89]
We would add that bringing application proceedings claiming relief
that is not appropriate to be sought in such proceedings, will
ordinarily be an
a fortiori
case.
[115]
Mr Manuel’s legal representatives,
without regard to the Uniform Rules and established practice, in
relation to the necessity
of proceeding by way of an action to claim
unliquidated damages, were clearly not unmindful of what is set in
the preceding paragraph.
Indeed, it must have been that awareness
that caused them to seek, in the alternative, a declaration that the
applicants are jointly
and severally liable to pay damages and to
refer ‘the quantification of the damages to oral evidence’.
[116]
At this point it is necessary to consider
the limited nature of what appeared in the litigants’
respective affidavits and
the brief reasoning of the court below in
relation to the award of damages. Mr Manuel, in his affidavit in
support of his case,
did not complain of hurt feelings and was thus
not claiming compensation as
solatium
in
relation thereto. The sum total of his assertions in relation to his
claim for damages is as follows:
‘
Lastly, I claim damages
for the injury to my reputation. I am
advised and respectfully submit that the quantum of my damages is
readily capable of determination
on the papers. If this court should,
however, not be inclined to determine the quantum of the damages on
paper, I ask that the
determination of such quantum be referred to
oral evidence. Should I be awarded damages I will donate the entire
amount to a worthy
organization.’
[117]
It is true that, preceding what is set out
immediately above, Mr Manuel complained that his reputation had been
affected and his
dignity undermined. However, this passage indicates
that he was primarily concerned, in his claim for damages, with the
harm done
to his reputation. The applicants’ response to this
was to state that Mr Manuel’s complaints about the ‘prejudice’
he suffered was ‘unproven, generic and unspecified’. They
went on to say the following:
‘
The applicant is a man of
great stature and given his experience at the forefront of politics
for well over 20 years, it is unlikely
that he suffered any harm as
alleged. His bringing this application was done for political
purposes …’
[118]
The high court dealt cursorily with the
question of damages. The following is what it said in relation to
damages before it awarded
the amount of R 500 000:
‘
Mr Manuel has indicated that
should he be awarded damages he will donate the entire amount to a
charitable organisation.
Having regard to the foregoing and
the general trend in recent times, I believe that an award of
R500 000 in general damages
is merited.’
[119]
The reasoning on which the award was based,
as can be seen, was sparse, with little attention paid to how best to
determine the
extent of reputational loss. We accept that in
considering the reasoning of a trial court in relation to quantum,
one should have
regard to what was said in the judgment as a
whole.
[90]
However, in the present case Mr Manuel was primarily concerned with
reputational harm, but provided no details in relation to the
reputational harm he suffered. This, as referred to above, was seized
upon by the applicants in their denial that Mr Manuel suffered
reputational harm. No details of what the court took into account in
relation to the extent of reputational damage, other than
Mr Manuel’s
limited say-so is provided in the judgment. The court below did not
deal at all with the applicants’ challenge
to Mr Manuel’s
claim of reputational loss. It did not pause to consider whether it
should dismiss the application on the
basis that this dispute ought
to have been foreseen, or on the basis that that issue ought to have
been dealt with by way of action.
It did not deem it necessary to
consider referring the issue of quantum to oral evidence as sought,
in the alternative by Mr Manuel.
[120]
Before us, counsel representing Mr Manuel
lost their enthusiasm for the alternative relief sought in the notice
of motion. In line
with what the court said in
Gqubele-Mbeki
,
they submitted that oral evidence would
serve
no purpose as the facts before us would not change. Counsel asked,
presumably rhetorically, how a referral to oral evidence
could assist
in the determination of damages? That, as we will demonstrate, with
reference to the facts of this case and generally,
misconceives the
role of oral evidence in the determination of damages.
[121]
It is clear that the dispute about the
extent of Mr Manuel’s asserted reputational loss could be fully
explored and resolved
by way of oral evidence. Mr Manuel could,
notionally, present evidence that those within and beyond his circle
of associates and
friends, were taken in by what was said by the
applicants and consequently thought less of him, and that some people
did, in fact,
shun him. A cross-examiner might enquire of Mr Manuel
whether his friends abandoned him, or whether he was dropped from any
of
the boards of companies on which he sits. He could be asked
whether the reaction to the defamatory statement by those within his
circle was that he should ignore whatever the applicants said because
the statements complained of was typical of them. The applicants
could adduce countervailing evidence. The list of what might be
explored and what might emerge is long. For present purposes what
is
set out above will suffice. It applies not just to this case but
generally. If hurt feelings were to be explored the court would
get
to hear first-hand from the victim of defamatory statements about its
impact and about the degree of personal distress it caused.
[91]
That is why courts have insisted on evidence before determining
damages.
[122]
There is the added problem that, at least
superficially, the amount awarded appears extraordinarily high and
not, as stated by the
court below, in line with the recent general
trend. In its judgment on the application for leave to appeal, the
court below dealt
with the submission on behalf of the applicants
that, comparatively, the award of damages to Mr Manuel was
unjustifiably high.
The court below, impermissibly, attempted to
supplement its prior reasoning, by referring to cases where courts
warned that each
case had to be decided on its own facts and that
mathematical calculations were impermissible. It also referred to a
dictum of
this court in which it was said that an award of damages is
‘little more than an enlightened guess’.
[92]
[123]
As recognised by the court below in the
judgment refusing leave to appeal, there is, no empirical measure to
determine compensation
for damages for harm of this nature.
[93]
The court, in determining an appropriate award, must have regard to
all the facts of a particular case. In
Van
der Berg v Coopers and Lybrand Trust (Pty) Ltd
this
court said that a court, must, as best it can, make a realistic
assessment of what it considers just and fair in all the
circumstances.
[94]
It is true that the court went on to say that the result represents
‘little more than an enlightened guess’. However,
for it
to arrive at the ‘enlightened guess’, with the emphasis
on ‘enlightened’, the relevant facts and
circumstances
must be placed before it. The established practice and the Uniform
Rules dictate that this is achieved by way of
oral evidence, pursuant
to the institution of an action for damages. That course enables the
resolution of disputes and provides
the evidentiary material on which
the courts can consider the factors set out in para 96 above.
‘Enlightened guess’,
was perhaps an unfortunate
description of the culmination of the process of determining
damages.
[124]
In regard to quantum, this court has
repeatedly stated that each case turns on its own facts and that
comparisons with prior awards
serve a limited purpose.
[95]
Awards in other cases might provide a measure of guidance but only in
a generalised form.
[96]
A
cursory scrutiny of awards from 2017 onwards will reveal that recent
awards in serious defamation cases, with defamatory statements
having
been widely published, were in amounts that were a fraction of what
was awarded in this case.
[97]
[125]
Counsel for Mr Manuel’s reliance on
Bytes Technology Group v Michael
[98]
as support for the award of the court below demonstrates the dangers
of reliance on prior awards, warned against by our courts.
It was
misplaced because there is a chasm of differences between that case
and the present. It related to defamatory statements
by a disgruntled
former employee. A number of different defamatory statements over an
extended period of time were made within
the context of the
commercial world. The plaintiffs were an Information Technology
entity and its two senior officials. They managed
information
technology for major retailers and banks. The defendant, the
disgruntled employee, repeatedly made defamatory statements
to the
aforesaid clients and others, claiming to be a whistle-blower in
relation to fraud. He resorted to extortion and set criminal
proceedings in motion. Clients of the business reacted to this by
directing questions to the plaintiffs. To address the harm caused
by
the defamatory statements money and effort had to be expended by the
first plaintiff. The defendant continued his vendetta by
continuing
to make defamatory statements. Critically, all the necessary evidence
upon which the award was based was adduced over
an extended period
and the evidence led by the plaintiff was subjected to extensive
cross-examination. Even then, the award which
was considerable, given
the multiplicity of statements and actions and the attendant
commercial consequences, was less than in
the present case. There is
no sustainable comparison with the present case.
[126]
Reliance was also placed on
Branko
v Moffat and Another
.
[99]
In that case two interviews were granted to two newspapers which had
wide circulation. In those interviews, the defendant, made
defamatory
statements concerning the plaintiff, who was an internationally
renowned boxing promoter. The interviews were given
by the head of a
boxing control body after the relationship between the plaintiff and
the body had soured. The plaintiff,
based on the oral evidence
that was led and fully explored, quite clearly suffered professional
reputational harm and the statements
potentially destroyed his
career. Significantly, in its judgment the court referred to the
extensive evidence that had been adduced
that covered every aspect of
every issue raised in that case. Half of what was awarded in the
present case was awarded in respect
of each of those interviews.
Again, the dangers of comparing cases have to be guarded against. But
most importantly, the plaintiff
there claimed damages by instituting
an action and extensive relevant evidence was adduced and tested.
[127]
It must be borne in mind that awards are to
compensate, not to punish. In
McBride
the Constitutional Court remarked that substantial damages awards may
unnecessarily stifle freedom of expression.
[100]
That too is something to be borne in mind in the determination of
damages. In this regard context is important. These aspects were
not
addressed by the court below. For all the reasons set out above oral
evidence was required before making an award of damages.
The
applicants were forewarned that this relief was going to be sought.
They did not raise procedural objections and the issue
appears to be
a narrow one, namely the extent of reputational damages sustained by
Mr Manuel. In these circumstances, exceptionally,
the matter would
lend itself to such a referral. It should not, however, be seen as
endorsing as a general practice in defamation
cases an application
for some immediate relief together with an application for the issue
of the quantum of damages to be referred
to oral evidence. For the
reasons we have given the ordinary procedure in claims for
unliquidated damages should be by way of action.
The
apology
[128]
That leads us to the question whether the
apology ordered by the court below was appropriate. While there might
be reservations
concerning the sincerity of a court-ordered apology,
the Constitutional Court in
Le Roux v
Dey
considered remedies provided for in
Roman Dutch law that had fallen into disuse. These allowed for
the retraction of a defamatory
statement and an apology. The court
also had regard to customary law and tradition and concluded that
respect for the dignity of
others lies at the heart of the
Constitution, and that reconciliation between opposing parties at
different levels consists of
recantation of past wrongs and apology
for them. It considered that the plaintiff in that case was entitled
to an apology.
[101]
It must also be borne in mind that the apology in that case was
ordered in conjunction with an award of damages, not separately
from
it.
[129]
In
McBride
the Constitutional Court referred to its earlier decision in
Le
Roux v Dey
[102]
and reiterated the importance of an apology in securing redress and
‘in salving feelings’.
[103]
It went on to have regard to the plaintiff’s contention on
appeal, that an apology in that case was inappropriate and took
into
account that a media defendant was involved and that there were law
reform initiatives afoot in other countries. Consequently,
it was
thought that ordering an apology in those circumstances was not
warranted.
[104]
[130]
Neither of these two judgments suggested
that an order for publication of a retraction and apology on its own
and not in conjunction
with an award of damages would be an adequate
remedy. The high court's order for publication of a retraction and
apology in this
case was made in conjunction with its order for
damages. We have held that the latter should not have been made
without hearing
evidence. The applicants had suggested in their
challenge to the quantum of damages, that an apology would be
sufficient redress,
but that suggestion can only be considered in
conjunction with the consideration of whether an award of damages
should be made
and the quantum of that award. An apology has always
weighed heavily in determining the quantum of damages in defamation
cases
as occurred in
Le Roux v Dey.
[105]
In our view, whether an order for an apology should be made is
inextricably bound up with the question of damages. As the latter
award falls to be set aside and referred to oral evidence, so too
must the order to publish a retraction and apology be set aside
and
referred to the high court for determination after the hearing of
oral evidence on damages.
Costs
in the court below
[131]
The court below clearly took a dim view of
the obdurate stance of the applicants after the protestations by Mr
Manuel. It gave consideration
to what it concluded was reprehensible
behaviour of the applicants in continuing to publish in the light of
the disclosure of all
the facts. It considered that the
punitive costs order sought by Mr Manuel was justified. We can find
no fault with that
conclusion and we bear in mind that courts of
appeal are generally slow to interfere with the exercise of a
discretion by a court
of first instance in relation to costs unless
the order was capricious or based on wrong principle.
[106]
That is not the case here.
Conclusions
[132]
As stated earlier, there are no reasonable
prospects of success in an appeal in relation to the conclusions
reached by the court
below, that the statement was defamatory and
unlawful. The same applies to the consequential relief, other than
the order to publish
a retraction and apology and the award of
damages. The application for leave to appeal in respect of those two
aspects should therefore
succeed and the application for leave to
appeal in respect of all other issues should be dismissed. This means
that part of the
application for leave to appeal succeeds and the
appeal in relation thereto should, consequentially, be upheld. The
determination
of the quantum of damages and whether a retraction and
apology must be published must take place after oral evidence has
been led.
Order
[133]
The following order is made:
1. The application for leave to appeal in relation to paragraphs 1 to
3 and 5 of the order of the court below is dismissed with
costs,
including the costs of two counsel.
2. In relation to paragraphs 4 and 6 of the order of the court below
the application for leave to appeal is granted.
3. The appeal in relation to paragraphs 4 and 6 of the order of the
court below is upheld with costs, including the costs of two
counsel.
4. Paragraphs 4 and 6 of the order of the high court are set aside
and replaced with the following order:
‘
1
The determination of the quantum of the damages suffered by the
applicant is referred to oral evidence.
2 The high court will determine in conjunction with its
determination of the quantum of damages whether an order for the
publication
of a retraction and apology should be made.’
____________________
M S NAVSA
JUDGE OF APPEAL
_________________
M J D WALLIS
JUDGE
OF APPEAL
APPEARANCES:
For
Applicants: Tembeka Ngcukaitobi SC (with him Kameel Premhid)
Instructed
by: Ian Levitt Attorneys, Sandton;
Lovius
Block Inc, Bloemfontein
For
Respondent: Carol Steinberg SC (with her Michael Mbikiwa)
Instructed
by: Webber Wentzel, Johannesburg;
Symington
& De Kok, Bloemfontein.
For
Amicus Curiae: Steven Budlender SC
Instructed
by: Power Singh Inc, Johannesburg;
Honey
Attorneys, Bloemfontein.
[1]
Section
6
of the
South African Revenue Service Act 34 of 1997
under the
heading ’Appointment’ reads as follows:
‘
(1)
The President must appoint a person as the Commissioner for the
South African Revenue Service.
(2)
The person appointed as the Commissioner holds office for an agreed
term not exceeding five years but which is renewable.’
[2]
Le
Roux and Others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as amici curiae)
[2011]
ZACC 4
;
2011 (3) SA 274
(CC) (
Le
Roux v Dey
)
para 89.
[3]
National
Media Ltd and others v Bogoshi
1998 (4) SA 1196
(SCA)(
Bogoshi
).
[4]
Khumalo
and others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) paras 18 and 19.
[5]
Pakendorf
en Andere v De Flamingh
1982
(3) SA 146 (A).
[6]
The
Citizen 1978 (Pty) Ltd and Others v McBride
[2011]
ZACC 11
;
2011 (4) SA 191
(CC) (
McBride
)
para 83.
[7]
Gqubuke-Mbeki
and Another v Economic Freedom Fighters and Another
[2020]
ZAGPHC 2
(
Gqubuke-Mbeki
).
As appears from para 4 of that judgment the relief claimed was
essentially the same as in the present case and the applicants
were
represented by the same attorneys. In awarding damages the judge
followed the approach in this case.
[8]
Le
Roux v Dey,
op
cit, fn 2, para 89.
[9]
Ibid,
para 88.
[10]
Ibid
para 90;
Sutter
v Brown
1926
AD 155
at 163. The position is different if a secondary meaning, or
innuendo properly so called, is pleaded, but that was not the case
here.
[11]
Monroe
v Hopkins
[2017]
EWHC 433
(QB) para 35;
Stocker
v Stocker
[2019]
UKSC 17
;
[2020] AC 5903
;
2019 (3 All ER 647
(SC) para 41.
[12]
Khumalo
v Holomisa
,
op cit, fn 4, para 18.
[13]
Le
Roux v Dey
,
op cit, fn 2, para 85.
[14]
Lawsa,
Vol 14(2), 3 ed (2017), by Justice FDJ Brand, para 124.
[15]
Crawford
v Albu
1917
AD 102
at 115-117;
Marais
v Richard en ń Ander
1981
(1) SA 1157
(A) at 1167E-G
;
McBride
,
op cit, fn 6, para 80.
[16]
Crawford
v Albu
ibid
at 114.
[17]
Op
cit, fn 3.
[18]
Maisel
v Van Naeren
1960
(4) SA 836
(C) at 840E-G.
[19]
Jordaan
v Van Biljon
1962
(1) SA 286
(A) at 296D-F.
[20]
The
entire passage of which this is the substance, was in Afrikaans and
reads as follows:
'
As
die aanbeveling van Appèlregter SCHREINER gevolg word om nie
die woorde 'malice' of 'malicious' te gebruik by die omskrywing
van
laster nie, sal inderdaad misverstand en onnodige verwarring vermy
word en indien verder besef word dat dit 'n verweerder
vrystaan om
op enige wyse afwesigheid van
animus
iniuriandi
te bewys, na
uiteensetting in sy verweerskrif van die relevante feite
waarop sy ontkenning van
animus
iniuriandi
gebaseer is, sal
verwarring in verband met woordgebruik by verwere met spesiale name,
ook mettertyd verminder. Solank egter
die in ons regspraak erkende
begrip 'bevoorregte geleentheid' as sodanig en met name gepleit word
sal die benadering daarvan
plaasvind op die wyse wat in ons
regspraak vasgelê is.'
[21]
Craig
v Voortrekkerpers Bpk
1963
(1) SA 149
(A) at 156H-157A.
[22]
Nydoo
en Andere v Vengtas
1965
(1) SA 1
(A) at 15 A-B reading as follows in the original Afrikaans
text:
'
Getuienis
dat 'n verweerder eerlik gedink het dat sy lasterlike woorde met 'n
geoorloofde doel gebesig word, hoewel volgens
objektiewe
maatstaf die doel nie geoorloof is nie, sou 'n afleiding regverdig
dat hy nie die opset gehad het om te beledig nie.'
[23]
Suid-Afrikaanse
Uitsaaikorporasie v O'Malley
1977
(3) SA 394 (A).
[24]
Ibid
at 403D-407H.
[25]
Op
cit, fn 5.
[26]
It
was later upheld in
Suttonmere
(Pty) Ltd and Another v Hills
1982
(2) SA 74
(N) and
Minister
van Veiligheid en Sekuriteit en ń Ander v Kyriacou
2000 (4) SA 337 (O).
[27]
Ibid,
154H-155A.
[28]
Bogoshi
op
cit, fn 3, at 1212G-H.
[29]
Ibid
at 1214B-C.
[30]
Ibid
at 1215I where he said: 'Proof of reasonableness will usually (f not
inevitably) be proof of lack of negligence.'
[31]
Ibid
at 1214C-D.
[32]
Ibid
at 1214F-G.
[33]
Op
cit, fn 4.
[34]
Reynolds
TD v Times Newspapers Ltd
[1998]
EWCA Civ 1172
;
[1998] 3 All ER 961
(CA). The judgment had been
delivered less than three months before argument in
Bogoshi
and
had not yet been reported.
[35]
Reynolds
v Times Newspapers Ltd and Others
[1999]
UKHL 45; [2001] 2 AC 127; [1999} 4 All ER 609 (HL).
[36]
Ibid
at 205 (Appeal Cases) and 626 (All ER).
[37]
Per
Lord Nicholls in
Bonnick
v Morris
[2002]
UKPC 31
;
[2003] 1 AC 300
para 23.
[38]
Jameel
and Others v Wall Street Journal Europe Sprl
[2006]
UKHL 44; [2007] 1 AC 359.
[39]
In
agreement with the Court of Appeal in
Loutchansky
v Times Newspapers
[2002]
QB 783
(CA) at 806.
[40]
Basner
v Trigger
1946
AD 83
at 94;
Jordaan
v Van Biljon
op
cit, fn 19 at 295E-296F.
[41]
Flood
v Times Newspapers Ltd
[2012]
UKSC 11
;
[2012] 2 AC 273
para 42, p
er
Lord Phillips of Worth Matravers P.
[42]
Ibid
para 44.
[43]
Serafin
v Malkiewicz and Others
[2020]
UKSC 23
paras 67-78.
[44]
Lange
v Australian Broadcasting Corporation ("Political Free Speech
case")
[1997]
HCA 25
;
(1997) 145 ALR 96
at 115. See also
McCloy
and Others v State of New South Wales and Others
[2015]
HCA 34
para 2.
[45]
Lange
v Atkinson
[1998]
3 NZLR 424
(CA).
[46]
Lange
v Atkinson
[2000]
3 NZLR 385 (CA).
[47]
Durie
v Gardiner
[2018]
NZCA 278
;
[2018] 3 NZLR 131
para 56(c). The court was influenced by
the adoption in Canada in
Grant
v Torstar Corp
2009
SCC 61
;
[2009] 3 SCR 640
of a new defence of responsible
communication on a matter of public interest, separate from that of
qualified privilege.
[48]
Mighty
Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd and
Another
[2015]
ZACC 34
;
2016 (1) SA 621
(CC) (
Mighty
Solutions
)
para 38.
[49]
MEC
for Health and Social Development, Gauteng v DZ obo WZ
[2017] ZACC 37
;
2018 (1) SA 335
(CC) (
DZ
obo MZ
).
[50]
Ibid
para 27.
[51]
Ibid
p
ara
28, the previous points being made with reference to
K
v Minister of Safety and Security
[2005]
ZACC 8
;
2005 (6) SA 419
(CC) para 16.
[52]
Ibid
p
ara
31;
Mighty
Solutions
op
cit, fn 46, para 38.
[53]
DZ
obo WZ
op cit, fn 47, para 32. Section 173 of the Constitution states that:
‘
The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to regulate
their own
process, and to develop the common law, taking into account the
interests of justice.’ See eg
Mokone
v Tassos Properties CC
[2017] ZACC 25
;
2017 (5) SA 456
(CC) para 41.
[54]
The
affidavit said 'defamatory' in para 58 but that was plainly
incorrect.
[55]
Mthembi-Manyele
v Mail and Guardian Ltd and Another
[2004]
ZASCA 67
;
2004 (6) SA 329
9SCA) para 47.
[56]
Gqubule-Mbeki
op
cit, fn 7, paras 71-75.
[57]
Midi
Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions
(Western Cape)
[2007] ZASCA 56;
2007
(5) SA 540 (SCA).
[58]
Hix
Networking Technologies v System Publishers (Pty) Ltd and Another
[1996] ZASCA 107
;
1997 (1) SA 391
(A) at 401D-G).
[59]
Heilbron
v Blignault
1931
WLD 167
at 169;
Buthelezi
v Poorter
1974
(4) SA 831
(W) at 838A-B.
[60]
Herbal
Zone (Pty) Ltd v Infitech Technologies (Pty) Ltd and Others
[2017] ZASCA 8
;
[2017] 2 All SA 347
(SCA) para 37.
[61]
Tau
v Mashaba and Others
[2020]
ZASCA 26; 2020 (5) SA 135 (SCA).
[62]
Le
Roux v Dey
(above
fn 2) para 199.
[63]
Ibid
para 151.
[64]
Caxton
Ltd and Others v Reeva Forman (Pty) Ltd and Another
[1990] ZASCA 47
;
1990 (3) SA 547
(A) at 567G-576B.
[65]
As
to the nature of an unliquidated claim for damages see
Kleynhans
v Van der Westhuizen NO
1970
(2) SA 742
(A) at 750G-751A.
It
is one where the quantum of the damages is not determined or
determinable.
[66]
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1161, where Murray AJP said:
'
There
are on the other hand certain classes of case (the instances given
by DOWLING, J., are matrimonial causes and illiquid claims
for
damages) in which motion proceedings are not permissible at all.'
See
also
Cadac (Pty) Ltd v Weber-Stephen
Products Company and Others
[2010]
ZASCA 105
;
2011 (3) SA 570
(SCA) (
Cadac)
.
[67]
Rules
regulating the conduct of the proceedings of the several provincial
and local divisions of the High Court of South Africa,
originally
published under GN R48 in GG 999 of 12-01-1965 (the Uniform Rules).
[68]
Rule
18(4), which applies to pleadings generally, provides that:
‘
Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim,
defence or answer
to any pleading, as the case may be, with sufficient particularity
to enable the opposite to reply thereto.’
[69]
Cadac
op cit
para 10;
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA 1
;
2009 (2) SA 277
(SCA) para 26.
[70]
Grindrod
(Pty) Ltd v Delport and Others
1997
(1) SA 342 (W).
[71]
Ibid
at 346I-347A.
[72]
SA
Associated Newspapers Ltd en ’n Ander v Samuels
1980
(1) SA 24
(A) at 45D-G;
Muller
v SA Associated Newspapers Ltd and Others
1972
(2) SA 589
(C) at 595A-B.
[73]
Gelb
v Hawkins
1960
(3) SA 687 (A).
[74]
Ibid
at 692C-F and at 693G-H.
[75]
De
Flamingh v Pakendorf en ’n Ander; De Flamingh v Lake en ’n
Ander
1979
(3) SA 676 (T).
[76]
Ibid
at 685H-686F.
[77]
Venter
v Nel
1997
(4) SA1014 (D) at 1016.
[78]
Ibid
at 1016A-B.
[79]
Dorfling
v Coetzee
1979
(2) SA 632 (NC).
[80]
Ibid at 635B-D. The original text read:
Skadevergoeding
kan uit hoofde van verskeie skuldoorsake geëis word en mens kan
jou gevalle voorstel veral by kontrakbreuk
waar die hof die
skadevergoeding kan bepaal sonder enige verwysing na getuienis oor
die skuldoorsaak. Aan die ander kant waar
die skuldoorsaak op delik
gebasser word, kan die skadevergoeding in die meeste gevalle slegs
bepaal word nadat getuienis oor
die skuldoorsaak ook gelei is, bv
aanraanding, laster, ens.’
’
[81]
New
Zealand Insurance Co Ltd v Du Toit
1965
(4) SA 136 (T).
[82]
Ibid
at 137B-D.
[83]
Gqubele-Mbeki
op
cit fn 7
.
A similar procedure was followed in
Hanekom
v Zuma
[2019]
ZAKZDHC 16, but the judge did not determine the damages and referred
that issue for oral evidence, although without specifying
the
procedure to be followed in that regard. This part of the order was
not the subject of the application for leave to appeal
dismissed by
both this court and the Constitutional Court. When the boot was on
the other foot and Mr Malema alleged that he
had been defamed he
adopted precisely the same strategy, but it received a frosty
reception from the judge who said:
'As
far as I have been able to ascertain, bringing a defamation claim by
way of application for a final interdict and damages
is a new
phenomenon in our law (as opposed to an interim interdict pending an
action for damages). In my view, it is inappropriate
and
undesirable. The reason I say this is the following: the
person making the defamatory statement may have a very good
reason
for doing so, but may not have the hard evidence to hand, which
evidence may be in the possession of the person who claims
to have
been defamed and/or third parties; in an action a defendant will
have the benefit of the pleadings in which the issues
are narrowly
defined, of the discovery process, of requesting particulars for
trial, of a pre-trial conference and the subpoenaing
of witnesses
and documents
duces
tecum
;
he/she will be entitled to cross-examine the plaintiff and the
witnesses called on behalf of the plaintiff in order to test
their
version and to give evidence and call his/her own witnesses;
evidence of an expert nature might be necessary. An application
deprives a respondent of all these extremely valuable and necessary
litigation tools.'
The
case is
Malema v Rawula
[2019]
ZAECPEHC 83 para 33 and it is set down for hearing in this court in
the next term
.
[84]
Mighty
Solutions
op
cit fn 46.
[85]
DZ
obo WZ
op cit, fn 47.
[86]
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
t/a Eye & Lazer Institute
[2014] ZACC 6; 2014 (3) SA 481 (CC).
[87]
Buthelezi
v Poorter
1975
(4) SA 831 (W).
[88]
Buthelezi
v Poorter
1975 (4) SA 608 (W).
[89]
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1153
(T) at 1162 and
Adbro
Investment Co Ltd v Minister of the Interior
1956
(3) SA 345
(A) at 350A-B.
[90]
Dikoko
v
Mokhatl
a
[2006] ZACC 10
;
2006 (6) SA 235
(CC) para 97.
[91]
See
ibid para 88. That is what the plaintiff did in
De
Flamingh v Pakendorf
op
cit, fn 5.
[92]
Van
der Berg v Coopers and Lybrand Trust (Pty) Ltd
[2000] ZASCA 77
;
2001
(2) SA 242
(SCA) para 48.
[93]
Tsedu
and Others v Lekota and Another
[2009]
ZASCA 11
;
2009 (4) SA 372
(SCA) at para 25.
[94]
Van
der Berg v Coopers and Lybrand Trust
op
cit, fn 90.
[95]
Van
der Berg
op
cit, fn 99, para 48.
[96]
Tsedu
op
cit, fn 98, para 18
[97]
Media
24 Ltd t/a Daily Sun and Another v Du Plessis
[2017]
ZASCA 33
;
Manyi
v Dhlamini
[2018] ZAGPPHC 563;
Mthimunye
v RCP Media and Another
[2007] ZAGPPHC 372; 2012 (1) SA 199 (TPD).
[98]
Bytes
Technology Group v Michael
[2014]
ZAGPPHC 926.
[99]
Branko
v Moffat and Another
[2014]
ZAGPJHC 304.
[100]
McBride
op
cit fn 6,
para
131.
[101]
Le
Roux v Dey
op
cit, fn 2 paras 199, 202 and 203.
[102]
Le
Roux v Dey
op
cit fn 2, para 197.
[103]
McBride
op
cit fn 6, para 134.
[104]
Ibid.
[105]
Le
Roux v Dey
op
cit fn 2, para 196.
[106]
Fripp
v Gibbon
&
Co
1913 AD 354.