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[2006] ZACC 10
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Dikoko v Mokhatla (CCT62/05) [2006] ZACC 10; 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) (3 August 2006)

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CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 62/05
DAVID DIKOKO Applicant
versus
THUPI ZACHARIA MOKHATLA
Respondent
Heard on : 23 March 2006
Decided on : 3 August 2006
JUDGMENT
MOKGORO J:
Introduction
This case concerns the ambit
of the immunity from civil liability given to municipal councillors
in respect of what they say when
carrying out their functions as
municipal councillors. The immunity from civil liability which
protects councillors from defamation
actions enables them to speak
and express themselves freely and openly. This, in turn, advances
democratic government. The
ambit of the immunity is not without
limit; for although the immunity constitutes an important bulwark
of constitutional democracy,
it prevents those that may be defamed
from seeking recourse through the courts. Determining its ambit
precisely therefore raises
important and difficult
questions of constitutional principle, as this judgment will
illustrate.
This case comes to this Court
as an application for leave to appeal against the judgment and
order of the Transvaal High Court.
The applicant is Mr David
Dikoko, who at the time the cause of action arose, was Executive
Mayor of the Southern District Municipality
incorporating the
Southern District Council (the Council) in the North West Province.
The respondent is Mr Thupi Zacharia Mokhatla,
who at the time was
Chief Executive Officer (CEO) of the Municipality.
Mr Dikoko raises two
arguments. First, he asks that this Court interpret sections 161
1
and 117
2
of the Constitution, together with section 28
3
of the Local Government: Municipal Structures Act
4
(Structures Act) and section 3
5
of the North West Municipal Structures Act
6
(North West Structures Act) to allow privilege to municipal
councillors performing their functions outside of Council. Second,
that the Court interpret sections 2
7
,
9
8
,
10
9
and 35
10
of the North West Provincial Legislature’s Powers, Privileges and
Immunities Act
11
(North West Privileges Act) to provide the privilege and immunity
to persons who are not members of a provincial legislature
but
appear before it to give information. There is no challenge to the
constitutional validity of any of the provisions of the
relevant
legislation.
Background
The Council has a policy under
which a basic amount of R300 is payable by it towards the payment
of the cell-phone account of
each councillor. Any amount above
R300 must be satisfactorily justified else the amount is personally
payable by the councillor
and deductible from his or her salary.
The Council had submitted its annual financial report to the
Auditor-General of the North
West Province (Provincial
Auditor-General), who voiced his dissatisfaction with it, pointing
to the unacceptable excess of R3,
200 on Mr Dikoko’s cell-phone
account, an outstanding amount which had been long overdue.
Mr Mokhatla had earlier in his
capacity as CEO of the Council, received management letters from
the Provincial Auditor-General,
questioning Mr Dikoko’s overdue
indebtedness to the Council. Although Mr Mokhatla had on a number
of occasions and over a
considerable period brought this matter to
Mr Dikoko’s attention, he had failed to settle the debt.
Eventually he came to
an agreement with the Council to write off
all but R3, 200 of the debt. This agreement also caused the
Provincial Auditor-General
dissatisfaction. He then called on Mr
Dikoko to appear before the North West Provincial Public Accounts
Standing Committee (Standing
Committee) to provide an explanation.
During the course of his
explanation, Mr Dikoko made the following statement:
“
I might say maybe it was
politically motivated. That is why I am saying it could have been
best if [Mr Mokhatla] was here to tell
why because . . . my
personal view might have been he did it deliberately for it to
accrue and build a big sum, because some of
the colleagues in
Council, more especially from our other political parties want to
misconstrue when they give information out,
whether to the media or
so, wanting to make it as if it was R21 000 for one month whilst it
was R21 000 for three years.”
The statement was to the
effect that his overdue indebtedness was because Mr Mokhatla had
changed the accounting procedures of
the Council, providing for
periodic as opposed to more frequent monthly payments of cell-phone
account excesses; that he did
so deliberately, causing his
indebtedness to the Council to accumulate, thereby giving political
opponents a basis for an attack
on his integrity. Mr Mokhatla
instituted an action for damages against Mr Dikoko in the High
Court, claiming that Mr Dikoko’s
statement to the Standing
Committee was defamatory. In his defence, Mr Dikoko entered a
special plea, claiming that the statement
enjoyed privilege under
the relevant legislation.
It is convenient to discuss at
this stage, the relevant provisions of the Constitution and the
legislative framework within which
the privilege operates.
Constitutional and
legislative framework
(a) Privilege afforded to
Municipal Councils
Section 161 of the
Constitution provides:
“
Provincial legislation
within the framework of national legislation may provide for
privileges and immunities of Municipal Councils
and their members.”
The Constitution therefore
permits Parliament to pass framework legislation providing and
regulating the privilege afforded to municipal
councils and their
members.
Parliament proceeded to pass
the Municipal Structures Act aimed at providing the national
legislative framework referred to in
section 161 of the
Constitution. Section 28 of this Act provides:
“
(1) Provincial Legislation
in terms of section 161 of the Constitution must provide at least─
(a)
that councillors
have freedom of speech in a municipal council and
in its
committees, subject to the relevant council's rules and orders as
envisaged in section 160(6) of the Constitution; and
(b)
that councillors are
not liable to civil or criminal proceedings, arrest,
imprisonment
or damages for─
anything that they have
said in, produced before or submitted
to the council or any of its
committees; or
anything revealed as a
result of anything that they have said in,
produced before or submitted to
the council or any of its committees.
Until provincial
legislation contemplated in subsection (1) has been enacted the
privileges referred to in paragraphs (
a
) and (
b
)
of subsection (1) will apply to all municipal councils in the
province concerned.”
In response to section 28(1)
of the Structures Act, the North West Municipal Structures Act was
passed by the provincial legislature
providing among other things,
for the freedom of speech and immunity of municipal councillors
against criminal or civil liability
for statements made in council
or any of its committees. Section 28(2) made provision for the
application of section 28(1) to
municipal councils until the
provinces enacted their own legislation, making provision for
privilege in their provinces. The
North West Municipal Structures
Act was therefore enacted, providing in section 3 for privilege in
the precise terms provided
by section 28 of the Structures Act.
Section 28(1) and section 3 therefore both make provision for
freedom of speech and immunity
from civil or criminal liability for
anything said in council or in one of its committees.
(b) Privilege accorded to
provincial legislature
Section 117 of the
Constitution accords privilege to members of provincial
legislatures. This section provides in relevant part:
“
(1) Members of a provincial
legislature …─
(a)
have freedom of
speech in the legislature and in its committees, subject to its
rules and orders; and
(b)
are not liable to
civil or criminal proceedings, arrest, imprisonment or damages for–
anything that they have
said in, produced before or submitted to the legislature or
any of its committees; or
anything revealed as a
result of anything that they have said in, produced before or
submitted to the legislature or
any of its committees.”
Responding to the
constitutional imperative in section 117, the North West Privileges
Act was passed to provide for privilege
for members of the North
West Provincial Legislature. Section 2 provides:
“
(1) Subject to the standing
orders there shall be freedom of speech and debate in or before the
Provincial Legislature and any committee,
and such freedom shall not
be impeached or questioned in any court.
(2) Anything said by any member
in or before the Provincial Legislature or a committee, whether as a
member or a witness, shall
be deemed to be a matter of privilege as
contemplated in section 7.
(3) The provisions of
subsection (1) shall not apply to any person other than a member,
giving evidence before the Provincial Legislature
or any committee.”
The section therefore
immunises a member for anything said in or before the provincial
legislature or any of its committees
against civil or
criminal liability, regardless of whether he or she appeared as a
member or as a witness. On its plain meaning,
section 2 provides
this protection for members of the provincial legislature only. It
does not give protection to any other
person who might appear as a
witness before the provincial legislature or any of its committees.
Section 9 of the North West
Privileges Act protects members against liability for civil and
criminal proceedings, and provides:
“
Notwithstanding this or any
other Act, no member shall be liable to any civil or criminal
proceedings, arrest, imprisonment or damages
by reason of anything
that he or she has said, produced or submitted in or before or to
the Provincial Legislature or any committee
thereof or by reason of
anything that may have been revealed as a result of what he or she
has said, or produced or submitted in
or before or to the Provincial
Legislature or any committee thereof.”
Section 9 therefore protects
only members of the provincial legislature.
Mr Dikoko also relies on
sections 10 and 35 of the North West Privileges Act to claim that
the privilege generally accorded to
members of the Provincial
Legislatures should also cover him. Whereas section 10 provides
that no person shall be liable for
anything done under the
authority of or within the legal powers of the Provincial
Legislature, section 35 goes further. It provides
that the
privileges, immunities and powers of the Provincial Legislature do
not need to be specifically pleaded, as courts must
take judicial
notice of them. There is no similar provision made for the
privilege in municipal councils and their committees.
Proceedings in the High
Court
Before the High Court Mr
Mokhatla’s claim was that Mr Dikoko’s statement to the Standing
Committee was defamatory in that
it conveyed the following
meaning:
12
Mr Mokhatla was devious; was not independent and impartial as his
position necessitated; was not worthy of the trust necessary
for
the proper functioning of a chairperson of a municipal council and
the CEO thereof and was capable of being manipulated by
political
parties or members of those parties. In addition it also conveyed
that Mr Mokhatla was not fit for senior administrative
office
within local government; was promoting a personal and political
agenda; was manipulative and should be held accountable
for a
seriously irregular situation.
Mr Dikoko entered a special
plea of privilege based on section 28 of the Structures Act,
arguing that this section afforded him
privilege in that he was not
liable to civil proceedings for the statements he had made in the
Standing Committee. In support
of this contention, he averred that
the Standing Committee was a public hearing of the Council. He was
therefore entitled to
the privilege as a member of the Council
under section 28.
The High Court rejected the
special plea, finding that the Standing Committee, though held in
the chambers of the Council was
a meeting of the provincial
legislature and not that of the Council. For that reason the Court
held section 28 was not applicable.
In the result, the High Court
found that Mr Mokhatla had made out a case for defamation. Having
considered plaintiff’s position
in society; the relationship that
existed between the parties; the absence of an apology and the
seriousness of the allegations,
the Court determined that all these
factors weighed against Mr Dikoko and awarded Mr Mokhatla damages
in the amount of R110,
000 with costs.
13
Proceedings in the Supreme
Court of Appeal
Mr Dikoko applied for leave to
appeal to the Supreme Court of Appeal against the judgment and
order of the High Court. He also
appealed against the quantum of
damages awarded by the High Court, arguing that it was excessive in
the circumstances of the
case. The Supreme Court of Appeal
dismissed the application and provided no reasons.
Issues before this Court
The High Court rejected Mr
Dikoko’s special plea. He now approaches the issues somewhat
differently. He submits that the meeting
of the Standing Committee
was a meeting of a committee of the Council, as contemplated in
section 28 of the Structures Act and
section 3 of the North West
Structures Act. Alternatively, he submits that his attendance at
the Standing Committee was part
of the extended business of the
Council. Arguing that even if the meeting in question was a
meeting of the Standing Committee,
Mr Dikoko avers that he would
qualify for the privilege under section 117 of the Constitution,
read together with section 9 of
the North West Privileges Act.
In summary, the case Mr Dikoko
now makes before this Court is that the privilege afforded to
members of the Council under section
28 of the Structures Act and
section 3 of the North West Structures Act immunises the statements
he made in the Standing Committee.
This he contends is so because
even though the Standing Committee was a meeting of the Provincial
Legislature as the High Court
found, he attended it as a member of
the Council, for purposes of conducting the legitimate business of
the Council.
Mr Dikoko did not address the
question of quantum in his heads of argument. During oral argument
he was requested to submit supplementary
heads of argument setting
out his case in relation to the question of quantum. He submitted
his supplementary heads of argument
on 28 March 2006 averring that
the award of damages against him in the High Court is excessively
disproportionate or grossly
unreasonable, in that it is not
commensurate with the limited publication of the statement as well
as the slightness of the injury
to Mr Mokhatla’s reputation.
Consequently, he argues that this Court should interfere with the
High Court’s award and substitute
it with its own. He submits
further that an award of R20, 000 to R30, 000 would be adequate.
The High Court made a finding
that the meeting of the Standing Committee was not a meeting of the
Council as Mr Dikoko had contended.
Mr Mokhatla therefore argues
that Mr Dikoko cannot, without challenging that finding, now submit
that he had attended the meeting
as a member of a committee of the
Council or that the meeting was that of the Standing Committee and
the Council combined. For
this reason, submits Mr Mokhatla, Mr
Dikoko cannot be said to have been engaged in the business of the
Council and is therefore
not entitled as a councillor to the
protection under section 28.
Further, submits Mr Mokhatla,
Mr Dikoko does not qualify, as he contends, for the privilege
afforded to members of the provincial
legislature under section 117
of the Constitution read with section 9 of the North West
Privileges Act. Mr Dikoko is not a member
of the provincial
legislature and the plain meaning of section 117 of the
Constitution does not extend that privilege to him.
Besides, Mr
Mokhatla contends Mr Dikoko did not make these arguments before the
High Court and may not raise them on appeal,
thereby denying Mr
Mokhatla adequate opportunity to respond appropriately. For these
reasons, submits Mr Mokhatla, Mr Dikoko
should be refused leave to
appeal.
Concerning quantum, Mr
Mokhatla argues that only if this Court grants leave to appeal
should it consider the appeal against the
amount of damages awarded
by the High Court. Because the issue of damages in isolation of
the merits is not a constitutional
issue and the SCA is the highest
court of appeal on non-constitutional matters, if need be, the SCA
has jurisdiction in this
aspect of the appeal, under section
168(3)
14
of the Constitution. This Court, goes Mr Mokhatla’s further
argument, is in the same position as any other appellate court
and
should not readily interfere with the amount of damages of the
trial court award, replacing it with its own merely on the
basis
that this Court would in its own assessment, have arrived at a
different amount. Before considering the questions regarding
privilege and quantum of damages, it is convenient to first dispose
of the application for leave to appeal.
Application for leave to
appeal
It is well established that
the decision whether to grant leave to appeal is a matter for the
discretion of the Court and that
leave will be granted if Mr Dikoko
has raised a constitutional matter and it is in the interests of
justice to grant leave.
15
Constitutional matter
The issue whether privilege
extends to Mr Dikoko for the statement he made to the Standing
Committee involves the interpretation
and application of the
provisions of the Constitution and statutory provisions authorised
by the Constitution. It also pertains
to the regulation of aspects
of the constitutional powers and functions of municipal councillors
and members of provincial legislatures.
This clearly raises a
constitutional issue.
Interests of justice
As mentioned in paragraph one
of this judgment, this case raises the important constitutional
issue of the ambit of the privilege
afforded under the Constitution
and the legislation authorised by the Constitution. That immunity
protects councillors from
defamation actions, enabling them to
speak and express themselves freely and openly. It is therefore
essential to constitutional
democracy. However, it prevents those
that may be defamed from seeking recourse through the courts. Its
precise ambit is therefore
an important constitutional issue and it
is in the interests of justice for this Court to hear the appeal.
Whether Mr Dikoko is
entitled to the privilege under the Constitution and the relevant
legislation
The Standing Committee was a
meeting of the North West Legislature Finance Committee and not a
meeting of the Council or one of
its committees. What should now
be determined is whether Mr Dikoko’s statement qualifies for
privilege on the basis that when
he attended the meeting he was
conducting the business of the Council or alternatively, that the
privilege which is accorded
to members in provincial legislatures
should extend to him.
Whether Mr Dikoko is
protected under section 28 of the Structures Act and section 3 of
the North West Structures Act
Premised on his submission
that attending the Standing Committee constituted the extended
business of the Council, Mr Dikoko contends
that he should be
accorded privilege under section 28
16
of the Structures Act. He further argues that the link between the
Council’s business and the Standing Committee makes the
privilege
envisaged in section 28 applicable. Whatever he said or did, he
avers, was in his capacity as a member of the Council
and in the
course of carrying out the business of the Council. The texts of
both section 28 of the Structures Act and section
3 of the North
West Structures Act provide immunity for municipal councillors for
anything said in, produced before or submitted
to the council or
any of its committees, or anything revealed as a result of it. It
does not expressly extend to councillors
acting outside of council.
The plain meaning of these provisions does not support the
interpretation Mr Dikoko argues for and
section 28 of the
Structures Act can therefore not be extended to afford Mr Dikoko
the privilege, immunising his statement against
civil liability, as
he contends.
The next question is whether
the provision, properly interpreted, extends to the conduct of
councillors acting outside the proceedings
of a committee. Our
courts have not yet considered and decided the question whether
this privilege extends outside of the proceedings
of council.
17
In
Swartbooi and Others v Brink and Another (2)
,
18
this Court considered the interpretation of section 28 of the
Municipal Structures Act to determine whether privilege extended
to
resolutions adopted during the full deliberations of the council.
For a unanimous court, Yacoob J found that the section
28 privilege
indeed covered the conduct of members of a municipal council
participating in the affairs of the full council in
the course of
the legitimate business of council.
19
In arriving at this conclusion
he considered whether that privilege would extend to everything
said or done in a committee of
the council, irrespective of the
committee’s function or purpose. Yacoob J was of the view that
the function of the committee
might be relevant in deciding whether
a municipal councillor was exempted for conduct which amounts to
participation in the affairs
of a committee.
20
Swartbooi
did not consider or decide the applicability of
privilege outside of the full deliberations of council.
In a pre-constitutional case,
Poovalingam v Rajbansi
,
21
the Appellate Division, as the Supreme Court of Appeal then was,
held that parliamentary privilege extended to anything done
in
Parliament which constituted the business of Parliament.
22
The Court however held that privilege would not apply in
Parliament or in one of its committees if the impugned conduct
amounted
to a personal matter between members of Parliament and was
not part of Parliament’s business.
23
That the business occurred in Parliament is therefore not
decisive. The business has to be that of Parliament.
24
A number of Canadian cases
have considered the extension of privilege outside of Parliament.
25
A review of these cases suggests that privilege would be extended
where the impugned conduct was an extension of the member’s
real
or essential parliamentary functions. In
Roman Corp Ltd v
Hudson’s Bay Oil & Gas Co Ltd
26
the Court held that the object of privilege was not to further the
selfish interests of the members of Parliament. It was to
protect
them from harassment inside and outside of the House, when they
carry out the legitimate business of the House.
In
Stopforth v Goyer
27
a Minister of a government department, in response to questions
by reporters outside of the House of Commons, made defamatory

allegations against the plaintiff, a public servant. The question
that arose was whether he was protected by the defence of

privilege. The Court decided that the principle of absolute
privilege can be extended to apply to proceedings that are an
extension
of the proceedings in Parliament and those conducted
outside of the House.
28
In the case of
Re Clark v Attorney General of Canada
29
the applicants were all members of the Federal Progressive
Conservative Party and brought an application in the Supreme Court
of Ontario seeking a number of declarations with respect to a
promulgated regulation. The question arose whether the regulation
overrode or abridged existing parliamentary privilege and whether
the courts had jurisdiction to determine the nature and extent
of
parliamentary privilege. In deciding this question the Court held
that the privilege covers proceedings in Parliament, encompassing
a
member’s real or essential functions. Those functions, it was
held, did not include the release of information to
constituencies.
30
The place where the words were spoken or the acts performed was
immaterial provided there was a reasonable connection between
the
words or acts and the business of the House so as to make them part
of the proceedings.
31
For Mr Dikoko’s statement to
be privileged in the Standing Committee we must conclude that the
privilege afforded under section
28 extends not only to the
legislative functions of councillors, but also to their executive
functions. This would be necessary
because the business of the
Standing Committee was executive and not legislative in nature.
Although the question whether the
privilege extends to the
executive functions of the council did arise in
Swartbooi
32
the Court did not decide the question, stating only that the
privilege would apply in the deliberations of the full council,
regardless of whether the resolution deliberated upon and finally
adopted was of a legislative, executive or administrative nature.
33
The full deliberations of council in the course of council’s
legitimate business would therefore be privileged even though
the
resolution dealt with executive matters. The passing of a
resolution affecting the executive functions of council would
however still be a legislative process. The Court therefore left
open this question.
To determine the question
requires a consideration of the purpose of the privilege in a
constitutional democracy. Immunising
the conduct of members from
criminal and civil liability during council deliberations is a
bulwark of democracy. It promotes
freedom of speech and
expression. It encourages democracy and full and effective
deliberation. It removes the fear of repercussion
for what is
said. This advances effective democratic government. There is
therefore much to be said for a conclusion that if
a councillor
participates in the genuine and legitimate functions or business of
council, whether inside or outside of council,
the privilege
afforded under section 28 ought to extend to her or him. For the
reasons stated below however, it is not necessary
to determine that
question in this case.
The Provincial Auditor-General
called upon Mr Dikoko to appear before the Standing Committee to
discuss the Council’s financial
matters arising from the
financial report. This included a personal explanation of the
excess amount outstanding on Mr Dikoko’s
cell-phone account and
his indebtedness to the Council, which did not constitute the
Council’s business. As soon as he started
to explain he
descended into a self-gratuitous and unwarranted personal attack on
Mr Mokhatla’s personal and professional integrity.
This was
unbecoming of an Executive Mayor. He took no personal
responsibility for his irresponsible conduct. Instead, he placed
all blame on Mr Mokhatla, unduly questioning his efficiency and
loyalty as CEO of the municipality. Not in any context can his
statements in the Standing Committee in respect of his overdue
cell-phone account be viewed as constituting the real and
legitimate
business of the Council. They concerned only Mr
Dikoko’s personal finances and indebtedness to the Council. I
therefore conclude
that the facts of this case do not require us to
decide whether the privilege under section 28 and section 3 should
be interpreted
to extend to the business of council outside of
council or its subcommittees. I leave open this question.
For the reasons stated above,
I find it unnecessary to decide whether the privilege under section
28 and section 3 should be extended
to apply to the executive
functions of municipal councillors.
Whether the privilege which
applies to members of the North West Provincial Legislature should
extend to Mr Dikoko
Section 117 of the
Constitution and sections 2 and 9 of the North West Privileges Act
apply to members of a provincial legislature
in the legislature and
its committees, immunising their conduct against criminal and civil
liability. Section 10
34
of the North West Privileges Act applies to other persons who are
non-members of the provincial legislature and have acted under
the
authority of the provincial legislature while section 35
35
is applicable to members and officers of the provincial
legislature.
Arguing that the occasion was
also governed by section 117
36
of the Constitution, Mr Dikoko submitted that the privilege which
applies to members of a provincial legislature should extend
to his
appearance before the Standing Committee as a witness. Relying in
this regard on sections 2, 9, 10 and 35 of the North
West
Privileges Act he submitted that in so far as he was not a member
of the Standing Committee the privilege afforded by those
provisions should extend beyond members, to officials and others
who act in the Standing Committee and on the authority of the
provincial legislature.
In terms, section 117 of the
Constitution and sections 2, 9 and 35 of the North West Privileges
Act limits the privilege to members
and officers of the
legislature. They too, do not afford the privilege to officials or
persons other than members of the provincial
legislature, even
where those officials and persons come as witnesses called by the
provincial legislature or its committees
to testify. In particular
section 2(2) of the North West Privileges Act expressly limits the
privilege to those who appear as
witnesses before the provincial
legislature and its committees only if they are members of the
legislature. Other witnesses
who are not members of the
legislature do not enjoy that protection.
Mr Dikoko argued that the
provisions should be construed purposively to extend immunity from
civil liability to persons other
than members of provincial
legislatures. I cannot accept that the text of each of the
relevant provisions can reasonably accommodate
such a construction.
Each of the provisions specifically extends its protection to
members of provincial legislatures alone.
It is not possible on
the language of the provisions to read them as he contended. In
the circumstances, Mr Dikoko’s argument
must fail.
As far as Mr Dikoko’s
reliance on section 10 of the North West Privileges Act is
concerned, it provides that “[n]o person
shall be liable in
damages . . . for any act done under the authority of the
Provincial Legislature and within its legal powers
. . .”.
37
This provision cannot be read to extend the scope of the immunity
for civil liability for defamation conferred upon members
of the
legislature by sections 2, 9 and 35 of that Act. Moreover, it
cannot be said that the defamatory remarks by Mr Dikoko
before the
Standing Committee constitute “acts done under the authority of
the Provincial Legislature.” That legislation
did not authorise
the defamatory statements by Mr Dikoko, nor arguably could it
lawfully have done so. This argument too must
fail.
Accordingly, a situation is
created where others who participate in the same deliberations as
witnesses, promoting the same role
and functions of the legislature
and advancing the same business of the legislature are not
protected. That leaves them exposed
to criminal and civil
proceedings on the basis that they are not members of the
legislature. It might be argued that this does
not seem to accord
with the basic principle of fairness. Quite often, it is not only
members of the legislature who participate
in or appear before the
provincial legislature and its committees to provide or give
information. Others also do so. The question
is whether
legislation should not have afforded the applicable privilege more
equitably, not only to members but also to those
who appear before
the legislature or its committees as witnesses. This could have
been done on the basis of a qualified privilege.
It might be
argued that this would be more in line with a Constitution which
places much importance on the values of equality,
human dignity and
freedom. These questions are however also not before us and will
not be decided.
Qualified privilege does not
afford absolute immunity to the speaker and can be defeated if the
person concerned acts with an
improper motive. Currently, our law
recognises three categories of occasions that enjoy qualified
privilege. These are: (a)
statements published in the discharge of
a duty or the exercise of a right; (b) statements published in the
course of judicial
or quasi-judicial proceedings and (c) reports of
proceedings of courts, Parliament or public bodies. These
occasions should
not, however, be regarded as exhaustive. Whether
a particular occasion is privileged depends on applicable public
policy.
38
The defence of qualified
privilege was not raised by Mr Dikoko and is therefore not before
this Court for determination. The
appearance in relation to his
cell-phone account did not qualify as the legitimate business of
the Council. This makes it unnecessary
to decide whether privilege
under section 117 of the Constitution and related legislation can
be extended to cover officials
and others who are not members of
the provincial legislature, but appear before the provincial
legislature to testify as witnesses
or to give information. In the
result, section 117 cannot come to Mr Dikoko’s assistance.
Mr Dikoko’s statement before
the Standing Committee therefore does not enjoy immunity under
section 161 of the Constitution,
section 28 of the Structures Act
or section 3 of the North West Structures Act. Similarly, section
117 of the Constitution and
sections 2, 9, 10 and 35 of the North
West Privileges Act do not afford him the privilege for which he
contends. The appeal
against the decision of the High Court
denying him privilege therefore fails.
Mr Dikoko’s appeal against
the quantum of damages
The High Court, having found
Mr Dikoko liable for defamation, awarded damages against him in the
amount of R110, 000. He appealed
against the award, claiming that
it is excessively disproportionate or grossly unreasonable
39
and not commensurate with the limited publication of the statement
as well as the slight injury to Mr Mokhatla’s reputation
and
contended for this Court to substitute its own award of damages for
that of the High Court.
The emerging question is
whether this Court has jurisdiction to review the High Court award.
First to determine is whether the
award of damages is a
constitutional issue falling within the jurisdiction of this Court.
Should this Court have jurisdiction
to review the award, the next
question would be whether in our jurisprudence and under the
applicable legal principles this Court
should do so.
I agree with Moseneke DCJ’s
finding in paragraph 92 of his judgment that the extent of damages
for defamation has implications
for the relationship between
dignity and freedom of expression. Robust awards will indeed have
a “chilling effect” on freedom
of expression.
40
Moseneke DCJ assumes without
deciding that the amount of damages in a defamation suit is a
constitutional matter. My view is
that when a damages award is
excessive, as this judgment finds, it has the effect of curbing
freedom of speech for fear of repercussions
that might flow from
exercising that freedom guaranteed and protected in the
Constitution. In my view therefore, we are clearly
seized with a
constitutional matter. What remains to be determined is whether
this Court should interfere with the High Court’s
award.
In that regard, Mr Mokhatla
submits this Court should only interfere with the damages award if
leave to appeal on the constitutional
issue is granted. Having
granted leave, there can be no objection on the part of Mr Mokhatla
for this Court to re-determine
the High Court’s assessment.
Even if this Court has
jurisdiction to review the quantum, Mr Mokhatla submitted, being in
the same position as any appellate
court, it ought not to interfere
with the High Court’s award merely for the reason that its own
assessment would yield a different
amount. What would additionally
be required, Mr Mokhatla argues, is for this Court to make a
finding that the High Court’s
award of damages was manifestly
unreasonable.
The approach of the Supreme
Court of Appeal to the question whether it can replace a trial
court’s award of damages has been
that the amount of damages to
be awarded is in the discretion of the trial court but that that
court must exercise its discretion
reasonably.
41
In
Sandler v Wholesale Supplies Ltd
42
the Supreme Court of Appeal held that should an appellate court
find that the trial court had misdirected itself with regard
to
material facts or in its approach to the assessment, or having
considered all the facts and circumstances of the case, the
trial
court’s assessment of damages is markedly different to that of
the appellate court, it not only has the discretion but
is obliged
to substitute its own assessment for that of the trial court. In
its determination, the Court considers whether the
amount of
damages which the trial court had awarded was so palpably
inadequate as to be out of proportion to the injury inflicted.
43
The Supreme Court of Appeal
will therefore only interfere with an award of damages if it finds
that the award of the trial court
was palpably excessive, clearly
disproportionate in the circumstances of the case,
44
grossly extravagant or unreasonable
45
or so high as to be manifestly unreasonable.
46
An appellate court may therefore interfere if a trial court is
found to have misdirected itself in its assessment of damages.
47
In
S v Basson
48
this Court considered the approach which an appellate court should
take to the exercise of a discretion by a trial court. Noting
two
different types of discretion, the Court stated: “[A] discretion
in the sense that the [C]ourt must have regard to a number
of
factors before coming to a decision”,
49
which I will refer to as a broad discretion, and a “strong” or
“true” discretion which is said to exist when the court
has a
range of options available to it.
50
Regarding a broad discretion, an appellate court can interfere if
it is of the view that it would have exercised its discretion
differently on the merits.
51
With a “strong” or “true” discretion
52
however, an appellate court can interfere only when shown that the
trial court exercised its discretion on the basis of wrong
principles of law or a mistaken view of the facts.
53
In the approach of the Supreme
Court of Appeal, an award of damages is a matter which is best left
to a trial court to determine.
The Court has therefore held that
it will not interfere with a trial court’s award if it is of the
view that on a consideration
of all of the relevant facts and
circumstances in a particular case it would have come to a
different assessment. Rather, the
Court has held that it can only
substitute its own assessment for that of the trial court if it is
of the view that the trial
court’s assessment was manifestly
incorrect or if its assessment differs markedly from that of the
trial court. An assessment
which is markedly different to that of
a trial court indicates that the Court considered that the trial
court had misdirected
itself on the law or the facts before it.
The trial court’s discretion to award damages is therefore in my
view a “true”
discretion, in which this Court can interfere if
it is of the view that the High Court, in its assessment,
misdirected itself
either on the law or on the facts before it.
When the High Court assessed
the quantum it took into account and emphasised relevant factors
which demonstrated the serious nature
of the defamation. Relying
on the dictum in
Skinner v Shapiro (I)
54
the High Court simply stated without motivation:
“
[W]hen this dictum is
applied to the facts of the present case it is clear that the
plaintiff’s position in society; the relationship
that existed
between the parties; the absence of an apology and the seriousness
of the allegations all weigh against the defendant.”
After considering that all
these factors weighed against Mr Dikoko the Court found that it was
reasonable to make an award of damages
of R110, 000.
Assessment of the quantum
The law of defamation is based
on the
actio injuriarum
, a flexible Roman law remedy which
afforded the right to claim damages to a person whose personality
rights had been impaired
by another.
55
The action is designed to afford personal satisfaction for an
impairment of a personality right
56
and became a general remedy for any vexatious violation of a
person’s right to his dignity and reputation.
57
A number of factors arising from the facts and circumstances of
the case are taken into account in assessing the amount of damages.
Mr Dikoko has not apologised
to Mr Mokhatla for his defamatory statement. The question arises
as to what effect an apology should
have on the amount of damages
to be awarded. In
Mineworkers Investment Co (Pty) Ltd v
Modibane
58
(the
Mineworkers
case) the plaintiff had brought two
separate defamation actions against the defendant, which were
consolidated and set down together
for trial. The order which the
plaintiff requested was an order for damages in the event that the
defendant did not publish
within 10 days of the Court’s order an
apology and a retraction of the statements which he had made.
59
Willis J proceeded to consider whether a defendant in a defamation
action could be ordered to apologise. The Court considered
a
remedy which had existed in Roman-Dutch law, known as the
amende
honorable
. In describing this remedy he referred to Melius de
Villiers in
The Roman and Roman-Dutch Law of Injuries
at
177, which stated the following:
60
“
In the systems of
jurisprudence founded on Roman law a legal remedy has been
introduced which was entirely unknown to the Romans,
known as the
amende honorable . . . .
This remedy took two forms. In
the first place, there is the palinodia, recantatio or retractio
,
that is, a declaration by the person who uttered or published the
defamatory words or expressions concerning another, to the effect
that he withdraws such words or expressions as being untrue; and it
is applied when such words or expressions are in fact untrue.
In
the second place there is the
deprecatio
or apology, which is
an acknowledgment by the person who uttered or published concerning
another anything which if untrue would
be defamatory, or who
committed a real injury, that he has done wrong and a prayer that he
may be forgiven.”
Willis J held further that the
remedy had fallen into disuse in our law, mainly because in
Roman-Dutch law it was to be enforced
by means of civil
imprisonment, a remedy of which the courts disapproved. This did
not mean it had been abrogated by disuse;
it still formed part of
our law and
“
[E]ven if I am wrong in the
conclusion that the
amende honorable
is still part of our
law, there are other reasons why I believe a remedy analogous
thereto should be available. I agree with the
submission of
Mr
Chaskalson
that if the only other remedy available in a
defamation action is damages, then very often an appropriate balance
will not be struck
between the protection of reputation on the one
hand and freedom of expression on the other. It fails in two
respects: (i) often,
it does not afford an adequate protection to
reputation and (ii) it can, at least indirectly, impose restrictions
on freedom of
expression. Awards of damages can ruin defendants
financially and this risk can operate to restrict information being
published
which may indeed be in the public interest. The
uncertainty as to whether the ‘truth plus public benefit’
defence will succeed
can inhibit freedom of expression. As Hefer
JA, as he then was, said in the case of
National Media Ltd v
Bogoshi
(
supra
at 1201G-I):
‘
Much has been written about
the “chilling” effect of defamation actions but nothing can be
more chilling than the prospect of
being mulcted in damages for even
the slightest error.’”
61
Furthermore, the harm done by a
defamatory statement is damage to the reputation of a person. A
public apology will usually be
far less costly than an award of
damages. It can set the record straight; restore the damaged
reputation giving the necessary
satisfaction; avoid serious
financial harm to the culprit and encourage, rather than inhibit,
freedom of expression.
A somewhat different approach
was adopted in
Young v Shaikh
.
62
In that matter statements made during an interview with the
defendant on a South African television station on 21 November 2001
and repeated on 26 November 2001, led the plaintiff to claim
damages in the amount of R250, 000. In his plea the defendant

apologised to the plaintiff unconditionally and unreservedly and in
addition, tendered to pay his costs up to and including the
consideration of his plea.
63
The defendant submitted that the plaintiff should have claimed an
apology instead of damages and should have been satisfied
with the
apology tendered in the plea. As authority for this submission
reference was made to the dictum of Willis J in the
Mineworkers
case.
64
The Court nonetheless held
that even if the
amende honorable
was still part of South
African law, an apology in the circumstances of that case would not
serve the interests of justice.
Freedom of expression, it held,
does not include the right to attack falsely the integrity of a
fellow citizen for selfish reasons
which have nothing to do with
‘public benefit’.
65
It further held that if the award which it intended to make might
have a chilling effect on possible future and similarly baseless
and selfish attacks on the integrity of others it would be an
additional reason not to make use of the
amende honorable
.
66
In addition it was found that an apology in a plea given
half-heartedly in evidence could not be regarded as adequate. An

aggravating factor was that the defendant had not shown any
compunction when attacking the plaintiff’s integrity and was
indifferent
to any financial harm which his baseless accusations
could have caused.
67
The case illustrates that
whether or not the
amende honorable
technically still forms
part of our law, it is important that once an apology is tendered
as compensation or part thereof, it
should be sincere and adequate
in the context of each case. When considering the purpose of
compensation in defamation cases
the true value of a sincere and
adequate apology, the publication of which should be as prominent
as that of the defamatory statement,
and or a retraction as a
compensatory measure restoring the integrity and human dignity of
the plaintiff, cannot be exaggerated.
68
Far more is involved than protecting freedom of speech from
inordinate damages claims.
In our constitutional
democracy the basic constitutional value of human dignity relates
closely to
ubuntu
or
botho
, an idea based on deep
respect for the humanity of another. Traditional law and culture
have long considered one of the principal
objectives of the law to
be the restoration of harmonious human and social relationships
where they have been ruptured by an
infraction of community norms.
It should be a goal of our law to emphasise, in cases of
compensation for defamation, the re-establishment
of harmony in the
relationship between the parties, rather than to enlarge the hole
in the defendant’s pocket, something more
likely to increase
acrimony, push the parties apart and even cause the defendant
financial ruin. The primary purpose of a compensatory
measure,
after all, is to restore the dignity of a plaintiff who has
suffered the damage and not to punish a defendant.
69
A remedy based on the idea of
ubuntu
or
botho
could
go much further in restoring human dignity than an imposed monetary
award in which the size of the victory is measured
by the quantum
ordered and the parties are further estranged rather than brought
together by the legal process. It could indeed
give better
appreciation and sensitise a defendant as to the hurtful impact of
his or her unlawful actions, similar to the emerging
idea of
restorative justice in our sentencing laws.
70
The focus on monetary
compensation diverts attention from two considerations that should
be basic to defamation law. The first
is that the reparation
sought is essentially for injury to one’s honour, dignity and
reputation, and not to one’s pocket.
The second is that courts
should attempt, wherever feasible, to re-establish a dignified and
respectful relationship between
the parties. Because an apology
serves to recognize the human dignity of the plaintiff, thus
acknowledging, in the true sense
of
ubuntu
, his or her inner
humanity, the resultant harmony would serve the good of both the
plaintiff and the defendant. Whether the
amende honorable
is part of our law or not, our law in this area should be developed
in the light of the values of
ubuntu
emphasising restorative
rather than retributive justice. The goal should be to knit
together shattered relationships in the
community and encourage
across-the-board respect for the basic norms of human and social
inter-dependence. It is an area where
courts should be pro-active
encouraging apology and mutual understanding wherever possible.
This case suggests itself as
one where perhaps more could have been done to facilitate an
apology. The parties worked closely
together in the same
environment. An apology or retraction by Mr Dikoko could have gone
a long way. At no stage did he offer
an apology or a retraction of
his false and damaging accusations. The evidence that he led
before the High Court, testifying
to the high regard he had for Mr
Mokhatla, was of an abstract nature and fell far short of a direct
apology for the specific
and baseless charges he had made. This is
a case where it might have been appropriate to order an apology if
this had been a
majority judgment. However, considering that this
is a minority judgment it is not appropriate. Having said that,
what remains
is to consider whether the monetary award made by the
High Court can be interfered with.
When assessing damages for
defamation, courts have in the past considered a range of factors
arising from the circumstances and
facts of the case: the nature
and gravity of the defamatory words; falseness of the statement;
malice on the part of the defendant;
rank or social status of the
parties; the absence or nature of an apology; the nature and extent
of the publication and the general
conduct of the defendant.
71
The court must therefore have regard to all the circumstances of a
case where the assessment is always context specific. The
list is
non-exhaustive.
72
Although earlier cases of a similar nature give guidance, they
must always be applied with the necessary circumspection.
In
Charles Mogale
73
the SCA found that a court of first instance had misdirected
itself when it did not show what factors had been taken into
account
in the determination of the award of damages. Similarly,
if a trial court mentions expressly what factors it had taken into

account and determined as relevant for assessing the award, it is
reasonable to conclude that other factors not referred to at
all in
the assessment had not been taken into account. In this case Mr
Dikoko’s defence against what he submitted was an excessive
award
is that the publication of the statement was limited; the statement
was speculative; he did not have the intention to injure
Mr
Mokhatla and the statement was made in the context of a meeting
aimed at overseeing and managing public funds in which councillors
should be given the scope to articulate their views and opinions.
He argues further that there is no evidence that the persons
at the
meeting drew any negative inferences from the statement. None of
these defences were shown anywhere in the judgment to
have been
considered. The factors mentioned and shown to have been
considered all weighed against Mr Dikoko, as the Court correctly
observed. Those not considered, could, in my view, have mitigated
the gravity of the defamation and affected the award and the
determination of the quantum
accordingly.
74
When factors that could have a
mitigating effect on the seriousness of the defamation are not
shown to have been taken into consideration
a difficulty arises.
The difficulty is that unless shown this Court will never know. In
Charles Mogale
,
75
the Court stated that:
“
A court of appeal may also
interfere if the court of first instance materially misdirected
itself and in this regard it is important
for a court of second
instance to know what factors a trial court has taken into account
in determining the award . . .”.
76
It is therefore important that
all relevant factors be taken into account when assessing damages
for defamation. Also important
is to strike an equitable balance
in the determination of the gravity of the damage. It is for this
reason too that a trial
court must show that it has considered
those relevant factors which not only aggravate but also mitigate
the seriousness of the
damages.
Hulley v Cox
,
77
considering quantum in a different context,
78
emphasised the importance of equity in the assessment of damages
and held: “The amount . . . should be estimated on an equitable
basis on a consideration of all the circumstances”.
79
Equity in determining a
damages award for defamation is therefore an important
consideration in the context of the purpose of
a damages award
aptly expressed in
Lynch
80
as solace to a plaintiff’s wounded feelings and not to
penalise or deter people from doing what the defendant has done.
Even
if a compensatory award may have a deterrent effect, its
purpose is not to punish. Clearly, punishment and deterrence are
functions
of the criminal law. Not the law of delict.
81
In our law a damages award
therefore does not serve to punish for the act of defamation. It
principally aims to serve as compensation
for damage caused by the
defamation, vindicating the victim’s dignity, reputation and
integrity.
82
Alternatively, it serves to console.
83
For the reasons stated above and in particular having disregarded
relevant factors which could have mitigated the damage caused
by
the defamation, the High Court, in my view, had materially
misdirected itself thereby arriving at an unreasonable award.
The
grounds for this Court to make its own assessment of the damages
are therefore sufficient and I proceed to do so.
The High Court had taken into
account Mr Mokhatla’s position in society; the relationship
between Mr Dikoko and Mr Mokhatla;
the absence of an apology and
the seriousness of the allegations made by Mr Dikoko against Mr
Mokhatla. It said so expressly.
Additional relevant factors not
mentioned and in my view not given due regard are: the nature of
the defamatory statement; the
damaging effect that it had on Mr
Mokhatla and the nature and extent of circulation of the
publication.
84
The untruthful nature of the
statement; denying responsibility for his tardiness and placing all
blame on Mr Mokhatla for the
predicament which he created for
himself are factors which aggravate the damage done not only to Mr
Mokhatla’s personal reputation,
dignity and esteem, but also to
his professional integrity. Although Mr Mokhatla has no doubt
suffered serious damage to his
professional integrity, the damage
was in my view not fatal to his career. At the time the
proceedings were launched he was
municipal manager of the
Klerksdorp Municipal Council, a position of high public office,
directly relevant to his experience,
performance and
trustworthiness as CEO of the Council and his integrity as a person
and a professional in the management of local
government. Although
Mr Mokhatla had been defamed largely in local and provincial
government circles, having been appointed
to this high public
office within the same government circles is demonstration that his
integrity as a trustworthy public manager
in local government is
still largely intact despite Mr Dikoko’s statement. This is an
important mitigating factor, which the
High Court should not have
disregarded.
Mr Dikoko’s statements were
made in the Standing Committee and were published only in the local
press. The statements therefore
had limited circulation. Although
Mr Mokhatla contended that this local publication did more damage
to his career than would
publication at a national level, in that
his professional reputation was more at stake in local circles, his
professional reputation
does not seem to have been fatally dented.
As indicated above, his current position as municipal manager after
he had left the
Council where he served as CEO seems to suggest
that he is still held in high esteem in local government circles
and in the province.
This too, is a factor which, had the High
Court taken into account would have influenced its assessment of
damages.
In making its award of
damages, the High Court, did not exercise its discretion
reasonably. It did not take into account factors
which mitigate the
damages award. Mr Dikoko contends that an amount of R20, 000 to
R30, 000 would be adequate. The High Court
made an award of R110,
000. For reasons outlined above
85
I conclude that in the circumstances of this case an award in the
amount of R50, 000 would have been appropriate. I would therefore
have replaced the High Court’s order that Mr Dikoko pay damages
in the amount R110, 000 with an order that he pay damages in
the
amount of R50, 000.
Costs
Given that Mr Dikoko is
partially successful I would have proposed there be no order as to
costs.
The Order
I would further have proposed
that the application for leave to appeal be granted and that the
High Court order be set aside and
replaced with an order for
damages in the amount of R50, 000.
The order of the Court appears
in the judgment of Moseneke DCJ.
Langa CJ, Moseneke DCJ, Madala
J, Ngcobo J, Nkabinde J, O’Regan J, Sachs J Skweyiya J, Van der
Westhuizen J and Yacoob J concurring
on the merits
Nkabinde J and Sachs J
concurring on the issue of quantum
MOSENEKE DCJ:
I have had the benefit of
reading the judgment of Mokgoro J. I am in agreement with the
outcome she proposes that the application
for leave to appeal be
granted. I also concur that the appeal against the decision of the
High Court holding Mr Dikoko liable
for defamation has no merit and
should fail for the reasons she admirably advances. However,
Mokgoro J concludes that the appeal
of Mr Dikoko against the
quantum of damages awarded by the High Court has merit and should
succeed. I respectfully disagree.
Skweyiya J has written a
separate dissenting judgment. He concludes that the application
for leave to appeal against the quantum
of defamation damages must
fail because this Court has no power to entertain the appeal. I
agree that the appeal must fail.
However, this he says because, in
his view, the assessment of defamation damages, particularly in
this matter, is neither a
constitutional matter, nor a matter
connected to a constitutional matter. Given the conclusion I
arrive at, I do not consider
it necessary to decide whether the
assessment of damages raises a constitutional issue.
In another separate judgment,
Sachs J concurs in the minority judgment of Mokgoro J that the
damages awarded are excessive and
must be reduced. In addition
Sachs J finds that monetary compensation alone is often not
appropriate relief for defamation and
that courts need to explore
the wide and creative possibilities afforded by restorative justice
as contemplated by the indigenous
values of
ubuntu
or
botho
.
Persuasive as this line of reasoning may be, it raises issues
which never confronted the trial court and therefore do not

properly arise before us.
It will be remembered that the
High Court made an award of R110, 000 in damages against the
applicant. Mokgoro J takes the view
that in all the circumstances
of this case a proper award should be no more than half of the
original award and that accordingly
an award of R50, 000 should
replace that of the High Court. In her view, the principal
misdirection of the High Court is that
it omitted from its
assessment of damages factors that could mitigate the amount of the
award. The omission, she finds, makes
the award palpably excessive
and significantly higher than her estimation to the extent that the
award is unreasonable. Relying
on the authority of
Hulley v
Cox
,
1
Mokgoro J holds that once an award is unreasonable an appellate
court is obliged to substitute it with its own assessment.
Two obvious issues surface.
They are whether this Court has the power to review the award of
damages and if so whether it should
do so. The first issue speaks
to whether an assessment of defamation damages is a constitutional
matter or an issue connected
to a decision on a constitutional
matter.
2
The second poses the question whether any ground exists to
interfere with the award of the trial court.
Counsel for the respondent
argued that the application for leave to appeal on the quantum of
damages is incompetent because the
assessment of defamation damages
is not a constitutional matter, but rather a matter pre-eminently
within the discretion of a
trial court. He asserted that even if
the determination of delictual damages passes as a constitutional
matter, an appeal against
the award would ordinarily lie with the
Supreme Court of Appeal
3
and not with this Court. If however we were minded to interfere
with the award, he urged that we remit the award to the trial
court
for its re-consideration.
It seems to me that the delict
of defamation implicates human dignity
4
(which includes reputation)
5
on the one side and freedom of expression
6
on the other. Both are protected in our Bill of Rights. It may be
that it is a constitutional matter because although the remedy
of
sentimental damages is located within the common law, it is
nonetheless “appropriate relief” within the meaning of section
38
7
of the Constitution. In
Fose v Minister of Safety and Security
8
this Court assumed but stopped short of deciding whether
“appropriate relief” in section 7(4)(a)
9
of the interim Constitution includes an award for damages where the
award is required to enforce or protect rights in the Bill
of
Rights. The Court however made it clear that
“
[T]here is no reason in
principle why ‘appropriate relief’ should not include an award
of damages, where such an award is necessary
to protect and enforce
[Chapter] 3 rights. Such awards are made to compensate persons who
have suffered loss as a result of the
breach of a statutory right
if, on a proper construction of the statute in question, it was the
Legislature’s intention that
such damages should be payable, and
it would be strange if damages could not be claimed for, at least,
loss occasioned by the breach
of a right vested in the claimant by
the supreme law. When it would be appropriate to do so, and what
the measure of damages should
be will depend on the circumstances of
each case and the particular right which has been infringed.”
10
(footnotes omitted)
Although these remarks in
Fose
were directed at the remedy provision of the interim Constitution,
it seems to me that the same considerations apply to the

“appropriate relief” envisaged in section 38 of the
Constitution when an award of damages is necessary to vindicate,
that
is to protect and enforce rights, which aside their common law
pedigree are also enshrined in the Bill of Rights. There appears
to be no sound reason why common law remedies, which vindicate
constitutionally entrenched rights, should not pass for appropriate
relief within the reach of section 38. If anything, the
Constitution is explicit that subject to its supremacy, it does not
deny the existence of any other rights that are recognised and
conferred by the common law.
11
The extent of sentimental
damages for defamation has implications for the properly mediated
connection between dignity and free
expression. It is plainly so
that overly excessive amounts of damages will deter free speech and
foster intolerance to it.
As it is often said, robust awards will
have a “chilling effect” on free expression, which is the
lifeblood of an open and
democratic society cherished by our
Constitution. On the other hand, as Smalberger JA observed in
Van
der Berg v Cooper and Lybrand Trust (Pty) Ltd and Others
12
“a person whose dignity has unlawfully been impugned deserves
appropriate financial recompence to assuage his or her wounded
feelings.” I therefore think there is a very strong argument to
be made that the assessment of damages in a defamation suit
is a
constitutional matter and I will assume in favour of the applicant
that it is. However, as will appear from the reasoning
below, it
is not necessary to finally decide the issue in this case.
The next question is whether
this Court should interfere with the extent of the compensation
award? It is a well settled general
rule that the assessment of
sentimental damages properly reside within the province of a trial
court.
13
It is better suited to the task having had the opportunity to
evaluate at first hand the evidence and demeanour of the parties.

In fixing damages the trial court is entrusted with a wide
discretion which must be exercised reasonably in the light of all
the germane facts and other relevant factors. In defamation cases
in particular, compensation is for sentimental damages which
perforce are inexact and no more than a conjectural estimate. They
cannot readily be translated into monetary terms. The discretion
exercised in such cases, therefore, falls within the category of
discretion strictly so called.
14
By its nature, this general
rule imposes a limitation on an appellate court. In
Neethling v
Weekly Mail and Others
15
Hoexter JA
explains that in the absence of special
circumstances an appellate court should be slow to depart from the
general rule that damages
should be left to the determination of
the trial court. Should an appellate court opt nevertheless to
exercise the power it
would “[represent] an encroachment upon a
function which is intrinsic to the trial court.”
16
Special circumstances which
justify encroachment are said to be present when the trial court
has misdirected itself in the sense
that it has awarded high or low
damages on the wrong principle or when in the opinion of the
appellate court the award is so
unreasonable as to be grossly out
of proportion to the injury inflicted.
17
It must however be emphasised that the mere fact that the damages
seem high is no reason to cut them down. In other words,
the mere
preference of a court with appellate power is not sufficient to
upset a damages award. The standard at issue is not
whether or not
the trial court is correct but whether there is a glaring
disproportionality between the amount awarded and the
injury to be
assuaged. Ultimately, the test is whether in all the circumstances
of the case the compensation is a reasonable
and just measure of
the harm.
Mokgoro J finds that the
quantum of damages awarded is unreasonable.
18
It is higher because none of the factors, which would have the
effect of mitigating the gravity of the defamation, have been
shown
to have been considered. In her view, the trial court appears to
have considered only factors that aggravate the seriousness
of the
defamation and damages. She finds that the following factors “have
not been given due regard”: the nature of the
defamatory
statements; the effect of the statements on the respondent; and the
nature and extent of the circulation of the publication.
19
As we have seen, the principal
charge against the High Court is that it omitted to have regard to
all factors relevant in assessing
damages. I am constrained to
disagree. In my view the approach of the trial court to fixing
damages should not be evaluated
by the discussion in the judgment
of the quantum of the compensation only. It must be gathered from
the judgment read as a whole.
One has to read the judgment,
inclusive of the discussion on the merits and quantum, as a whole.
The mere fact that certain
considerations relevant to quantum are
mentioned in the discussion on the merits only should not lead to
the inference that they
were not in the mind of the trial court
when it determined the extent of the damages. The very nature of
an enquiry into whether
an expression is a defamatory matter
requires an examination of the very factors Mokgoro J says the
trial court has omitted.
The body of the judgment of the trial
court in fact traverses, as it must, the nature of the defamatory
statement, the scope
of its publication and effect and whether the
respondent took any steps to rectify the harm done.
First, the trial court cites a
passage from
Skinner v Shapiro (I)
20
which narrates the factors relevant to fixing defamation
damages. The list is comprehensive and certainly includes factors
which
go well beyond those which the judgment of Mokgoro J draws
attention to as absent. I have no ground to infer that the trial

court cited the relevant factors but ignored them in ascertaining
just compensation.
In the judgment on the merits,
the trial court discusses several factors relevant to quantum of
damages. One of these is that
the applicant is an unimpressive
witness. His defamatory comments are speculative and unfair
towards the respondent who then
was the Chief Executive Officer or
town clerk of the municipality concerned. All the respondent did
was his official duty. As
chairperson of the council of a
municipality, the applicant had a duty to deal with public funds in
a lawful and accountable
manner. Despite many notices by the
respondent, he ran excessive cell-phone accounts to a point where
the Provincial Auditor-General
raised concerns. At a point the
owed amount ran up to R21, 000. He refused to accept
responsibility and that he was to blame
for not paying his excess
account. When he was held accountable before the Public Accounts
Standing Committee he resorted to
an unnecessary and gratuitous
attack on the respondent. He claimed that the respondent
deliberately allowed the cell-phone indebtedness
to the
municipality to increase to a large amount in order to afford the
political opponents of the applicant or the respondent
himself a
basis for an attack on the respondent.
Before the Public Accounts
Standing Committee and in the absence of the respondent the
applicant erupted into an uninvited attack
on the respondent. The
respondent was not there to defend his good name. The defamatory
remarks were again published the following
day in a local newspaper
in Klerksdorp.
The trial court was fully
alive to the personal circumstances of both parties. In particular
the senior employment of the respondent
at the time of the trial as
a municipal manager of Klerksdorp. The court has recorded in
detail his distinguished academic and
work record. I think it is
indeed relevant that the defamation was to a group of people who
have oversight of the work of the
respondent. Moreover there has
been no formal apology up to now. The applicant’s response after
the defamatory event has
been to litigate up to this forum seeking
to hide behind the skirts of his public office.
I would not interfere with the
award of damages made by the High Court. I would instead find that
there is no reasonable prospect
that this Court would alter the
award of the trial court.
In my view, this is an
appropriate matter in which costs should follow the result.
Although in constitutional matters, the ordinary
rule is that an
unsuccessful plaintiff who has sought to rely on constitutional
rights is not ordinarily required to pay costs,
particularly when
litigating against the state, I do not think that that rule should
be followed in this case. The respondent
was admittedly defamed by
the applicant. The applicant sought to raise a range of
constitutional arguments in this Court not
proffered before and has
not been successful. The respondent, as a private citizen, has had
to come to this court to oppose
those arguments. It seems fair and
equitable in the circumstances that the applicant should pay the
costs of the respondent.
As this judgment has the
support of the majority of the members of the Court it is
appropriate that it should reflect the Court’s
order. The order
is as follows:
1. The application for leave
to appeal is granted.
2. The appeal is dismissed.
3. The applicant is ordered to
pay the costs of the respondent, such costs to include the costs of
two counsel.
Langa CJ, Madala J, Ngcobo J,
O’Regan J, Van der Westhuizen J and Yacoob J concurring in the
judgment of Moseneke DCJ
SACHS J:
In concurring with the
judgment of Mokgoro J, I offer reasons for proposing a remedial
shift in the law of defamation from almost
exclusive preoccupation
with monetary awards, towards a more flexible and broadly-based
approach that involves and encourages
apology. Developing the
common law in this way would, consistently with our new
constitutional ethos, facilitate interpersonal
repair and the
restoration of social harmony.
The facts of this case
illustrate well the limitations of responding to injury to a
person’s good name simply by making a monetary
award. When
trying to evade responsibility for his grossly excessive use of a
municipal cell-phone, Mr. Dikoko, the mayor, uttered
manifestly
silly and self-serving words to the Public Accounts Standing
Committee about Mr. Mokhatla, the municipal manager.
Mr. Mokhatla
was entitled to see the mayor publicly rebuked, entitled to have
any possible doubts about his own integrity cleared
up, entitled to
a retraction of the slur, and entitled to an apology. But he was
not, in my opinion, entitled to R110, 000.
Hard-boiled members of the
committee, who have heard every exculpatory story under the sun,
could scarcely have taken his words
seriously. And certainly the
readers of the local newspaper, in whose columns his exchange with
the committee was repeated,
could be expected to have taken his
bluster with a large dose of salt. Indeed, made in the context of
pitiful evasions to the
accounts committee, the utterances were so
blatantly incredible and unworthy as to demean their author rather
than the person
blamed. Above all, they were delivered on the
fringes of protected institutional speech, calling for
institutional remedies
and apology, rather than payment of an
incongruously large and punitive sum.
It might well be that the
issue of quantum of damages would generally not on its own qualify
as being a constitutional one falling
within the jurisdiction of
this Court. In this case, however, it arises on the periphery of
and in connection with issues of
a manifestly constitutional
character. Here were public figures being called to account by a
public institution for behaviour
or misbehaviour in an official
setting. Even although qualified privilege was not pleaded as a
defence to the claim, the context
should have had a significant
bearing on the appropriateness of any damages to be awarded. The
mayor was testifying before a
governmental committee. Witnesses
before such investigative committees should feel free to speak
their mind. As a matter of
general principle they should not be
made to fear heavy damages suits if they either overstep the mark
in the telling, or do
not have iron-clad proof to substantiate
their testimony. The chilling effect of punitive awards would not
only be felt by officials
caught with their metaphorical pants
down, but by honest whistleblowers and by newspapers simply
carrying testimonial exposures.
There is a further and deeper
problem with damages awards in defamation cases. They measure
something so intrinsic to human dignity
as a person’s reputation
and honour as if these were market-place commodities. Unlike
businesses, honour is not quoted on
the Stock Exchange. The true
and lasting solace for the person wrongly injured is the
vindication by the Court of his or her
reputation in the community.
The greatest prize is to walk away with head high, knowing that
even the traducer has acknowledged
the injustice of the slur.
There is something
conceptually incongruous in attempting to establish a proportionate
relationship between vindication of a reputation,
on the one hand,
and determining a sum of money as compensation, on the other. The
damaged reputation is either restored to
what it was, or it is not.
It cannot be more restored by a higher award, and less restored by
a lower one. It is the judicial
finding in favour of the integrity
of the complainant that vindicates his or her reputation, not the
amount of money he or she
ends up being able to deposit in the
bank.
The notion that the value of a
person’s reputation has to be expressed in rands in fact carries
the risk of undermining the
very thing the law is seeking to
vindicate, namely the intangible, socially-constructed and
intensely meaningful good name of
the injured person. The specific
nature of the injury at issue requires a sensitive judicial
response that goes beyond the ordinary
alertness that courts should
be expected to display to encourage settlement between litigants.
As the law is currently applied,
defamation proceedings tend to
unfold in a way that exacerbates the ruptured relationship between
the parties, driving them further
apart rather than bringing them
closer together. For the one to win, the other must lose, the
scorecard being measured in a
surplus of rands for the victor.
What is called for is greater
scope and encouragement for enabling the reparative value of
retraction and apology to be introduced
into the proceedings. In
jurisprudential terms, this would necessitate reconceiving the
available remedies so as to focus more
on the human and less on the
patrimonial dimensions of the problem. The principal goal should
be repair rather than punishment.
To achieve this objective
requires making greater allowance in defamation proceedings for
acknowledging the constitutional values
of
ubuntu - botho.
Ubuntu - botho
is more
than a phrase to be invoked from time to time to add a gracious and
affirmative gloss to a legal finding already arrived
at. It is
intrinsic to and constitutive of our constitutional culture.
Historically it was foundational to the spirit of reconciliation
and bridge-building that enabled our deeply traumatised society to
overcome and transcend the divisions of the past.
1
In present day terms it has an enduring and creative character,
representing the element of human solidarity that binds together
liberty and equality to create an affirmative and mutually
supportive triad of central constitutional values. It feeds
pervasively
into and enriches the fundamental rights enshrined in
the Constitution. As this Court said in
Port Elizabeth
Municipality v Various Occupiers
2
:
“
The spirit of
ubuntu
,
part of the deep cultural heritage of the majority of the
population, suffuses the whole constitutional order. It combines
individual
rights with a communitarian philosophy. It is a unifying
motif of the Bill of Rights, which is nothing if not a structured,
institutionalised
and operational declaration in our evolving new
society of the need for human interdependence, respect and
concern.”
3
Ubuntu - botho
is
highly consonant with rapidly evolving international notions of
restorative justice. Deeply rooted in our society, it links
up
with world-wide striving to develop restorative systems of justice
based on reparative rather than purely punitive principles.
The
key elements of restorative justice have been identified as
encounter, reparation, reintegration and participation.
4
Encounter (dialogue) enables the victims and offenders to talk
about the hurt caused and how the parties are to get on in future.

Reparation focuses on repairing the harm that has been done rather
than on doling out punishment. Reintegration into the community
depends upon the achievement of mutual respect for and mutual
commitment to one another. And participation presupposes a less
formal encounter between the parties that allows other people close
to them to participate. These concepts harmonise well with
processes well-known to traditional forms of dispute resolution in
our country, processes that have long been, and continue to
be,
underpinned by the philosophy of
ubuntu - botho
.
Like the principles of
restorative justice, the philosophy of
ubuntu - botho
has
usually been invoked in relation to criminal law, and especially
with reference to child justice. Yet there is no reason
why it
should be restricted to those areas. It has already influenced our
jurisprudence in respect of such widely divergent
issues as capital
punishment
5
and the manner in which the courts should deal with persons
threatened with eviction from rudimentary shelters on land
unlawfully
occupied.
6
Recently it was applied in creative fashion in the High Court to
combine a suspended custodial sentence in a homicide case with
an
apology from a senior representative of the family of the accused,
as requested and acknowledged by the mother of the deceased.
7
I can think of few processes
that would be more amenable in appropriate cases to the influence
of the affirming values of
ubuntu - botho
than those
concerned with seeking simultaneously to restore a person’s
public honour while assuaging inter-personal trauma
and healing
social wounds. In this connection attention should be paid to the
traditional Roman-Dutch law concept of the
amende honorable
referred to in Mokgoro J’s judgment.
8
Although
ubuntu - botho
and the
amende honorable
are
expressed in different languages intrinsic to separate legal
cultures, they share the same underlying philosophy and goal.
Both
are directed towards promoting face-to-face encounter between the
parties, so as to facilitate resolution in public of
their
differences and the restoration of harmony in the community. In
both legal cultures the centre-piece of the process is
to create
conditions to facilitate the achievement, if at all possible, of an
apology honestly offered, and generously accepted.
Thus, although I believe the
actual award made by the High Court in this matter was way over the
top, and accordingly associate
myself with Mokgoro J’s minority
finding in this regard, my concern is not restricted to the
excessiveness of the amount.
It lies primarily with the fact that
the law, as presently understood and applied, does far too little
to encourage repair and
reconciliation between the parties. In
this respect the High Court cannot be faulted. The concerns
expressed above were not
raised in the papers or addressed in
argument before it. The Court was simply working with a well-tried
remedy in the ordinary
way. Unfortunately, the hydraulic pressure
on all concerned to go with the traditional legal flow inevitably
produces a set
of rules that are self-referential and
self-perpetuating. The whole forensic mindset, as well as the way
evidence is led and
arguments are presented, is functionally and
exclusively geared towards enlarging or restricting the amount of
damages to be
awarded, rather than towards securing an apology. In
my view, this fixed concentration on quantum requires amendment.
Greater
scope has to be given for reparatory remedies.
It is noteworthy that in the
context of hate speech the legislature has indicated its support
for the new remedy of Apology.
Thus the Equality Court is
empowered to order that an apology be made in addition to or in
lieu of other remedies.
9
I believe that the values embodied in our Constitution encourage
something similar being developed in relation to defamation
proceedings. In the light of the core constitutional values of
ubuntu – botho
, trial courts should feel encouraged
pro-actively to explore mechanisms for shifting the emphasis from
near-exclusive attention
to quantum, towards searching for
processes which enhance the possibilities of resolving the dispute
between the parties, and
achieving a measure of dignified
reconciliation. The problem is that if the vision of the law
remains as tunnelled as it is
today, parties will be discouraged
from seeking to repair their relationship through direct and
honourable engagement with each
other. Apology will continue to be
seen primarily as a tactical means of reducing damages rather as a
principled modality for
clearing the air and restoring a measure of
mutual respect.
The present case indicates the
traps that preoccupation with money awards lays in front of a
defendant. For a defendant to make
an apology is to concede the
defamation in advance and take the risk of paying heavy damages
should the apology not be accepted.
Thus if Mr. Dikoko had
publicly acknowledged that he had wronged Mr. Mokhatla, he risked
opening himself up to being seriously
mulcted. Hence the
ambivalence of his evidence. A retraction and apology genuinely
offered and generously received, could have
sorted the matter out
once and for all, and contributed towards improving the way the
parties would have been able to get on
in future in the close
working environment of local government. Yet the manner in which
the process was structured appears to
have produced a hurt and
humiliated loser on the one side, and a winner (who might find it
difficult not to gloat) on the other.
Thus the rupture between the
protagonists was not healed, it was entrenched.
Giving special emphasis to
restoring the relationship between the parties does not, of course,
imply that awards of damages should
completely fall out of the
picture. In our society money, like cattle, can have significant
symbolic value. The threat of damages
will continue to be needed
as a deterrent as long as the world we live in remains as
money-oriented as it is. Many miscreants
would be quite happy to
make
the most fulsome apology
(whether sincere or not) on the basis that doing so costs them
nothing - “it is just words.” Moreover,
it is well-established
that damage to one’s reputation may not be fully cured by
counter-publication or apology; the harmful
statement often lingers
on in people’s minds. So even if damages do not cure the
defamation, they may deter promiscuous slander,
and constitute a
real solace for irreparable harm done to one’s reputation.
What is needed, then, is more
flexibility and innovation concerning the relation between apology
and money awards. A good beginning
for achieving greater remedial
suppleness might well be to seek out the points of overlap between
ubuntu – botho
and the
amende honorable
, the first
providing a new spirit, the second a time-honoured legal format.
Whatever renovatory modalities are employed, and
however
significant to the outcome the facts will have to be in each
particular case, the fuller the range of remedial options
available
the more likely will justice be done between the parties. And the
greater the prospect of realising the more humane
society envisaged
by the Constitution.
SKWEYIYA J:
I have read the judgments of
my colleagues, Mokgoro J, Moseneke DCJ and Sachs J. I agree that
the appeal against the decision
of the High Court holding Mr Dikoko
liable for defamation has no merit and should therefore be
dismissed. I however, disagree
with the conclusion reached by
Mokgoro J that an award for damages arising out of defamation in
the present case is a constitutional
matter,
1
as well as the conclusion reached by Moseneke DCJ that although
this may be a constitutional issue it is not necessary to decide
the question in this case.
2
I would hold that in the circumstances of this case the debate
concerning the quantum of damages awarded by the trial court does
not raise a constitutional matter or an issue connected to a
constitutional matter.
The Constitution seeks to draw
a distinction between constitutional and other issues.
3
“Whether one can speak of a non-constitutional issue in a
constitutional democracy where the Constitution is the supreme law
and all law and conduct has to conform to the Constitution is not
free from doubt.”
4
However,
while
it is accepted that all matters have constitutional implications,
in order to recognise and preserve this Court’s jurisdictional
distinction a line must be drawn.
It has been
recognised in the past that it is difficult to draw that line
because a
s a jurisdictional question, what
constitutes a constitutional matter is by no means clearly defined.
As previously pointed out
by this Court, “the Constitution
offers no definition of a constitutional matter, or of an issue
connected with a decision
on a constitutional matter.”
5
This is ultimately left for this Court to decide.
6
It is however, clear that the
Constitution expressly provides for a divide between issues classed
as “constitutional matters”
and those which are
non-constitutional matters. Therefore, j
udges who have
sworn to uphold the Constitution “must accept that such
distinction exists and try to make sense of that distinction.”
7
For this Court to have
jurisdiction, the applicant must bring his complaint within the
Constitution by satisfying two threshold
requirements. The first
is that the case must present a constitutional issue. The second
is that
it must be in the interests of
justice for this Court to hear the case. These two requirements
have been confirmed in numerous
Constitutional Court cases.
8
It is the first of these requirements with which we are presently
concerned.
Despite being given the
opportunity to file supplementary heads on the issue of quantum
subsequent to the hearing, the applicant
still did not make any
argument in support of this issue being classified as a
constitutional matter. The supplementary submissions
on damages
focus on the specific factors which it is submitted that the High
Court failed to take into account at all or failed
to give
sufficient weight to. These include the extent of the publication,
the subsequent conduct of the applicant, the effect
on the
respondent’s reputation and the setting in which the defamation
occurred. The applicant submitted that this Court can,
and should,
interfere with the trial court’s award of damages and even in
this latter submission, no mention is made of quantum
violating a
constitutional right or principle.
Where a litigant asks this
Court to deal with an issue, a strong case needs to be made out by
such a litigant as to why that issue
should be classified as a
constitutional issue. This has not been done with regard to
quantum by the applicant in this case
which is problematic as the
Court then has to make the case itself as to why this should be
considered a constitutional matter.
The respondent submitted that
the applicant did not contend that the quantum of damages is a
constitutional matter and went on
to suggest that this Court should
entertain the question of damages only if it grants leave to appeal
on the issue of privilege,
which is a constitutional matter, and
should not consider the quantum issue if leave to appeal the rest
of the SCA judgment is
denied. The respondent stood by his earlier
submission that the Court should refuse leave to appeal on the
privilege issue and
hence by implication, also on the issue of
quantum.
The fact that the Constitution
necessarily permeates all law and conduct does not mean that every
issue which may implicate the
Constitution is a constitutional
issue. In order to preserve the distinction between constitutional
and non-constitutional issues,
and thus between the jurisdiction of
this Court and the lower courts in this regard, something more must
be required in order
for something to qualify as a constitutional
issue.
In
Van Der Walt
9
it was said that:
“
The starting point must be
that in our country the Constitution is the supreme law. ‘(L)aw
or conduct inconsistent with it is
invalid, and the obligations
imposed by it must be fulfilled.’ In terms of s 8(1), the Bill of
Rights binds the Judiciary as
it binds the Legislature and
Executive. Judges, who are the vanguard of our constitutional
democracy, are required, by the oath
they take, to ‘uphold and
protect the Constitution and the human rights entrenched in it, and
. . . [to] administer justice to
all persons alike without fear,
favour or prejudice, in accordance with the Constitution and the
law’. These provisions from
the Constitution demonstrate that if
the conduct of a court results in a breach of the Constitution this
Court not only has the
power, but it is obliged, to intervene and to
say so.”
10
[footnotes omitted]
As noted above, the line
between constitutional and non-constitutional issues is difficult
to draw.
However, what the Constitution does
tell us is that matters which are undoubtedly constitutional in
character include disputes
as to whether any law or conduct is
inconsistent with the Constitution,
11
issues concerning the status, powers and functions of an organ of
state,
12
the interpretation, application and upholding of the Constitution
13
and the question whether the interpretation of any legislation or
the development of the common law promotes the spirit, purport
and
objects of the Bill of Rights.
14
In
S v Boesak
15
this Court looked at the issue of an appeal in a criminal matter
and sought to clarify how sections 167(3) and 168(3) of the
Constitution can be read harmoniously.
16
In relation to criminal cases at least, the Court identified the
following guiding principles:
“
(a)
A challenge to a
decision of the SCA on the basis only that it is wrong on the facts
is not a constitutional matter
In the context of s 167(3) of
the Constitution, the question whether evidence is sufficient to
justify a finding of guilt beyond
reasonable doubt cannot in itself
be a constitutional matter. Otherwise, all criminal cases would be
constitutional matters, and
the distinction drawn in the
Constitution between the jurisdiction of this Court and that of the
SCA would be illusory . . . Unless
there is some separate
constitutional issue raised, therefore, no constitutional right is
engaged when an appellant merely disputes
the findings of fact made
by the Supreme Court of Appeal.
(b)
The development of, or
the failure to develop, a common-law rule by the SCA may constitute
a constitutional matter
This may occur if the SCA
developed, or failed to develop, the rule under circumstances
inconsistent with its obligation under s
39(2) of the Constitution
or with some other right or principle of the Constitution.
(c)
The application of a
legal rule by the SCA may constitute a constitutional matter.
This may occur if the
application of a rule is inconsistent with some right or principle
of the Constitution.”
17
[footnotes omitted]
A similar line of reasoning
was followed in
Phoebus Apollo
18
where
the Court said the following:
“
It is not suggested that in
determining the question of vicarious liability the SCA applied any
principle which is inconsistent
with the Constitution. Nor is there
any suggestion that any such principle needs to be adapted or
evolved to bring it into harmony
with the spirit, purport or objects
of the Bill of Rights. On the contrary, counsel for the appellant
expressly conceded that
the common-law test for vicarious liability,
as it stands, is consistent with the Constitution. It has long been
accepted that
the application of this test to the facts of a
particular case is not a question of law but one of fact, pure and
simple. The
thrust of the argument presented on behalf of the
appellant was essentially that though the SCA has set the correct
test, it had
applied that test incorrectly
―
which is of course not ordinarily a constitutional issue. This
Court's jurisdiction is confined to constitutional matters and
issues connected with decisions on constitutional matters. It is
not for it to agree or disagree with the manner in which the
SCA
applied a constitutionally acceptable common-law test to the facts
of the present case. As was made plain in
Boesak's
case:
‘
A
challenge to a decision of the SCA on the basis only that it is
wrong on the facts is not a constitutional matter. . . . Unless
there is some separate constitutional issue raised . . . no
constitutional right is engaged when an appellant merely disputes

the findings of fact made by the Supreme Court of Appeal.’
”
19
[footnotes omitted]
A judge calculating damages in
a case where defamation has been proved is given a set of
guidelines which he must work with in
settling on the amount of
damages. These guidelines take the form of a number of factors
which may be considered when arriving
at the appropriate quantum.
There is no rigid test in that none of the factors are mandatory.
The manner in which a judge chooses
to apply the factors, the
factors which he chooses to give weight to and other similar
matters are matters left to his discretion.
Effectively what the applicant
is arguing is that the amount of damages which the trial judge
chose to award is too high given
the facts of the case, and that
another court would come to a different, lower amount were it to
have regard to the same facts.
It is apparent from his submissions
that he is not challenging the way in which damages are calculated
generally. No grievance
is aired with regard to the method of
calculation which is applicable to cases in general. The grievance
is based squarely on
the facts of this case.
We are therefore clearly
dealing with a case which falls into the category mentioned in both
Boesak
and
Phoebus Apollo
as not ordinarily being a
constitutional issue. That is not to say that such a case will
never raise a constitutional issue,
but that something more is
required than what has been brought in this case. It is possible
that in a future case an applicant
will be able to show that as a
result of the way in which the lower court judge evaluated the
factors a constitutional right
is violated; or that the judge
failed to infuse the values of the Constitution into the process
whereby he settled on an amount
of damages to be awarded. It is
possible that in such a case the threshold requirement of “a
constitutional issue” will
be proved to the satisfaction of the
Court. This is not such a case.
The conclusion reached above
means that in my view, the enquiry into the damages aspect of the
appeal need go no further.
However, I wish to add the
following additional comments on the “chilling effect” on
freedom of expression. Much of the justification
for classifying
damages in a defamation action as a constitutional matter arises
from the oft-quoted “chilling effect” that
the award of damages
may have on freedom of expression. This was the position taken in
Van der Berg
20
and is echoed in the judgments of both Mokgoro J and Moseneke
DCJ.
There is no doubt that freedom
of expression lies at the heart of our democracy. Its value was
eloquently described in
South African National Defence Union
21
as follows:
“
[Freedom of expression] is
valuable for many reasons, including its instrumental function as a
guarantor of democracy, its implicit
recognition and protection of
the moral agency of individuals in our society and its facilitation
of the search for truth by individuals
and society generally
.
”
22
The argument goes that if
courts award extremely high amounts in damages for defamation, the
free expression of the ordinary person
will be curbed as they will
be hesitant to speak under the risk of having to pay such large
awards. It is however important, albeit
fairly obvious, to remember
that damages are only awarded where defamation has been found to
exist. Damages are thus ordered where
someone has said something
which society believes to be unacceptable; they do not follow from a
legitimate exercise of the right
of free expression. It is
therefore important to keep in mind precisely what kinds of
utterances are being curbed; what type of
expression is being
chilled.
Not all expression is
constitutionally protected.
Islamic Unity Convention
23
explains how
“[t]he pluralism and broadmindedness that is central to an open
and democratic society can . . . be undermined by speech which
seriously threatens democratic pluralism itself. Section 1 of the
Constitution declares that South Africa is founded on the values
of
‘human dignity, the achievement of equality and the advancement of
human rights and freedoms’. Thus, open and democratic
societies
permit reasonable proscription of activities and expressions that
pose a real and substantial threat to such values and
to the
constitutional order itself.”
Id at para 29.
In that case, this Court
recognised that expression has the potential to impair the exercise
and enjoyment of other important rights,
such as the right to
dignity.
24
It went on to say that:
“
The right is accordingly not
absolute; it is, like other rights, subject to limitation under s
36(1) of the Constitution. Determining
its parameters in any given
case is therefore important, particularly where its exercise might
intersect with other interests.”
25
The Constitution itself limits
acceptable expression in section 16(2)
26
which sets out the types of expression which fall beyond the ambit
of the protection afforded to free expression by the Bill
of
Rights. In
Islamic Unity Convention
it was said that:
“
Implicit in [the provisions
of section 16(2)] is an acknowledgment that certain expression does
not deserve constitutional protection
because, among other things,
it has the potential to impinge adversely on the dignity of others
and cause harm. Our Constitution
is founded on the principles of
dignity, equal worth and freedom, and these objectives should be
given effect to.”
27
The chilling effect on freedom
of expression envisaged in defamation cases would play out in the
following manner. A person who
suspects that they may possibly be
about to defame someone else is cognisant of the fact that if they
do, there may be legal
consequences. As a result, they either
refrain from making the utterance or do some background checking
first. So the kinds
of utterances which are chilled are those
which an ordinary person may suspect to be defamatory in nature.
The chilling of this
kind of expression is by no means an
undesirable result and is in line with the framework of
intersecting rights outlined above
in which freedom of expression
may well have to take a back seat to dignity in certain
circumstances.
In
Young v Shaikh
28
it was said that:
“
[f]reedom of expression does
not include the right to falsely attack the integrity of a fellow
citizen for selfish reasons or for
reasons which have nothing to do
with ‘public benefit’.”
29
The Court went on to hold that
an award of damages is particularly appropriate where it “will
have a ‘chilling’ effect on
possible future and similarly
baseless and selfish attacks on the integrity of others”.
30
Thus rather than being contrary to the constitutional scheme for
the protection of expression, “chilling” defamatory statements
or those that may be suspected as such, are precisely what the
Constitution requires in light of its commitment to dignity as a
foundational value.
31
Finally, while we must of
course acknowledge that freedom of expression is implicated in
defamation cases, the impact on expression,
or the “chilling
effect”, stems largely from the process of determining whether
the statement in question was defamatory
rather than the assessment
of damages appropriate to compensate for it.
It may well be that it is not
so much the eventual outcome of a court case but rather the
possibility of being taken to court
in the first place which
operates as a deterrent. Much research has been conducted into
this idea in the context of sentencing,
particularly with regards
to the efficacy of the death penalty as a deterrent. The research
indicates that it is not so much
the sentence which deters
potential criminal perpetrators but the possibility of getting
caught.
32
Just as deterrence in the criminal law context stems from the
possibility of getting caught, rather than the range of possible
sentences which may be imposed, so in the civil context, any
“chilling effect” derives most of its potency from the fact
that a person who goes beyond the accepted boundaries of expression
may be sued for defamation. Hence the significance of the
actual
award of damages has perhaps been overemphasised. Seen in this
light, the argument that damages are a constitutional
matter,
because if excessive they have the potential to chill freedom of
expression, is not persuasive.
Before I end this judgment, I
consider it appropriate that we remind ourselves as South Africans
that we live in a constitutional
democracy which is founded upon
the supremacy of the Constitution and the rule of law. It is
worrying that there appears to
be an increase in the number of
cases which are brought to this Court by legal practitioners on
claims of them being constitutional
matters or issues connected to
constitutional matters. Constitutional issues are at times raised
by legal practitioners for
the first time in argument in Court.
The hallowed status of the
Constitution has particular consequences for legal practitioners.
They must approach all law with
the Constitution foremost in their
minds. The values which find expression in the Constitution
permeate our entire legal fabric.
No area of law is left untouched
by their reach. Thus when preparing legal argument and strategies,
the Constitution is the
starting place. Constitutional arguments
are not an alternative strategy should the standard common law
arguments fail. As
this Court emphasised in
Pharmaceutical
Manufacturers Association
,
33
“
[t]here are not two systems
of law, each dealing with the same subject-matter, each having
similar requirements, each operating
in its own field with its own
highest Court. There is only one system of law. It is shaped by
the Constitution which is the supreme
law, and all law, including
the common law, derives its force from the Constitution and is
subject to constitutional control.”
34
It is important that we foster
a legal culture in which the provisions of the Constitution play a
primary role in the arguments
prepared by attorneys and counsel so
as to avoid the situation where constitutional arguments are tacked
on as a last resort
when all else fails. In this vein, the words
of Ngcobo J in
Prince
,
35
where he dealt with the constitutionality of a statute, have
particular resonance :
“
Parties who challenge the
constitutionality of a provision in a statute must raise the
constitutionality of the provisions sought
to be challenged
at
the time they institute legal proceedings
. In addition, a party
must place before the Court information relevant to the
determination of the constitutionality of the impugned
provisions.
Similarly, a party seeking to justify a limitation of a
constitutional right must place before the Court information
relevant to the issue of justification. I would emphasise that all
this information must be placed before
the Court of first
instance
.
The placing of the relevant information is
necessary to warn the other party of the case it will have to meet,
so as allow it the
opportunity to present factual material and legal
argument to meet that case. It is not sufficient for a party to
raise the constitutionality
of a statute only in the heads of
argument, without laying a proper foundation for such a challenge in
the papers or the pleadings.
The other party must be left in no
doubt as to the nature of the case it has to meet and the relief
that is sought. Nor can parties
hope to supplement and make their
case on appeal.”
36
[emphasis added].
Not only should the
Constitution be foremost in the minds of practitioners when
preparing their legal arguments, but heed must also
be paid to the
provisions of the Constitution which establish a jurisdictional
framework which governs the manner in which the
courts should be
approached.
Conclusion
I conclude that this Court
does not have jurisdiction. Accordingly, I would hold that leave
to appeal the quantum of damages
awarded by the High Court be
refused.
For the applicant: L. Wepener
SC and T. J Bokaba instructed by Noko Incorporated, Pretoria.
For the respondent: Q. Pelser
SC instructed by Rooth & Wessels Inc., Johannesburg.
1
Section 161 provides:
“Provincial legislation within the framework of national
legislation may provide for privileges and immunities of Municipal

Councils and their members.”
2
Section 117 provides:
“(1) Members of a provincial legislature and the province’s
permanent delegates to the National Council of Provinces─
have freedom of speech in the legislature and in its committees,
subject to its rules and orders;
and are not liable to civil or criminal proceedings, arrest,
imprisonment or damages for─
(i) anything that they have said in, produced before or submitted to
the legislature or any of its committees; or
(ii) anything revealed as a result of anything that they have said
in, produced before or submitted to the legislature or any of
its
committees.
(2) Other privileges and immunities of a provincial legislature and
its members may be prescribed by national legislation. . .
.”
3
Section 28 provides:
“(1) Provincial legislation in terms of section 161 of the
Constitution must provide at least─
(a)
that councillors have freedom of speech in a municipal
council and in its committees, subject to the relevant council’s
rules
and orders as envisaged in section 160(6) of the Constitution;
and
(b)
that councillors are not liable to civil or criminal
proceedings, arrest,
imprisonment or damages for─
(i) anything that they have said in, produced before or submitted to
the Council or any of its committees; or
(ii) anything revealed as a result of anything that they have it
said in, produced before or submittted to the Council or any of
its
committees.
(2) Until provincial legislation contemplated in subsection (1) has
been enacted the privileges referred to in paragraphs
(a)
and
(b)
of subsection (1) will apply to all municipal councils in
the province concerned.”
4
Act 117 of 1998.
5
Section 3 provides:
“In accordance with the provisions of section 161 of the
Constitution of the Republic of South Africa, 1996 (Act No. 108 of
1996), and section 28(1) of the Local Government: Municipal
Structures Act, 1998 (Act No. 117 of 1998), a councillor─
(a)
has, subject to the rules and orders of that council as
envisaged in section 160(6) of the Constitution of the Republic of
South
Africa, 1996, freedom of speech in a municipal council of
which he or she is a member and in any committee of such council;
and
(b)
shall not be liable to civil or criminal proceedings,
arrest, imprisonment or damages for─
(i) anything he or she has said in, produced before or submitted to
the Council; or
(ii) anything revealed as a result of anything that he
or she has said in, produced before or submitted to the council of
which
he or she is a member or any committee of such council.”
6
Act 3 of 2000.
7
Section 2 provides:
“(1) Subject to the standing orders there shall be freedom of
speech and debate in or before the Provincial Legislature and any
committee, and such freedom shall not be impeached or questioned in
court,
(2) Anything said by any member in or before the Provincial
Legislature or a committee, whether as a member or as a witness,
shall
be deemed to be a matter of privilege as contemplated in
section 7,
(3) The provisions of subsection (1) shall not apply to any person,
other than a member, giving evidence before the Provincial
Legislature or any committee.”
8
Section 9 provides:
“Notwithstanding the provisions of this or any other Act, no
member shall be liable to any civil or criminal proceedings, arrest,
imprisonment or damages by reason of anything that he or she has
said, produced or submitted in or before or to the Provincial
Legislature or any committee thereof or by reason of anything that
may have been revealed as a result of what he or she has said,
or
produced, or submitted in or before or to the Provincial Legislature
or any committee thereof.”
9
Section 10 provides:
“No person shall be liable in damages or otherwise for any act
done under the authority of the Provincial Legislature or within
its
legal powers, under any warrant issued by virtue of those powers.”
10
Section 35 provides:
“The privileges, immunities and powers of the Provincial
Legislature, a member and an officer of the Provincial Legislature

respectively, shall be part of the law of the Republic, and it shall
not be necessary to plead them, but they shall be judicially
noticed
in all the courts of the Republic.”
11
Act
5 of 1994.
12
Thupi Zacharia Mokhatla v David Dikoko
TPD 31668/2, 24 May
2005, as yet unreported at para 6
.
13
Id at paras 24-26.
14
Section 168(3) provides:
“The Supreme Court of Appeal may decide appeals in any matter. It
is the highest court of appeal except in constitutional matters,
and
may decide only─
(a) appeals;
(b) issues connected with appeals; and
(c) any other matter that may be referred to in circumstances
defined by an Act of Parliament.”
15
Phillips and Others v National Director of
Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR 274
(CC) at para 30;
Radio
Pretoria v Chairperson of the Independent Communications Authority
of South Africa and Another
[2004] ZACC 24
;
2005 (4)
SA 319
(CC);
2005 (3) BCLR 231
(CC) at para 19. See also section
167(6) of the Constitution and Rule 19(6)(a) of the Rules of the
Constitutional Court.
16
Above n 3.
17
Or similarly beyond those of the provincial legislature or
Parliament.
18
[2003] ZACC 25
;
2006 (1) SA 203
(CC);
2003 (5) BCLR 502
(CC).
19
Id at para 16.
20
Id at para 17.
21
[1991] ZASCA 124
;
1992 (1) SA 283
AD.
22
Id at 294C-D.
23
Id at 294E-G.
24
The present case does not decide
whether this
authority remains good law under the Constitution.
25
See
Roman Corp Ltd v Hudson’s Bay Oil & Gas Co Ltd
(1971) 18 D.L.R. (3d) 134 at 141-142, affirmed by the Court of
Appeals in (1972) 23 D.L.R. (3d) 292 at 297-298. (The Supreme Court
held in (1973) 36 D.L.R (3d) 413 at 419 that while it did not
dissent from the findings of these courts on the question of
privilege
it preferred to decide the appeal on a different basis);
Stopforth v Goyer
(1978) 87 D.L.R. (3d) 373 at 381;
Re
Clark v Attorney General of Canada
(1977) 81 D.L.R. (3d) 33 at
55.
26
Roman Corp
Ltd
(1971) above n 25 at 138.
27
Above n 25.
28
Id at 381.
29
Above n 25.
30
Id at 58.
31
Id at 55.
32
Above n 18 at paras 13-15.
33
Id at para 17.
34
Above n 9
.
35
Above n 10
.
36
Above n 2.
37
Above n
9.
38
Kinghorn “Defamation” 2 Ed (2005) 7
Law
of South Africa
(
LAWSA
)
at para 249.
39
See
Salzmann v Holmes
1914 AD 471
at 480;
Sandler v
Wholesale Coal Supplies Ltd
1941 AD 194
at 200;
Sutter v
Brown
1926 AD 155
at 171;
Black and Others v Joseph
1932
AD 132
at 149-150.
40
See in this regard
Van
der Berg v Coopers and Lybrand Trust (Pty) Ltd
[2000] ZASCA 77
;
2001
(2) SA 242
(SCA) at 260H.
41
Id at 259E-F.
42
Above n 39 at 200.
43
Id at 196.
44
Salzmann
above n 39 at 480.
45
Black
above n 39 at 145.
46
Id at 150.
47
Charles Mogale and Others v Ephraim Seima
SCA 575/04, 14 November 2005, as yet unreported
at para 8.
48
2005 (12) BCLR 1192
(CC); See also
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para 11;
Mabaso
v Law Society, Northern Provinces and Another
[2004] ZACC 8
;
2005 (2) SA 117
(CC);
2005 (2) BCLR 129
(CC) at para 20, fn 21.
49
See
Basson
Id at para 154;
Mabaso
above n 48 at para
20, fn 21;
Shepstone & Wylie
and Others v Geyser NO
1998 (3) SA 1036
(A) at 1045B-D [also reported as
[1998] ZASCA 48
;
[1998] 3 All
SA 349
(A)];
Knox D’Arcy Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A) 361E-F & H-I [also reported as
[1996] ZASCA 58
;
[1996] 3
All SA 669
(A)];
Media Workers Association of South Africa and
Others v Press Corporation of South Africa Ltd
[1992] ZASCA 149
;
1992 (4) SA 791
(A) at 800C-H.
50
Id at para 110 referring to the Supreme Court of Appeal’s finding
in
Media Workers Association of South Africa and Others
id at
800D-E:
“The essence of a discretion in this narrower sense is that if the
repository of the power follows any of the available courses,
he
would be acting within his powers and his exercise of power could
not be set aside merely because a Court would have preferred
him to
have followed a different course among those available to him.”
51
Id at para 154 referring to
Shepstone
above n 49 at 1045B-D.
52
Id at para 110.
53
Id
at para 156.
54
1924 (WLD) 157 at 167.
55
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8)
BCLR 771
(CC) at para 17.
56
Hoffa N.O. v SA Mutual Fire and General
Insurance Company Ltd
1965 (2) SA 944
(C) at 950C.
57
Matthews and Others v Young
1922 AD 492
at 503-504.
58
2002 (6) SA 512
(W).
59
Id at 522D.
60
Id at 525F-H.
61
Id at 525D-H.
62
2004 (3) SA 46
(C).
63
Id at 50I-J.
64
Above n 58 at 525E-F.
65
Id at 57E.
66
Id at 57E-F.
67
Id at 57G-H.
68
The
Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000
makes provision in
section
21(2)(j)
for an equality court to make an order that an
unconditional apology be made if it determines under
section 21(1)
that unfair discrimination, hate speech or harassment has taken
place.
69
Lynch v Agnew
1929 TPD 974
at 978.
70
Skelton ‘Juvenile Justice Report’ Project 106 South African Law
Commission (2000) at 96-98.
71
Skinner
above n
54 at 167.
72
Buthelezi v Poorter
and Others
1975 (4) SA 609
(WLD) at 613G-H.
73
Above n 47 at para 8.
74
A
bove n 12 at para 25.
75
Above n 47.
76
Id
at para 8.
77
1923 AD 234.
78
In
Hulley
id
damages were considered in the context
of contributory negligence.
79
Id at 245.
80
A
bove n 69.
81
Id
at 978.
82
LAWSA
above n 38 at paras 94, 96.
83
Charles
above n 47 at para 11.
84
Skinner
above n 54 at 167.
85
See above para 79.
1
1923 AD 234
at 246.
2
See section 167(3)(b) of the Constitution which provides that:
“The Constitutional Court
—…
(b) may decide only constitutional matters, and issues
connected with decisions on constitutional matters; and. . . ”
3
See section 168 (3) of the Constitution which
provides that:
“The Supreme Court of Appeal may decide appeals in any matter. It
is the highest court of appeal except in constitutional matters,
and
may decide only
—
(a) appeals;
(b) issues connected with appeals; and
(c) any other matter that may be referred to it in circumstances
defined by an Act of Parliament.”
4
Section 10 of the Constitution provides that:
“Everyone has inherent dignity and the right to have their dignity
respected and protected.”
5
See Harms JA in
Mogale
and Others v Seima
, SCA 575/04, 14
November 2005, as yet unreported at para 9.
6
Section 16(1) of the Constitution provides that:
“Everyone has the right to freedom of expression, which includes
—
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas;
(c)
freedom of artistic creativity; and
(d)
academic freedom and freedom of scientific research.”
7
Section 38 of the Constitution provides that:
“Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights has

been infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights.…”
8
[1997] ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC) at
para 61.
9
Under the Interim Constitution the provision read:
“When an infringement of or threat to any right entrenched in this
Chapter is alleged, any person referred to in paragraph
(b)
shall be entitled to apply to a competent court of law for
appropriate relief, which may include a declaration of rights.”
The equivalent provision in the Constitution is section 38.
10
Fose
above
n 8 at para 60.
11
Section 39(3) of the Constitution provides that:
“The Bill of Rights does not deny the existence of any other
rights or freedoms that are recognised or conferred by common law,
customary law or legislation, to the extent that they are consistent
with the Bill.”
12
[2000] ZASCA 77
;
2001 (2) SA 242
(SCA) at 260H.
13
Neethling v Du Preez and Others;
Neethling
v Weekly Mail and Others
[1994] ZASCA 133
;
1995 (1) SA
292
(A);
Botes v Van Deventer
1966 (3)
SA 182
(A); Rondalia Assurance Corporation of South Africa Ltd v
Britz
1976 (3) SA 243
(T);
Buthelezi
v Poorter and Others
1975 (4) SA 608
(W);
Matiwane v Cecil Nathan, Beattie &
Co
1972 (1) SA 222
(N).
14
See the discussion in
S
v Basson
2005 (12) BCLR 1192
(CC) at
paras 110–114 and paras 154–155 and cases therein cited.
15
Above n 13
at 301H.
16
Id at 301C-D.
17
Mogale
above n 5
at para 8;
Sandler v Wholesale Coal
Suppliers
Ltd
1941 AD 194
at 196;
Black and Others v Joseph
1931 AD;
Sutter v Brown
1926 AD 155
at 171;
Salzmann v Holmes
1914 AD 471
at 480.
18
At para 76 of Mokgoro J’s judgment.
19
Id at para 77.
20
1924 WLD 157
at 167.
1
See the Epilogue to the Interim Constitution, extensively discussed
in
Azanian Peoples Organisation and Others v President of the
Republic of South Africa and Others
[1996] ZACC 16
;
1996 (4) SA 671
(CC);
1996
(8) BCLR 1015
(CC) at para 48.
2
[2004] ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC).
3
[2004] ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) at para 37.
4
See the discussion by Skelton: The Influence of the Theory and
Practice of Restorative Justice in South Africa, with Special
Reference
to Child Justice, (unpublished doctoral thesis, Pretoria
University 2006) at 18-21.
5
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6)
BCLR 665
(CC). See Langa J at para 227 in which he held that:
“
It was against a background of the loss of
respect for human life and the inherent dignity which attaches to
every person that a
spontaneous call has arisen among sections of
the community for a return to
ubuntu
.
A number of references to
ubuntu
have already been made in various texts, but largely without
explanation of the concept. It has however always been mentioned
in
the context of it being something to be desired, a commendable
attribute which the nation should strive for.”
See Madala J at para 237 in which he held that:
“
The concept of
ubuntu
appears for the first time in the post-amble, but it is a concept
that permeates the Constitution generally, and more particularly
chap 3, which embodies the entrenched fundamental human rights. The
concept carries in it the ideas of humaneness, social justice
and
fairness.”
See Mahomed J at para 263 in which held that:
“‘
The need for
ubuntu
’
expresses the ethos of an instinctive capacity for and enjoyment of
love towards our fellow men and women; the joy and the fulfillment
involved in recognizing their innate humanity; the reciprocity this
generates in interaction within the collective community; the
richness of the creative emotions which it engenders and the moral
energies which it releases both in the givers and the society
which
they serve and are served by.”
See Mokgoro J at para 308 in which she held that:
“
Generally,
ubuntu
translates as ‘humaneness’. In
its most fundamental sense it translates as personhood and
‘morality’. Metaphorically,
it expresses itself in
umuntu
ngumuntu ngabantu
, describing the
significance of group solidarity on survival issues so central to
the survival of communities. While it envelops
the key values of
group solidarity, compassion, respect, human dignity, conformity to
basic norms and collective unity, in its
fundamental sense it
denotes humanity and morality. Its spirit emphasises respect for
human dignity, marking a shift from confrontation
to conciliation.
In South Africa
ubuntu
has become a notion with particular resonance in the building of a
democracy. It is part of our
rainbow
heritage, though it might have
operated and still operates differently in diverse community
settings. In the Western cultural heritage,
respect and the value
for life, manifested in the all-embracing concepts of ‘humanity’
and ‘menswaardigheid’, are also
highly prized. It is values
like these that s35 requires to be promoted. They give meaning and
texture to the principles of a
society based on freedom and
equality.”
And see Sachs J at para 374.
6
Port Elizabeth Municipality v Various Occupiers
above n 2
7
See
S v Joyce Maluleke and Others
Pretoria High Court 83/04,
13 June 2006, as yet unreported. Stressing the need for
circumspection in this area Bertelsmann J in
a judgment on
sentencing discusses the advantages of drawing upon traditional
African legal processes so as to achieve reconciliation
and closure,
showing how they fit in with developing notions of restorative
justice in various international jurisdictions. He
cites Bosielo J
(Shongwe J concurring) as calling for innovative and pro-active
presiding officers to seek alternatives to imprisonment
that are
based on restorative justice principles (
S v Shilubane
[2005]
JOL 15671
(T)).
8
See the view of Willis J quoting Melius de Villiers in
Mineworkers
Investment Co (Pty) Ltd v Modibane
2002 (6) SA 512
(WLD) at 523
F-G; but see contrasting approach in
Young v Shaikh
2004 (3)
SA 46
(C) both discussed in Mokgoro J’s judgment at paras 63-67.
9
Section 21
of the
Promotion of Equality and Prevention of Unfair
Discrimination Act No.4 of 2000
provides:
“(1) The equality court before which proceedings are instituted
in terms of or under this Act must hold an inquiry in the prescribed
manner and determine whether unfair discrimination, hate speech or
harassment, as the case may be, has taken place, as alleged.
After
holding an inquiry, the court may make an appropriate order in the
circumstances, including─ . . .
(j) an order that an unconditional apology be made”
1
See para 54 of Mokgoro J’s judgment.
2
See paras 90 and 92 of Moseneke DCJ’s judgment.
3
In terms of section 168(3) and section 167(3)(a) and (b) of the
Constitution. See C Lewis “
Reaching the
Pinnacle: Principles, Policies and People for a Single Apex Court in
South Africa” (2005) 21 South African Journal
of Human Rights at
512:
“The most notable defect in the present system arises from the
distinction that was sought to be drawn between constitutional
and
other issues. In the context of a body of law that must necessarily
be constitutionally coherent, that distinction is, and
always was,
an illusion. And because it is an illusory distinction it has not
only sown uncertainty as to what is and what is
not a
‘constitutional issue’, with practical consequences for the
expeditious treatment of litigation, but it also threatens
to impede
the coherent development of the law.”
4
Van der Walt v Metcash Trading Ltd
[2002] ZACC 4
;
2002 (4) SA 317
(CC);
2002
(5) BCLR 454
(CC) at para 32.
5
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at
para 13.
6
Section 167(3)(c).
7
Van der Walt
above n 4 at para 32.
8
See for example
Boesak
above n 5 at paras 11-12.
9
Above n 4.
10
Id at
para 33.
11
See section 172(1)(a) of the Constitution.
12
See section 167(4)(a) of the Constitution.
13
See section 167(7) of the Constitution.
14
See section 39(2) of the Constitution. The categorisation of these
issues as constitutional ones is confirmed in
Boesak
above n
5 at para 14.
15
Above n 5.
16
These sections deal with the jurisdiction of the Constitutional
Court and the Supreme Court of Appeal respectively. Section 167(3)
establishes the Constitutional Court as the highest court in
constitutional matters and section 168(3) constitutes the SCA as the
highest court of appeal in all matters save constitutional ones.
17
Boesak
above n 5 at para 15.
18
Phoebus Apollo Aviation CC v Minister of Safety and
Security
[2002] ZACC 26
;
2003 (2) SA 34
(CC);
2003 (1) BCLR
14
(CC).
19
Id a
t para 9.
20
Van der Berg v Coopers & Lybrand Trust (Pty) Ltd and Others
[2000] ZASCA 77
;
2001 (2) SA 242
(SCA).
21
South African National Defence Union v Minister of Defence and
Another
[1999] ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
(CC).
22
Id at para 7.
23
Islamic Unity Convention v Independent Broadcasting Authority and
Others
[2002] ZACC 3
;
2002 (4) SA 294
(CC);
2002 (5) BCLR 433
(CC).
24
Id at para 30.
25
Id.
26
Section 16(2) provides:
“
The right in subsection
(1) does not extend to―
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.”
27
Above n 23 at para 32.
28
2004 (3) SA 46
(C).
29
Id at 57E.
30
Id at 57E-F.
31
Section 1(a) of the Constitution.
32
See for example Skeen “Effective judicial thundering from up on
high or a mere brutum fulmen? Deterrent sentences in criminal
cases”
(1998) 11
South African Journal of Criminal Justice
at 247.
33
Pharmaceutical Manufacturers Association of SA and Another: In Re
Ex Parte President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC).
34
Id
at para 44.
35
Prince v President, Cape Law Society, and Others
[2000] ZACC 28
;
2001 (2) SA
388
(CC);
2001 (2) BCLR 133
(CC).
36
Id at para 22.