About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2023
>>
[2023] ZAWCHC 254
|

|

August v Maimane (20866/2018; 20867/2018; 20868/2023; 20869/2018) [2023] ZAWCHC 254 (13 October 2023)

In
the High Court of South Africa
(Western
Cape Division, Cape Town)
Case number:
20866/2018
In the matter between:
SHAUN
AUGUST
Plaintiff
and
MMUSI
ALOYISIAS MAIMANE
Defendant
Case
number: 20867/2018
And in the matter
between:
SUZETTE
ANN
LITTLE
Plaintiff
and
MMUSI
ALOYISIAS MAIMANE
Defendant
Case number:
20868/2023
And in the matter
between:
GREGCHAN
GARRETH
BARNARDO
Plaintiff
and
MMUSI
ALOYISIAS
MAIMANE
Defendant
Case number:
20869/2018
And in the matter
between:
THULANI
STEMELE
Plaintiff
and
MMUSI
ALOYISIAS
MAIMANE
Defendant
JUDGMENT DELIVERED ON
13 OCTOBER 2023
VAN ZYL AJ:
Introduction
1.
The plaintiffs each instituted action
against the defendant for defamation under a separate case number.
As the actions arose
from the same events they were subsequently
consolidated and thus heard together.
2.
It is common cause that, on 26 October 2018
and again on 29 October 2018, the defendant made disparaging
statements about the plaintiffs.
It is further common cause that the
statements were defamatory, and widely published.
3.
On 14 March 2023, shortly before the
commencement of the trials, the defendant amended his plea
(originally delivered on 13 February
2019) and tendered an apology
and a full retraction of the statements in one publication of the
Sunday Times
newspaper, and on the TimesLive website. The tender included an offer
to pay each plaintiff the sum of R35,000.00 as compensation,
plus
costs on the appropriate magistrate court’s scale.
4.
The plaintiffs rejected the apology and the
tender as being “too little, too late”. Two issues
therefore remain: the
quantum
of
damages to be awarded to each plaintiff, and the appropriate costs
award.  The defendant contends that awards in defamation
cases
are typically low and that on the particular facts of this matter,
the plaintiffs are not entitled to more than R35,000.00
in damages.
The plaintiffs, on the other hand, claimed R1 million each in their
respective summonses, and costs on the High Court
scale.  During
argument it was indicated that the plaintiffs regarded the following
amounts as appropriate:
4.1.
Mr August: R200,000.00;
4.2.
Ms Little: R250,000.00;
4.3.
Mr Barnardo: R300,000.00; and
4.4.
Mr Stemele: R250,000.00.
5.
I set out the events that gave rise to the
disputes.  The plaintiffs led evidence on their positions within
and the relationship
that each had with their respective communities
prior to the publication of the statements. The defendant did not
dispute this
evidence in any material respect, but drew certain
conclusions therefrom, as will be set out below.
The impugned
statements
6.
It is common cause between the parties that
the plaintiffs had,
on
25 October 2018, resigned both as members of the municipal council of
the City of Cape Town ("the Council" or “the
City”),
where they had served as municipal councillors, and the Democratic
Alliance ("the DA").  The defendant
was the federal
leader of the DA at the time (which was the second largest political
party in
South
Africa), as well as the leader of the opposition in Parliament.
7.
After the plaintiffs had resigned on 25
October 2018, and on the same day, a report compiled at the Council’s
behest, known
colloquially as the “Bowman's Report”, was
adopted by the Council, pertaining
inter
alia
to the alleged misconduct of
certain municipal officials and councillors within the City.
8.
The next day, 26 October 2018, the
defendant made a public statement to journalists representing various
media houses to the effect,
inter alia
,
that the plaintiffs’ resignations were not surprising, as the
plaintiffs were implicated in the Bowman's Report in covering
up
corruption in the City.  The defendant stated that the report
“...
made serious findings against
those people. They
must
be
investigated."
9.
The defendant's statements were widely
published in the national print and electronic media.
10.
Also on 26 October 2018, the defendant
published an electronic newsletter, known as
Bokamoso,
to a large national and international
audience via email, stating,
inter alia,
that:
"In Cape Town,
the DA sought accountability. The city commissioned a report with
independent legal firm Bowman Gilfillan, which
made adverse findings
against some councillors.
For five Cape Town
councilors, the DA wasn't a racist party last month. But now that a
credible forensic investigation by credible
legal firm has allegedly
implicated them in tender irregularities, the DA is suddenly a racist
party.
These five councilors
have resigned, claiming racial victimhood. Can it be coincidence that
they have suddenly decided the DA is
racist now that they stand
accused of maladministration?"
11.
On 27 October 2018 the plaintiffs' attorney
sent a letter of demand to the defendant, demanding an unconditional
retraction and
correction of the statements in the same manner as
they had been made, namely in a media statement and another published
Bokamoso
newsletter; together with an unequivocal apology for having made the
statements.
12.
The defendant did not comply with the
demands, although it seems that he tried to.  The attempt was
bungled - on 29 October
2018, the defendant published another
Bokamoso
newsletter,
saying, amongst other things, the following:
"Friday's
Bokamoso contained....a., factual inaccuracy regarding the role of
the five former DA councillors in Gape Town, an
error for which we
apologise. Please find below the corrected version.
…
In Cape Town, the DA
sought accountability. The city commissioned a report with
independent legal firm Bowman Gilfillan, which made
adverse findings
against some councilors.
For five Cape Town
councilors, the DA wasn't a racist party last month. But now that
they have been shown to be most ardent defenders
of
maladministration, despite evidence which has now been confirmed by a
credible forensic investigation, the DA is suddenly a
racist party.
These five councilors have resigned, claiming racial victimhood. Can
it be coincidence that they have suddenly decided
the DA is racist?"
13.
As indicated, shortly before the
commencement of the trial – and about four years after the
commencement of the litigation,
which had been defended from the
outset - the defendant admitted that the statements, both to the
media on 26 October 2018 and
in the
Bokamoso
newsletters on 26 and 29 October 2018,
were wrongful and defamatory of
the
plaintiffs.  He admitted that the statements were made with the
intention to defame the plaintiffs and to injure their
reputations,
and that they were widely published to a large national and
international audienc
e,
including
different language print and electronic media.  He admitted that
the statements were understood by the readers thereof
and were
intended by the defendant to mean that the plaintiffs were dishonest
in that the Bowman's Report made adverse findings
against them, and
that they were corrupt.
14.
The defendant admitted that the
Bokamoso
newsletter of 26 October 2018 was
understood by the readers thereof and was intended by the defendant
to mean that the plaintiffs
were dishonest in
that they were implicated in tender
irregularities, and were accused of maladministration.
15.
The defendant admitted, further, that the
Bokamoso
newsletter
of 29 October 2018 was
understood
by
the readers thereof and was intended by the
defendant to mean that the plaintiffs were dishonest in that they
were ardent defenders
of maladministration.
16.
The defendant concedes that the
defamation was serious and accepts that,
prior to the making the statements, the plaintiffs were respected
local politicians and
public
figures in
their
respective communities.  As the leader of the DA at the time the
defendant was a major political and public figure.
His reach
was far and his reputation was respected.
17.
The defendant says, however, that the
impact of the defamation was short-lived. This is because the
plaintiffs themselves, amongst
others, made sure that the world knew
the truth.
18.
The
defendant
points out that, on 26 October 2028, News24 published the defamatory
statements.  The
same article reported
that Mr Grant Twigg (the DA chairperson for the Cape Town metro at
the time) had said that the plaintiffs
were not implicated in the
Bowman’s Report. The plaintiffs accepted in their evidence that
Mr Twigg had refuted the truthfulness of
the defamatory statements at the same time that they were
published.
19.
On 26 October 2018 Ms Little issued
a  media statement on  her  own behalf. Two days
later, on 28 October 2018,
a second media statement was issued
on
behalf
of
all
the
plaintiffs.
The second media statement referred to a
letter of demand that had been sent the day before, on 27 October
2018, by the plaintiffs'
attorney to the defendant, which demanded
that he publicly retract the statements and issue an apology.
The
plaintiffs
accepted
that
the
media
statements were widely published in the press.
The
statements repeated the defendant’s claims about the
plaintiffs, and emphatically denied those claims.
20.
Several articles were published on 29
October 2018 carrying the story that the plaintiffs asserted that
they were neither named
nor implicated in the Bowman’s Report,
that the plaintiffs had issued a letter of demand to the defendant,
and that they
would sue him for defamation if he did not issue a
retraction and apology by a stipulated time.
21.
The plaintiffs conceded during
cross-examination that the media
statements
and other articles informed the general public that they were neither
named nor implicated in the Bowman’s Report
. They also
admitted to turning to social media and appearing on either TV or
radio,
or  both, to refute the
defendant’s claims.
The impact of the
statements on the plaintiffs
22.
The plaintiffs each testified about the
impact that the defamatory statements had on them.
Mr August
23.
Mr August testified
that he is 50 years old, has been married for 29 years, and has two
children. He was born in Lavender Hill,
was raised in Steenberg, and
currently resides in Zeekoevlei.  He is currently a
member
of the provincial parliament of the Western Cape on behalf of the
Good Party.
24.
He commenced his
career as a prison warder with the Department of Correctional
Services. In 2006 he was employed as the deputy national
organizer
for the former political party known as the Independent Democrats
("the ID"). In 2010 he joined the DA at the
time of its
merger with the ID
.
Mr August was
elected as the ward councillor for Ward 67 in the City of Cape Town
in 2011. He rose within the ranks of the City,
as well as the DA. In
2014 he was elected as the regional chairperson of the party in the
City. In 2016, after being elected as
a proportional list councillor,
he became the chief whip in the Council, where he earned
approximately R1 million per year
.
He also
served on the South African Local Government Association (“SALGA”),
as its deputy chairperson in the Western
Cape after 2016.
25.
Mr August is
well-known in the communities where he works and
lives.
He was a respected member of the community at the time of the
defendant’s statements in the media.
26.
On 25 October 2018,
Mr August resigned his seat in the Council, and also resigned as a
member of the DA. Shortly after he did so,
the other plaintiffs
similarly resigned their positions in the Council and as DA members.
This occurred amid much
national
media attention.
27.
At the time, Mr
August wanted to help start a new political movement under the
leadership of Ms Patricia de Lille. His plans included
supporting
himself with a stipend from a funder, until the national elections in
May 2019. Mr August, and the other plaintiffs
learnt on 26 October
2018 of the defamatory statements made by the defendant. The
defamation was published on Media24, which has
a readership (which Mr
August checked on
www.
g
oo
q
le.com
)
of 11,6 million. The plaintiffs were asked questions about the
defamatory statements by various journalists.
28.
Mr August testified
that the impact of the defamation was exacerbated  by
the fact that
the impugned allegations came from the national leader  of
t
he
opposition, who speaks to millions of people.  As an individual,
Mr August could not defend himself against a national leader
such as
the defendant. He attempted to do so by way of the media as well as
the social media platforms of
Twitter
and
Facebook.
Whenever
Mr August attempted  to deny  the  allegations, he was
reminded  that the defendant was the national
leader of the
opposition. The same applied to  the  other plaintiffs.
29.
Mr August admitted
that the DA regional chairperson in the City, Mr Twigg, stated in the
media that the plaintiffs were not implicated
in the Bowman's Report,
but that had little impact as Mr Twigg is unknown in comparison to
the defendant. Mr August testified that
millions of people took note
of what the defendant said  about
the plaintiffs
– no such notice would have been taken of Mr Twigg’s
statements
.
There was
no
mention of Mr Twigg in the second
Bokamoso
newsletter.
30.
The impact of the
defamatory allegations was severe. Many people to whom Mr August
spoke believed those allegations rather than
Mr August’s
denials. He felt rejected where he was previously welcomed. He was no
longer invited to speak as a motivational
speaker at meetings of NGOs
or schools. He was often asked by his colleagues in politics about
the progress with the defamation
case against the defendant, and as
recently as four weeks prior to the trial he was questioned about it
by a politician in Struisbaai
during a local election campaign.
31.
The ability to raise
funds for the new political party was also negatively impacted. The
person who would have provided the stipend
for Mr August to support
himself until the May 2019 elections, Mr Rodney Lentit, was no longer
willing to do so. The defendant’s
allegations of corruption
against Mr August caused the previous friendly relationship with Mr
Lentit to sour. Mr August was unable
to support himself financially
until May 2019, when he was elected to the National Assembly on
behalf of the Good Party. He fell
into areas with his mortgage bond,
his motor vehicle instalments, his children’s school fees, and
other financial obligations.
32.
Mr August testified
that if the defendant had retracted the defamatory allegations and
apologized when the initial demand was made
on 27 October 2018, its
fall-out would have been severely curtailed. The matter was on the
court roll on several previous occasions.
On each occasion the
defendant indicated that he might want to apologise, but never did
so.  Mr August does not consider
the defendant’s tendered
apology to be sincere. He is of the view that the tender was only
made because the trial was due
to commence on 22 March 2023. Mr
August testified that he had attempted unsuccessfully to vindicate
his reputation for four and
a half years against the
"giant
voice"
of
the defendant.
33.
When it was
put to Mr August during cross-examination that the world has long
since been told of the wrongfulness of the defamatory
statements, Mr
August said that the defendant had stated in the media that he would
see the defendants in Court.  Mr August
also pointed out that
The
Sunday
Times
,
where the tendered apology was to be published, has a much lower
readershi
p
than
the media
platforms where the defamatory  statements  had been made.
Mr August conceded that the media reported
that the defendant
admitted in the second
Bokamoso
newsletter
that the plaintiffs were not implicated in the Bowman's Report, but
that they were implicated in tender irregularities.
In
the same news  reports, Mr  August  called  on
the defendant
to apologise  for the defamation against  the
plaintiffs.  The defendant retorted by saying
that:
"They
must be running away from something."
Mr
August was of the view that the purported retractions by the
defendant of the defamatory statements did not set the record

straight.
Ms
Little
34.
Ms Little
testified that she is a 62-year-old widow with three children. She
was born and raised in Athlone, where she still resides.
She is
currently a member of the City’s Council on behalf of the Good
Party (since 1 November 2021). It is a part-time position,
but her
work for the political party takes up most of the rest of her
time.
35.
She testified
that she started her career as a bank clerk with Standard Bank. By
2006 she had risen to the position of provincial
bank manager for the
emerging market in the Western Cape. While she was stationed at the
Athlone branch of the bank, she moved
between various branches of
that bank, and she became well known across the province.
36.
Ms Little left
the bank in 2006 when she started her own supply and maintenance
business and tried her hand at farming.  The
farming enterprise
failed and in 2008 she joined the DA as a politically appointed
secretary in the office of a member of the mayoral
committee in Cape
Town. In August 2010, Ms Little was elected as a ward councillor for
the DA in Athlone. She became a sub-council
chairperson in 2011, a
member of the mayoral committee in 2012, and the chairperson of the
DA
caucus
in the City. Before she resigned from the DA and the Council on 25
October 2018, she earned approximately R900,000.00 per
year.
37.
Ms Little
resigned as a member of the DA and the Council on 25 October 2018
because she felt that her integrity was at stake.
Her plans at
the time were to restart her supply and maintenance business.
She did not plan
to remain in politics but was convinced to do so the next day when
she was told of a new political movement
to be led by Ms de Lille.
Ms Little agreed to join the movement, which is now known as
the Good
Party
.
38.
Ms Little
testified that she learnt of the defamatory statements on 26 October
2018, while she was in a meeting with the other plaintiffs
and Ms De
Lille. Ms Little responded with a media statement wherein she asked
the defendant to withdraw his allegations and to
apologize. The
defendant refused to do so. The defamation was widely published in
the national media and, during a live radio interview
with John
Maytham, the defendant's defamatory allegations were repeated by the
DA's chief whip, Ms Natasha Mazzone.
In
response to a question from the Court about how she felt about the
defendant's statements, Ms Little testified that she was very
upset
about it, as the defendant told the whole of South Africa that she
(i.e., Ms Little) was a
thief.
39.
The community
response to Mr Little following the defendant's allegations was
negative, and remains
"tense"
to this
day. Before the defendant defamed her, Ms Little was welcomed
wherever she went. Thereafter she encountered strained smiles,
for
example at the local supermarket, and people would avoid talking to
her. This was despite the fact that she had lived in Athlone
the
whole of her life.
40.
After she had
resigned from the DA and Council,  Ms Little worked for the Good
Party, but no regular funds were paid to her,
due
to a lack of
income by the party. She was only given
ad
hoc
payments.
This, she said, was directly attributable to the defamatory comments.
Mr Rodney Lentit, who would have paid a stipend
to Ms Little until
the national elections of May 2019, later informed the plaintiffs
that it was difficult for him to make payments
in the light of the
defendant’s allegations.
41.
In the May
2019 national elections, Ms Little lost the seat she would have won
in the Western Cape provincial parliament, by a very
small margin.
She believes the defamation had an impact on the Good Party's
election results. The defamatory allegations made it
difficult to
raise funds for the Good Party. With more funds, the party would have
won more seats, and Ms Little would have been
elected to the
provincial
parliament.
42.
Ms Little
testified that she then attempted to restart her supply
and
maintenance  business.  The impact of the defamatory
allegations
had
a negative impact there, too.  She testified about a meeting
pertaining to funding of the business,
which meeting
went well until the funders asked her at the end of the meeting about
the defendant’s allegations. No funding
was forthcoming after
these questions. The business could not be relaunched without
funding.
43.
Ms Little was
left without employment or regular income until 2020, when she was
appointed to a political position as a researcher
in the Western Cape
provincial parliament for Mr Brett Herron. In 2019 she had to sell
her possessions.  Her late husband,
who was an amputee, could
not work. She was the only breadwinner in the home. These
difficulties also caused problems in her marriage
and her late
husband often reminded her of the defendant’s allegations to
the effect that she was a thief. Her husband believed
the defendant,
as he was a national political leader and therefore had to be right.
Ms Little and her late husband separated in
February 2020 and her
husband died in January 2021
.
44.
When
she
was
asked
about
the
defendant's
tender
of
an
apology,
Ms Little
explained that it will have little meaning now, due to the lapse of
time. She was of the view that the defendant only
tendered the
apology to try and make the case go away. She testified further that
the defendant only made the tender because the
plaintiffs
"helped
him"
to
do so (i.e., by bringing the matter before the Court).
Mr
Barnardo
45.
Mr Barnardo
testified that he is 41 years old, married, and that he has two
children. He was raised in Mitchell's Plain, but now
resides in Kuils
River. He is currently an official in the City but works in the
office of the Good
Party.
46.
Mr Barnardo
started his career with Statistics South Africa, as a statistical
officer, whereafter he moved to Mondi Packaging as
a machine operator
assistant. Thereafter, he took a contract position with the City of
Cape Town, as a communications specialist.
He started his political
career in Kuils River in 2008. In 2016 he was elected as a DA
proportional list councillor in the City.
He was deployed to work in
Atlantis, and he moved there with his family. He became well known in
the communities where he worked
as a municipal councillor.
47.
Mr Barnardo
resigned with the other plaintiffs on 25 October 2018. Before his
resignation, he earned an annual salary of approximately
R600,000.00
.
48.
When Mr
Barnardo decided to resign from the Council and the DA, his plans
were to start a small business and to work toward the
start of a new
political party. He would have been paid a stipend, but this did not
materialise due to a lack of funding - people
were hesitant to give
money after hearing the defendant’s allegations.
49.
Mr Barnardo
testified that he learnt of the defamatory allegations on television.
He felt betrayed and hurt by the defendant’s
false statements.
The defamation also triggered anger in him, because he knew that his
name was not mentioned in the Bowman's Report.
Many people in his
local community were disappointed in him, because they had previously
looked up to him as someone of
integrity,
morals, and
principles.
Mr Barnardo was thereafter interviewed on Radio Atlantis about the
reasons for his resignation
,
as well as the
allegations of corruption against him. He denied the
allegations.
50.
Mr Barnardo
was not paid after his resignation.  He testified that people
were hesitant to give money to the plaintiffs due
to the cloud over
their heads. He was left unemployed. He had to face an eviction, and
also lost his vehicle. He and his family
faced very tough times, and
had it not been for his wife's employment as a teacher with the
provincial education department, matters
would have been worse. His
wife's salary did not cover all their financial obligations.
51.
Mr Barnardo
mentioned that he had made more than twenty applications for
employment with the City, the provincial administration,
and also
various national departments of state. None of  these
applications were successful. Mr Barnardo remained unemployed
until
shortly before the November 2021 local government elections, when he
was employed on a short-term basis for the mayoral campaign
of Mr
Brett Herron. In 2022, he was employed as an official paid by the
City, but working as a researcher in the office of the
Good Party,
where he currently earns R21,000.00 per month.
52.
During
cross-examination, Mr Barnardo acknowledged that Mr Twigg had stated
in the media that the plaintiffs were not implicated
in the Bowman's
Report. Mr Barnardo testified, however, that the defendant's
allegations carried much more weight than any statement
from Mr
Twigg.
53.
In respect of
the tender of an apology by the defendant,  Mr  Barnardo
testified  that he did not accept the tender,
as
he did not regard it as sincere or genuine.  As  far as he
was concerned, it was not coincidental that the tender was
only made
on the eve of the trial. An apology could have been made years ago.
Mr
Stemele
54.
Mr Stemele
testified that he was 38 years old and unmarried. He has no children.
He comes from King William’s Town in the
Eastern Cape. He was
raised in Site B, Khayelitsha, and attended Wynberg Boys' High
School, where he matriculated in 2005. He is
currently a community
outreach officer in the office of the national Minister of Tourism.
55.
Mr Stemele
started his career in 2006/2007 as a member of the ANC Youth League,
by working on a project in the office of the former
mayor of the
City, Ms Nomaindia Mfeketo. Thereafter, he worked as a customer
relations manager for Giant Discounters. He then embarked
on studies for
three years from 2008, after which he worked as  a field support
officer for an audit consulting firm.
In 2015, he learnt that
the DA was expanding its base into the so-called Black communities,
when the ANC fell into trouble. He
wanted to
help the DA to
win the municipal wards currently held by the ANC in
Khayelitsha.
56.
When Mr
Stemele joined the DA, he encountered animosity at home, where he was
labelled a traitor to the ANC and to the community.
He was elected as
a proportional list councillor on behalf of the DA in the City in
2016, and served on various committees in his
capacity as a municipal
councillor. He also served on SALGA.
57.
Mr Stemele
resigned from the DA and Council on 25 October 2018, together with
the other plaintiffs, because he believed it was the
right thing to
do.  He also learnt of the defendant’s defamatory
allegations in the meeting with the other plaintiffs
on 26 October
2018. He was shocked.  The community’s reaction to the
defamation was that the defendant was believed
instead of Mr Stemele.
This was the case even in his own home. Mr Stemele purchased a new
home shortly before his resignation on
25 October 2018. On occasion,
when he invited people for dinner at his new house, he was asked by a
relative whether the house
was
"part
of the  fraud.
58.
In
Mr Stemele's
hometown, King William’s Town, the defamatory allegations
became well known.  Mr Stemele was interviewed
on SABC about the
allegations, where he could deny the allegations, but not on the
isiXhosa
news.
59.
The impact of
the defendant's defamatory allegations reached far and wide. When Mr
Stemele applied for the position he currently
holds in the office of
the national Minister in 2018, the Department of State Security, who
had to do a security clearance, informed
him that his clearance
certificate for the position would be delayed. The certificate was
delayed for two months as a result of
the defendant’s
allegations.  Mr Stemele testified that this chapter in his
life, created by the defendant, would never
be closed until the
defendant admitted to what he had done.
60.
Mr Stemele
also testified that he was not willing to accept the tender of an
apology by the defendant, as it arrived very late,
shortly before the
commencement of the trial. He did not believe that the apology was
sincere. If, according to Mr Stemele, the
defendant was indeed sorry
for what he did, he should have apologised the day after he made the
defamatory allegations in October
2018. Instead, he left the
plaintiffs to suffer for more than four
years.
61.
The defendant argues that, given each of
the plaintiffs’ current positions, it is clear that the
defamation had no lasting
effect on them.  He refers to Mr
August currently being a member of the provincial parliament of the
Western Cape, having
served as one of the Good Party's two members in
the national assembly from May
2019.
Ms Little is now a municipal PR councillor for the City of Cape Town.
The Good Party had placed her as the second candidate
on the
proportional representation list in respect of her nomination as a PR
councillor for the City. Mr Barnardo is a researcher
for the City, in
the office of the Good Party.  Lastly, Mr Stemele is now
employed by national government in the office of
the Minister of the
Department of
Tourism.
62.
In this context, what is an appropriate
award of damages?
The appropriate
award of damages
63.
The defendant contends that the
quantum
sought by the plaintiffs is extraordinarily high and not justified on
the pleaded case or the evidence lead at
trial.  He argues that the reasonable
person following the media's reporting on this incident would
invariably have concluded
that the plaintiffs were not named nor
implicated in
the
Bowman’s Report. The defendant has tendered an apology and
retracted his statements.
The
injury to the plaintiffs' reputations, integrity and dignity was
short-lived and limited,
and
their reputations were ultimately  restored.  The
plaintiffs should be compensated for the injury to their reputations.

The defendant’s punishment is not the object of the award.
64.
Awards
in defamation cases serve a specific purpose, namely commensurately
to compensate someone for the injury to his or her reputation,

integrity and dignity. Awards do not serve a punitive function, and
are characterised by low monetary amounts as a result. This
is a
fundamental principle of the jurisprudence on defamation awards and
has been cited with approval in various courts, most notably
in
Mogale
v
Seima.
[1]
The
Supreme Court of Appeal captured the principle, with reference to
Esselen
v Argus Printing and Publishing Co Ltd,
[2]
in
the following terms:
"In
general, a civil court, in a defamation case, awards damages to
solace plaintiffs' wounded feelings and not to penalise
or to deter
the defendant for his wrongdoing ... Clearly punishment and
deterrence are functions of the criminal law, not the law
of
delict... To sum up: having regard to the foregoing and the general
trend in recent times and the
fact
that our courts have not been generous in their awards of solatia
...  a  practice that is to be commended."
[3]
65.
The
SCA reaffirmed the position in 2021, when it considered the award of
R500,000.00 to the former Minister of Finance in
EFF
v Manuel.
[4]
In
addressing the amount awarded, the Court held that "...
the
amount awarded appears extraordinarily high, and not, as stated by
the court below, in line with the recent general trend ...
a cursory
scrutiny of awards from 2017 onwards  will reveal that recent
awards  in  serious  defamation
cases,
with defamatory statements having been widely published, were in
amounts that were a fraction of what was awarded
in this case."
[5]
66.
Calculating
the
quantum
of
the award depends on the particular facts of each case.  It
requires a realistic assessment of what is just and fair in
the
circumstances.  For this reason, past awards do not have any
real precedential value, but are relevant in as far as they
provide
general guidance only:
[6]
"We
were referred to a number of cases reported over a period of years
which were claimed to be comparable or roughly comparable
to the
present. An inflation factor was applied to some of them to indicate
what the current value would be of the amounts
awarded
... Comparisons of the kind suggested serve a very limited purpose.
In the natur
e
of things no two cases are likely to be identical or sufficiently
similar so that the award in one can be used as an accurate
yard
stick in the other. Nor will the simple
application
of
an inflationary factor necessarily lead to an acceptable result.
The award in each case
must
depend on the facts of each case ..
”
[7]
67.
There
is a range of factors that a Court may rely on to determine what is
just and fair in the circumstances. Those factors include,
inter
alia,
the
nature and gravity of the
defamatory
words, the nature and extent of the publication, the rank or social
status of the
parties,
the intentions of the defendant,
and
the absence or nature of an apology.
[8]
Counsel referred the Court to case law which confirmed the principle
in defamation cases that an apology mitigates the damages.
In
Manuel,
[9]
for
example, the SCA said that an apology “
has
always weighed heavily in determining the quantum of damages in
defamation cases."
68.
The defendant accepted that the apology
issued on 29 October 2018 could have done more to reach a resolution
with the plaintiffs.
He refers to the fact that an apology and
retraction were made in the second Bokamoso letter and that that is
what the media reported.
The problem is, of course, that whilst
an apology was attempted at that stage, the rest of the newsletter
yet again referred to
the plaintiffs in defamatory terms.  The
apology in the newsletter served no purpose in undoing the damage
done to the plaintiffs.
69.
The
second apology – the one tendered just prior to the
commencement of the trial – is comprehensive, but it came
exceedingly
late in the day.
[10]
It had not been published, but was presented as a tender to the
plaintiffs in correspondence from the defendant’s legal

representatives.  I am inclined share the plaintiffs’
suspicion that the tender was finally given so as to bring the

litigation to an end and to limit the award of damages.  The
defendant did not give evidence, and the Court was thus unable
to
gauge from his demeanor the sincerity with which the tender had been
made.
70.
During the cross-examination of the
plaintiffs, the defendant's counsel focused on some of the news
reports which allegedly proved
that the defamatory allegations were
repudiated by, amongst others, Whilst the plaintiffs explained
that Mr Twigg is unknown, compared  to
the defendant, no explanation was proffered by the defendant as to
why he never confirmed
Mr Twigg’s comments.  He also did
not explain why, if the defamatory allegations had indeed already
been repudiated,
there was any need for the tender of a'n
apology  years later, on 14
March
2018.  As indicated, the defendant did not come to Court to
explain himself or to make an apology in person.  The

defendant’s tender, after the lapse of almost five years, of an
apology to be made in different and more limited media contexts
from
those in which the defamatory statements were made, is not
sufficient.
71.
In
Dikoko
v Mokhatla
[11]
the
Constitutional Court held 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
.”
72.
Various considerations
relevant
in determining the award of damages arise from the evidence on
record.
The defamatory statements imputed
criminal conduct to the plaintiffs in the form of corruption. The
allegations were of a malicious
nature and, and were made
intentionally. When the defendant was asked to withdraw the
allegations and apologise, he published a
second
Bokamoso
newsletter in which the plaintiffs were
again defamed before a national and
international audience. It appears that the statements were made to
punish the plaintiffs for
resigning from the DA.
73.
The defendant  must have known that
the plaintiffs were not
implicated
in the unlawful conduct he attributed to them. He had no reason to
believe that they were ever dishonest.  The publication
of the
defamation was very wide, and in several languages, across South
Africa, as well as to an international audience of readers.

Publication occurred on the platforms of Media24, which has a vast
readership,  as well as the SABC and
ENCA
television
channels  and  radio  stations.  An
unknown  number of local and community radio
stations also
broadcast the
allegations.
The impact of the defamatory statements upon the public and the level
of  interest  was  evidenced
by numerous requests by
television and radio stations  for interviews  with the
plaintiffs.
74.
The defamatory material was published and
republished several times since the cause of action first arose. The
additional defamation
attracted further publication of the defamatory
material. The defendant, holding the public position that he did,
must have known
that this would happen.
75.
The defamatory allegations were made by the
defendant when
he
was the national leader of the opposition in parliament. He did so
against individual former municipal councillors.
76.
The defendant waited for four and a half
years before withdrawing his defence to the claims.  I have
dealt with the merits
of the tendered apology.
77.
The defamation had far-reaching effects
upon the plaintiffs' professional and
personal
lives.
It also resulted in financial detriment to the plaintiffs after
funding for their new political party and private business
ventures
proved difficult (this was clearly the case whether or not one
accepts the evidence regarding Mr Lentit’s promised

contribution), in the light of the damage to their reputations.
78.
Due to the long lapse of time; the fact
that the defendant no longer speaks as the leader of the opposition,
and the diminished
interest of the public in the matter, it is
unlikely that the plaintiffs' reputations can ever be fully
vindicated. The plaintiffs
were political and public  figures
with longstanding
reputation
s, and they were respected and trusted in their
communities.  Those reputations were affected by the defendant’s
actions,
even if short-lived, as he argues.  I am not convinced
that one can brush off the effects of the defendant’s
statements
as easily as he tries to do.  An accusation of
dishonesty is difficult to dispel.  People tend to believe that
“where
there is smoke, there is fire”, and the shadow of
imputed dishonesty will follow the plaintiffs.  The defendant
himself
did little to rectify the situation.  It was the
plaintiffs who went about attempting to set the record straight.
It
is ironic that the defendant relies so heavily, in an attempt to
limit his liability, on the plaintiffs’ efforts.
79.
In
all of these circumstances, I am of the view that the amount of
R35,000.000 tendered by the defendant is too low.  On the
other
hand, the amounts proposed by the plaintiffs are relatively high. In
the exercise of my discretion
[12]
I regard the following as appropriate in relation to each of the
plaintiffs:
79.1.
Mr August: R100,000.00;
79.2.
Ms Little: R120,000.00;
79.3.
Mr Barnardo: R135,000.00; and
79.4.
Mr Stemele: R120,000.00.
Costs
80.
No reason has been advanced why the general
rule in relation to costs should not be followed.  The defendant
admits that the
plaintiffs are entitled to their costs.  He
contends that the costs should be limited to party-and-party costs on
the magistrate’s
court scale.
81.
I
have considered the defendant’s submissions in this respect, as
well as the case law relied upon.
[13]
The awards ultimately given to the plaintiffs, although not as low as
tendered by the defendant, fall within the jurisdiction
of the
magistrate’s court and, given the available precedent, the
plaintiffs could not have been under the impression that
the
initially claimed damages of R1 million were reasonable.
82.
I
am nevertheless of the view that the plaintiffs should be awarded
costs on the High Court scale.  In
Greef
v Raubenheimer en ‘n ander
[14]
the
then Appellate Division held that in a defamation action, when the
scale of costs is to be determined, one needs to consider
the various
factors that a reasonable plaintiff would consider at the time of the
issue of the summons.  These include the
content of the
defamation, the extent of the publication, the possible defences to
be proffered, the importance of the case to
the parties, and certain
inherent uncertainties which are known to defamation cases (that is,
the validity or not of alleged innuendo).
83.
In
Gelb
v Hawkins
[15]
the
seriousness of the defamation was held to be a relevant consideration
to determine whether High Court or magistrate's court
costs were to
be awarded.  At no stage during the proceedings, until the plea
was amended shortly before the commencement
of the trial, did the
defendant, although legally represented, protest or suggest that the
summons should have been instituted
in the magistrate's court. The
same considerations apply in the present matter.
84.
The defendant was the leader of the second
largest political party in South Africa, and the leader of the
opposition. The dispute
was one which had received national attention
because of its
importance.
The  parties were both represented by senior counsel, and the
defendant was represented by two
counsel.
If costs were to be awarded on the magistrate's court scale, the
damages awards would be eroded by the costs.
I am therefore
inclined to allow costs on the High Court scale.
85.
There
are a few loose ends in relation to costs.  Prior to the hearing
of the actions, the matter was postponed on various
occasions due to
circumstances not within the parties’ control, with costs
standing over for later determination.  I
am of the view that,
in respect of these instances, each party should pay his or her own
costs.  These occasions were on 26
February 2021,
[16]
8 June 2021,
[17]
and 18
October 2021.
[18]
The
trial was at that point postponed to 1 November 2022.
86.
The
matter had to be removed from the roll on 1 November 2022 due to the
defendant’s representatives not being available.
The
defendant should foot the bill for the costs that stood over on this
occasion.
[19]
87.
The plaintiffs seek costs on a punitive
scale.  Given the nature of the matter and the circumstances
discussed in the course
of this judgment, I agree that such an award
would be appropriate.
Order
88.
In the premises, I make the following
orders:
88.1
Under case number 20866/2018
, the defendant shall pay
to the plaintiff:
(a)
Damages in the sum of R100.000,00;
(b)
Interest thereon at the prescribed legal
rate
a tempore morae
;
(c)
Costs of suit (on the High Court scale) on
the scale as between attorney and client, including the wasted costs
incurred as a result
of the postponement on 1 November 2022, but
excluding the costs incurred as a result of the postponements on 26
February 2021,
8 June 2021, and 18 October 2021.
88.2
Under case number 20867/2018
,
the defendant shall pay to the plaintiff:
(d)
Damages in the sum of R120.000,00;
(e)
Interest thereon at the prescribed legal
rate
a tempore morae
;
(f)
Costs of suit (on the High Court scale) on
the scale as between attorney and client, including the wasted costs
incurred as a result
of the postponement on 1 November 2022, but
excluding the costs incurred as a result of the postponements on 26
February 2021,
8 June 2021, and 18 October 2021.
88.3
Under case number 20868/2018
,
the defendant shall pay to the plaintiff:
(g)
Damages in the sum of R135.000,00;
(h)
Interest thereon at the prescribed legal
rate
a tempore morae
;
(i)
Costs of suit (on the High Court scale) on
the scale as between attorney and client, including the wasted costs
incurred as a result
of the postponement on 1 November 2022, but
excluding the costs incurred as a result of the postponements on 26
February 2021,
8 June 2021, and 18 October 2021.
88.4
Under case number 20869/2018
,
the defendant shall pay to the plaintiff:
(a)
Damages in the sum of R120.000,00;
(b)
Interest thereon at the prescribed legal
rate
a tempore morae
;
(c)
Costs of suit (on the High Court scale) on
the scale as between attorney and client, including the wasted costs
incurred as a result
of the postponement on 1 November 2022, but
excluding the costs incurred as a result of the postponements on 26
February 2021,
8 June 2021, and 18 October 2021.
__________________
P. S. VAN ZYL
Acting judge of the
High Court
Appearances
:
For
the plaintiffs
:
P. A. Corbett SC, instructed by Van Rensburg &
Co.
For
the defendant
:

P. B. Hodes SC (with him V. S. Bruinders), instructed by Smiedt &
Associates
[1]
2008
(5) SA 637
(SCA) at paras [9]-
[1
2],
and [18].
[2]
1992
(3) SA 764
(T) at 771G-I.
[3]
Mogale
supra
at para [18].
[4]
2021
(3) SCA 425 (SCA).
[5]
Manuel
supra
at
paras [122]-[124]; and see
Media
24 Limited t/a Daily Sun v Du Plessis
[2017]
ZASCA 33
(29 March 2017).
[6]
Manuel
supra
at para [123];
Van
der Berg v Coopers
&
Lybrand
Trust (Pty) Ltd
[2000] ZASCA 77
;
2001
(2) SA 242
(SCA) at para
[48]
.
[7]
Van
der Berg supra
at para [123].
[8]
Mogale
supra
at
paras [13]-[16];
Media
24 Limited supra
at
para [35].
[9]
Manual
supra
at para [130].  See also
Mogale
supra
at para [17].
[10]
See
Tsedu
and others v Lekota and another
2009 (4) SA 372
(SCA) at para [24].
[11]
2006
(6) SA 235
(CC) at para [67].
[12]
I
have considered the case law referred to by the plaintiffs,
including
Tsedu
and others v Lekota and another
2009
(
4
)
SA
372
(
SCA
),
Dikoko
v Mokhatla
2006
(
6
)
SA
235
(
CC
),
Jankiehlson
v Boo
v
sen
[
2020
]
1
All SA 214
(
FB
),
Flusk
v Ber
g
2013
JDR 2403
{
GSJ
),
and
Katz
v  Welz and another
[
2021
]
ZAWCHC
76
(
26
A
p
ril
2021).
[13]
Including
Mogale
supra
at para [19];
Mthimyune
v RCP Media and another
2012 (1) SA 199
(T) at para [29]; and
Khambule
v Minister of Police
[2012] ZAGPJCH 202 (12 October 2012) at para [41].
[14]
1976
(3) SA 37
(A) at 44E-G, with reference to
Van
der Merwe v Schraader
1953
(2) SA 339
(E) at 342D-F.
[15]
1960
(3) SA 687
(A) at 694B-D.
[16]
The
four actions were consolidated and set down for hearing on 8 June
2021.
[17]
No
judge was allocated to hear the matter.
[18]
No
judge was allocated to hear the matter.
[19]
The
matter was also postponed on 23 February 2023 because the defendant
was not ready to proceed, but he has, according to counsel,
already
paid the wasted costs of that postponement.