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[2013] ZAWCHC 149
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Pugney and Another v Engler and Another (8618/08) [2013] ZAWCHC 149 (29 April 2013)
THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
CASE NO: 8618/08
In
the matter between:
NORMAN
WALLACE PUDNEY
...........................................
First
Plaintiff
WW
ACTION ENTERTAINMENT
...................................
Second
Plaintiff
AND
EVENTS CC
and
HAGEN
ENGLER
............................................................
First
Defendant
UPPERCASE
MEDIA
(PROPIETARY)
LIMITED
............................................
Second
Defendant
JUDGMENT delivered
this 29th day of April 2013
_____________________________________________________
NDITA ; J
[1] The plaintiffs, in
two causes of action, first sue the defendants for damages in the sum
of R100 000, 00 based on certain defamatory
utterances published,
together with the image of the first plaintiff, dressed as a clown,
in a copy of the For Him Magazine (FHM),
of which the first
defendant, at the time was the editor and the second defendant the
publisher. In the second cause of action,
the plaintiff alleges that
the full extent of the defamation of the first plaintiff
‘commensurately defamed the second plaintiff
and caused damage
likely to result in both plaintiffs losing business opportunities’.
[2] It must be stated
from the outset that for the purpose of this judgment, it is only the
claim by the first plaintiff that falls
to be considered. This is so
because the second plaintiff is a close corporation and defamation
derives from the
actio iniuriarum
, a remedy available for the
protection of personality rights consisting of physical integrity
(
corpus
), dignity (
dignitas)
, or reputation (
fama
)
not to recover patrimonial loss. This old principle has been
reaffirmed by the Supreme Court of Appeal in
Media 24 v SA Taxi
Securitisation
(437/2010)
[2011] ZASCA 117
(5 July 2011) when it
stated that a close corporation:
“
has no
corpus
,
it can have no
dignitas
,
nor
fama
in the sense of personality rights. What it can have is reputation in
the sense of goodwill. But that reputation is not a personality
right. It is an integral part of the corporations’ patrimony.
Damage done to the reputation could therefore constitute a
patrimonial for which compensation could be claimed under the action
legis
Aquiliae
and
not the
actio
iniuriarum
.”
In this case, the
plaintiffs have not claimed any such damages. It follows that a
sustainable cause of action in respect of the
second plaintiff ought
therefore to have been made under the
lex Aquilia
. It remains
to be said that Counsel for the plaintiffs conceded this fact, albeit
towards the end of the trial. For this reason,
the second cause of
action wherein it is alleged that the second plaintiff was defamed
cannot succeed. In the result, reference
to the second plaintiff in
this judgment is only relevant to the question of costs because the
claim falls to be dismissed.
[3] The first plaintiff
is an adult performing artist who has performed as, and developed the
character “
Puddles the Clown”
. It is alleged that
he has in this capacity entertained up to 35 000 people per year. The
second plaintiff, a close corporation
duly incorporated in terms of
the laws of the Republic of South Africa, with its registered address
at 170 Mountain Rise Road,
Scarborough, Western Cape is a vehicle
through which the first plaintiff performs and markets his public
image, character and talents.
The first plaintiff is the sole member
of the second plaintiff.
[4] According to the
particulars of claim, to promote his performing character, the
plaintiff modelled at a Boss Models/First Production
photo shoot for
Master File Corporation (‘MFC’) on 29 November 2006. He
was photographed by MFC agents in his Puddles
the Clown character,
riding a unicycle. MFC provides a database of images to users,
subject to certain terms and conditions that
regulate such use. It is
common cause in these proceedings that the image was published by the
defendants in the December 2007
FHM issue. Certain alleged defamatory
statements associated with the photograph of the plaintiff were also
published in the same
issue. In order to fully comprehend the issues
in these proceedings, it is necessary to set out the plaintiff’s
cause of
action as pleaded in the particulars of claim. The plaintiff
alleges that:
“
11. The
image of the first plaintiff was used and published by defendants in
the following manner and context:
11.1 On the cover of the December 2007
issue of FHM first defendant, acting in the capacity as aforesaid,
caused a reference to
be recorded to an article regarding “25
Things that suck”;
11.2 At page 81 of the magazine, of
which page a copy is annexed hereto as Annexure “NP3”, an
article appeared under
the title “FHM calls Bullshit”;
11.3 The main image that appears on
such page was one of first plaintiff depicting his character as
“Puddles the Clown”
riding a unicycle, the image
reflected on “NP1”;
11.4 The introductory paragraph of the
article read as follows:
“
We‘ve
taken it for far too long, men. It’s high time someone stood
up, extended an outstretched finger and waved it
in the face of all
that is absolute rubbish”;
11.5 The introduction continued:
“
Like
roaches, debt and beggars at the robot, some miff things just never
seem to go away, and FHM has had enough! . . .
FHM hereby calls bullshit on the
following 25 examples of utter
kakness
!”;
11.6 The article proceeded to state:
3.
Clowns and Mimes
Seriously, what the hell? Grown men,
often with long term tik habits, dressed like transvestites from
hell, scaring the crap out
of defenceless children who grow up
damaged. Like us! You’d have to be a mental-midget crack head
to find a clown in anyway
entertaining. Plus, they usually just weird
hippies under the goofy shoes and hideous makeup. Hardly childminding
material.
11.7 In close proximity to the image
of first plaintiff’s face the word “Bollocks!”
appeared together with an
image of a bull’s scrotum.
11.8 A “window” appeared
on the left side of the page next to the image of first plaintiff on
the unicycle, containing
the words “Will work for the second
wheel”.
11.9 The image of the plaintiff was
recorded as full-page image with the text on the page superimposed
over such image.”
[5] According to the
plaintiff,
the statements associated with his
image which are featured prominently on the relevant page, depicted
him in a defamatory manner
and impaired his
fama
.
Alternatively, so alleged the plaintiff, the statements conveyed to a
person of reasonable intelligence that the vocation and
business of
plaintiffs as
“
absolute rubbish”
and
“
bullshit”
.
In addition,
they suggested that the plaintiff:
“
(a) as one
of the genus of grown ‘men, often with long term
tik
habits’, is a drug abuser.
(b) is a ‘weird hippy, under
goofy shoes and hideous makeup’, denoting some other mental
instability or aberrant social
behaviour;
(c) causes, by the exercise of his
profession, emotional damage and stress to children.”
[6] As earlier said in
this judgment, the image of the plaintiff was sourced from MFC
pursuant to a photo shoot. Use of FMC images
is subject to certain
Terms and Conditions. One of such terms is that the user of the image
shall not permit its use in a defamatory,
pornographic or unlawful
context,
contrary to ethical business practices.
Clause H-4 c specifically provides as follows:
“
Sensitive
issues
If any image of a person is to be used
in a sensitive context (including, abuse, mental condition,
religious, political or racial
bias), then the existence of a model
release form may not be sufficient to protect you from action by the
person depicted in the
image (the “Model”). . .”
It is against this
background that the second leg of the plaintiff’s claim is
premised on the fact that the defendants intentionally
and
maliciously breached the duty arising from their agreement with MFC
by showing the plaintiff in a sensitive context relating
to
‘substance abuse’ and ‘mental condition’,
contrary to the MFC provisions mentioned above.
[7] The defendants
pleaded that the article was not intended to defame any person, but
was made in jest, and that a reader of reasonable
intelligence would
understand it as such. Furthermore, the article did not make any
reference to, nor identity either of the plaintiffs’,
nor could
their identities be inferred from it. In particular, the article
relating to “Car Guards” does not refer
to clowns and
mimes, and would not have been reasonably understood to do so.
[8] The pleadings further
reveal that the defendants instructed their attorneys to record the
following:
“
It is in
fact apparent from a careful perusal of the whole of the article that
the comments regarding, inter alia, clowns and mimes
were just
goo-natured fun and said in jest in a manner consistent with the
light hearted manner. Issues of this nature are normally
dealt with
and which has been understood as such by the readers of the article.
However, should your client still be
of the opinion that he was treated unfairly; our client is prepared
to publish a written apology
in this regard. It is also our client’s
intention not use your client’s image in the same context as
has been used
in the article.”
[9] The defendants filed
an amended plea wherein they pleaded that the first plaintiff signed
a Masterfile Model Release and waived
any right to claim damages from
the defendants, alternatively, the first plaintiff voluntarily
assumed the risk of his photograph
being published in the manner in
which it was. According to the defendants,
by
signing the relief form, the first plaintiff:
1. irrevocably
transferred and assigned to Master File all right, title and interest
in and to his image appearing in the photograph,
including the
unrestricted right to license the publication and reproduction of the
photograph and the first plaintiff’s
image.
2. understood and agreed
that the photograph was intended to be licensed for commercial gain
by Masterfile and its licensees;
3. consented to the
publication and reproduction of the photograph and his image by any
licensee in any form, without restrictions
on change or alterations
to or distortions of the photograph and his image, in all media,
including for any purpose whatsoever;
4. waived any right that
he might have to approve a finished product or the text that may be
used in connection with any reproduction
or publication of the
photograph and his image’
5. released Masterfile
and its licences from any claim for remuneration for any form of
damage or compensation, including (without
limitation to any claim
for libel and/or privacy and /or any publicity claim or any other
cause of action associated with any use
of the photograph and the
first plaintiff’s image, even if such use is objectionable to
him).
[10] In replication, the
plaintiffs alleged that the defendants’ amended plea failed to
set out a basis on which it can be
construed that an agreement
between Masterfile and the first plaintiff had been concluded. With
regard to the waiver, the first
plaintiff pleaded that he had never
been aware of the fact that he had been required to sign a document
exempting any party from
any wrongdoing, delict, or other unlawful
action, committed and/or perpetrated to the first or second
plaintiff. The first plaintiff
further averred that he would only
have signed such a document if the gist and content had been
misrepresented to him, and his
signing the document was never
intended to signify his assent to its contents. In addition, the
first plaintiff denied that the
defendants were Masterfile ‘
licensees
as described in the release
’. In the light of the fact that
the Model Release specifically stipulated that its provisions should
be construed according
to the laws of the province of Ontario and the
applicable federal laws of Canada, the first plaintiff pleaded that
he had no knowledge
of whether such laws permit the contractual
exemption from liability for wilful, intentional and malicious
actions. If that be
so, it would, according to the plaintiff, be
unconsciable and against public policy in Canada to exempt the
defendants for liability
in the present case. The first plaintiff
further averred that if it is established that the first plaintiff
waived his rights,
the second plaintiff’s rights to claim and
recover damages remained unaffected by the waiver of the first
plaintiff. In any
event, according to the plaintiffs, such an
exclusion is against public policy as well as the values of the
Constitution of the
Republic of South Africa.
The Issues
[11] It is trite that at
common law, the elements of delict of defamation are:
(a) the wrongful and
(b) intentional
(c) publication
(d) of a defamatory
statement
(e) concerning the
plaintiff.
In the present matter,
having regard to the aforementioned elements, the main issues for
determination as can be discerned from
the pleadings can be
summarised as follows:
1. Whether the
publication by FHM is defamatory.
2. If it is, whether it
could be understood to refer to the first plaintiff. Put differently,
it is whether the plaintiff was clearly
recognisable and identifiable
in the publication.
3. Whether the
defendants’ defence that it was not intended to defame any
person but was published in jest and would have
been so understood by
readers of reasonable intelligence.
4. whether the model
release signed by the plaintiff indemnified the defendants from
liability.
5. Whether the model
release form is
contra bonos mores.
A further issue that
arises in these proceedings relates to liability for costs which
stood over for later determination, occasioned
by the postponement on
May 2012.
Was the publication by
FHM
prima facie
defamatory?
[12] The first question
which must be considered is whether or not the publication in FHM is
prima facie
defamatory. It has long been accepted that the
determination of whether a publication is defamatory and therefore
prima facie wrongful
involves a two-staged enquiry. (See
Le Roux
and Others v Dey (Freedom of Expression Institute and Restorative
Justice Centre as Amici Curiae)
2011 (3) SA 274
CC). The first is
to determine the meaning of the publication as a matter of
interpretation and the second whether the meaning
is defamatory. The
test is objective. In making this determination, a court must take
into account what the publication conveys
and what a reasonable
person may infer from it. Whether the article was published in jest
remains to be considered later in this
judgment. The publication of
the image of the first plaintiff as a clown riding a unicycle per se
is not defamatory. However, the
same cannot be said of the text
associated with it. The description of clowns and mimes as grown up
men with long- term
tik
habits, dressed like transvestites
from hell, scaring the crap out of defenceless children who grow up
damaged, is without a doubt
defamatory. A reasonable reader would
have regard not only to what is stated about clowns but to what is
implied in the rest of
the article. The caption of the article boldly
refers to what ‘
FHM calls bullshit’
and invites
men to extend an outstretched finger and wave it in the face of all
that is absolute rubbish. By implication, clowns
and mimes fall into
this category. Next to the image, it states ‘
will work for a
second wheel’
. It also has an insert showing a bull’s
scrotum, highlighted in similar fashion as the one on clowns and
mimes. It is more
probable that the article bore a defamatory meaning
to a reasonable reader. In my view, there is no room for a reasonable
alternative
interpretation that renders it capable of being construed
as innocent. To this end, the defendants correctly conceded that any
reasonable reader would tend to think less of clowns and mimes if
he/she were to learn them that they often have long term
tik
habits, scare children, wear goofy shoes and hideous make-up.
Without repeating the entire publication, it can therefore be
accepted
that the publication by FHM is defamatory. Indeed, I think,
it is fitting to conclude that the effect of the article was
belittling
and humiliating to the first plaintiff as the words used
have a tendency of disparaging him in the eyes of people. But the
matter
does not end there, context is equally important. Thus, it
must be considered in the circumstances of this case whether the
publication
can be understood to refer to the plaintiff.
Can the defamatory
statements be understood to refer to the first plaintiff?
[13] It is trite that the
onus to prove the defamation lies with the plaintiff. In the context
of this matter, the plaintiff must
prove that the words in the
relevant paragraph of the publication refer to him or that he is the
person who has been defamed. Counsel
for the defendants argued that
the plaintiff failed to show that the paragraph refers to him rather
than to the totality of clowns
and mimes, and was similarly unable to
show that a reference to Puddles the Clown is a reference to him.
Should this court uphold
this contention, it is the end of the
matter. It therefore is in my view sensible to deal with this
contention upfront in the context
of the arguments presented as well
as the evidence tendered.
[14] At this point, it
makes sense to consider the evidence tendered on behalf of the
plaintiff. As earlier alluded to in this judgment,
it is common cause
that the first plaintiff, Mr Norman Pugney is a performing artist and
has been one for 25 years. He testified
that at the beginning of his
career, he was self-taught but later trained in Broadway, New York.
One of his performances features
the use of a unicycle, which he has
been riding since the age of 13 years. According to his evidence, he
has, through his character,
Puddles the Clown, entertained
approximately 35 000, 00 people. He is the sole member of the second
plaintiff, a company which
was formed in 2007.
[15] With regard to the
events leading to publication of his image as Puddles the Clown in
the FHM magazine, the plaintiff testified
that he was advised by his
friend and fellow juggler, Mr Gabriel Heflin that there would be an
audition for artists with skills
on 29 November 2006. Clad in his
performance attire, he attended the audition which was followed by a
photo shoot, and was paid
an amount of R1400.00. During his
testimony, the plaintiff was shown a Masterfile Model Release duly
signed by him. The plaintiff
testified that he did not recall signing
the form, but even if he did, he could not ‘
have signed away
his good name’
as his performing character is his
livelihood. The release reads as follows:
“
FOR VALUE
RECEIVED (receipt and sufficiency of which are acknowledged as full
and final payment for the rights conveyed hereunder
and release
granted herein), I, the undersigned, hereby irrevocably transfer and
assign to Masterfile Corporation (“Masterfile”)
all
right, tittle and interest, in and to my image (“My Image”)
appearing in the photographs taken of me on 29. 11.
2006 at . . .
Including the unrestricted right to
publish or reproduce and to licence the publication and reproduction
of the Photographs and
My Image. I acknowledge and agree that
Masterfile owns the copyright to the photographs.
I understand and agree that the
Photographs are intended to be licensed for commercial gain by
Masterfile, its agents, representatives,
licensees and/or assignees
(the “Parties”). I consent to the publication and
reproduction of the Photographs and My
Image by the Parties and their
licensees in any form, without any restrictions on changes or
alterations to or distortions of the
Photographs and My Image, in all
media, now or hereafter developed, including, but not limited to,
advertising, display, editorial,
internet, packaging, television, or
for any other purpose whatsoever. I hereby waive any right that I may
have to approve a finished
product or the text that may be used in
connection with any reproduction or publication of any of the
Photographs or my Image.
I hereby release Masterfile, the
Photographer, the Parties and their licensees from any claim for
remuneration for any form of
damage or compensation, including
(without limitation) any claim for libel and/or invasion of privacy
and /or any publicity claim
or any other cause of action associated
with any use of the Photographs and My Image, even if such is
objectionable to me. I hereby
expressly waive any right to seek,
obtain, or enforce any injuctive or other equitable relief against
Masterfile, the Photographer,
the Parties and their licensees. I
agree that this Model Release shall be governed and construed
according to the laws of the Province
of Onario and the applicable
Federal laws of Canada and I agree to the exclusive jurisdiction and
venue of the courts located in
Toronto, Ontario.
. . . “
[16] Pursuant to photo
shoot, the first plaintiff testified that in November 2007, he
received a call from Mr Mark Sampson, a stand-up
comedian he has
known since 1993, alerting him to an article published in FHM,
slating his profession and industry and depicting
him as a substance
abuser. In his evidence, the image was clearly recognisable as
himself as well as the fictional character Puddles.
[17] In
cross-examination, the first plaintiff readily conceded that when he
performs, he hides himself in the Puddles persona,
through make-up
and the attire, and as such he was not easily recognisable or
identifiable, unless a person already knew him, as
is the case with
Mr Sampson. He further admitted that the use of his image is
illustrative of clowns generally. Whilst admitting
that he signed the
Masterfile Model Release fully aware that he was selling his image,
the first plaintiff stated that he did not
read the Terms and
Conditions and had no control of over how other people would use it,
but he believed that the image would be
used in a positive light. The
first plaintiff further had no direct knowledge of how the defendants
sourced the image from Masterfile
or what their relationship with
Great Stock was. When it was put to him that the publication, read in
context of other articles,
was tongue in cheek satire or good natured
fun, and not intended to defame, he responded that its effect
degraded him. It is for
this reason that he felt that an apology
would not do him any good even though clowns are meant to be funny.
He was referred to
other text in the publication which he also
considered to be an attempt at humour, but was adamant that the
caption on a clown
on the unicycle and the words ‘will work for
a second wheel’ implied that he would be prepared to work for
virtually
anything, thus degrading him.
[18] As earlier alluded
to in this judgment, Mr Mark Sampson, after purchasing the December
2007 issue of FHM magazine, saw the
image of Puddles the Clown, which
he immediately recognised and identified as the first plaintiff, whom
he has known since 1993.
In his opinion, the image was not a big
transformation of the first plaintiff as he was recognisable. After
reading the text associated
with the image, Mr Sampson was concerned
with the manner in which the article depicted the first plaintiff,
who is also a family
entertainer. According to the witness, it
suggested that clowns were ‘
crack-heads
’, and that
was in his view damaging to the first plaintiff who was recognisable
to also other people who know him in the
South Peninsula. Although he
saw the implied humour associated with the image, he considered the
use of the image as degrading
and unacceptable.
[19] Another performing
artist, Mr Martin Scott, was, as the plaintiff, also photographed for
an advert for Masterfile. He also
did not recall signing document
relating to the photo shoot. Mr Scott was shown the FHM by the first
plaintiff. The first plaintiff
was identified from the magazine by a
young child in his presence.
[20] It is the law that
the plaintiff must establish that the words complained of, (in this
case accompanying the image of Puddles
the Clown),
would
lead a reasonable person to believe that the words refer to the
plaintiff personally,
not to a large
indeterminate number of clowns. In
Neuman CC v
Beauty Without Cruelty
1986 (4) SA 675
(CC)
at 680 B, the principle was explained as follows:
"It is also trite that a
plaintiff or applicant in a defamatory action must allege and prove
that the defamatory matter was
published of and concerning him. It
must refer to or concern him personally (see Burchell the Law of
Defamation in South Africa
at 128; Goodall v Hoogendoorn LTD
1926 Ad
11
at 15; South African Associated Newspapers Ltd and Another v
Estate Pelser
1975 (4) SA 797
(A) at 810C; Knupffer v The London
Express Newspaper Ltd
(1944) 1 ALL ER 495
(HL) and it is whether the
ordinary reasonable reader would have understood the words complained
of, in conjuction in this case
with the picture, to apply to the
plaintiff or as in this case to the applicant ... This gives rise to
a two-stage inquiry. Firstly,
whether the words (with the picture)
are reasonably capable of referring to the plaintiff or applicant.
This is a question of law
and can be decided on exception. Secondly,
and if the answer to the first part is in the affirmative, whether a
reasonable person
would regard the words as referring to the
plaintiff or applicant. This is a question of fact on which evidence
would be admissible."
[21] The question that
must therefore be considered is whether the defamatory publication is
‘of and concerning’ the
plaintiff. One of the arguments
advanced on behalf of the defendants is that a reasonable reader of
FHM would recognise that the
image is merely illustrative of a
typical clown and given that there is no assertion that the plaintiff
is a tik addict, the words
cannot be imputed on the first plaintiff.
The second leg is that Puddles is a fictional character created by
the first plaintiff
and has no
locus standi in judicio
. Whilst
the latter contention is correct, I do not agree with the former.
[22] Even though the
plaintiff testified that he would probably not be recognisable by
anyone meeting him in the street as Puddles
the Clown, there is
uncontested evidence that he was recognised or identified from the
photograph by both Mr Sampson and Mr Scott.
The contention that the
people who know the plaintiff will invariable know that he is not a
tik
addict is, in my view, devoid of merit. I cannot
comprehend how it can be expected that every person who knows or can
recognise
or identify the plaintiff as featured in the article can be
privy to his true character and tendencies. I therefore, hold that
the plaintiff was personally recognisable and identifiable from the
image of Puddles the Clown.
[23] It must be accepted
in these proceedings that the defamatory words on their own and
without reference to the photograph, merely
constitute, as correctly
argued by Counsel for the defendants, a generic defamatory statement.
According to the defendants, it
cannot be found that a reader of
average intelligence would understand the defamatory statements as
referring to the plaintiff
personally. Having found that the first
plaintiff was recognisable and identifiable in his character of
Puddles the Clown, I proceed
to determine whether the defamatory
statements could be understood as referring to the plaintiff by the
ordinary reader. There
are certain special features indicating that
this is the case. For example, the reference to goofy shoes, hideous
makeup and the
second wheel would induce any reasonable reader to
examine the featured clown. In addition, although the article also
includes
content on car guards and airline fares, the image of
Puddles the Clown is prominently featured in the article. That on its
own
is bound to catch the attention of a reader. The yellow highlight
in a bold font corresponding with the clowns and mimes words conveys
a clear message to the reader that what FHM calls ‘
Bullshit’
is linked to the description of clowns. It is my judgment that the
probabilities are that the words are capable of being understood
as
referring to the plaintiff.
Was the publication
made in jest?
[24] I now turn to the
defendants’ defence that the publication was not intended to
defame any person but was published in
jest and would have been so
understood by readers of reasonable intelligence. They therefore bear
the onus of proving this defence
on a balance of probabilities.
[25] The defendants, in
support of this defence tendered the evidence of one witness, Mr
Hagen Engler, the first defendant. It is
common cause that he was the
editor of FHM magazine at the time of the publication of the article.
He testified that the defendants’
lack of intention to defame
is best understood in the context of the magazine’s target
market. According to his evidence,
between 70 and 80 percent of FHM’s
readership is made up of grown man from about 28/29 years upwards. In
his evidence, these
are loud and party-going males in the prime of
their lives. The magazine content in his opinion is sexy, funny and
useful, and
is not meant to be taken seriously and is purely for
entertainment and a laugh, but not exclusively. This is obvious from
the captions.
The first defendant further testified that the FHM
content is satirical.
[26] The first defendant
was extensively cross-examined on the use of profanities in the
publication as well as on the article he
wrote in his blog, which he
claimed was regulated and sometimes sanctioned by FHM policy. When it
was suggested to him that the
main purpose of the article was to put
scorn through use of humour, he was adamant that satire is part of
being funny. He was examined
on the contents of each article and what
follows is an upshot of how in his evidence he explained how the
words could be understood:
1 ‘
Will work for
a second wheel’
: The words can only relate to the clown on
the unicycle. It can also be interpreted to mean that the clown is a
beggar. Stated
differently, it equated the profession of the first
plaintiff with that of unemployed beggars seeking favours from
members of the
public.
2. ‘
Clowns and
mimes’
: The words are highlighted in a yellow block as they
pertain to the main picture. Clowns and mimes are an example of utter
kakness
but only humour was intended. The use of the profanity
can, in certain instances, be derogatory.
3 ‘
Long term tik
habits’
: Although the first defendant conceded that the
drug tik has impacted negatively on people’s lives, the words
were not intended
to insult.
4. ‘
Goofy shoes’
and hideous make-up’
: The witness conceded that not all
clowns wear goofy or whacky shoes.
5. ‘
Mental
midgets and crack-heads’
: Crack-head means a person who has
crossed the level of sanity. The use of the words was intended to
support the assertion that
clowns can be scary. The image of the
clown served to illustrate the words used.
6. ‘
Bollocks’
:
Use of this word is accompanied by the image of a bull’s
backside with hanging scrotum in close proximity of the clown’s
face. It refers to a load of rubbish but was not intended to scorn
clowns and mimes.
7. ‘
Like
Roaches’
: The words likened clowns and mimes to cockroaches
which are considered as dirty, vile and repulsive insects. However,
Mr Engler
explained that the likeness could also be interpreted as
tough and hard to destroy.
[27] It was put to Mr
Engler that, contrary to the averments in his plea, that FHM magazine
routinely dealt with light-hearted issues,
the 2007 issue contained
serious articles masked under humorous captions. The witness conceded
this point.
[28] Before analysing the
evidence,
it seems sensible to first recapture
the applicable principles and the approach of the courts where the
defence of absence of
animus iniuriandi
has been raised. These were succinctly summarised by
Brand AJ, in
Le Roux and Others v Dey (Freedom
of Expression Institute and Restorative Justice Centre as Amici
Curiae)
2011 (3) SA 274
(CC) at 274 as
follows:
“
[31] As to
the first ground, established principles of our law dictate that
motive to raise a laugh and not to injure, in itself,
would not
exclude
animus
iniuriandi
.
This is so because in our law motive does not necessarily correlate
with intent. A defendant who foresaw the possibility that
his attempt
at humour might be defamatory of the plaintiff, but nonetheless
proceeds with the attempt will have
animus
iniuriand
i
or intent in the form of
dolus
eventualis
.”
[29] It will
be recalled that the publication referring to the plaintiffs has been
found to be defamatory; the defendants in rebuttal
must therefore
plead and prove facts justifying the basis of their denial. The first
defendant in his evidence emphasized that
the article was satirical.
The Concise Oxford Dictionary defines satire as ‘
the
use of humour, irony, exaggeration, or ridicule to expose and
criticize people’s stupidity or vices’.
Whilst
it can be accepted that satire does constitute one form of the legal
defence of jest, however, defamatory ridicule masked
as satire cannot
exculpate one from liability. That said, it must be equally borne in
mind that the law of defamation requires
a balance to be struck
between the right to reputation, on the one hand, and the freedom of
expression on the other. (See
National Media
Ltd and Others v Bogoshi
1998 (4) SA 1197
at
1207( D)).
[30] With regard to the
context,
the court i
n
Mangope v Asmal and
another
1977 (4) SA
277
(T)
explained thus:
“
The next
question is whether the words do not constitute meaningless abuse.
Again it will depend on the circumstances in which they
were uttered
whether the words constitute meaningless abuse or not. In this regard
what was said by Price J in
Wood
NO and Another v Branson
at
371D is instructive: 'The context in which a word is used, the
circumstances in which it is used, the tone in which it is uttered,
are all facts which may render meaningless abuse defamatory.' I
may possibly add thereto the obvious, ie that words which
are
prima
facie
defamatory
can by those very facts be taken out of the cadre of defamatory
matter and reduced to meaningless abuse. It would obviously
be
premature to decide without the aid of evidence whether the words in
question constitute meaningless abuse. Mr
Marcus
argues
that, as the words were uttered during a public meeting by one
politician of and concerning another politician, the Court
as a
matter of policy ought not to sustain an action for damages based on
defamation. (I shall deal with the argument in this context
based on
s 15(1) read with s 35(3) of the interim Constitution later.) It is,
of course, so that over the years the Courts have
held that public
figures, and in particular politicians, must expect severe criticism
from their political opponents. The position
was succinctly put by
Ogilvie Thompson CJ in
Botha
en 'n Ander v Marais (supra
at
49F--H): 'Dit moet nie uit die oog verloor word nie dat die
gewraakte woorde tydens 'n politieke G toespraak gedurende
'n
verkiesingsveldtog deur 'n politikus van een politieke party tov 'n
ander politikus, 'n lid van 'n ander politieke party, gebesig
is.
Onder sodanige omstandighede -
alhoewel
ek geensins te kenne wil gee dat straffeloos belaster kan word nie
- is
sterkbewoorde kritiek van 'n politieke opponent niks ongehoord nie
(vgl met betrekking tot die verweer van billike kommentaar,
Waring
v Mervis and Others
547,
en gewysdes daar aangehaal).' (My emphasis.) I understand the
Chief Justice to have said that even politicians can be
defamed. They
must, however, not be overhasty to complain about slatings against
them unless it is really serious. Now it is obvious,
in my view, that
a distinction must be drawn between an attack against the dignity and
reputation of a politician, on the one hand,
and an attack upon his
political views, policies and conduct, on the other hand. When it
comes to the latter, the Courts will be
slower to come to the
assistance of a politician. But, even if, in that context, a
defendant oversteps the bounds of what is permissible,
he will be
held liable. On the other hand, if there is an unwarranted slating
which lowers him in the esteem of his fellow human
beings which is
not at all necessary in commenting upon his policy and his conduct, a
Court will be more readily inclined to protect
his dignity and
reputation.
[31]
The meaning of the ordinary reader was
revisited in
Times Media Ltd and others v
Niselow and another
[2005] 1 All SA 567
(SCA)
at 573, Mpati AP (as he then was) stated thus:
“
[9]
The first question to be considered is whether the article and
cartoon conveyed to the ordinary reader of the Sunday Times one
or
more or all of the defamatory imputations attributed to them in the
particulars of claim. Such an ordinary reader would be “a
person who gives a reasonable meaning to the words used within the
context of the document as whole and exludes a person who is
prepared
to give a meaning to those words which cannot be reasonably
attributed thereto.” (
Demmers
v Wylie and others
1980 1) SA 835
(A) at 842 H.) Very recently this court (per Lewis
JA), in
Mthembi-Mahanyele
v Mail & Guardian Ltd and another
[2004] 3 All SA 511
(SCA) at 520 paragraph [26], endorsed the
following statement by Colman J in
Channing
v South African Financial Gazetted Ltd
1966
(3) SA 470
(w) at 474 –C:
“
.
. . the ordinary reader is a ‘reasonable’,
‘right-thinking’ person, of average education and normal
intelligence;
he is not a man of ‘morbid and suspicious mind’,
nor is he ‘supercritical’ or abnormally sensitive; and
he
must be assumed to have read the article as articles in newspapers
are usually read. For that assumption authority is to be
found in
Basner
v Trigger
1945 AD 22
at pp 35-6. It is no doubt fair to impute to the ordinary
reader of the South African Financial Gazette a somewhat higher
standard
of education and intelligence and a greater interest in and
understanding if financial matters than newspaper readers in general
have. But this, I think, is clear: one may not impute to him, for the
purpose of this enquiry, the training or the habits of mind
of a
lawyer.”
As to the attributes of a
“right-thinking” person Marais JA said the following in
Independent Newspaper Holdings Ltd and others v Sulima
n
[2004]
3 All SA 137
(SCA) at 153 paragraph [29]:
“
For
myself, I have no doubt that sound legal policy should not require a
court hearing a defamation suit to ascertain in the meaning
and
effect of words by reference to the meaning and effect that would be
attributed to them by anyone other than the well-known
notional
reasonable person in the particular circumstances. Anything less
would be unfair to the publisher of the statement who
is sought to be
held liable; anything more would be unfair to a plaintiff who bears
the onus of establishing both the meaning of
the words used and the
defamatory nature of that meaning. In the former case it would
subject the publisher to liability for less
than reasonable
interpretations of published matter; in the latter case it would
require the plaintiff to establish more than that
reasonable readers
would attribute a particular meaning of a defamatory nature to the
matter. The same considerations apply, so
it seems to me, to the
suggestion (Jansen JA in
SA
Associated Newspapers Ltd en ‘n ander v Samuels
1980
(1) SA 24
(A) at 30 and
Demmers
v Wyllie
1980
(1) SA 835
(A) at 840) that one test should be applied when
ascertaining the meaning of the words used and another more
intellectually and
ethically rigorous test when deciding whether the
ascertained meaning is indeed defamatory. In my view, neither logic
nor sound
legal policy requires the application of two different
criteria to these questions.”
[32] With
this exposition of the law in mind, I turn to consider what the
cross-examination of the first defendant with regard to
the meaning
the words in the publication conveyed elicited. When it was suggested
to him that the article relating to beggars read
in context with the
words applicable to the first plaintiff, it contained a nuance that
the first plaintiff was a beggar,
he responded
that:
“
I
don’t think it was thought through in that way. It can be
interpreted in that way.”
In similar
vein, when asked about what was humorous with long-term
tik
habits, his unpersuasive response was that
the word
‘
tik’
is
humorous without giving an explanation of why that is so. Yet,
he readily conceded that drugs are a serious social
problem. In addition, the first defendant conceded that the article
about clowns
and mimes
“
in a certain way
would be derogatory”.
But the evidence
must be analysed in the context of the publication. The highlight of
the article is what:
‘
FHM
calls bullshit’ and inviting men to extend an outstretched
finger and wave it in the face of all that is absolute rubbish’.
Reference to the first
plaintiff clearly falls into this category. It continues:
“
Read
our list of shame, nod in quiet agreement, then vow to make a
difference! Complacency: you have had your time. Begone! FHM
hereby
calls bullshit on the following 25 examples of utter kakness!”
In addition,
the article likens the plaintiff in the Puddles and Clown attire to a
cockroach and a beggar, faking employment. Putting
aside the profane
language used, and considering the context, I have no doubt that
there is nothing humorous or off-beat in the
text used to describe
clowns and mimes. Admittedly,
some of the
articles featured in the FHM December 2007 edition are not serious.
For example, the ones on vegetarians, sushi, Goths,
traffic circles,
etc. However, the words used with reference to the plaintiff clearly
overstep the bounds of what is
permissible.
[33] Counsel
for the defendants argued that an important element of the evidence
demonstrating lack of
animus iniuriandi
is that the photograph of Puddles the Clown was acquired
after the article had been completed,
and for
this reason, this case was distinguishable from the facts of
Le
Roux v Dey
supra, where Brand AJ in his
majority judgment stated the following (at 318 B):
“
On
assumption, in the applicants’ favour, that they intended to
amuse fellow learners through wit, they knew at the time that
an
inherent element of the joke was to humiliate Dr and the principal.”
I do not
consider the acquisition of the photograph after the article had been
written as an indication of absence of an intention
to defame. The
element of defamation lies in the publication. Furthermore, the
evidence of the first defendant amply demonstrates
that the
defendants foresaw that the statements were likely to subject the
first plaintiff to ridicule and humiliation but went
ahead and
published the article all the same. In my judgment, an ordinary
reader would understand the statement
as
belittling the plaintiff, making him to look foolish and unworthy of
respect, or as exposing him to ridicule and contempt. I
am of the
firm view that this court must protect the reputation and dignity of
the plaintiff. In any event, even
if the
statements did raise a laugh, I am fortified in my view by the dictum
in
Dey,
supra
,
where the court dealt with the issue of jest and held
thus:
“……
.
the
mere fact that a statement raised a laugh does not mean that it is
not defamatory. Writing for the majority of the Supreme Court
of
Appeal in this case, Harms DP formulated the principle as follows.
'It
appears to me that if a publication is objectively and in the
circumstances in jest it may not be defamatory. But there is a
clear
line. A joke at the expense of someone — making someone the
butt of a degrading joke — is likely to be interpreted
as
defamatory. A joke at which the subject can laugh will usually be
inoffensive.' In the same vein Harms DP also referred
to
the distinction drawn by the author, Melius de Villiers,
between
'legitimate jest and jest that is not legitimate'. Latching on to
this distinction, both the applicants and the FXI maintained
that the
majority of the Supreme Court of Appeal set themselves up as arbiters
of what is a 'legitimate joke' in the sense of whether
or not a joke
is in good taste, unwholesome, objectively funny, and so forth. They
further argued, with particular reference to
certain passages from
the judgment of Sachs J in
Laugh
It Off Promotions
, that
the majority of the Supreme Court of Appeal had erred in doing so.
But I
do not believe that is what the majority of the Supreme Court of
Appeal set out to do. What they did was to differentiate
between
jokes which are defamatory and those which are not. This becomes
particularly clear when proper note is taken of the substance
of the
distinction by Melius de Villiers to which Harms DP referred. What De
Villiers describes as jest which is not legitimate,
is a joke which
would be insulting, offensive or degrading to another. Or, to apply
the test
formulated
by Harms DP, a joke in which the subject cannot share because it is
hurtful and defamatory to the subject. I believe
that is essentially
the same distinction that Innes CJ sought to draw in
Kimpton
v Rhodesian Newspapers Ltd
when
he said that a statement which raises a laugh is defamatory when
there is an element of
contumelia
in
the joke that is when it is insulting or degrading to the butt of the
joke. What I distil from all this is that in the present
context, the
question is not so much whether the attempt at a joke is objectively
funny or not. Nor is it of any real consequence
whether we regard the
joke as unsavoury or whether we think that those who may laugh at it
would be acting improperly. The real
question is whether the
reasonable observer will — perhaps while laughing —
understand the joke as belittling the plaintiff;
as making the
plaintiff look foolish and unworthy of respect; or as exposing the
plaintiff to ridicule and contempt. Everyday experience
tells us that
jokes are often intended to and are frequently more effective in
destroying the image of those at whom they are aimed.
If the joke
then achieves that purpose, it is defamatory, even when it is
hilariously funny to everyone, apart from the victim.
In
the case of defamation the line might not be so bright and sometimes
it might even be wavering. Nonetheless, it is there. In
principle it
is crossed when the joke becomes hurtful; when it represents the
teacher as foolish, ridiculous and unworthy of respect.
In the end it
comes down to a value judgment. In this case I share the value
judgment of the High Court, and the majority
of the Supreme
Court of Appeal, that the applicants had crossed the line”.
In the present matter,
the defendants crossed that line.
[34] The defendants in
argument stated that the first plaintiff accepted that the words were
published in jest. In addition, Mr
Sampson testified that the whole
article in which the paragraph in question appears was intended to be
funny but overstepped the
mark. Whereas Mr Sampson’s subjective
opinion bears little reference to the determination of this issues, I
do not think
that this concession bolsters the defendants’
case. It remains to be said that Mr Sampson, is the very person who
recognised
the image of the first plaintiff in FHM as Puddles the
Clown and considered it as an affront to his (the first plaintiff’s)
dignity. He testified that upon seeing the photograph, he was upset
that the first plaintiff was portrayed in a negative light
as he (the
plaintiff) is respectable and provides family fun. The first
plaintiff on the other hand gave evidence to the effect
that the
written apology offered by FHM was unacceptable because of the
irreparable damage done, it therefore would not serve any
good. It
seems to me that there would not be any need for this litigation if
the plaintiff had readily accepted that the publication
was made in
jest. The proper context of the plaintiff’s evidence is that
although he recognised that some of the statements
may have been an
attempt at humour, he did not know that his image would be used in a
negative light.
[35] The views I have
expressed in this judgment thus far carry very little weight if the
defendants are entitled to rely on the
plaintiff’s waiver of
his rights to use the photograph, and therefore released Masterfile,
its agents, or licencees from
any claim for remuneration for any
damage or compensation, including any claim for libel or any other
cause associated with their
use. I then turn to determine whether the
defendants are entitled to rely on the waiver.
Are the defendants
entitled to rely on the plaintiff’s waiver?
[36] As I have previously
said, it is not in dispute that the plaintiff signed the Masterfile
Model Release wherein he expressly
waived any right to seek, obtain
or enforce an injunctive or other equitable relief against Masterfile
and its agents. For the
waiver to kick in, the defendants must be
shown to have been, at the time the of publication of the photograph
and defamatory content,
licensees of Masterfile. The defendants are
required to prove that the terms of the waiver relied upon were part
of the agreement
between the plaintiff and Masterfile, and by virtue
of them being licencees, they were fully entitled to invoke the
injuctive exempting
them from liability.
[37] The approach to the
interpretation of exemption clauses as expounded and restated in
Johannesburg Country Club v Stott and Another
2004 (5) SA 511
(SCA) at 516 was summarised as follows:
“
[5] The
approach to the interpretation of exemption clauses is well-known. In
First National Bank of SA Ltd v Rosenblum and Another
2001 (4) SA 189
para [6] Marais JA said:
‘
Before
turning to a consideration of the term here in question, the
traditional approach to problems of this kind needs to be borne
in my
mind. It amounts to this: In matters of contract the parties are
taken to have intended their rights and obligations to be
governed by
the common law unless they have plainly and unambiguously indicated
the contrary. Where one of the parties wishes to
be absolved either
wholly or partially from an obligation or liability which would or
could arise at common law under a contract
of the kind which the
parties intend to conclude, it is for that party to ensure that the
extent to which he, she or it is to be
absolved is plainly spelt out.
This strictness in approach is exemplified by the cases in which
liability for negligence is under
consideration. Thus, even where an
exclusionary clause is couched in language sufficiently wide to be
capable of excluding liability
for a negligent failure to fulfil a
contractual obligation or for a negligent act or omission, it will
not be regarded as doing
so if there is another realistic and not
fanciful basis of potential liability to which the clause could apply
and so have a field
of meaningful application. (See South African
Railway and Harbours v Lyle Shipping Co Ltd
1958 (3) SA 416
(A) at
419D-E.)’
Scott JA, in Durban’s Water
Wonderland (Pty) Ltd v Botha and Another
1999 (1) SA 982
(SCA) at 989
stated:
‘
Against this
background it is convenient to consider first the proper construction
to be placed on the disclaimer. The correct approach
is well
established. If the language of a disclaimer or exemption clause is
such that it exempts the proferens from liability in
express and
unambiguous terms, effect must be given to that meaning. If there is
ambiguity, the language must be construed against
the proferens. (See
Government of the Republic of South Africa v Fibre Spinners and
Weavers (Pty) Ltd
1978 (2) SA 794
(a) AT 804 C. But the alternative
meaning upon which reliance is placed to demonstrate ambiguity must
be one to which the language
is fairly susceptible; it must not be
“fanciful” or “remote” (cf Canada Steamship
Lines v Regem [1952]
All ER (PC) at 310 C –D.”
[38] In order to properly
examine the defendants’ reliance on the exemption clause, it is
in my view fitting to provide a
concise background of Masterfile as
gleaned from the documents downloaded from its website and admitted
in evidence. Masterfile
is a Stock Image Lincensor and its Head
Office is in Toronto,
but it has strategic
alliances with independent agents around the world. In the document,
Masterfile explains its processes in the following
manner:
“
We acquire,
organize, distribute, and license images for commercial use in media
ranging from editorial publications to print advertising
websites.
Our images are acquired under exclusive contract from professional
photographers and illustrators who are paid a royalty
every time an
image is licensed. The images are store digitally, showcased,
licensed and delivered instantly to business clients
worldwide via
the internet 24/7.”
The mode acquisition of
images by clients is explained thus:
“
How
clients obtain images
Clients acquire images from Masterfile
either by searching on this website or else by calling or emailing us
and using our free
custom research service. High-resolution images
can be downloaded from this website in minutes. Images are licensed,
not sold outright.
We and our licensors retain copyright of all the
images.”
[39] Against this
background, I proceed to consider whether or not the defendants were
the licensees of Masterfile, and thus entitled
to rely on the waiver.
This determination necessitates an examination of the evidence.
[40] The first plaintiff
readily admitted that he sold his photograph as Puddles the Clown to
Masterfile. During cross-examination,
he was quizzed on the
allegation in the replication to the effect that the defendants were
not licencees of Masterfile. He understandably
was unable to confirm
the assertion but merely stated that in accordance with his
understanding, the defendants ought to be licensees
of Masterfile.
[41] The first defendant,
testifying on behalf of both defendants, gave a broad outline of how
the photograph of Puddles the Clown
was obtained. According to his
evidence, as FHM editor, he would come up with an idea and the
picture editor, Ms Celia McCulla
would then search for corresponding
images in the database. The witness testified that he has no personal
knowledge of how the
image of Puddles the Clown was obtained but
surmises from the correspondence filed of record that Ms McCulla
obtained it from Great
Stock!, a company he presumed to be an
affiliate of Masterfile. He further stated that despite the fact that
he, as the second
defendant was sued in his personal capacity, he had
never heard of Masterfile before. I must, from the outset, record
that Ms McCulla
did not give any evidence in these proceedings.
According to the first defendant, she has since left the media
industry but her
telephone details were available. According to the
witness, the manner in which the defendants obtain high resolution
images is
by sending out a request to agencies. In this instance, the
company that responded to such a request is Great Stock! (Pty) Ltd.
These images are low resolution and have a water mark, and both of
these features protect them from unauthorised use. The first
defendant explained that on receipt of the images, FHM selects the
ones it wishes to purchase and Great Stock! would then send
a high
resolution image, without the watermark which FHM could use for
publication. In addition, Great Stock! has an ongoing business
relationship with FHM, such that it invoices and bills FHM on a
monthly basis. It is not in dispute that the image of Puddles the
Clown was owned by Masterfile. At this point, in order to fully
comprehend the evidence of the first defendant, reference must
be
made to the email correspondence from which he, in his evidence draws
inferences.
[42] On 14 September
2007, Ms McCulla sent the following email to Images-General:
“
Hi
Can you help with the following
search? Please note that where possible the images should be humorous
and offbeat.
Clowns and mimes –perhaps a
clown or mime being hit or beat up or looking really stupid.
Goths – all in black and the
heavy make-up
T Cruise
Sushi – do not send if not
humorous
Australia – perhaps a barren
desert, a map or their poisonous animals such as the Redback Widow or
Inland Taipan etc etc
Rercord store staff – bad
attitudes, tattooed with piercing.
Roadblocks –local only
Moles – as in skin moles –
cancerous or not
Bon Jovi
Vegetarians
If you need further info, please let
me know.
Regards,
Celia McCulla –Picture Editor –
FHM South Africa
[43] Great Stock!,
through Ms Nadia Bowes-Moosa responded to the request by return of
email on 17 September 2007 as follows:
“
Good morning
Celia
I apologise for the late response, as
our Research Department needed more time in order to get the best
images for you.
I have attached images, as per your
brief received on Friday. Please let me know if is what you are
looking for.
Feel free to contact me should you
need assistance with anything else.
Kind regards”
[44] According to
invoices discovered by the defendants, dated 30 October 2007, the
defendants, paid an amount of R5, 472.00 for
the images received. The
photograph of Puddles the Clown is not amongst those for which
payment was tendered. The first defendant
testified that FHM was
unable to trace or find an invoice relevant to the purchase of the
image of Puddles the Clown. Nonetheless,
it was contended on behalf
of the defendants that in all probabilities, the purchase of the
image was a legitimate transaction,
first between Masterfile and
Great Stock! (based on the contract of agency) and then between Great
Stock! and FHM (based on a contract
of sale). Put differently, the
second defendant, also the owner of FHM is a licensee as described by
Masterfile. Furthermore, given
that the first defendant was an
employee of the second defendant, a factor giving rise to vicarious
liability, the first plaintiff’s
waiver applied to or included
anyone employed by a licensee and using the photographs of the first
plaintiff in that capacity.
[45] It remains to be
considered whether the defendants are Masterfile licencees as set out
in their plea. I have in this judgment
already outlined the terms and
conditions of use of Masterfile images. In order to become licencees,
the defendants were required
to register on the Masterfile website.
In my view, there are formidable obstacles to the defendants’
reliance on the waiver
on the basis of being a Masterfile licencees.
First, the defendants have not presented in evidence any document
constituting the
requisite licence, or any proof that they had
requested it. Neither have they produced proof of registration, a
clear indication
that they cannot be entitled to any rights from
Masterfile, more particularly the right to invoke the waiver. Second,
the first
defendant, as FHM editor, testified that he had no
knowledge of any interaction between the magazine and Masterfile.
Third, the
claim to being a licensee requires that a licence fee be
paid, no evidence was tendered indicating that this was the case.
There,
therefore, is no basis from which an inference can be drawn
that the defendants were licensees of Masterfile. At another level,
the defendants rely primarily on the agency relationship between
Great Stock! and Masterfile. To rely successfully on the waiver
on
these terms, it must be reiterated that the defendants must prove the
existence of a contract between themselves and Great Stock!
The
question is therefore whether the facts as revealed by the evidence
admit the drawing of such an inference.
[46] As earlier stated,
the evidence pertinent to the defendants’ dealings with Great
Stock! is largely inferential as the
first defendant admitted in his
evidence that he does not have first hand knowledge of how the image
of the first plaintiff was
obtained. The only reference to any
interaction between the defendants and Great Stock! is the email
correspondence referred to
in this judgment. What the email
correspondence establishes with certainty is that Ms McCulla did
request the image of a clown
and received the photograph of Puddles
the Clown. The difficulty that arises is that, for the defendants to
prove their purchase
of the image, there ought to be evidence
presented to that effect. There is absolutely none. It simply does
not bolster the defendant’s
case to prove that for other
images, payment was tendered to Great Stock!. It does the contrary.
In the absence of a receipt for
the purchase of the first plaintiff’s
image as Puddles the Clown, there, at least, ought to be an
explanation of the transaction
itself. This could have been easily
achieved by evidence of the very person who attended to the securing
of the photograph from
Great Stock!, Ms McCulla. The puzzling aspect
in these proceedings is that the first defendant eagerly testified
that he had the
telephone details of Ms McCulla. He was aware that
she was in the dog rearing business. It therefore cannot be said that
this witness
was unavailable. Yet Ms McCulla was not called as a
witness. The defendants ask the court to clutch the straws and draw
an inference
that the photograph was purchased from Great Stock!, and
this is how the low resolution image featured on the December 2007
was
obtained, yet this could have been easily explained by the
available witness. Ms McCulla’s evidence would have explained
and clarified the basis upon which the image of the first plaintiff
was obtained by FHM. To compound matters, Clause 2 of the Great
Stock! Terms and Conditions stipulates that:
“
. . . Images
may not be used or reproduced in any event until GS issues an invoice
granting you the right to use the images for
the use specified on the
invoice, and for no other purpose.”
[47] Assuming in the
defendants’ favour that for some reason, the invoice was
misplaced or could not be traced, it can be
expected that as soon as
payment was tendered, Great Stock kept a copy or record of the
parties to whom it had issued invoices.
Given the sound business
relations between Great Stock! and FHM, it is not unreasonable to
expect that Great Stock! would readily
provide a copy of whatever
records it may have, pointing towards the issuing of the licence in
respect of the subject photograph.
At the very least, the defendants
could have presented evidence to the effect that Great Stock! had
specified the existence of
an invoice in writing.
[48] It is my judgment
that there is no basis on which it can, in this matter, be inferred
that the defendants purchased the image
of the first plaintiff from
the Great Stock!, thereby invoking the injunctive promised by the
waiver signed by the plaintiff. After
all, an inference of this
nature can only be drawn when solid facts justifying it have been
presented to the court. This is not
the case in the matter at hand.
[49] Having found that it
has not been established that the defendants were licencees of
Masterfile and that there is no contractual
link between the
defendant and Great Stock!, it seems prudent to now deal with the
contention that the plaintiff had in any event,
generally waived his
rights to sue for damages. Pertinent to this issue is whether the
waiver is couched in a language so wide
that it operated in favour of
the rest of the people who acquired the image of the first plaintiff.
The approach of the courts
as set out in
Stott
,
supra
is
simply that Courts should not readily come to the conclusion that the
liability of a party for wrongdoing was intended to be
excluded by
contract.
[50] In the present
matter, there is no ambiguity in the waiver and the Masterfile Terms
and Conditions. When the language of the
waiver is read in the
context of the entire clause in its commercial background, it clearly
was intended to operate in favour of
Masterfile, the Parties and
their licencees, not indeterminate parties. In addition, the
Masterfile Terms and Conditions of use
of its images require that
there must be a contractual link between Masterfile and the user of
the image. In the light of the finding
to the effect that the
defendants are not licencees of Masterfile, and that neither have
they proved the existence of contractual
link with Great Stock, the
Masterfile agent, it is clear that the defendants’ reliance on
the waiver is misplaced.
[51] The views expressed
by Professors Dale Hutchinson and Belinda Van Heerden in
The Tort/
Contract Divide Seen from the South African Perspective
,
1997
Acta Juridica, 97
page 113 with regard to matters dealing with claims
for economic loss and unlimited liability to unknown claims are
relevant in
the present matter:
“
Here [where
a breach of contract causes loss not to a contracting party but
within a contractual matrix, as in Compass Motors] there
is no
privity of contract between the plaintiff and the defendant, but each
is linked by way of contracts to a middle party and
there is a clear
tripartite understanding of where the risk is to lie . . . . In such
a case, there is a little danger of indeterminate
liability. . . .
Even though, the plaintiff is
ex
hypothesi
, the plaintiff has no contractual remedy against the
defendant, all the parties to the arrangement knew where the
respective risks
lay. Therefore, each party, with high knowledge of
his risk exposure, could reasonably have expected to have protected
himself,
by other means (for example, through contractual
arrangements with other parties or by taking out appropriate
insurance). This
of course also brings the anti-circumvention
argument strongly to the fore: to superimpose on the consensual
arrangements a delictual
duty of care would disturb the balance, by
allowing a shifting of losses within the matrix, contrary to the
original understanding
of the parties. Unlike the concurrence
situation [as was the case in Lilicrap above], it cannot be argued
that the scope of delictual
liability necessarily be circumscribed by
the specific provisions of a contract between the plaintiff and the
defendant –
in this type of case, there is no direct
contractual link between them.”
[52] Even if it could be
said that there is ambiguity in the Master File Release document and
the ambit of its reach, the correct
approach to its interpretation
would be to construe it against the proferens. I have already stated
that Masterfile Model Release
is couched in unambiguous terms. Even
if it can be said that there is ambiguity, the alternative meaning
that the waiver was intended
to apply generally is ‘fanciful’
and ‘remote’. For the reasons outlined above, it is
inconceivable that
the waiver could by any means of interpretation be
construed to operate in favour of the defendants on the basis of its
generality.
[53] Two issues for
determination remain, namely, whether the Model Release is
contra
bonos mores
, and whether the Model Release should be construed
according to the laws of Ontario and the Federal Laws of Canada. In
the light
of the finding that the defendants are not entitled to the
protection of the waiver, it is in my view, not necessary to
determine
issues.
[54] In conclusion, I
have in this judgment found that the statements published in the FHM
December 2007 issue are defamatory of
the first plaintiff who was
recognisable and identifiable in his image as Puddles the Clown,
prominently featured on the relevant
page. In addition, the
defendants’ defence of jest has been found to be unsustainable.
In similar context, I have found that
the defendants have not
established privity of contract entitling them to rely on the Release
signed by the plaintiff. Linked to
this finding, I have in this
judgment held that the ambit of the application of the waiver was
unambiguous and if it was, any interpretation
to the effect that it
was intended to operate in favour of indeterminate defendants is
fanciful. It follows as a matter of course
that the defendants are
liable jointly and severally for the damages suffered by the first
plaintiff.
[55]
As indicated earlier in this judgment,
the
second plaintiff has neither
corpus
nor
dignitas
.
Any
damage done to its reputation therefore constitutes
patrimonial loss for which compensation could be claimed under the
action
legis Aquiliae
and not the
Actio Iniuriarum
.
There is no such claim in these proceedings. It follows that
the
claim by the second plaintiff must be dismissed with costs. Counsel
for the defendants submitted that these should be the costs
separately incurred in defending the second plaintiff’s claim.
I agree.
COSTS
[56] It is trite that as
a general rule, costs follow the result. It was submitted on behalf
of the defendants that the question
of costs must depend on the
extent of the plaintiff’s success; if token damages are
awarded, the plaintiffs should be ordered
to pay the defendants’
costs or each party pay its own costs. In the event of either of the
plaintiffs being successful,
it was further contended that the
defendants should be ordered to pay costs of the successful party on
the magistrate court scale
as the Magistrates’’ Courts
have, in terms of section 29 (1) of the Magistrates’ Court Act
32 of 144 read with
Government Notice R459 of 24 March 1995,
jurisdiction in respect of all actions that do not exceed R100 000,
00.
[57] It is so that the
amount of the plaintiff’s claim falls squarely within the
jurisdiction of the Magistrates’ Court,
but the nature of the
issues in this matter clearly show that a hearing before this court
is justified regardless of the damages
award. There,
therefore,
is in my view,
no
reason to deviate from the general rule.
COSTS OCCASIONED BY
THE POSPONEMENT
[58] I now turn to
consider the liability for costs occasioned by the postponement of
the hearing of this matter on 17 May 2012
as well as the wasted costs
of the postponement. In considering this point, some background is
necessary. Summons in this matter
were issued 28 May 2008. The
defendants filed their plea on 08 August 2008. The defence raised in
the plea was primarily that the
publication was made in jest and that
the first plaintiff was not recognisable in his image of Puddles the
Clown. It was specifically
pleaded that:
“
Save that
the Defendants do not know whether the Plaintiffs were parties to the
MFC agreement and make no admissions in that regard,
all the
allegations and conclusions of law set out herein are denied.”
The parties held a Rule
37 conference on 21 October 2011, setting out the manner of conduct
of the trial. Pursuant to the conference,
the defendant filed an
amended plea filed on 23 April 2012 wherein they raised the defence
of waiver. The amendment was filed on
11 May 2012, whilst the trial
was due to be heard on 17 May 2012. According to the first plaintiff,
because he had no recollection
of signing the waiver, the
introduction of the amendment necessitated a consultation with Mr
Gabriel Heflin, who had arranged his
presence at the photo shoot with
a view to establishing the circumstances surrounding the waiver. In
addition, the belated amendment
also necessitated an opportunity on
the part of the plaintiff to properly and fairly present their case
in relation to the contents
of the amended plea.
[59] The defendants on
the other hand submitted that the notice of the intention to amend
had been served on the plaintiffs more
than three weeks before the
trial and no objection was lodged. The three weeks gave the
plaintiffs sufficient time to deal with
issues raised and even
consult with Mr Heflin. The first defendant in his affidavit avers
that the consultation with Mr Heflin
is of no consequence as whatever
he had to say is immaterial when regard is had to the fact that the
first plaintiff signed the
release form. It is not in dispute that
the matter was on 17 May 2012 postponed because no judge was
available to hear it. To this,
the first defendants alleged that it
was therefore open to the plaintiff to utilise the days between the
17 – 21 May 2012
to consult with Mr Heflin.
[60] The approach to be
adopted with regard to costs occasioned by a postponement is restated
by Griesel AJA in
Subleme Technologies (Pty)
(Ltd) v Jonker and Another
2010 (2) SA 522
SCA as follows:
“
With regards
to costs occasioned by a postponement, the general rule is that the
party which is responsible for a case not proceeding
on the day set
down for hearing must ordinarily pay the wasted costs. It is
important to bear in mind, however, that a litigant
necessarily
‘responsible’ for the case not proceeding merely because
he or she applies for a postponement. In certain
circumstances, a
litigant may be forced to apply for a postponement as a result of the
conduct of an opponent, eg through inadequate
discovery, a late
amendment or any number of other reasons. The ‘normal rule’
only applies to ‘the party who
was at fault or in default.”
[61] The crux of the
defendants’ submission is that the plaintiff had approximately
three weeks to prepare and plead for trial
on the new issue of waiver
and Masterfile licence. This contention must be examined having
regard to the nature of the amendment.
The amendment introduced by
the defendants is significant as it strikes at the very core of the
plaintiff’s case. In my mind,
the fact that the first plaintiff
is a signatory of the disclaimer does not lessen its impact. It makes
perfect sense that the
plaintiff would need time to respond, plead
and prepare for trial or take some other action. It can be accepted
that the defendants
got hold of the model release document in
November 2011. The situation is further exacerbated by the fact that
the court is in
the dark as to the reasons for the late filing as the
defendants did not file any affidavit setting out the reason/s for
their
late filing. The first defendant also did not proffer any
explanation when cross-examined on this aspect. Even though the
plaintiff
may have had three weeks within which to react to the
amendment, it does not lie on the defendant to prescribe to the
plaintiff
the reasonableness of three weeks to respond to the
amendment. As I have said, the amendment was material. It required in
my view,
a full investigation of the facts as well as acquisition of
evidence pertaining thereto.
[62] In the premises, it
is my view that the defendants jointly and severally should bear the
costs occasioned by the application
to postpone and the wasted costs
of postponement.
QUANTUM OF DAMAGES
[63] It will be recalled
that the plaintiffs’ claim against the defendant is for damages
in the amount of R100 00. 00. It
was pleaded that the plaintiffs
jointly, alternatively individually and cumulatively, suffered
damages in that amount. The plaintiff
did not lead any evidence in
quantification of the damages. Similarly, as correctly submitted on
behalf of the defendants, neither
did the particulars of claim
contain any allegation regarding the extent of readership of FHM. In
determining the quantum of damages
in a defamation case, it is trite
that the Court will have regard to all the circumstances in the case.
Counsel for the defendants
referred the court to the judgment of
Buthelezi v Poorter and others
1975 (4) SA 608
(W) at
613H-616G wherein the relevant circumstances were outlined as
follows:
1. The content of the
defamatory statement and how ‘bad’ it was.
2. How seriously would
readers take a defamatory statement appearing in a publication of
that kind.
3. To what extent was the
plaintiff known to people generally.
4. The extent of the
publication.
5. The conduct of the
defendant after the publication. Has he or she apologised.
6. The recklessness of
the publication.
[64] Obviously, the
factors enumerated above must be considered in the context of that
particular case but may have regard to award
of damages in similar
matters. However, in
Van der Berg v Coopers & Lybrand Trust
(Pty) Ltd and others
[2000] ZASCA 77
;
2001 (2) SA 242
SCA at 260E-H, the court
cautioned that:
“
Comparisons
of the kind suggested serve a very limited purpose. In the nature 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 yardstick
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 upon the facts of the particular
case seen against
the background of prevailing attitudes in the community. Ultimately a
Court must, as best it can, make a realistic
assessment of what it
considers to be fair and just in all the circumstances. The result
represents little more than an enlightened
guess. Care must be taken
not to award large sums of damages too readily lest doing so inhibits
freedom of speech or encourages
intolerance to it and thereby fosters
litigation. Having said that that does not detract from the fact that
a person whose dignity
has unlawfully been impugned deserves
appropriate financial recompense to assuage his or her wounded
feelings.”
[65] Counsel for the
defendants further emphasized that in considering the award of
damages, Courts recognise the importance of
freedom expression. The
allegation that the plaintiff has long term
tik
habits is very
grave. Evidence was tendered that the plaintiff is a family
entertainer, appears at children’s parties and
has entertained
crowds of approximately 35 000, 00. Although no evidence of the
impact of the defamatory statements was led, I
think it can be
accepted that FHM readership is relatively wide. I have already
concluded that the context of the article was deriding
and
humiliating to the plaintiff, not only because of the statements
relating to clowns and mimes because it is linked to the following:
1. A ‘bull’s scrotum’,
2. ‘Will work for a
second wheel’,
3. Caption of what FHM
calls ‘bullshit’ as well as reference to cockroaches.
The fact that the
plaintiff thought that the apology was not enough is understandable,
the extent of the humiliation and degradation
warrants much more than
an apology. It must be said that it is clear from the language used
in the rest of the magazine that it
(FHM) is indeed not intended to
be a serious read. But it does contain some serious articles. Putting
aside the profanities, the
message conveyed is deriding of plaintiff
in his character Puddles the Clown. I am constrained to find that
only humour was intended.
Similarly, I have no doubt that ordinary
readers would view the allegation of having long-term
tik
habits in a very serious light. This is compounded by the fact that
the plaintiff’s audience is constituted of young children
whose
mothers would overly concern with exposing them to a clown so
depicted. I, therefore, hold that the defamation and resultant
humiliation was of a serious nature and cannot be airbrushed in the
name of jest. The plaintiff is therefore entitled to a substantial
amount of damages, taking all the relevant factors into account, not
to token damages as suggested by the defendants. In my judgment,
damages in the sum of R60 000 (sixty thousand) are justified.
[66] In conclusion, I
have in this judgment summarised my findings in respect of the issues
for adjudication, including the issue
of costs occasioned by the
application for postponement and the postponement. In analysing the
amount of damages, I have indicated
the amount I consider equitable.
It is therefore appropriate to collate the findings made into a final
order.
ORDER
[67] I, therefore, find
that the plaintiff is entitled to the relief sought in these
proceedings with costs. In all these circumstances,
the order which I
make is as follows:
The plaintiff’s
claim for damages against both defendants succeeds.
The defendants are
ordered to pay damages to the plaintiff in the amount of R60 000, 00
(sixty thousand) jointly and severally,
the one to pay the other to
be absolved.
The
defendants are ordered to pay costs of suit on the High Court scale
jointly and severally, the one to pay the other to be
absolved.
The defendants are
further ordered to pay the costs occasioned by the application to
postpone and the wasted costs of postponement
on the High Court
scale.
The second plaintiff’s
claim is dismissed with costs.
T. C NDITA
JUDGE: WESTERN CAPE
HIGH COURT
FOR THE 1
ST &
2nd
PLAINTIFF- Adv. T.A Barnard
Instructed by - Pitman
Spencer - Adam Pitman
FOR THE 1
st &2nd
DEFENDANT - Adv. E.W Fagan
Instructed by - Werksmans
Attorneys
DATE OF HEARING - 11
September 2012
DATE OF JUDGMENT - 29
April 2013