Baron Camillo Agasim-Pereira of Fulwood v Jonnic Media Investments Ltd and Others (3607/2004) [2008] ZAECHC 44 (3 April 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

In the matter between Case No: 3607/2004

THE BARON CAMILLO AGASIM-PEREIRA

OF FULWOOD Plaintiff

and

JOHNNIC MEDIA INVESTMENTS LTD 1st Defendant

THE EDITOR, SUNDAY TIMES

2nd Defendant

MICHAEL SCHMIDT 3rd Defendant

_______________________________________________________________

JUDGMENT

CHETTY, J

[1] The plaintiff instituted action for damages against the defendants alleging that he was defamed by the publication of two articles in the Sunday Times newspaper on 4 and 11 November 2001 respectively. The Defendants noted an exception to the plaintiff’s particulars of claim on the basis that it lacks averments necessary to sustain a cause of action. These exceptions fall into four broad categories articulated as follows:

“2. the meaning or stings pleaded in paragraphs 8.1, 8.4, 8.6, 8.7, 8.8, 8.15, 8.17 and 8.18 of the plaintiff’s particulars of claim are not reasonably capable of being defamatory of him.

3. The articles are not reasonably capable of bearing the meanings or stings pleaded in paragraphs 8.5, 8.9, 8.10, 8.11, 8.13, 8.14 and 8.15 of the plaintiff’s particulars of claim.

4. The meanings or stings that “the plaintiff was facing charges of fraud” and theft (paragraphs 8.3 and 8.16 of the plaintiff’s particulars of claim) are not reasonably capable of being defamatory of the plaintiff in the absence of any complaint regarding the statement, in the article that is annexure “A” to the plaintiff’s particulars of claim, that:

“On Wednesday, two of his SA bank accounts, containing R1,4 million, were frozen pending the outcome of a suit brought by Cape Town firm Cyberhost, of which he was once the chief executive but which now accuses him of stealing equipment worth R94 000. . .”

5. The articles are not reasonably capable of meaning that “the plaintiff was facing charges of . . . gun smuggling . . .” as alleged in paragraph 8.3 of the particulars of claim.”

[2] Before ruling on the exceptions, it must be emphasized that the articles are not alleged to be defamatory per se – specific meanings are sought to be drawn from the articles. Those specific meanings are specified in paragraphs 8.1 to 8.18 of the particulars of claim and these I will in due course reproduce verbatim. Suffice it at this juncture to say that there is a long line of authority to the effect that where specific meanings are pleaded these may only be relied on as quasi-innuendos, in other words a paraphrase of the alleged defamatory words in order to point to or identify the sting. In Demmers v Wyllie and Others 1978 (4) SA 619 (D) Didcott J described the quasi innuendo at page 622D as:-

“. . . a semantic exercise, purporting to be a paraphrase or elaboration of the words to which objection is taken. It does not profess to stray beyond their normal connotation, but draws from them and accentuates what are alleged to be the libellous implications already lurking there.”

See also De Villiers v Schutte 2001 (3) SA 834 (C) at 839F. Mr Beyleveld was thus at the outset constrained to concede that the case the defendants came to court to meet was the meanings selected as aforesaid in paragraphs 8.1 to 8.18 of the particulars of claim and that they, and they alone defamed the plaintiff.

[3] To avoid prolixity I shall adopt the methodology employed by plaintiff’s counsel in his summary of the content of the defamatory statements by firstly identifying the particular newspaper article (A or B or both) thereafter setting out the relevant paragraphs or statements therein followed, in bold lettering, by the meanings or stings attributed thereto in paragraphs 8.1 to 8.18 of the plaintiff’s particulars of claim respectively.

The first exception

[4] Article A

“He is a Brazilian born Scottish Baron who has adopted the Jewish faith”

The plaintiff was not born into his religious beliefs, but adopted same later (paragraph 8.1)

Plaintiff’s counsel correctly conceded that the pleaded sting is not reasonably capable of being defamatory of the plaintiff. The first exception must accordingly be upheld.

The second exception

[5] Article A

“- and now he’s on the run to avoid arrest on fraud, theft, gun smuggling and pornographic charges”

“He had asked Interpol to help track down Baron Camilo Agasim- Pereira.”

“Pereira his wife and brother Carlos immediately dropped out of sight”

“The police, however, take a serious view of arms smuggling, so the hunt is on.”

Article B

“Agasim-Pereira . . . dropped out of sight and fled to Mozambique last Tuesday as soon as he heard a cache had been seized”

“Interpol was alerted, two of his SA bank accounts containing R1.4 million were frozen . . .”

“The Baron was arrested on Tuesday at the Smart Rovuma Hotel in a swoop by local police.”

The plaintiff was a fugitive from justice. (paragraph 8.2)

There appears to be no precise definition for the phrase, fugitive from justice. In Mulligan v Mulligan 1925 W.L.D. 164 De Waal J suggested that it could either be one “wilfully avoiding the execution of the process of the court of the land” or “avoiding the processes of the law through flight out of the country.” See also Escom v Rademeyer 1985 (2) 654 (T) where Stegmann J at 657A-658H considered the aforementioned definition.

In general however a fugitive from justice is one who evades arrest or prosecution by fleeing the jurisdiction. In my view no reasonable reader could have understood the articles to mean that the plaintiff was a fugitive from justice. Being sought by the police is not synonymous with evading arrest or prosecution. The second exception must likewise be upheld.

The third exception

[6] Article A

“. . . he is on the run to avoid arrest on fraud, theft, gun smuggling and pornographic charges.”

“Agasim-Pereira, 41, who had been facing theft, crimen injuria, fraud and porn charges . . .:

The plaintiff was facing charges of fraud, theft, gun smuggling and pornography. (paragraph 8.3)

Whilst article B does say that the plaintiff had been facing the charges as stated, article A does not say so. The words used in article A are “on the run to avoid arrest” and there is no suggestion that the plaintiff has been or about to be charged. The issue for decision is therefore fairly narrow - is it defamatory to say that a person is facing charges of fraud, theft, gun smuggling and pornography. Would such words lower the plaintiff in the estimation of right thinking members of society? Mr Campbell submitted that the words used are not defamatory because the reasonable reader would not read any imputation of guilt in the allegations that the plaintiff was facing certain charges. I cannot agree. As pointed out by Colman J in Hassen v Post Newspapers (Pty) Ltd and Others 1965 (3) SA 562 (W) at 565D:-

“On general principles, therefore, it seems to me that it is defamatory to say of a person that he has been, or is about to be charged with a crime, although in certain circumstances a defendant can escape liability for such a publication. And I am supported in this view by authority. In Clark v Roodt, 1908 E.D.C. 303, an allegation that the plaintiff and another had been “summoned before the Supreme Court for theft” was held to be defamatory.”

See also Independent Newspapers Holdings Ltd and Others v Suliman [2004] 3 ALL SA at paragraph [78].

In my view the reasonable reader would discern no real difference between a person facing charges or one who has been or about to be charged and on the authority referred to I am satisfied that it is defamatory to say the plaintiff was facing charges.

[6.1] Mr Campbell submitted however that even assuming that the postulated reader would regard the statements as being defamatory of the plaintiff, its publication would not materially injure the plaintiff’s reputation by reason of the latter’s failure to sue in respect of the allegation in the third paragraph of article A to the effect “on Wednesday, two of his SA bank accounts, containing R1.4 million, were frozen pending the outcome of a suit brought by Cape Town firm Cyberhost, of which he was once the chief executive but which now accuses him of stealing equipment worth R94 000, 00”, are not alleged to be false. Consequently the allegation that the plaintiff was facing charges cannot have any material effect on the plaintiff’s reputation. In support of his submission that the defendant is not liable if a sting that is not justified does not materially affect the plaintiff’s reputation having regard to the truth of the remaining allegations, counsel referred to a number of foreign authorities, in particular Irving v Penguin Books (2000) EWHC QB 115 at paragraphs 13.165-13.167; John Fairfax Publications v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541; Hepburn v TNC Channel 9 (1984) 1 NSWLR 386 at p405B-D; Jackson v John Fairfax & Sons (1981) 1 NSWLR 36 at pp38G-40C; TNC Channel 9 v Antoniadis (1998) 44 NSWLR 682 at pp691E-692A.

[6.2] Comparative references to foreign judgments as a persuasive source has been a notable feature in the jurisprudence of the Superior courts. Its acceptance however was not often welcomed. In the modern constitutional era however there should be less resistance to refer to and where necessary, adopt the reasoning in those judgments which enrich our body of law. In Irving (supra) the main issue was summarised at paragraph 1.2 of the judgment as:-

“The essential issue in the action can be summarised as follows: Irving complains that certain passages in the Defendants’ book accuse him of being a Nazi apologist and an admirer of Hitler, who has resorted to the distortion of facts and to the manipulation of documents in support of his contention that the Holocaust did not take place. He contends that the Defendants’ book is part of a concerted attempt to ruin his reputation as an historian and he seeks damages accordingly. The Defendants, whilst they do not accept the interpretation which Irving places on the passages complained of, assert that it is true that Irving is discredited as an historian by reason of his denial of the Holocaust and by reason of his persistent distortion of the historical record so as to depict Hitler in a favourable light. The Defendants maintain that the claim for damages for libel must in consequence fail.

At paragraph 13.166 of the judgment the learned judge analysed the evidence adduced and acknowledged that:-

“. . . there are certain defamatory imputations which I have found to be defamatory of Irving but which have not been proved to be true. The Defendants made no attempt to prove the truth of Lipstadt’s claim that Irving was scheduled to speak at an anti-Zionist conference in Sweden in 1992, which was also to be attended by various representatives of terrorist organisations such as Hezbollah and Hammas. Nor did they seek to justify Lipstadt’s claim that Irving has a self-portrait of Hitler hanging over his desk. Furthermore the Defendants have, as I have held, failed in their attempt to justify the defamatory imputations made against Irving in relation to the Goebbels diaries in the Moscow archives. The question which I have to ask myself is whether the consequences of the Defendants’ failure to prove the truth of these matters is that the defence of justification fails in its entirety.”

He answered the aforementioned question in paragraph 13.167 by holding:-

“The answer to that question requires me to decide whether (I am paraphrasing section 5 of the Defamation Act 1952) the failure on the part of the Defendants to prove the truth of those charges materially injures the reputation of Irving, in view of the fact that the other defamatory charges made against him have been proved to be justified. The charges which I have found to be substantially true include the charges that Irving has for his own ideological reasons persistently and deliberately misrepresented and manipulated historical evidence; that for the same reasons he has portrayed Hitler in an unwarrantedly favourable light, principally in relation to his attitude towards and responsibility for the treatment of Jews; that he is an active Holocaust denier; that he is anti-semitic and racist and that he associates with right wing extremists who promote neo-Nazism. In my judgment the charges against Irving which have been proved to be true are of sufficient gravity for it to be clear that the failure to prove the truth of the matters set out in paragraph 13.165 above does not have any material effect on Irving’s reputation.”

[6.3] I am in respectful agreement with the reasoning adopted by the learned judge. In casu the reasonable reader, having read, in the first paragraph of the article that the plaintiff was “on the run to avoid arrest on fraud, theft, gun smuggling and pornography charges” and further told that the plaintiff’s erstwhile company had accused him of theft to the tune of R94 000, 00 would, given the plaintiff’s status as the company’s CEO and that he had stolen from his own company have attached far greater weight to the latter allegations than the former which merely allege that he was on the run. Consequently the sting pleaded is not justified inasmuch as it does not materially injure the plaintiff’s reputation given the latter’s omission to sue in respect of the Cyberhost allegations. The exception must, on this basis therefor likewise be upheld.

The fourth exception

[7] Article A

“. . . thought to be staying incognito at the five star Polana Hotel in Mozambique after sneaking out of South Africa . . . “

“. . . The Baron was arrested on Tuesday at the smart Rovuma Hotel in a swoop by local police”

“We think he spent his nights at three different places, including the Costa do Sol and the Holiday Inn.”

“. . . boasting that he had been living it up at the bar of the five star Polana Hotel in Maputo.”

The plaintiff stayed at exclusive hotels and was extravagant. (paragraph 8.4)

It is not defamatory to say of any person that he or she stayed at expensive hotels and was extravagant. No reasonable person of ordinary intelligence would understand the words of the article to convey a meaning defamatory of the plaintiff. In fact Mr Beyleveld conceded that this exception be upheld.

The fifth exception

[8] Article A

“He is on the run to avoid arrest on fraud, theft . . . charges”

“He had asked Interpol to help track down Baron Camilo Agasim- Pereira . . .”

“. . . after sneaking out of South Africa on a Mozambique diplomatic passport – one of eight passports he allegedly owns.”

“On Wednesday two of his SA bank accounts, containing R1.4 million, were frozen pending the outcome of a suit brought by Cape Town firm Cyberhost, of which he was once the chief executive but which now accuses him of stealing equipment worth R94 000, 00 and fraud to the tune of about R340 000.”

“. . . police also wanted to question another of the baron’s brothers, Carlos, for allegedly helping the baron to flee Port Elizabeth.”

“Agasim-Pereira . . . who had been facing theft . . . fraud . . . charges”

“Interpol was alerted, two of his SA bank accounts containing R1.4 million were frozen”

The plaintiff was dishonest. (paragraph 8.5)

I have analysed the offending paragraphs of both articles in order to determine whether the language carries the meaning contended for. It clearly does not. Mr Campbell correctly submitted that without linking an imputation of dishonesty to a statement in the article, the allegation of dishonesty is meaningless.

The sixth exception

[9] Article A

“and the baron’s Senegalese bodyguard . . . have been arrested with helping the baron to escape.”

“Agasim-Pereira appeared in the dock alongside his Senegalese bodyguard . . . “

The Plaintiff required a bodyguard. (paragraph 8.6)

Nowhere in the article does it say that the plaintiff required a bodyguard. Plaintiff’s counsel correctly conceded that this exception likewise be upheld.

The seventh exception

[10] Article A

“Then, about two years ago, Pereira paid about £30 000 (about R285 000) for the title of baron of Fulwood, which is connected to the Scottish county Renfrewshire, east of Glasgow.”

“All of a sudden, the man whom employees had known simply as Camilo insisted he be called the Baron of Fulwood and his wife the Baroness.”

“His new penchant for wearing a kilt to an orthodox synagogue in Port Elizabeth provoked discreet mirth, although the social set enjoyed the lavish parties he threw in the city.”

“But it was in the same city that his carefully cultivated mask of nobility cracked . . .”

“born in Brazil, he purchased the defunct Scottish title of Baron of Fulwood several years ago . . .”

The plaintiff purchased the title “Baron” and that his baronage was accordingly self-styled and not deserved. (paragraph 8.7)

The short answer is that it can hardly be contended that it is defamatory to say a person purchased a title. This exception must likewise be upheld.

The eight exception

[11] Article A

But the baron thumbed his nose at his pursuers, phoning a reporter Julian Rademeyer, to say “tell them I am in the Polana Hotel in Mozambique”.

“insisted he be called the Baron of Fulwood and his wife the Baroness.”

Article B

“The baron had thumbed his nose at his pursuers, boasting that he had been living it up at the bar of the five star hotel in Maputo.”

The plaintiff was arrogant. (paragraph 8.8)

There is no insinuation of arrogance anywhere in the articles and no reasonable reader would have regarded the words as being defamatory. The exception must be upheld as well.

The ninth exception

[12] Article A

The plaintiff was a fraud with regard to his status as a baron. (paragraph 8.9)

What the article in fact says is that the plaintiff paid £30 000 for the title. It contains no allegation or insinuation of any associated fraud. The exception must be upheld.

The tenth exception

[13] Article A

“he’s on the run to avoid arrest on . . . pornography charges.”

“A doctored photo of a three-some with the faces of Mayhew and his daughter Keisha and Tiffany added, was sent by e-mail, allegedly by Pereira. Mayhew declined to comment beyond confirming he is “the complainant in the crimen injuria and pornography case”.”

The plaintiff distributed pornography. (paragraph 8.10)

The sting relied upon is that the plaintiff distributed pornography. No reasonable reader could have understood the article in the manner contended for. This exception must likewise be upheld.

The eleventh exception

[14] Article A

“Grobler said that over the past week, since the case against the baron had come to light, eight death threats had been received by witnesses and associates, including one in Miami. Gunshots were also fired outside Mayhew’s home.”

The plaintiff has made death threats to people. (paragraph 8.11)

Here again, no reasonable reader could have understood the article to mean that the plaintiff had made death threats. The exception must be upheld.

The twelfth exception

[15] Article A

“The plaintiff returned to Port Elizabeth that week to face trial on three counts of crimen injuria and one of distributing pornography.”

The plaintiff was charged with crimen injuria. (paragraph 8.12)

The words crimen injuria without elaboration would be meaningless to most people and no reasonable reader would regard this as defamatory. In any event and for the reasons stated in paragraphs 6.1 to 6.3 hereinbefore the exception must likewise be upheld.

The thirteenth exception

[16] Article A

“. . . Pereira admitted that two AK47 and a Hechler and Koch sniper’s rifle found at Plant’s home were his . . .”

“The police, however, take a serious view of arms smuggling, so the hunt is on.”

“Grobler said that over the past week, since the case against the baron had come to light, eight death threats had been received by witnesses . . .”

“Gunshots were also fired outside Mayhew’s home.”

“. . . after a police raid on his PE home netted an arms cache comprising two AK47’s, a dismantled sniper’s rifle . . .”

“He told Magistrate Gail Pretorius that he had stored the weapons above his ceiling after the baron had asked him to do so.”

The plaintiff possessed a sniper’s rifle and was dangerous. (paragraph 8.13)

Read in their entirety the articles state quite categorically that the firearms including the sniper’s rifle were imported from the United States of America. There is no allegation of unlawfulness. No reasonable reader could have understood the articles to mean that the plaintiff was a dangerous individual. The exception must accordingly be upheld.

The fourteenth exception

[17] Article A

“. . . Pereira admitted that two AK47 and a Hechler and Koch sniper’s rifle found at Plant’s home were his . . . “

“The police, however, take a serious view of arms smuggling, so the hunt is on.’

“Grobler said that over the past week, since the case against the baron had come to light, eight death threats had been received by witnesses . . .”

“. . . after a police raid on his PE home netted an arms cache comprising two AK 47”s, a dismantled sniper’s rifle . . .”

He told Magistrate Gail Pretorius that he had stored the weapons above his ceiling after the baron had asked him to do so.”

The plaintiff was an arms smuggler. (paragraph 8.14)

I am at a complete loss to understand how the reasonable reader could have construed the statement to mean what is alleged to be the string. Read as a whole both articles specifically say that the weapons had mistakenly been imported. Once again the exception must be upheld.

The fifteenth exception

[18] Article B

“. . . accused arms smuggler Baron Camilo Agasim-Pereira, who was deported from Maputo to South Africa this week.”

The plaintiff was deported from Maputo to South Africa. (paragraph 8.15)

It is clearly not defamatory to say of a person that he was deported and no reasonable reader could have understood it to be so. People are deported for a multiplicity of reasons.

The sixteenth exception

[19] Article A

“he’s on the run to avoid arrest on . . . fraud charges.”

“. . . two of his SA bank accounts . . . were frozen . . . which now accused him . . . of fraud to the tune of R340 000.”

“Agasim-Pereira, 41, who had been facing . . . fraud charges . . . dropped out of sight.”

The plaintiff was facing charges of fraud. (paragraph 8.16)

For the reasons set out in paragraph [6.1 to 6.3] this exception must be upheld.

The seventeenth exception

[20] Article A

“. . . after sneaking out of South Africa on a Mozambican diplomatic passport – one of eight passports he allegedly owns.”

“He had managed to cross into Mozambique on a Mozambican diplomatic passport – one of eight which police says he owns.”

“. . . although the baron was accredited by Mozambique as an honorary consul in Miami, his acquisition of a diplomatic passport was “somehow irregular” and he had no diplomatic immunity to prosecution.”

The plaintiff had irregularly acquired a diplomatic passport in Mozambique.(paragraph 8.17)

No reasonable reader could have understood the statement to convey what is contended for.

The eighteenth exception

[21] Article A

“. . . and the baron’s Senegalese bodyguard . . . have been arrested with the helping the baron escape.”

“Agasim-Pereira appeared in the dock alongside his Senegalese bodyguard . . .”

The plaintiff required the protection of a bodyguard. (paragraph 8.18)

It is clearly not defamatory to say that a person required the protection of a bodyguard. This exception must likewise be upheld.

[22] It will be gleaned from the aforegoing that all the exceptions have been upheld. The usual order is to set aside the particulars of claim and grant the defendant leave to file amended particulars. Mr Campbell has however urged me not to grant such an order but to dismiss the action by reason of the passage of time which has elapsed since publication of the articles, a period of some seven years. In my view such an order would not be appropriate. In the result the following order will issue:

The exceptions are upheld with costs.

The plaintiff’s particulars of claim are set aside and the plaintiff is granted leave, if so advised, to file amended particulars of claim within one month.

__________________________

D. CHETTY

JUDGE OF THE HIGH COURT

Date Heard: 13 March 2008

Date Delivered: 3 April 2008

For the Plaintiff: Adv Beyeleveld instructed by Burmeister De Lange (K Williams)

For the Defendants: Adv Campbell instructed by Pagdens Stulting (R H Parker)