du Plessis v J T Publishing (EDMS) Beperk (751/2005) [2007] ZAGPHC 41 (25 May 2007)

IN

THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 751/2005

DATE: 25/05/2007

UNREPORTABLE

DU

PLESSIS JUANITA PLAINTIFF

and

J T PUBLISHING (EDMS) BEPERK FIRST DEFENDANT

EUGENE

GODFREY GODARD SECOND DEFENDANT

JUDGMENT

MAVUNDLA. J

1. The plaintiff, an adult female singer, has instituted a defamation case against both the first defendant and the second defendant in terms whereby she claims payment of an amount of R200 000,00 being damages she has suffered as a result of a defamatory publication caused or made by the defendant.

2. The first defendant is a publisher of a “Loslyf” magazine and the second defendant is a director of the said magazine, who it is alleged that at all relevant time hereto he acted within the scope of his employment as a director.

3. On the hearing of the matter I was informed by Mr D . Prinsloo, counsel for the plaintiff, that the matter is unopposed since the first defendant has filed a notice of withdrawal of its defence on the 4 September 2006. Notwithstanding the aforesaid

withdrawal, a notice of set down of the matter on the roll of the 16 May 2006 was served upon the offices of the first defendant by the sheriff of this Court on the 20 February 2007, since the attorney of record of both the first defendant and the second defendant has already withdrawn as attorneys of record in this matter.

4. In respect of the second defendant, it was placed on record that the plaintiff is no longer pursuing her claim against the second defendant and that she abandons her claim against him.

5. In paragraph 5 of her particulars of claim, the plaintiff avers that during October a manipulate picture of the plaintiff was published in the aforesaid magazine with the following words:

“Ek kan nie Skarumba sing met ‘n mond vol kom nie. Juanita Du Plessis:my verslawing aan orale seks.”

6. The plaintiff did not testify. However, having regard to the nature of the publication and the fact that she is apparently a well known singer within the Afrikaans community, because of the concomitant embarrassment of the publication, she preferred to file an affidavit instead of testifying viva voce, and also having regard to the fact that what remains in issue in this matter is the question of quantum, in the exercise of my discretion I decided to accept her affidavit. In the matter of New Zealand Insurance Co. Ltd v Du Toit[1] where the issue was only a matter of proving quantum, the court in accepting an affidavit to prove such quantum, took into consideration that to demand oral evidence would unnecessarily escalate the costs but besides the affidavit fully set out the quantum. The Court cautioned that this is a dangerous practice, however took into account the fact that the defendant had been served with the summons and has been made aware of the quantum claimed and still decided not to oppose the matter. Although this practice was in Havenga v Parker criticized this practice[2]on the grounds that such evidence is not tested through cross-examination and that sometimes the amount claimed may be inflated, which can still be done even under oral evidence, the Court pointed out that it is within the discretion of the Court if need be to call for oral evidence. In other words, nothing precludes acceptance of such evidence. The acceptance of such evidence does not take away the discretion of the Court in assessing the damages.

7. Annexure A was handed in as an exhibit. It is a framed portrait of an outside cover of the magazine “Huise Genoot” which has the image of a woman who, I am made to understand that is the plaintiff. Annexure B is page 38 of the Huise Genoot which reflects the same picture as reflected in Annexure A, with the difference that around the mouth of this woman is a white substance which is seemingly semen. Next to the picture are the following words:

“Skok onthuiling! “Ek kan nie Skarumba sing met ‘n mond vol kom nie. Juanita Du Plessis: my verslawing aan orale seks.”

8. In the matter of Mthembi-Mahanyela v Mail & Guardian Ltd and Another, in his well reasoned minority judgment, with respect, Mthiyane JA says:[3]

“The test whether the appellant’s reputation was lowered in the estimation of right –thinking readers is an objective one. “ To borrow from the learned judge, the question in the present case is how the reasonable reader of the “Loslyf” magazine would have understood the statement in the magazine, in the context and against the background it was published. The test envisages that the words in the statement are to be construed in their context, and the meaning thereof determined by reference ‘to what they would convey to ordinary reasonable persons, having regard to the sort of people to whom the words were or were likely to be published’. The right thinking-reader is the ordinary reader of the “Loslf”

9. The literal translation of the above published words, as I understand them, is “Shocking revelation! ‘I cannot sing Skarumba with my mouth full of semen.’ Juanita Du Plessis: My enslavement to oral sex.”

10. The words taken together with the published picture would leave in the mind of an ordinary reader of this magazine, with nothing else but what the words and the picture convey, namely that she is enslaved to oral sex. The manipulated picture emphasises graphically what is her alleged ”addiction”, namely oral sex. In my view, the entire publication complained of “involve an element of degradation, insult or contumelia.”[4]

11. In Esselen v Argus Printing and Publishing Co Ltd and Others[5],quoted with approval by the Supreme Court of Appeal in an unreported judgment of Charles Mogale and two others v Ephraim Seima under case No. 575/04, the Court said that:

“In a defemation action the plaintiff essentially seeks the vindication of his reputation by claiming compensation from the defendant; if granted it is by way of damages and it operates in two ways—as a vindication of the plaintiff in the eyes of the public, and as conciliation to him for r the wrong done to him. Factors aggravating defendant’s conduct may, of course, serve to increase the amount awarded to the plaintiff as compensation., either to vindicate his reputation or to act as a solatiun.

In general, a civil court, in a defamation case, awards damages to solace plaintiff's wounded feelings and not to penalise or to deter the defendant for his wrong doing nor to deter people from doing what the defendant has done. Clearly punishment and deterrence are functions of the criminal law, not the law of delict. Only a criminal court passes sentence with the object of inter alia deterring the accused, as well as other persons, from committing similar offences in future; it is not the function of a civil court to anticipate what may have been in the future or to "punish" future conduct (cf Lynch v Agnew 1929 TPD 974 at 978 and Burchell The Law of Defamation in South Africa (1985) at 293).’”

12. Lewis JA in Mthembi-Mahanyela v Mail & Guardian Ltd and Another (supra)[6] cites Brennan CJ[7] s saying:

“Whether the making of publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in case where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.” The onus rest upon the defendant to prove the reasonableness of the publication.[8]

13. In casu the first defendant has withdrawn its plea and I can therefore safely find that the publication was unreasonable and neither was it justified nor was it a true reflection of the character of the plaintiff. I can further safely find that the publication was not approved nor sanctioned by the plaintiff and therefore it was unlawful and it was done with the intention to defame the plaintiff.

14. In her affidavit the plaintiff states that she is gospel singer and the ale of her music makes a substantial portion of her income. She says that since 1998 to date she has sold a sum total of 600 000 CD. In the year 2003 she was the top female music seller in the Country. She is the only South African female singer to have achieved position one in the South African charts with her album “Jy is”. She says that she became aware of the above mentioned publication when she was informed by her husband of such publication and when they then both went to buy a copy of the aforesaid magazine. She was shocked to see the publication with her picture described herein above. She had to bring an urgent interdict to have the relevant published magazine which was already in circulation withdrawn. Initially the first defendant opposed the interdict but later withdrew such opposition, without making any apology.

15. In Van Der Berg v Coopers & Lybrand Trust (Pty) Ltd and Others 2001 (2) SA 242 (SCA) at 260F the Court said:

“The award in each case must depend upon the facts of the particular case seen against the background of prevailing attitudes of the community. Ultimately a Court must, as best as it can, make a realistic assessment of what it considers just and fair in all circumstances.

16. The Supreme Court of South Africa, per Harms JA[9]said that:

“The determination of quantum in respect of sentimental damages is inherently difficult and requires the exercise of a discretion, more properly called a value judgment, by the judicial officer concerned. Right-minded persons can fairly disagree on what the correct measure in any given case is…” At paragraph [18] the Supreme Court says that “…the general trend of awards in recent times and the fact that our courts have not been generous in their awards of solatia (Argus Printing & and publishing Co Ltd v Inkathat Freedom Party 1992 (3) SA 579 (A) at 590, a practice that is to be commended,…”

17. In determining quantum the Court must have regard to[10]:

(i) “the seriousness of the defamation.” In this case the plaintiff is a married woman who sings gospel songs. The manipulated picture is, in my view lurid and degrading. The some total of the publication, is in my view a grave and vicious attack on the integrity and moral character of the applicant.

(ii) “the nature and extent of publication.” In casu I have not been provided with the extent of the circulation of the magazine “Loslyf”. The name of the magazine itself seems to suggest “loose morals”, which would make it a last magazine for a married woman and a gospel singer would want to be associated with. However, I also need to take into account that the plaintiff had managed to get an interdict restraining further publication of the offending magazine as well as its withdrawal from further distribution.

(iii) the “reputation, character and conduct of the plaintiff.” The plaintiff is a gospel singer who has since 1998 sold a sum total of 600 000 CD. In the year 2003 she was the top female music seller in the Country. She is the only South African female singer to have achieved position one in the South African charts with her album “Jy is”. I have no doubt that she is well known within the Afrikaans speaking community in particular and in general.

(iv) “the motives and conduct of the defendant.” There has been no apology forthcoming from the defendant. In Chetcuti v Van Der Wilt[11] the Court said:

“In Buthelezi v Poorter[12] (supra at 615H-616A) Williamson AJ, stated:

‘I would have expected that anyone with any sense of decency who discover that he had wrongfully cast so grave and hurtful a slur would make haste to apologise or at the very least to explain that he had acted in good faith.’

18. In the present case I would have expected the defendant, if he had any sense of decency, to have apologised to the plaintiff for the hurt and humiliation which he had occasioned to him. His failure to do so, coupled with the serious nature of the false allegations and malicious conduct in making them, constitute, in my view, aggravating features justifying an award of exemplary damages.” The above quoted words are apposite to this case and I sanguine myself therewith. Initially the interdict that was intended to curb further publication of the offending publication was opposed and without any explanation the opposition was withdrawn. In casu again the defendant was defending this action. A plea had been filed and later it was withdrawn. I do not intend to deal with the plea that had been filed, suffice to state that in its plea it was admitted that the publication was untrue.

Mr. Pretorious has suggested that the only reason for such publication could have been to boost the sale of the magazine. That could have been a reason. I however, remain in darkness with regard to this aspect in the absence of any evidence from the defendant. I can only conclude that, in the absence of any reason proffered by the defendant, the publication was uncalled for and was malicious.

19. In the matter of Lady Agasim-Pereira v Johnnic Publishing Eastern Cape (Pty) Ltd and Others[13] an amount of R50 000,00 was awarded for the defamatory publication of and concerning the plaintiff. In the matter of MacKay v Editor City[14] an amount of R20 000,00. In the Charles Mogale and Others matter (supra) the Supreme Court of appeal set aside the amount of R70000, 00 that had been awarded by the trial court and awarded an amount of R12 000,00.

20. In the McKay v Editor City Press[15] matter (supra)the Court said that:

“Damages in defamation are for the vindicating of the good name of the plaintiff and compensate him for his injury; it is not a road to riches. (Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A) at 590.” Vide paragraph 16 here above.

21. Having regard to the authorities herein above, the conduct of the first defendant after the publication, a conduct in my view that demonstrate nonchalance on its part, the seriousness of the offending publication, the personal circumstance of the plaintiff, I am of the view that the an amount of R60 000,00 would be appropriate in the circumstances.

22. Although the amount is within the magistrates’ court’s jurisdiction, the plaintiff cannot be faulted in having brought this case in this Court. The reason for my saying so is because there is as yet no crystallization in our Courts as regards the amounts to be awarded in defamation cases. In 1968 an amount of R10000,00 was awarded for defamation[16]. In the matter of Potgieter v Rondalia Assurance Corporation of SA Ltd 1970 (2) C&B 83 (N) a matter dealing with damages arising from a motor vehicle collision, an amount of R8000,00 was awarded, which amount in terms of the present market value would be R322 000,00. This clearly means that the amount of R10, 000,00 referred herein above would be far in excess of the jurisdiction of the magistrates’ court. It is therefore not surprising that the plaintiff claimed an amount of R200,000,00. of course, in regard to defamation cases, one cannot quantify the damages being guided by the amounts that were being awarded in the motor vehicle accident related cases. However a person cannot be faulted in approaching this Court, as the plaintiff has done. Besides, the whole conduct of the first defendant must be censored with an order of costs. Had the matter been in the magistrates court, I would not have hesitated in awarding attorney and client costs.

23. In the result the following order is made:

1. Judgment against the first defendant and in favour of the plaintiff in the amount of R60 000,00 is granted;

2. First defendant is ordered to pay interest of 15.5% per annum a tempore morae on the amount of R60,000,00 from date of service of summons to date of payment.

3. Defendant is ordered to pay the plaintiff’s costs which costs shall include the costs of senior junior counsel.

N.M. MAVUNDLA

JUDGE

OF THE COURT

HEARD ON THE: 29TH MAY 2006

DATE OF JUDGMENT: 25TH MAY 2007

APPICANT`S ATT: VENTER DUPPER & WILDENBOER ATT,

PRETORIA

APPLICANT`S ADV: D

PRINSLOO

DEFENDANT`S ATT: LENNARD COWANS ATT, PRETORIA

DEFENDANT ADV: H

SMALMAN

[1] 1965 (4) SA (TPD)

[2] 1993 (3) SA 724 at 726C

[3] 2004 (6) SA 329at 366B

[4] Neethling’s Personlikheidsreg 4th Edition p 62.

[5] 1992 (3) SA 764 (TPD) at 771G-I

[6] At 355E-F

[7] In Lange v Austrialian Broadcasting Corporation (1997) 189 CLR 520 at 574

[8] Mthembi-Mahanyela case (supra) at 355G-H.

[9] Unreported judgment in Charles Mogale and Othes v Ephraim Seima case No. 575/04 (SCA) at para [8]

[10] Vide the Mogale case (supra) paras [13-[16]

[11] 1993 (4) 397 (Tk GD) at 401D

[12] 1975 (4) SA 608 (W)

[13] 2003 [3] ALLSA 416

[14] 2002 [1] ALL SA 540

[15] 2002 [1] ALL SA 538 at 549h.

[16] Ponte v Geyser en Andere 1968 (2) SA 545.