Du Plessis v Media 24 t/a Daily Sun and Another (26357/12) [2015] ZAGPPHC 1112; 2016 (3) SA 178 (GP) (2 September 2015)

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION: PRETORIA)

CASE NUMBER:26357/12

In the matter between:

BEKKER

DU PLESSIS

PLAINTIFF

AND

MEDIA 24 t/a DAILY

SUN FIRST

DEFENDANT

THEMBA

KHUMALO SECOND

DEFENDANT

JUDGMENT

TOKOTA AJ

[1] The plaintiff, Mr du Plessis, a market agent at the City of Tshwane's Fresh Produce Market, instituted an action against the defendants for defamation claiming an amount of R500 000 as damages suffered. A second claim of R70 000.00, being legal costs, was abandoned. The alleged defamation emanated from an article which was published by the first defendant on 29 October 2010, entitled "Frozen-For An Onion" "OREL WAS IN A COLD ROOM FOR TWO HOURS".

[2] The background facts can be summarized as follows:

Orel Khoza (Orel) and a man called Small Makhubela (Small) were working at the Tshwane Fresh Produce Market helping people to carry vegetables. On 27 October 2010 Orel was present at the market. He was "apprehended" by the plaintiff for allegedly stealing an onion. Isaac, the plaintiff's employee escorted him and locked him in a cold storage in Hall 8. He was kept there for forty five minutes until the police arrived and released him.

[4] Small, Orel's friend, phoned Daily Sun and informed them of the incident. A journalist by the name of Tebogo Aletta Maobi, (Aletta)

visited the market. It was reported to the journalist that Orel had been detained in the fridge for 2 hours.

[5] When Aletta arrived at the market she found Orel and Small at the gate. It was after midday. The incident took place at about 10h00. Although in her evidence she stated that Orel was shivering and could not speak properly, I hope I will not be unfair to her if I say her story was prone to exaggeration. I say so because even though she ascertained that Orel was not kept in a fridge and that his hair was not frozen she went ahead and reported in the news paper that Orel was detained for two hours in a fridge and that his hair was frozen. She was shown a cold storage where Orel was detained. She also saw Orel and took his photos. One can see that Orel was hairless at the time. When Aletta was examined by court she conceded that Orel was hairless. She further testified that she contacted the plaintiff to verify the story but plaintiff was not co-operative and threatened to sue the Daily Sun. He, the plaintiff, indicated that he had a video footage but when asked to produce it he initially agreed but later stated that it was with his attorneys. They never saw the video footage.

[6] According to the evidence adduced on behalf of the plaintiff on this day Orel was caught by Isaac, the plaintiff's employee, having stolen two onions at the market. The market was plagued with thefts. The plaintiff instructed Isaac to detain Orel at the cold storage of OW Fresh (Pty) Ltd in Hall 8 pending the arrival of the security. The police arrived, forty five minutes later and released Orel.

[7] On 29 October 2010 an article appeared in the Daily Sun with the headlines as stated above. The words complained of are quoted in paragraph 3.3 of the plaintiff's particulars of claim as follows"

"A CRISP round onion was lying on the floor and sight of it made Orel Khoza (28) hungry ...Orel, a carrier at the Tshwane Fresh Produce Market, picked it up and put it in his pocket. A stall owner, known as Mr Bekker, saw the bulge in his pocket and asked what it was. Khoza told

Daily Sun: "I showed him the onion and told him I was going to cook it as I was hungry. He said I was a thief and tied my hands with a plastic strip, took me to the other side of the market and told me I was going to clean the floor for my punishment. But he shoved me into a cold storage room with vegetables" Orel's friend Small Makhubela (21) told Daily Sun: " We saw Orel being put in the fridge and got worried, so we called the cops." When the cops arrived they released Orel, whose hair was frozen after shivering for two hours. An hour later he was still shivering. The cops advised him to lay a charge against Bekker. Orel said: "we often pick up loose vegetables and take them home or cook them. I was shocked when he accused me of stealing" Bekker said Orel was a thief but denied putting him in the cold storage room. Orel went to a clinic for treatment. His (sic) said his nose bled all night. He said: "/ went to the police station but they needed a doctor's letter to open a case for me" Captain Agnes Huma said Orel could lay a charge at a cop shop near him."

[8] In the particulars of claim the plaintiff attributed to the words, in the context in which they were used, a meaning that they were intended to convey that the plaintiff was "a cruel racist bigot". The plaintiff contends that the words "frozen for an onion" in the context of the article were intended to impute that he deliberately and cruelly and forcibly confined Orel and subjected him to cruelty in potentially dangerous freezing conditions only for the sake of an onion. According to him the words were capable of being so understood by a reasonable reader of the news paper including persons who had business dealings with him. As a direct result of the publication the plaintiff suffered damages to his personality rights and in particular his reputation.

[9] The defendants deny that the passages complained of are defamatory of the plaintiff as alleged or at all. Further they deny that they published defamatory material. Alternatively if this Court finds that they indeed published the passages and that such words are defamatory of the plaintiff in the manner pleaded they raise the following defences:

9. 1 the words were published in a privileged occasion in the circumstances where the defendants were under a duty to inform the public of the alleged detention of Orel Khoza;

9.2 They were entitled, as the press, acting as the voice of an informed responsible readership, to raise awareness of the alleged detention;

9.3 Defendants had a right to appeal to the public in order to prevent unlawful detention of citizens;

9.4 The public had a right to receive information concerning the alleged detention of Orel Khoza in terms of section 16(1)(a) of the Constitution of the Republic of South Africa Act No. 108 of 1996.

9.5 The article constituted a fair and a balanced account of the journalist's interview, enquiries and investigation into the subject

matter;

9.6 The said words, in the context of the article, were substantially true and were published in the public interest alternatively they constituted a fair comment;

9.7 Therefore the publication was not wrongful and was not published animo iniuriandi or negligently.

Although I accept that the list of defences in defamation matters is not exhaustive some of the defences pleaded are not recognised defences in defamation actions. It therefore remains the duty of the defendant to establish that they have a defence that will exclude delictual liability.

[10] The essence of the argument by Mr Davies for the plaintiff, as I understood him, was that the article complained of was inherently

defamatory. It reduces the plaintiff s integrity in the eyes of the community. He submitted that the theme of the article has racial

undertones. The article was substantially false and the defendants have failed in their duty to investigate the veracity thereof. If one has regard to the video footage that was shown in Court it is clear that if they had investigated the story they would have verified the information. Reliance was placed solely on the authority of National Media Ltd v Bogoshi 1 998 (4) SA 1196 (SCA) (1999 (1) BCLR 1; [1998] 4 All SA 347; [1998] ZASCA 94) where it was stated that "the publication in the press of false defamatory statements of fact will be regarded as lawful if, in all the circumstances of the case, it is found to be reasonable; but it emphasises what I regard as crucial, namely that protection is only afforded to the publication of material in which the public has an interest (ie which it is in the public interest to make known as distinct from material which is interesting to the public - Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another (supra at 464C--D)".

[11] Orel Khoza was present in Court and it was put to plaintiff's witness, Mr Lauw, that he would come and testify but was never called. Consequently, so the argument went, I should draw an adverse inference against the defendants in this regard. He urged me to reject any evidence that the plaintiff was contacted about showing the video footage to the journalist and that he refused to produce it. He urged me to find that the predominant interest in the defendants was to publish the story as quickly as possible.

[12] On the other hand, Mr Bester who appeared for the defendants, argued that no reference is made in the article that the plaintiff was a racist. The article was simply identifying who the persons involved were. He submitted that the plaintiff did not plead innuendo.

Consequently, so the argument went, the Court should not ascribe to the article racial undertones. He submitted further that the Court should not nick pick what was true and what was not but should consider the tenor of the whole article. He submitted that I should find that the publication was in the public interest. A reasonable reader would not ascribe the headline "FROZEN-FOR AN ONION" in isolation but would read the article as a whole together with the caption, so the argument went.

[13] He submitted further that the central message conveyed in the article was that Orel was detained in the cold storage facility against his will at the instance of the plaintiff as punishment for stealing an onion.

He submitted that if I find in favour of the plaintiff about the meaning ascribed to the article then in that event that increases the public interest in that the readership has a right to know when someone is acting in a fashion that runs contrary to the values of non-racialism and equality as enshrined in the Bill of Rights in the Constitutional. At common law the public has a right to know the truth as to a person's character or conduct. Reference was made to cases in support of the argument. [1] He argued that the right to reputation must be balanced against the right to freedom of speech.

[14] The elements of defamation are well established. They are (a) the wrongful and (b) intentional (c) publication of (d) a defamatory statement to a person other the one defamed (e) concerning the plaintiff.[2]

[15] Once the plaintiff proves on a balance of probabilities that the article was defamatory of him there is a presumption that the publication was wrongful and was published with animus injuriandi. The defendants can only avoid liability once they adduce evidence that justifies and/or excludes delictual liability. A bare denial in the pleadings is not enough. [3]

[16] I had an advantage of seeing and observing the witnesses that gave evidence in Court. Generally speaking I was impressed by the plaintiff's witnesses including plaintiff himself. There may be aspects of their evidence that may be criticised but that does not detract from my final analysis that their evidence was on the whole reliable. For instance I do not believe that the plaintiff was never contacted as he wanted the Court to believe. I find that the plaintiff laws not candid with the Court in this respect. This is borne out by the fact that in the article it is alleged that he said that Orel was a thief. However that is not the end of the matter. In my view this was not a material aspect of the plaintiff's case.

In S v Ndlovu 1983 (4) SA 507 (ZS) at p.508C-D it was said:

"It is trite that if a witness is shown to have lied in a material respect then this is a debit factor so far as his credibility is concerned; but unless the issue on which he has lied goes to the root of his evidence so that the rest must necessarily fall, or it is of major importance in relation to his story as a whole, the remainder of the witness' evidence is still entitled to examination, albeit with even greater care than if he had not lied. When this principle is applied to an accused person it would be quite unrealistic to ignore the experience of any Judge who has ever presided over a criminal trial, namely that one cannot reject his evidence on one defence simply because he has put forward also an alternative defence which is held to be false. And the fact that the onus of proof on an issue has been shifted by statute to the accused does not alter the applicability of the principle underlying the treatment of the evidence of a witness who has lied in a material respect. "[4]

[17] However, if regard is had to the evidence of Aletta it is not satisfactory in all material respects. Even the purported quotations

in the article were not really quotations verbatim. Orel and Small were speaking Tswana to her. If she wanted to quote them verbatim one would expect lsiTswana and then translations in English. She had ample opportunity to verify the facts. She visited the site where the incident occurred and even entered the cold storage to feel the temperature thereof. She took photographs of Orel and was able to see that he was hairless. But as stated earlier she was prone to exaggeration. Having watched the video footage in Court and having observed the movements of all concerned, I find that the following information, which she caused to be published, was false:

(a) that Orel was shoved into the cold storage;

(b) that he was detained in the cold storage or fridge for two hours;

(c) that he was still shivering after two hours when the journalist arrived;

(d) ; that his hair was frozen or that he was frozen at all;

(e) that his hands were tied with a plastic strip.

I also have reservations of her evidence that Orel could not speak properly and his teeth were clattering. The evidence that he went to the clinic for treatment and that he was bleeding from the nose the whole night is also rejected. Orel was present throughout the proceedings and the witnesses were often pointing out that he was sitting in Court. He was never called as a witness to confirm these allegations that were disputed by the plaintiff despite his availability.

[18] At common law it is not an element of defamation that the statement should have been false because the defamatory nature of a statement is not dependent on its falsity. [5] Once a plaintiff establishes that a defendant has published a defamatory statement concerning him or herself, it is presumed that the publication was both unlawful and intentional. A defendant wishing to avoid liability for defamation must then plead and prove a defence which rebuts either the unlawfulness or intention.[6]

[19] However, Zonda J in the minority judgment in Democratic Alliance v. African National Congress and Another 2015 (2) SA 232 (CC) ([2015] ZACC 1) para.43 quoted with approval from the case of Hill v Church of Scientology of Toronto (1995) 126 DLR (4th) 129 (SCC) (30 CRR 2d 189) the following:

"False and injurious statements cannot enhance self-development. Nor can it ever be said that they lead to the healthy participation in the affairs of the community. Indeed they are detrimental to the advancement of these values and harmful to the interests of a free and democratic society. . . False allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre."

[20] In similar vein is Gertz v Robert Welch, Inc 418 US 323 at 339- 340 where the point is made that there is no constitutional value in false statements of fact, but that an erroneous statement of fact is nevertheless inevitable in free debate. I am mindful of the fact that the Democratic Alliance case was concerned with an interdict where there was statutory prohibition of publication of false information for purposes of electoral campaign.

[21] In my view where the press knowingly publishes an article which is false, and it is found that the article is defamatory of the plaintiff, an inference can be drawn that there is an animus to tarnish the reputation of the person concerned in the publication. Once it is found that the article is defamatory of the plaintiff the defendant cannot escape liability under the defence that it was in the public interest to publish the article. The readers of newspapers rely on the accuracy of the information and form opinions about the person alleged to be defamed. Once the integrity of the plaintiff is diminished it is difficult to restore it. Funny how the public can reason. Once a serious allegation is made against you, even if you are subsequently cleared by a Court of law, members of the public often stick to the original allegation and ignore the fact that you have been found not guilty by a Court of law. The stigma of a lie may therefore be indelible.

[22] It has been held that the test for determining defamatory material is not whether specific words or conduct might bear an innocuous meaning or what the author claimed it intended to convey; rather it is whether, on a preponderance of probabilities, the ordinary or secondary meaning of the words or conduct complained of would be understood as being defamatory to the ordinary reader, even if they are capable of a non-defamatory meaning.[7] By secondary meaning is understood words which, by reason of special circumstances that are known to the recipient of the publication, acquire a defamatory meaning by reason of innuendo.[8]

[23] In casu the plaintiff relies for his case on the meaning to be ascribed to the article rather than on a statement which is defamatory per se. In his oral argument Mr Bester submitted that since the plaintiff did not plead innuendo the Court should not ascribe racial undertones to the article as claimed by the plaintiff.

[24] In Le Roux v Dey (Freedom of Expression Institute & Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC) (2011 (6) BCLR 577; [2011] ZACC 4) para.87 Brand AJ said:

" Statements may have primary and secondary meanings. The primary meaning is the ordinary meaning given to the statement in its context by a reasonable person. The secondary meaning is a meaning other than the ordinary meaning, also referred to as an innuendo, derived from special circumstances which can be attributed to the statement only by someone having knowledge of the special circumstances. A plaintiff seeking to rely on an innuendo must plead the special circumstances from which the statement derives its secondary meaning. But an innuendo must not be confused with an implied meaning of the statement which is regarded as part of its primary or ordinary meaning."

[25] In my opinion the conduct of the defendants in publishing a substantially false article is capable of being viewed as intended to impute that the plaintiff had little or no regard for other groups in the community. This in itself is defamatory. The innuendo need not be pleaded by name. It is sufficient if circumstances are pleaded from which the statement derives its secondary meaning of innuendo.

[26] Imputations against moral character or professional competence which constitute defamation include dishonourable conduct or statements that cause the person to be shunned and. avoided.

[27] In our law the lawfulness of a harmful act is determined by the application of a general criterion of reasonableness based on considerations of fairness, morality, policy and the Court's perception of the legal convictions of the community. In accordance with this criterion Rumpff CJ indicated in

SAUK v O'Malley 1 977 (3) SA 394 (A) at 402-- 403A that it is the task of the Court to determine in each case whether public and legal policy requires the particular publication to be regarded as lawful.[9]

[28] In all the circumstances of this case I therefore find that the article was defamatory of the plaintiff. The onus is then on the defendants to avoid delictual liability by establishing a proper defence. In this particular case the defendants have pleaded almost all possible defences in defamation matters. It is unhelpful and, in my view, bad pleading for a party to simply plead all the possible defences on defamation by casting a wide net with the hope that something will be caught in the net. A party should plead the defence on which reliance will be placed or, at least at the pre-trial stage identify exactly what his or her defence is to enable the plaintiff to know what case he or she has to meet.

[29] If regard is had to the evidence led by the defendants that evidence was primarily centred on the defence of truth and public interest. Mr Bester argued that the Court need not concern itself about the remainder of the defences pleaded. The evidence of the editor Mr Reggie Moalusi was of a generic nature. His evidence, insofar as it relates to the defendants' defence, was that it was in the public interest to publish the incident. That may be so but the fact that the article was substantially false militates against this defence. In my view it is not in the public interest to embellish the information so as to create unnecessary sensation which would undermine the integrity of an individual. I find that the publication of false information was not reasonable. Section 10 of the Constitution provides that everyone has inherent dignity and the right to have their dignity respected and protected. As I understood Mr Bester, in his written heads of argument, he has, correctly in my view, abandoned the defence under section 16 of the Constitution.

[30] In the circumstances I find that the defendants have not discharged the onus resting on them and I accordingly find them

liable for defamation as claimed.

[31] What remains is a question of quantum. Mr Davies for the plaintiff argued that in awarding damages I should take into account the manner in which the defendants conducted themselves in this litigation. They have made no tender subsequent to viewing the video footage. Their blind pursuit of the deadline to publish the article without proper investigation was uncalled for. On the other hand Mr Bester for the defendants in oral argument submitted that in awarding damages I should bear in mind the case of Tsedu v Lekota 2009 (4) SA 372 (SCA) ([2009] 3 All SA 46).

[32] Mr Reggie Moalusi testified that the Daily Sun's readership comprises primarily black community. Aletta testified that the paper focuses more on the man in the "blue overall"- a term used to describe construction and domestic workers. This evidence was never challenged. In my view the publication did not cause a substantial damage to the plaintiff amongst his community who do not, as general rule, read the Daily Sun. Even the plaintiff himself was not aware of the publication until it was brought to his attention by one of his employees. The conduct of the plaintiff of detaining a person in the cold storage room is also reprehensible. His excuse that he could not detain Orel elsewhere because his office is occupied by ladies is not a satisfactory explanation of what he did. In my view damages in the amount of R80 000 would suffice. Cost should follow the event.

In the result I make the following order.

(a) The article which was published by the Daily Sun on 29 October 2010 concerning the plaintiff was defamatory of him;

(b) The defendants are ordered, jointly and severally, to pay the plaintiff R80 000 as compensation the one paying the other to be absolved.

(c) The defendants are ordered, jointly and severally, to pay the plaintiff's costs.

B

R TOKOTA

ACTING

JUDGE OF THE HIGH COURT

Gauteng Division: Pretoria

DATE OF HEARING: 3 TO 7 August 2015.09.25

DATE JUDGMENT DELIVERED: 2 SEPTEMBER 2015.

Appearance for the Plaintiff: Adv. S W Davies

Instructed by Hendrik Haasbroek Attorneys

Appearance for the Defendant Adv C Bester

Instructed by Jurgens Bekker Attorneys

[1] See Graham v Ker (1892) 9 SC 185:;Coetzee v Central News Agency 1953 (1) SA 449 (W) at 452; Mahomed v Kassim 1 973 (2) SA 1(RA)

[2] See eg Khumalo v Holomisa [2002] ZACC 12; 2002 8 BCLR 771 (CC); 2002 (5) SA 401 (CC) para 18

[3] See Bogosi supra at 1202H

[4] See also Moabi v Moabi, 1969 (3) SA 322 (T} at p. 326,

[5] See Sayed v Editor, Cape Times, and Another 2004 (1) SA 58 (C) at p.61;National Media Ltd v Bogoshi 1998 4 All SA 347 (SCA); 1999 1BCLR 1(SCA); 1998 4 SA 1196 (SCA) 1121A-F.

[6] See Borgin v De Villiers 1980 3 SA 556 (A) 571F; Marais v Richard 1981 1SA 1157 (A) 1166F-1167A; Neethling v Du Preez, Neethling v The Weekly Mail 1994 1SA 708 (A) 7701-G; National Media Ltd v Bogoshi supra 1215 et seq. See also par 245 po

[6] See Borgin v De Villiers 1980 3 SA 556 (A) 571F; Marais v Richard 1981 1SA 1157 (A) 1166F-1167A;

Neethling v Du Preez, Neethling v The Weekly Mail 1994 1SA 708 (A) 7701-G; National Media Ltd v Bogoshi supra 1215 et seq. See also par 245 po

[7] Minister of Justice v Hofmeyr 1 993 (3) SA 131(A) at 707

[8] National Union of Distributive Workers v Cleghorn and Harris Ltd 1 946 AD 984 at 997)

[9] See Marais v Richard 1981 (1) SA 1157 (A) at 1168C; Financial Mail (Pty) Ltd v Sage Holdings Ltd 1 993 (2) SA 451 (A}at462F-G; Argus Printing & Publishing Co Ltd v IFP 1 992 (3) SA 579 (A) at 588H-J