Electronic Media Network Limited and Another v Gold Reef City Theme Park and Another (07/28863) [2008] ZAGPHC 209 (26 June 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE NO: 07/28863

In the matter between:

ELECTRONIC MEDIA NETWORK LIMITED First Excipient

COMBINED ARTISTIC PRODUCTIONS

(PTY) LIMITED t/a CARTE BLANCHE Second Excipient

and

GOLD REEF CITY THEME PARK

(PTY) LIMITED Plaintiff

ELECTRONIC MEDIA NETWORK LIMITED First Defendant

(PTY) LIMITED t/a CARTE BLANCHE Second Defendant

J U D G M E N T

JAJBHAY, J:

[1] The plaintiff is Gold Reef City Theme Park (Pty) Ltd. The first defendant is Electronic Media Network Ltd, and the second defendant is Combined Artistic Productions (Pty) Ltd t/a Carte Blanche. This matter comes to me by way of exception; I will refer to the parties as the plaintiff and defendant respectively.

[2] The plaintiff sued the defendants for defamation arising from the publication of statements on the Carte Blanche programme of 6 March 2005. The plaintiff contends that the programme reflected deleteriously on the plaintiff’s rides at its Gold Reef City Theme and Amusement Park.

[3] The plaintiff sets out the following in its particulars of claim:

“5

On Sunday 6 March 2005 the First Defendant, as part of its Carte Blanche programme, broadcast an extract or feature of and concerning Gold Reef City (‘the programme’).

The programme was seen by more than 500 000 people.

The programme was compiled, produced and presented by the Second Defendant.

6 In the programme, the following was said -

of and concerning Gold Reef City’s (ride) known as ‘Miner’s Revenge’:

‘… one of the pendulums – which appears to be balancing the act – is rusted and cracked;

Such cracking was visible to the naked eye;

The pendulum showed “serious deterioration”;

The metal tank which anchors the ride has a base which has been badly maintained and is covered in a thick layer of rust and moss, indicating that there is a water leak in the area. In fact, “a constant stream of water can be seen running down the side of the tank.” And if it were to topple over “the ride is then influenced in such a fashion that the balance is lost – then it could have very bad consequences”, and that this “is a cause for concern”.’

of and concerning Gold Reef City’s (ride) known as the ‘Crazy Cocopan’, that it did not comply ‘with structural specifications’.

of and concerning Gold Reef City’s (ride) called ‘Raging Rapids’:

‘These broken bars and rust are concealed by the water when the ride is operational.’

‘Its obvious that certain pieces of metal are missing’.

of and concerning Gold Reef City’s (ride) known as the ‘Golden Loop’:

‘… we found cracks on most of the cross struts connecting the actual track to the structure. We found cracks on the headgear that

propels the cars over the track and the actual cars where you sit was rusted completely.’

Photographs ‘show new cracks in places that had previously been repaired. These pictures formed part of an inspection report that (the Second Defendant’s) company submitted to Gold Reef City before he was contracted to do repairs.’

‘… on the section where the cross beams actually fits onto – what they call the magnet cable guide – there were in excess of 200 cracks. That’s just on that area. The actual parts, cross struts, that connects the tracks where the wheels actually runs on, each and every one of them was cracked, and I do believe there’s in excess of 3000 cracks on those struts, cross struts.’

‘… if a structure has got 3000 repairs on it, it has to be related to the fatigue life of the structure.’

‘… the fact that the cracks have been welded and repaired several times make the situation more dangerous.’

There is concern ‘about the remaining life of a structure like this. It cannot do it any good repeatedly repairing cracks, especially in the same place. The granular structure of the steel actually changes from the heat input of the welding and in the long term multiple heat inputs by welding doesn’t do parent metal any good.’

‘Any crack in any weld is unacceptable.’

‘The probability of a fatigue failure is still very high, and as a result of that you have a high rating both on the probability

of failure and on the consequence of failure, and that results in a very high risk.’

‘The Golden Loop may be well past is sell-by-date.’

‘It shouldn’t have been allowed to get in a state where that many cracks were discovered.’

of and concerning Gold Reef City’s (ride) known as ‘The Runaway Train’:

‘The train was allegedly kept in service while being repaired, despite the fact that non-destructive testing had revealed that both the chassis of the carts and the track were riddled with cracks.’

There were a thousand cracks ‘on that structure, on that track.’

People were riding on the tracks while Bostech Engineering was doing its repairs.

If a ride had a thousand cracks on it, it is not safe to run it in the interim.

The fact of a thousand cracks indicates ‘that there isn’t a regime of proper checking.’

7 These statements, in the context of the programme, are wrongful and defamatory of the Plaintiff in that they were intended to mean, and did mean, that the aforesaid rides were unsafe.”

[4] The defendants noted an exception to the plaintiff’s particulars of claim as being “not reasonably capable of defamatory meanings” upon the following grounds:

“5. In paragraph 7 of its particulars of claim the respondent alleges that the said statements, in the context of the programme, are wrongful and defamatory of the respondent ‘in that they were intended to mean, and did mean, that the aforesaid rides were unsafe’.

6. The respondent does not claim that the statements have a secondary defamatory meaning or innuendo and, consequently, the respondent’s case is that the statements are per se defamatory.

7. The statements are, however, not reasonably capable of defamatory meanings.

8. In the premises the respondent’s particulars of claim fail to disclose a cause of action and are excipiable.”

[5] It was contended on behalf of the defendants that the statements complained of in the particulars of claim are purely and simply remarks relating to the safety of the rides identified in the particulars of claim. It is trite that a juristic person can be defamed: Dhlomo v Natal Newspapers (Pty) Ltd 1989 (1) SA 945 (A). This means that a juristic person does indeed have a personality right to fama worthy of protection. The defendants further contended that a trading corporation, such as Gold Reef City, also has as a juristic person, the proprietary right to goodwill, the “right to attract custom”. Mr Louw SC on behalf of the defendants strongly contended that the difference between the right to a good name or fama and the right to attract custom or goodwill is of fundamental importance in the present matter and underlines the distinction between the available remedies of the actio legis Aquilia and the actio iniuriarum.

[6] The actio iniuriarum is concerned with the personality rights including the right to a good name: Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 (4) SA 376 (T) at 382.

[7] A trading corporation has a right to sue for damages in respect of a defamatory statement which is calculated to injure its business reputation. Such corporation may also claim damages to compensate it for any actual loss sustained by it by reason of the defamation. The question as to whether or to what extent the defamatory statement is calculated to injure a trading corporation’s business reputation has to be decided with reference to the nature of the defamation, the character of the business it conducts and the likely impact thereon of the defamation; and the damages must be assessed in accordance with the principles relating to claims for defamation, bearing in mind that a corporation has “no feelings to outrage or offend”: Caxton Ltd and Others v Reeva Forman (Pty) Ltd and Another [1990] ZASCA 47; 1990 (3) SA 547 (AD).

[8] Thereafter, it was contended on behalf of the defendants that the right to the personality (including the right to a good name) stands in sharp distinction to the right to attract custom. The first is a personality right and is inalienable. The second is a proprietary right. Mr Louw contended that the right to attract custom forms part of the patrimony of each natural and legal person that is engaged in commerce in our law. He further submitted that the importance of distinguishing between infringements of the patrimony and infringements of the personality lies therein that different delictual remedies with different requirements are recognised in our law for the protection of those rights. He stated that the lex Aquilia is the remedy aimed at correcting an infringement of the patrimony which gives rise to damages. The actio iniuriarum is concerned with infringements of the personality rights, including the right to a good name. Finally, it was contended on behalf of the defendants that the statements referred to cannot, on any reading of them, constitute infringements of the good name of the plaintiff but they may infringe on the plaintiff’s goodwill.

[9] On exception the test in a defamation action is whether a reasonable person of ordinary intelligence, having heard the defendants’ words, might reasonably understand those words as conveying a meaning defamatory of the plaintiff: Argus Printing & Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (AD); The Law of Defamation in South Africa, Burchell (Juta & Co, Ltd 1985) at p 102 esp. at note 124. The test at the exception stage is not whether the reasonable reader would or did understand the words complained of to carry the defamatory meaning pleaded. That assessment can only be made at the trial.

[10] The ordinary reasonable reader “is a person who gives a reasonable meaning to the words used within the context of the document as a whole and excludes a person who is prepared to give a meaning to those words which cannot reasonably be attributed to them”: Demmers v Wylie & Others 1980 (1) SA 835 (AD) at 842H. A reasonable listener, or viewer, after revision of a television broadcast, is the same individual but with one difference: this individual has only one opportunity to absorb what he or she sees or hears: Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 (3) SA 394 (AD) at p 408D-E. The reasonable viewer is not a perfect human being and this individual may draw derogatory inferences: Demmers v Wylie & Others supra at p 848H. In Mthembi-Mahanyele v Mail & Guardian Ltd and another [2004] 3 All SA 511 (SCA) at 520 paragraph [26], the SCA endorsed the following statement by Colman J in Channing v South African Financial Gazette Ltd 1966 (3) SA 470 (W) at 474A–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 ‘super-critical’ 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 of financial matters than newspaper readers in general have. But this, I think, is clear: one may not impute to him, for the purposes 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 Newspapers Holdings Ltd and others v Suliman [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 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 a 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.’

[11] I am not convinced that the statements complained of by the plaintiff do not infringe on its personality, which includes its right to a good name. The statements definitely suggest that the rides being offered by the plaintiff were unsafe and that the plaintiff was to blame for this. To my mind, this in itself is defamatory of the plaintiff. No innuendo is alleged. The test is whether a viewer of ordinary intelligence might reasonably understand the words in the programme in their ordinary sense, to have a meaning which reduces Gold Reef City Theme and Amusement Park in his or her estimation (Argus Printing and Publishing Co Ltd v Esselen’s Estate). In my view the answer is “yes”. The words set out above contain adverse comments about the plaintiff’s product generally as well as the particular rides. The words are further derogatory of the different items and spare no effort to openly insult the entertainment facilities provided for by the plaintiff.

Erasmus and Prigge v Scott 1933 NPD 271 at pp 282/3:

“The plaintiff Erasmus owned a hotel and intended to conduct business in it. He had also been largely concerned with executing the foundations of the hotel and personally supervised construction. The plaintiff Prigge was a builder and responsible for the actual building of the hotel. It was defamatory of both plaintiffs to say anything which might influence people not to employ them in their capacity as builders, or to acquire ownership or occupation of any building which they had erected. It was also defamatory of the plaintiff Erasmus to say anything tending to disparage him in the business of hotel keeping and to influence people to withhold custom from him.”(emphasis added)

Wilkinson v Trevett & Others 1922 CPD 393 at pp 399/400:

“Statements dealing, inter alia, with the plaintiff’s workmanship as an electrical contractor insinuated that he was incompetent to wire a house. This was defamatory.”

Ingram v Lawson [1840] EngR 324; (1840) 6 BING. NC 212 at pp 215-217:

“The plaintiff was a ship-owner and master mariner. It was defamatory of him to say that his ship was not seaworthy, when it was about to embark on a voyage. (unanimous decision of four judges).”

[12] This is not a case of mere disparagement of the plaintiff’s business. It is a case where the statements complained of which are defamatory were calculated to injure the plaintiff’s business reputation, or to affect the trade or business which it was formed to carry on. Every person and every trading corporation is entitled as against the entire world to carry on a lawful business in any way which does not trespass upon the rights of others. Intentional interference such as in the present matter with the transaction or business to the detriment of the person or trading corporation concerned is an actionable injuria. The form which such interference takes is the publication of statements which connote that in the present instance the rides were unsafe and that the plaintiff was to blame for this.

[13] There is no doubt to my mind that the statements published by Carte Blanche were defamatory of the plaintiff. The plaintiff operates a theme and amusement park known as Gold Reef City Theme Park. It is prima facie injurious to say of the plaintiff anything which might influence potential visitors not to attend the theme park. Further, it is injurious to say of the plaintiff anything tending to disparage it in the business of conducting a theme and amusement park in order to undertake and influence potential patrons to withhold them from attending the theme and amusement park known as Gold Reef City Theme Park. Therefore, the statements published by the defendants were calculated to injure the plaintiff in the way of its business and thus affords the plaintiff an action for defamation. I am unable to accept the contention that the statements insofar as they related to the plaintiff, were a mere disparagement of property which would not entitle it to a remedy as for injury but only to what is termed in English law an action on the case, in which it might obtain a remedy for such special damage as it might prove to have ensued from the words if it establishes that the words were false and that they were published by the defendant with malice. Here, the statements published were defamatory concerning the plaintiff. The statements have the effect of injuring the plaintiff’s reputation. The plaintiff’s reputation is also injured because the statements tend to lower the plaintiff in the estimation of right-thinking members of society: Botha v Marais 1974 (1) SA 44 (A); Conroy v Stewart Printing Co Ltd 1946 (AD) 1015; Mohamed v Jassiem [1995] ZASCA 115; 1996 (1) SA 673 (A).

[14] The essence of a defamatory statement is its tendency to injure the reputation of another person. There is no complete or comprehensive definition of what constitutes a defamatory statement, since the word "defamatory” is nowhere precisely defined. Generally speaking, a statement is defamatory of the person of whom it is published if it tends to lower that person in the estimation of right thinking members of society generally. Further, a statement will be defamatory if it exposes the person in question to public hatred, contempt, or ridicule, or if it is a false statement to the discredit of that person.

[15] The only effect of an imputation being per se defamatory is that it would relieve the plaintiff of the burden to establish that the publication of such imputations has lowered him in the estimation of the right thinking members of the public. However, even if the imputation is not per se defamatory, that by itself would not go to the advantage of the publisher, for, the complaining person can establish on evidence that the publication has in fact amounted to defamation even in spite of the apparent deficiency. So the defendant cannot contend, at this stage, that it is entitled to the exception on the ground that the imputations in the extracted publication were not per se defamatory.

[16] In all of the above circumstances I do not believe that the defendants have sustained their contention that the statements are not reasonably capable of defamatory meaning. Accordingly, the exception is dismissed with costs.

_____

M JAJBHAY

JUDGE OF THE HIGH COURT

DATE OF HEARING 18 JUNE 2008

DATE OF JUDGMENT 26 JUNE 2008

ON BEHALF OF THE DEFENDANT/

FIRST AND SECOND EXCIPIENT ADV P LOUW SC

INSTRUCTED BY BIELDERMANS ATTORNEYS

ON BEHALF OF THE PLAINTIFF/

RESPONDENT ADV A I S REDDING SC

ADV J W G CAMPBELL SC

INSTRUCTED BY DENEYS REITZ