Highbury Safika Media (Pty) Limited v Joffe and Others (13955/15) [2015] ZAWCHC 217 (5 November 2015)

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NUMBER: 13955/15

Before the Honourable Madam Justice Traverso

Cape Town: Thursday, 5 November 2015

In the matter between:

HIGHBURY SAFIKA MEDIA (PTY) LIMITED Applicant

and

GRAEME JOFFE First Respondent

INCE (PTY) LTD Second Respondent

HETZNER (PTY) LTD Third Respondent

ZA CENTRAL REGISTRY NPC Fourth Respondent

DRAFT ORDER

Having read the papers filed of record and having heard counsel for the Applicant and the First Respondent,

IT IS ORDERED THAT:

1. The First Respondent is interdicted and restrained from publishing or causing the publication of the article/publication/blog which is headed (or which begins with the words):

Highbury Safika Media (HSM) is the public relations arm... ·

("the defamatory article") and any other statements substantially reproducing any of the allegations in the defamatory article (whether orally, in writing or

both orally and in writing) that are defamatory of the Applicant.

2. The First Respondent is to pay the costs of this application on the attorney and client scale, including the costs of two counsel.

BY ORDER OF THE COURT

_____________________

COURT REGISTRAR

348 MacGregor Stanford Kruger Inc.

CAPE TOWN

CASE NO: 13955/15

HIGHBURY SAFIKA MEDIA (PTY) LIMITED Applicant

GRAEME JOFFE 1st Respondent

INCE (PTY) LIMITED 2nd Respondent

HETZNER (PTY) LIMITED 3rd Respondent

ZA CENTRAL REGISTRY NPC 4th Respondent

REASONS: 1 FEBRUARY 2016

TRAVERSO, DJP

[1] On 5 November 2015 I made the following order:

"1. The First Respondent is interdicted and restrained from publishing or causing the publication of the article/publication/blog which is headed (or which begins with the words):

"Highbury Safika Media (HSM) is the public relations arm ... "

2. The First Respondent is to pay the costs of this application, including the costs of two counsel."

[2] I have now been asked to provide reasons for the aforesaid order, which will follow hereunder.

BACKGROUND

[3] On 28 July 2015 a Rule nisi was issued in, inter alia, the following terms:

"1.1.1 ordering the first respondent to remove/delete the article/publication/blog which is headed (or begins with the words):

(hereinafter "the defamatory article”) from the website at the domain "sportsfire.co.za", and wherever else the defamatory article has been published by the first respondent and/or with the first respondent's consent and authority;

1.1.2. in the event that the first respondent fails to comply with the order in paragraph 1.1.1 above within 24 hours, ordering the third respondent to immediately remove/delete the defamatory article from the website at the domain "sportsfire.co.za", by any means at its disposal;

1.1.3. interdicting and restraining the first respondent from directly and/or indirectly publishing the defamatory article and any other statements (whether orally, in writing or both orally and in writing) that are defamatory of the applicant; and"

[4] On the day prior to the return date of the Rule nisi the first respondent opposed the application and filed an answering affidavit. On that day an order was made by agreement with the first respondent in terms whereof the application was postponed and the Rule nisi was extended on identical terms, save that the ambit of the interim interdict was limited as follows:

"interdicting and restraining the first respondent from publishing or causing the publication of the defamatory article and any other statements substantially reproducing any of the allegations in the defamatory article (whether orally, in writing or both orally and in writing) that are defamatory of the applicant.”

THE FACTS

[5] 5.1 The applicant in this matter, Highbury Safika Media (Pty) Limited ("HSM') is one of the largest independent magazine and digital magazine publishers in Southern Africa.

5.2 The first respondent ("Joffe”) is a sports journalist and the registered holder of the domain "sportsfire.co.za".

5.3 The second respondent is the registered holder of the domain "sportsfiredaily.co.za".

5.4 The third respondent is the entity that hosts the website with the domain "sportsfire.co.za".

5.5 The fourth respondent is the party that administers the domain names referred to above.

PUBLICATION OF THE DEFAMATORY ARTICLE

[6] The defamatory article was published on 23 July 2015. It is not disputed that it had been authored by Joffe and published on two

websites, namely sportsfire.co.za and sportsfiredaily.co.za. The defamatory article states, inter alia, that:

6.1. HSM obtained (and has maintained) a contract with a sports federation by the name of "SASOC" by means of "cronyism and alleged kick-backs".

6.2. HSM accepts money/benefits in return for promoting the children of certain people as "future star players".

[7] In the second part of the article allegations are made that:

7.1. HSM directors had knowledge of, and did nothing about, sexual harassment of certain members of HSM staff;

7.2. HSM is a "sexist and indecent' company;

7.3. HSM has acted dishonestly, and is vindictive; and

7.4. HSM directors had been guilty of misconduct, and "they think they are above the law''.

[8] Certain further allegations relate to alleged conduct of a criminal nature.

[9] By the time the application was launched the defamatory article was still accessible on the website sportsfire.co.za, but had been deleted from the website sportsfiredaily.co.za.

[10] By the time this application was heard the defamatory article had been deleted from both websites.

[11] In his answering affidavit Joffe makes the following admissions.

11.1. He admits authoring the emails;

11.2. He admits receipt of letters in which HSM advised him that it would seek urgent interdictory relief if he carried out his threat to publish the defamatory article;

11.3. He admits publication of the defamatory article on both the abovementioned websites; and

11.4. He admits that on the date that this application was launched the defamatory article was still accessible at sportsfire.co.za.

[12] Joffe raised a host of defences. I will deal with them individually.

[13] Firstly, Joffe seems to indicate that if the Rule nisi is made final, it will have a "chilling effect on any journalist who seeks to expose irregularities relating to trading corporations which are benefiting from public funds". Analysing the papers, it however becomes abundantly clear that this matter has got nothing to do with press freedom. The article is published to extract retribution. Accordingly, this defence has not merit.

[14] Furthermore, Joffe contends that the allegations contained in the defamatory article are not defamatory of HSM, and that they were

uttered because they are true and to the public benefit, or alternatively comprise fair comment on actual facts. In addition, he

appears to rely on the reasonableness of the publication of the defamatory article.

[15] I will not in this judgment discuss the basic principles of the law of defamation. They are well established and in argument before

me, I do not believe that any of these basic principles were challenged. Suffice it to say that proof of publication of defamatory

matters give rise to two presumptions, namely a presumption of wrongfulness and a presumption of intention to defame. Accordingly

the respondent bears the burden of rebutting those presumptions.

[16] In my view, Joffe failed dismally in this regard. It can never be said that what was published was for the public benefit, or was fair comment based on true facts. He does not contend that this statement was published in jest, or by reason of a mistake, or that the publication was without animus injuriandi. The respondent bears the full onus to show that there are grounds of justification for the publication of the defamatory article. In order to do so, a respondent must state sufficient particulars to enable the Court to evaluate that defence. The ipse dixit of the respondent will not suffice. In this regard it is not enough to show that the respondent believed the statement to be true, or that he was merely repeating what others have said, or that there was a rumour. The respondent did not place any such factual allegations before the Court. All the Court has is his ipse dixit.

[17] Joffe also asserts that HSM is not entitled to any relief in view of the fact that the defamatory article had been deleted from the websites of sportsfire.co.za and sportsfiredaily.co.za, by the time this application was heard. He also attacks the question as to whether this Court has jurisdiction to hear the matter.

[18] The applicant is applying for final relief. It must accordingly show that it has:

18.1. A clear right;

18.2. That an injury is actually committed, or reasonably apprehended and that there is no other satisfactory remedy.

[19] It is defamatory to make a statement concerning a corporation that reflects adversely on its business reputation. The allegations

published by Joffe are, in my view, self-evidently malicious and defamatory of HSM, and must have embarrassed HSM, and adversely

affected its business reputation. Accordingly the applicant has a clear right.

[20] I am not going to deal with the question of jurisdiction. The publication took place within the territorial jurisdiction of this

Court, and this Court therefore, self­ evidently, has jurisdiction.

[21] The fact that the applicant defamed Joffe in certain tweets, is, in my view, irrelevant. Joffe's attitude is one of tit for tat.

Furthermore, it is clear that Joffe has got no intention to stop the publication of defamatory comments against HSM, and what was

glaringly evident was that, even during the hearing, he was not prepared to give an undertaking that he would not again publish

defamatory articles relating to HSM.

[22] In the circumstances, I granted the order.

____________________

TRAVERSO, DJP