Jacobs Safaris CC v Bloodlions NPC and Others (7187/2019P) [2020] ZAKZPHC 31 (30 July 2020)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

THE SUPREME COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION, PIETERMARITZBURG

Reportable

CASE NO. 7187/2019P

In the matter between:

JACOBS SAFARIS CC

APPLICANT

and

BLOODLIONS NPC

FIRST RESPONDENT

(REG NO. 2018/33265/08)

REGULUS VISION (PTY) LTD

SECOND

RESPONDENT

(REG NO: 2013/017703/07)

IAN HUGH MICHLER

THIRD RESPONDENT

(ID NO: [….]

PHILIPPA MARY HANKINSON

FOURTH RESPONDENT

(ID NO: [….])

Coram: KOEN J

Heard: 19 JUNE 2020

Delivered: 30 JULY 2020

ORDER

The application is dismissed with costs.

JUDGMENT

KOEN J

[1] The hunting of animals is always likely to be a controversial subject. It has however developed into a multimillion rand industry. Hunting stands in contrast to the conservation of wildlife, although some hunters argue that, properly managed, hunting contributes to conservation by strengthening the gene pool of groups of wild animals by culling the aged and infirm. The views expressed either for, or against, hunting are often as varied as the persons who express them. Many, possibly most, hunters however favour controlled,[1] fair chase hunting, and condemn ‘canned hunting’ as a vile activity.

[2] With canned hunting, the animal hunted often has a history of being habituated and familiarised with humans, as might happen with certain forms of captive breeding, handling and/or raising, so the animal loses its fear for and hence its natural instinct to flee from humans. The ‘hunted’ animal is furthermore confined to a restricted captive area where it is denied the opportunity of a fair chance to escape the hunter’s chase and ultimately the fatal bullet or cross-bow arrow. The hunter might also not be pursuing his prey on foot, but is often in some form of motorised transport. Canned hunting provides a speedy manner for the hunter to kill an animal, to secure a trophy, being the animal’s head and/or its skin, to take away and display. Sometimes the animal to be hunted can even be pre-selected from a brochure. Canned hunting is widely viewed by most as cruelty to animals, and hence immoral, unethical, and not justifiable.

[3] Conservation on the other hand, is aimed at preservation, and seeking to ensure the survival of especially endangered species.[2] It is a virtuous pursuit, but it comes at substantial financial costs. Various business models have accordingly come to be recognised

over the years to fund conservation efforts. Some animals sought to be conserved are housed in research facilities, others in parks, or some similar facility. Often the conservation effort is presented as a tourism option, or a conservation enterprise for others to contribute to, either in money or by their involvement, or both, to fund the conservation. But this combination, involving different

business models, at times also renders the conservation effort controversial and subject to criticism. Many individuals are critical, to various differing degrees, of conservation efforts, depending on whether the animals are kept in confined spaces or cages, are not allowed to roam freely as intended in nature, or even if kept in adequate enclosures, are touched and petted whilst in their infancy (tactile stimulation), or accompanied on walks by humans. These efforts are criticised for causing the animals to lose generally their fear of humans, and/or often making their re-integration into the wild difficult, if not impossible, resulting,

for many animals, in an inevitable lifetime of confinement. Some of these conservation efforts, even when sought to be justified as allowing opportunities for testing products which might save human lives, are sometimes viewed with a disapproval and vehemence not much dissimilar to that otherwise reserved for canned hunting.

[4] Animal breeding is however sanctioned as an important part of conservation management in terms of the Convention of Biodiversity held in 1994.[3] Thus, while keeping an animal in captivity, conducting an experiment on an animal, or even killing an animal in the interests of research and development, might stir feelings of pity for the animals by some, the practice is regarded as justifiable by many where the research and development in question is beneficial to the development of humanity, or the conservation of animals more broadly. But not all people see it that way. Many people do not want to see a lion experimented upon, or kept, or bred, in captivity, even if told that the captive breeding is making a significant and invaluable contribution to the survival, not only of the lion as a species, but other cat species as well. These individuals are often vociferous in their condemnation of these practices, which they automatically associate with keeping any kind of animal in captivity. The keeping of animals in captivity is accordingly a topic which, in many sectors of society, generates much public interest and comment.

[5] This application concerns a documentary film, titled ‘Blood Lions’, which involves many of the emotions and considerations identified above. The applicant maintains that the documentary is defamatory of it.

Background

[6] The applicant conducts a lodge (focusing on eco-tourism), a game reserve (focusing on the conservation of wildlife), a conservation centre and a bio-bank (focusing on independent research, education and conservation for endangered species to preserve genetic diversity for endangered wildlife), on a game farm called Ukutula near Brits in the North West Province. A variety of wild animals, including lions, are kept. The facility is ‘at the forefront of worldwide research and development efforts aimed at the conservation of cat species around the world’, conducted by universities such as the Faculty of Veterinary Science at the University of Pretoria, the University of the Western Cape, Berlin University, Hamburg University, Utrecht University, Lund University, Madrid University and the University of Ireland. It recently enjoyed the success of having the first lion cubs conceived via non-surgical artificial insemination, being born in captivity. Research is conducted at Ukutula to save, not only the lion species, but all big cat species. To finance the costs of research and development, the applicant offers tourism services open to the public, which it says occurs under very strict conditions, for example, it does not allow lion walking, but rather the observation by the public, from a distance, of lions being exercised. It does, however, allow limited petting.

[7] Following a visit, some eight years ago, to a private lion breeding farm, where she viewed approximately 80 lions in captivity, many of which she believed to be visibly inbred and distressed in small enclosures, the fourth respondent set about raising awareness around the exploitation of captive bred lions. She gathered a team which produced the documentary which forms the subject of this application. The second respondent is the producer of the film. The third respondent is the special consultant, researcher and narrator/lead character in the documentary.[4] The film premiered on 22 July 2015 and has since then been shown around the world and amongst others on television channels like

Discovery, Animal Planet and on MSNBC. It is reported to have received national and international acclaim. According to the respondents, the aim of the film is to ‘uncover the realities about the multi-million-dollar predator breeding and canned lion hunting industries in South Africa’ and to ‘raise awareness around the exploitation of captive bred lions.’

[8] The applicant alleges that the documentary portrays it as being associated with ‘canned lion hunting practices and the lion

bone trade’. It emphatically denies that it is involved in canned lion hunting or in the lion bone trade, and that it has ever sold any lions for those purposes. Specifically, the applicant complains that the respondents have (i) allowed their emotive response to the reprehensible practice of canned lion hunting and the lion bone trade to cloud their judgment as to whether there was any evidence to support the link they claim exists between the applicant’s breeding programme and such practices; (ii) abdicated their responsibility, as documentary makers, to establish the facts and present a fair account of the applicant’s contribution to conservation efforts;[5] (iii) simply assumed, without evidence, that because the applicant breeds lions in captivity it does so qua supplier to the canned lion and bone trade industries; and (iv) led viewers of the film to draw the same conclusion.

The relief claimed

[9] The applicant claims final interdictory relief against the respondents as follows:

(a) That the respondents be ordered and directed to remove all depictions, references and images of the applicant from the film;

(b) That the respondents be interdicted and restrained from publishing, promoting, marketing, distributing[6] and/or screening a version of the film wherein the applicant is depicted, mentioned, referenced or shown in any respect;

(c) That the respondents be ordered to provide the applicant with a formal written statement, undersigned by or on behalf of the first, second, third and fourth respondents, wherein the following is stated:

(i) Any and all versions of the film containing references to or depictions of the applicant are retracted;

(ii) There is no evidence that the applicant is involved or associated with the canned lion hunting trade and/or the lion bone trade and/or the breeding of lions for the canned hunting trade and/or lion bone trade and/or the raising of cubs for the canned lion hunting trade and/or the lion bone trade;

(iii) The first, second, third and fourth respondents apologise for the false depiction of the applicant as being involved or associated with the canned lion hunting trade and/or the lion bone trade and/or the breeding of lions for the canned hunting trade and/or lion bone trade and/or the raising of cubs for the canned lion hunting trade and/or the lion bone trade;

(d) That the respondents be interdicted and restrained from making defamatory statements of and concerning the applicant.

(e) That the respondents be ordered to pay the costs.

The relief claimed in subparagraph (d) is so wide and general as to be meaningless. It was abandoned at the commencement of the argument and is not considered further in this judgment.

Requirements for a final interdict

[10] It is trite law that there are three requirements[7] for the grant of a final interdict:

(a) a clear right on the part of the applicant;

(b) an injury actually committed or reasonably apprehended;

(c) the absence of any other satisfactory remedy available to the applicant.

[11] Application proceedings are used to decide matters where the facts are common cause.[8] The weighing of probabilities should not be applied in evaluating affidavits. A litigant who proceeds by application proceedings,

instead of instituting an action, does so at his peril because he deprives his opponent of a number of procedural advantages; the right to plead without prematurely disclosing evidence, the right to a tactical denial, the right to raise alternative defences and the right to cross-examine the plaintiff’s witnesses.[9] In the event of a dispute of fact arising the general rule is that the applicant is put to an election, at the outset or in limine,[10] to ask for a referral to oral evidence, or to argue on the papers and run the risk of the application being dismissed.[11] The applicant elected to argue the matter on the papers. Accordingly, the relief claimed can only be granted if the facts stated by the respondent together with the admitted facts justify such relief.[12] The facts alleged by the respondent must be accepted, unless they are bald, un-creditworthy denials, or palpably implausible, far-fetched

or so clearly untenable, that they can safely be rejected on the papers. This is because evidence and cross-examination has the

potential to alter a view of the plausibility of evidence.[13]

Clear right

[12] The clear right upon which the applicant relies is its right to a good name and reputation. That right is unaffected by the fact that it is a corporate entity.[14] The respondents do not dispute that right.

No satisfactory alternative remedy

[13] If the documentary is defamatory, then an apology and action for damages would serve to address historical harm suffered but would do nothing to address any on-going harm which the applicant may suffer. Even where an injury may be capable of pecuniary evaluation and compensation, a court will generally grant an interdict where there is a continued violation of the applicant’s rights.[15] The existence of another remedy will furthermore only ‘preclude the grant of an interdict where such proposed alternative remedy will be one which provides similar protection to an interdict against the injury that is occurring or is apprehended’.[16]

[14] The respondents did not seriously dispute that if the documentary was defamatory of the applicant, but that the applicant could be said to have a satisfactory alternative remedy.

An injury actually committed or reasonably apprehended

[15] This is the central issue to be determined in this application. What is required is an act of interference with, or an invasion of the applicant’s right, and resultant prejudice,[17] whether actual or potential.[18] The injury complained of by the applicant is that it is defamed by the documentary.

Defamation

[16] The elements of defamation are: ‘(a) the wrongful; (b) intentional; (c) publication’ of (d) a defamatory statement (e) concerning’ the applicant.[19] Generally in an action, once the plaintiff establishes that a defamatory statement concerning it was published, it is presumed that the statement was both wrongful and intentional and it is for the defendant to prove, on a preponderance of probabilities, a defence which excludes either wrongfulness or intent. The defences traditionally available do not constitute a numerus clausus.[20] Depending on the defence raised, a bare denial by the defendant might not be enough and facts would have to be pleaded and proved to establish the defence. The mere ipse dixit of a defendant that it has a defence might not, depending on the specific circumstances, suffice.[21] Where a defence requires a factual foundation, the evidence required to establish such a defence must be adduced and assessed on a conspectus of all the material evidence, which in the case of a final interdict will include all the facts established by an application of the Plascon Evans test.[22]

[17] 'Publication' requires ‘communication or making known to at least one person, other than the plaintiff’.[23] It may take many forms, including speech or print, photographs, sketches, cartoons, caricatures or digital film.[24] Publication of the documentary was not in dispute in the application.

[18] Where a plaintiff contends that a published statement is defamatory per se, the first enquiry is to establish the ordinary meaning of the statement in the context in which it was used, and the second is whether that meaning is defamatory. The test is an objective one, namely the meaning a reasonable reader of ordinary intelligence would attribute to the statement in its context, having regard not only to what is expressly stated, but also to what is implied. Because the test is objective, a court will not hear evidence of how the statement was understood by viewers.[25] At the second stage, the statement will be held to be defamatory, if it is likely to injure the good esteem in which the plaintiff is held by the reasonable person to whom it had been published and expose it to hatred, contempt or ridicule, that is whether it is more probable than not, that the statement will harm the plaintiff.[26]

[19] As regards the first enquiry, a statement may have a primary meaning, that is the ordinary meaning given to the statement in its context by a reasonable person, or a secondary meaning, also referred to as an innuendo, which is a meaning other than the ordinary meaning because of the special circumstances, which can be attributed to the statement by someone having knowledge of the special circumstances. 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.

[20] If a statement can bear one meaning which is defamatory and others which are not, if the defamatory meaning is more probable than the other, the defamatory nature of the statement has been established, and conversely where the non-defamatory meaning is more probable, or where the probabilities are even in which event the onus has not been discharged.

[21] A defamatory statement will not be actionable if the defendant has a valid defence,[27] which can either be a defence negativing intention or rebutting wrongfulness. It has been held an applicant seeking to interdict

defamation will not succeed unless it is clear that the respondent has no defence.[28]

Which statements does the applicant rely upon?

[22] The applicant submits that it is defamed because, given the central message of the film that lions are bred in captivity, with the subscript ‘Bred for the bullet,’ it (the applicant) was included in the film because the respondents wanted to tell the public, without supporting evidence, not to visit the applicant’s facility at Ukutula, because in doing so they are fuelling the trade in lions ‘for the bullet’.

[23] The documentary however does not contain any express statement that the applicant is involved in the canned hunting trade or lion bone trade. The applicant concedes that much. The applicant also disavowed reliance on any innuendo. The issue, as accepted by the applicant, is whether the documentary necessarily implies that the applicant is involved in canned lion hunting and the lion bone trade.

[24] The respondents deny that the documentary conveys that the applicant is involved in canned lion hunting, and hence that it is defamatory of the applicant as alleged. In the event that it is found to be defamatory they deny, in the alternative, that the publication

thereof was wrongful, because it enjoyed media privilege, alternatively that it was true,[29] or amounted to fair comment.

[25] It is accordingly vital, at the outset, to identify the factual premise, from which the applicant contends that it is to be inferred, that the documentary implies that it is involved in canned lion hunting. The respondents complain that the applicant has failed to do so, that this failure was fatal to its cause, and accordingly that the application should be dismissed for that reason alone. In the alternative, and because of the predicament they faced due to this failure by the applicant, the respondents in their answering affidavit identified every scene in the documentary, with the accompanying narrative, which refers to the applicant. They then explained that these did not result in the only reasonable inference being that the applicant was involved in canned lion hunting, and hence that the documentary was not defamatory of the applicant.

[26] The applicant’s retort to the absence in the founding affidavit of specific references to the parts of the documentary which should be viewed as defamatory of the applicant, was that it does not rely on any specific image, sound or statement in the film, but that it is the applicant’s portrayal in the film as a whole which constitutes the defamation. It sought to justify that approach with reliance on the decision in Le Roux v Dey.[30]

[27] I was provided with a copy of the documentary on a digitial video disk (DVD) and, at the request of all the parties, viewed it privately

before the hearing. The documentary has a duration in excess of an hour.[31] It contains multiple scenes and themes and features many views of interviewees from different organisations. Some of these interviewees, and I exclude the scenes referring to Ukutula, appear clearly uncomfortable when questioned about their possible involvement of canned lion hunting and the lions they have in captivity. They are unable to express themselves clearly. Some respond in an aggressive and threatening manner, leaving the impression that they probably have something to hide as regards their possible involvement in the canned hunting trade. The documentary also contains, an interview with Mr Paul Hart, a predator sanctuary owner, who makes it clear that he has no involvement with canned lion hunting. In his case he confirms that he has a strict no breeding policy and that he offers a lifetime home to his lions. It would obviously be open to other institutions, like Ukutula, with reference to similar cogent explanations, to dispel any suggestion that they facilitate, or contribute to, canned lion hunting.

[28] The context in which the words are expressed is obviously important in deciding the meaning thereof, and the viewing of the film as a whole is hence a necessary exercise. But it should not be left to this court to trawl through the audio version of a film script and having to identify what it thinks might be relevant or material to the case the applicant seeks to make. The comparison with the position in Le Roux v Dey does not assist the applicant. A documentary with a duration in excess of an hour, raising various issues concerning lions being bred and kept in captivity and having human contact, and raising issues such as whether these lions find their way later to the canned hunting industry or find some other destination in their dotage, is a far cry from assessing the meaning sought to be conveyed by a single image, as in Le Roux v Dey.

[29] Context is important. It might even be everything. However, it has been stated repeatedly that litigants should not simply annex reams of, for example, correspondence, and then expect of a court to trawl through the contents thereof to identify whether, and what cause of action it may make out. The present situation is no different. It is a trite principle that ‘he who alleges, must prove’. [32] That principle however only applies once one knows what is alleged. The danger lies therein that if the particular parts which the applicant places reliance upon are not all identified, that this court might be persuaded by scenes or narrative, which the applicant did not intend to rely upon at all, or it might ignore part of the narrative which the applicant considers decisive for its contention. The prejudice will be irreversible if a particular narrative, wrongly identified by the court as founding the applicant’s cause, results in a finding against the applicant. But more importantly, it placed the respondents in an unenviable position as to what factual case they had to meet.

[30] The respondents had to identify what they thought constituted the factual basis for the applicant’s cause of action, and then having done so with reference to every scene where the applicant featured, they had to negative what they thought might potentially be argued as the applicant’s cause of action. This is a fatal defect in the applicant’s case. I agree with the respondents’ submission that for that reason alone the application should be dismissed.

[31] The applicant, following the various scenes with narrative identified by the respondents in the fourth respondent’s answering affidavit, in its replying affidavit sought to identify the particular scenes and narrative upon which it relies. It has also in its heads of argument, sought to identify the scenes and narrative it relies on for the contention that it had been defamed. That is an inappropriate and impermissible approach.[33] Such identification should have been contained in the founding affidavit, so the respondents would have had a proper opportunity to answer the allegations in their answering affidavit. By only identifying the relevant scenes and accompanying narrative in reply

and in the applicant’s heads of argument, the respondents have been denied that opportunity. The respondents were in a position to deal with the legal arguments raised by the applicant in respect of the issues thus subsequently identified, but that did not remedy it having been denied an opportunity to respond factually thereto, even where it did seek to present an answer to what it thought the applicant’s possible cause might be based on. For that reason too the application qualified to be dismissed.

[32] If I am incorrect in the above conclusions, I continue, because of the conclusion I have reached, to deal with the applicant’s case based on what it identified to be its case in its replying affidavit and its heads of argument.

Is the documentary defamatory of the applicant?

[33] In its replying affidavit and the heads of argument the applicant submits the following for its contention that the film, both expressly and impliedly, is defamatory of it:

(a) At the start of the portion of the film depicting the applicant’s operations (“the Ukutula Segment”) an interview is conducted with a German volunteer who states, in answer to a question from the third respondent, that there are 128 lions located at the applicant’s premises.

(b) Later, during an interview with Professor Bob Millar, Professor Millar states that he requires between 20 and 30 lions for his research.

(c) Professor Millar is then asked whether he knows what happens to the applicant’s older lions. His answer is that he doesn’t know. This exchange plants the seed in the mind of the viewer that the applicant must be doing something unethical with the excess lions.

(d) Later in the Ukutula segment, one of the employees of the applicant[34] can be heard to say that the applicant sells their excess lions. This provides the viewer with the answer to the question posed to Professor Millar moments earlier. Although there is a denial by the speaker that the lions are sold to canned lion hunting facilities, the viewer is likely to be skeptical by this point in the film. Indeed, virtually every facility shown to this point in the film has been portrayed as unethical and untrustworthy.

(e) In fact, the Ukutula Segment is preceded by a statement from one of the interviewees on the film (Karen Trendler) stating that the patrons of captive bred lion facilities and volunteers that assist in raising these lions have the ‘wool pulled over their eyes’ and ‘that they have no idea in many cases’ that the lions they are interacting with will later be sold to or used for nefarious purposes such as canned lion hunting. This statement is repeated during a scene where the applicant’s lion cubs are depicted. This strongly suggests to the viewer that the applicant and its employees are not to be believed and that they are deceiving their patrons.

(f) The employee is also asked why the applicant has so many lions. To which the answer given is “research”, but the viewer has already been told that Professor Millar only needs 30 for that purpose. Again, the viewer is therefore invited to be skeptical about these claims.

(g) The viewer is next confronted with the third respondent’s ‘rhetorical’ question: ‘the feedback we get from most of these facilities [a clear reference to Ukutula] is that they don’t breed and we are not involved in canned hunting …. This begs the question, where do all the lions go?’ This rhetorical question is asked at a time when images of Ukutula lions are being shown and, immediately thereafter, canned lion hunting facilities (already shown earlier in the film) are replayed for the viewer.

(h) The viewer is then told that the applicant declined to be interviewed, which again suggests that the applicant has something to hide.

(i) Finally, immediately following this sequence of images of Ukutula there is a further clip from the interview with Karen Trendler in which (in clear answer to the applicant’s justification for breeding lions), she says that there is ‘no conservation value in breeding lions in captivity’; that those involved in captive lion breeding must be ‘honest’ and admit that it is a ‘commercial venture’, which is ‘brutal’ and which aims to produce lions for which the facilities have ‘a number of uses’. By this point, the viewer already knows about canned lion hunting.

(j) What follows immediately after Ms Trendler’s interview clip, is a story about lion bone trade. The ‘uses’ to which Ms Trendler refers (with clear reference to the applicant is therefore canned lion hunting and the lion bone trade).

(The bold print above highlight inferences which the applicant seeks to draw as being justified, some of which I shall deal with below, but which, in my view, are not justified).

Discussion

[34] The respondents do not dispute that the film has been published and that it refers, amongst other breeders and operators, to the applicant where the applicant features in scenes and the narrative. The first issue to determine is whether the scenes and words identified by the applicant impliedly ascribe conduct to the applicant of a defamatory nature. It is common cause that the documentary contains no express reference that the applicant is a participant in the canned lion hunting or lion bone industries. Nor does the applicant rely on a secondary meaning. Its case is that the dominant impression created by the documentary by necessary implication is that the applicant participates in such activities.

[35] It is necessary therefore to investigate the ordinary meaning of the scenes and words relied upon,[35] that is what meaning the reasonable observer would attribute to the picture in its proper context, which will entail (a) what does the picture show, both expressly and by implication; and (b) what is the proper context in which it must be understood?

[36] The applicant adduced a substantial amount of evidence as to how the film has been interpreted by alleged ‘reasonable’ observers, including posts on social media, some of which referred to the film expressly for a belief that the applicant is breeding lions for supply to the canned lion hunting and lion bone trade. That ‘evidence’ is irrelevant.[36] It is for this court to decide what meanings arise from the film and whether they are defamatory. It cannot be guided by the hearsay

comments of various individuals with possible different agenda and sensitivities to viewing wild animals in captive breeding environments.

[37] The ordinary reasonable viewer will attach significance to the following: the film is a documentary on a very topical issue; it comments mainly on the canned lion, and to a lesser extent the lion bone industries, but it will also elicit responses from those who are opposed to lions being bred for conservation purposes, or the keeping of lions in any form of captivity; the canned lion industry requires a generous supply of easily available lions to shoot; a ready and steady supply of such lion for canned hunting, due to the scarcity of lions in the wild, could be met from breeding cubs, particularly in captivity, hence the subtitle ‘Bred

for the bullet’; breeding of lions in captivity is also often accompanied by the ‘petting’ of cubs (more correctly

cuddling and embracing cubs and bottle feeding them, with no maternal connect from a very young age) which could prepare them later for walking with humans, which would all lead to some degree of domestication with humans, resulting in them losing their fear for humans, and hence making it easier to attract them in a hunt, especially in a captive situation, where they would not naturally

flee from human hunters.

[38] Cubs are however bred in captivity for many purposes, not all inevitably following the life stages referred to in the previous paragraph. Cubs are also bred in captivity for purposes of research and ensuring the survival of lions, even although they might be difficult to re-introduce successfully into the wild. Some facilities operate for that very purpose. For some individuals opposed to seeing the king of the jungle in any form of captivity, those purposes might also be unacceptable, although they would recognize that the lions are not bred for canned hunting. Many might approve of and actively support the efforts of organisations that breed the cubs and conserve lions providing them with good care, albeit in captivity, until they eventually die in their dotage. The danger however exists, because cubs bred in captivity, once they achieve maturity could become a source of adult stock for canned hunting, that care must be taken to avoid them used for that purpose. This is particularly so where the financial rewards for such lions

are high, a market is readily available and demand is not lacking, and where the alternative of caring for these lions in captivity

until they die is a costly exercise.

[39] The applicant, because of its involvement inter alia in cub breeding, and allowing petting, notwithstanding its open declared involvement in conservation and research only, runs the risk noscitur a sociis,[37] because of the very nature of its activities, of being suspected of possibly being involved in some unacceptable conduct. That risk comes because and as a result of the applicant operating in the field of captive breeding. It is a suspicion which some will always harbour, and one which only the applicant can rebut.

[40] The inferences which the applicant seeks to draw, highlighted in bold above, are not the only inferences that can reasonably be drawn from the facts portrayed in the documentary. Although interviews are conducted on film with volunteers who work with the applicant, and it was commented by one interviewee (not a volunteer) that volunteers have the wool pulled over their eyes, it is not stated that this is definitely the case with the applicant’s volunteers.

[41] Ultimately the viewer is left with the impression that what is important, is the answer to the question as to what ultimately happens to the lions. The applicant emphasises that the documentary reports that the applicant has more than 120 lions.[38] Prof Millar states during his interview on film that he requires 25 to 30 for his research. The applicant contends that the reasonable

viewer will immediately be suspicious as to what happens to the remainder of the lions and that the viewer will infer that the

remainder are bred for canned hunting. That is however not the only reasonable inference. It is never stated during the documentary that Prof Millar is the only researcher conducting research on the applicant’s lions.[39] There is nothing to suggest that other research is not conducted as well, particularly where the applicant has an association with a number of tertiary institutions. What is significant further is that someone with Prof Millar’s credentials, who obviously has to spend sufficient time at Ukutula for his research, was unequivocal that, although he had no idea whether Utukula bred ‘with lions to have more lions to do something else with’,[40] if he was aware at all that lions were mishandled in Ukutula in a way that he saw as unacceptable, he would have nothing to do with doing his research in that environment. One is left with the impression that if he became aware that any of the lion were supplied for canned hunting - and he has spent some time there attending to research - that he would draw attention thereto.

[42] The question as to what ultimately happens to the lions bred and kept in captivity, is a very relevant one in the context of the documentary. It can only be answered and is best answered by those, like the applicant, who keep lions in captivity. Its manager, Daniella, was asked that specific question. She stated clearly that the lions are sold to breeding centres and predator parks all over the world, not in an irresponsible manner to unscrupulous purchasers, but that the applicant researches the suitability of the purchasers to which it sells and supplies the lions.[41] The comments by Prof Millar and the employee Daniella are inconsistent with the only reasonable inference, to an objective viewer, being that Ukutula is a source of lions for ‘canned lion’ hunting or lion bone trade purposes.

[43] In addition, the owner of the applicant was invited to be interviewed so that the film would include his response. He declined to do so. The viewer is shown a clip from a lady from Ukutula approaching the narrator and producer, as the production team appears to prepare to depart, stating that when visitors have been allowed to film and conduct interviews at Ukutula in the past, they (the applicant) had ‘been misrepresented’, thus advancing a possible basis for a reluctance to be interviewed. The applicant has not complained that Daniella’s reply, which was shown, was misrepresented. There is no reason why a reasonable

viewer should not believe her explanation that the lions are sold to purchasers who, as determined by the applicant, do not use the lions for canned hunting.

[44] Obviously no investigation of the intentions of purchasers of lion can ever be entirely fool-proof. An on-sale to a third party might also occur to a suspicious viewer as a reasonable possibility. One way to ensure that fewer lions pass through any possible proverbial cracks in the system, would be if fewer cubs are bred in captivity and/or are subjected to the forms of raising which might habituate them to humans. But if fewer cubs are bred, it might also mean that the total number of lions will dwindle, possibly making their extinction a real possibility. To the reasonable critical viewer of the documentary the question will be where the line should be drawn. For some, the appeal not to visit any facility where cub petting is allowed, may be the solution, whereas

others reject it in favour of experiencing the intimate type of exchange with cubs portrayed in the film, coupled with an appreciation for the conservation effort, the preservation of lions as a specie, and being content, based on assurances (like that by Daniella), that the Ukutula lions do not find their way in to the canned lion industry. These persons would still visit facilities allowing cub petting, satisfied that any negative effects of captive breeding are outweighed by the conservation benefits which they want

to experience personally, and other benefits, such as research benefits.

[45] The documentary is not defamatory of the applicant and Ukutula. But even if I was wrong in that regard, I am not persuaded that any such defamation would be wrongful. What was shown in the film would be justified by the defences of media privilege and fair comment.

The defences

[46] The applicant described the respondents’ references to the defences of media privilege and fair comment as ‘perfunctory and ineffectual’, because they were simply mentioned without the respondents alleging the facts in support thereof. The references to the defences simply by name would however be sufficient where the defences could be established on the common cause facts in the application, even if those facts might appear from the applicant’s founding affidavit only.

[47] In the constitutional era any action for defamation must be balanced with the freedom of expression guarantee by s 16 of the Constitution.[42] In respect of the defence of media privilege, the respondents simply would have to establish that they had reason to believe in the truth of the statements, took reasonable steps to verify the correctness thereof, that publication of the scenes/statements was reasonable in all the circumstances of the case,[43] and that a reasonable opportunity was afforded to the applicant to comment. In respect of fair comment, the respondents would have to establish that the scenes/statements complained of simply contained a comment (opinion) and were not statements of fact that they were or would have been understood as such by a reasonable viewer, that the facts commented on were truly stated, and that the matter was of public interest.[44]

[48] On the facts established in the application, the respondents believed in the truth of the statements which they included in the film, otherwise they would not, as a matter of probability, have included them. It has not been alleged by the applicant that the respondents did not believe in the truth of the statements, or manipulated them in some way, or did not believe that the views expressed by persons interviewed were genuinely held. Specifically with reference to Ukutula, they interviewed staff, asking pertinent questions as to what happened to the lions ultimately, and showing the full reply from Daniela. The ‘owner’ was also invited to be interviewed. The exhortation not to ‘visit a farm that offers cub petting or walking with lions’, and the inclusion of the comment that some volunteers had the wool pulled over their eyes (the latter being a comment by an interviewee), would be understood by a reasonable hearer as opinions and comments fairly ventilated in the general public interest as part of an ongoing debate.

Costs

[49] The respondents have been successful and are accordingly entitled to the costs of opposing the application.

Order

[50] The application is therefore dismissed with costs.

Appearances

For applicant: Mr G Marriott and Mr N Louw

Instructed by: Manley Inc

c/o Viv Greene Attorneys

132 Roberts Road

Clarendon

Pietermaritzburg

viv@vglaw.co.za

For respondent: Mr A.J. Dickson SC

Instructed by: Bowman Gilfillan Inc

c/o Tomlinson Mnguni James Inc

12 Montrose Park Boulevard

Victoria Country Club Estate Office Park

Montrose

Jennaf@tmj.co.za

[1] Controlled, in the sense of having regard to the available population of the particular specie hunted, to prevent over exploitation.

[2] The applicant states that it does not draw a distinction between so-called ‘ethical’ and ‘unethical hunting’,

as ‘the killing of animals for sport or pleasure stands in sharp contrast to our belief that we are the caretakers of our

wildlife’.

[3] It is reported that there are 6000 lions kept in about 200 facilities.

[4] The first respondent’s involvement is not clearly referenced.

[5] The harm complained of includes the undermining of the applicant’s commercial arrangements with the likes of Woolworths and Sun International; and its reputation in the minds of the public.

[6] The respondents deny that any of them are the distributor of the documentary, and that the distributors are in fact an American

company and Wildlands, neither of whom have been joined. Their non-joinder was raised as a point in limine but not persisted with, the respondent simply making the point that no relief can be granted against the distributors who were not joined. That the order sought would not be enforceable against any of the two distributors not joined, is undoubtedly so. However, no evidence was placed before the court as to the arrangement between the producer/copyright owner of the documentary and the distributors, particularly whether they have exclusive distributorship agreements. In the absence of such evidence, it is possible that the producer might seek to distribute the agreement in the future through other distributors, particularly as the fourth respondent has stated that ‘it is imperative that the documentary continue to be distributed in order to raise awareness around the exploitation of captive-bred lions in South Africa.’ The non-joinder argument can accordingly be dismissed.

[7] Setlogelo v Setlogelo 1914 AD 221.

[8] National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 26 per Harms DP.

[9] Williams v Tunstall 1949 (3) SA 835 (T) at 838 – 9; Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1159 – 1162.

[10] De Reszke v Maras 2006 (1) SA 401 (C) para 32; Law Society, Norther Provinces v Mogami & Others 2010 (1) SA 186 (SCA) para 23.

[11] De Reszke paras 32 – 33; Mogami para 23.

[12] Stellenbosch Farmer’s Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 at 235; Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E – 635F. A denial that is far-fetched or clearly untenable may be rejected on the papers, but even then, probabilities should not decide conflicts of fact in affidavits - Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading & Another 2011 (1) SA 8 (SCA) para 20.

[13] Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd 2017 (2) SA 1 (SCA) para 36.

[14] Financial Mail (Pty) Ltd & Others v Sage Holdings Ltd & Another 1993 (2) SA 451 (A).

[15] Wynberg Municipality v Dreyer 1920 AD 439.

[16] Hotz & Others v University of Cape Town [2016] ZASCA 159; 2017 (2) SA 485 (SCA) para 36 and 39.

[17] D.E. Van Loggerenberg, Erasmus: Superior Court Practice (RS 3, 2016) D6-13 – D6-14 and the authorities cited there.

[18] Ibid.

[19] Le Roux & Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) [2011] ZACC 4; 2011 (3) SA 274 (CC) paras 84 to 91.

[20] National Media Ltd & Others v Bogoshi 1998 (4) SA 1196 (SCA) at 1204C-G.

[21] Buthelezi v Poorter & Others 1974 (4) SA 831 (W) at 838A-C; Hix Networking Technologies v System Publishers (Pty) Ltd & Another [1996] ZASCA 107; 1997 (1) SA 391 (A) at 399F-H.

[22] Plascon Evans (Pty) Ltd v Van RIebeeck Paints fn 12 above.

[23] Le Roux v Dey fn 19 above para 86.

[24] Le Roux v Dey fn 19 above para 86.

[25] Le Roux v Dey fn 19 above para 89. A substantial part of the founding affidavit was devoted to how various persons on social media and otherwise

understood the documentary with specific reference to the applicant’s operations at Uthukela, and how the film allegedly

affected the applicant’s relationship with Sun City and Woolworths. Apart from being hearsay and opinion evidence, these

views are irrelevant to the determination whether the documentary is defamatory of the applicant.

[26] Le Roux v Dey fn 19 above para 91.

[27] Le Roux & Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) [2011] ZACC 4; 2011 (3) SA 274 (CC) para 85.

[28] Roberts v The Critic Ltd & Others 1919 WLD 26 at 28 and Heilbron v Blignaut 1931 WLD 167 at 169.

[29] The truth defence was not persisted with, as it would plainly require evidence to be adduced to establish the defence on a preponderance of probability, which the respondents conceded their affidavits did not extend to. On that defence see Johnson v Rand Daily Mail 1928 AD 190; Neethling v Du Preez; Neethling v The Weekly Mail [1993] ZASCA 203; 1994 (1) SA 708 (A); Modiri v Minister of Safety and Security & Others 2011 (6) SA 370 (SCA); Independent Newspapers Holdings Ltd v Suliman [2004] 3 All SA 137 (SCA).

[30] Le Roux & Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) [2011] ZACC 4; 2011 (3) SA 274 (CC).

[31] The total duration is some 82 minutes.

[32] See Four Wheel Drive CC v Leshni Rattan NO [2018] ZASCA 124; 2019 (3) SA 451 (SCA), is distinguishable from the issues dealt with, however, this principle is crisply set out in paras 1 and discussed in paras 21 – 22 and Standard Bank of South Africa Ltd v Hand 2012 (3) SA 319 (GSJ). Cf Swissborough Diamond Mines (Pty) Ltd & Others v Government of the Republic of South Africa & Others 1999 (2) SA 279 (T) at 324F-G.

[33] See generally Union Finance Holdings Ltd v I S Mirk Office Machines II (Pty) Ltd & Another 2001 (4) SA 842 (W).

[34] Identified as Daniella.

[35] The first phase in the two-stage enquiry identified by Brand AJ at para 97 in Le Roux & Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) [2011] ZACC 4; 2011 (3) SA 274 (CC).

[36] These were identified in the answering affidavit as irrelevant, but their actual striking out was not sought. The respondents asked that this court deal with the relevance of the matter in accordance with the judgment of Froneman J in Helen Suzman Foundation v President of the Republic of South Africa & Others 2015 (2) SA 1 (CC); 2015 (1) BCLR 1 (CC) para 132 and that the evidence be given the weight it deserves and that all statements by third persons be ignored.

[37] Hardaker v Phillips 2005 (4) SA 515 (SCA) paras 30 and 34.

[38] The number of 120 lions is an estimate provided by a German volunteer who was interviewed.

[39] The founding affidavit refers to research done by a number of experts from different tertiary institutions and that some 15 instances of research have been conducted at Ukutula.

[40] Prof Millar added that he hoped the lion ‘are housed and looked after until they are old and in their dotage they die’, but that he did not actually know.

[41] The applicant states in the founding affidavit that ‘[to] ensure traceability and transparency, all of the Applicant’s

predators are microchipped and registered with an independent system organisation GMP Basic. This system requires of any organisation to whom the Applicant sells any animal, to be registered on the system. The details of the new owner of the animal is then recorded on the system.’ It is unfortunate that the applicant did not avail itself of the invitation to be interviewed where this fact, and the fact that it maintains its own database, could have been disclosed. It would have added even more weight to Daniella’s

explanation.

[42] National Media Ltd & Others v Bogoshi 1998 (4) SA 1196 (SCA); Khumalo v Holomisa 2002 (5) SS 401 (CC); Laugh it Off Promotions CC v SAB International (Finance) BV [2005] ZACC 7; 2006 (1) SA 144 (CC) paras 43 – 49; The Citizen 1978 (Pty) Ltd & Others v McBride 2011 (4) SA 191 (CC) para 81 – 86.

[43] Hardaker v Phillips 2005 (4) SA 515 (SCA).

[44] Johnson v Beckett [1991] ZASCA 175; 1992 (1) SA 762 (A); The Citizen 1978 (Pty) Ltd v McBride fn 40 above; Democratic Alliance v African National Congress & Another 2015 (2) SA 232 (CC).