Mthimunye v RCP Media and Another (23190/2005) [2007] ZAGPHC 372; 2012 (1) SA 199 (T) (6 March 2007)

REPORTABLE

IN

THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Case No: 23190/2005

Date heard: 27 / 02 / 2007

Date of judgment: 06 / 03 / 2007

In the matter between:

GEORGE MTHIMUNYE...........................................................................................PLAINTIFF

and

RCP MEDIA.......................................................................................................1st

DEFENDANT

AFRICAN

EYE NEWS SERVICES …...........................................................2nd

DEFENDANT

JUDGMENT

[1] The plaintiff is the municipal manager of the Dr. J.S. Moroka Municipality in Siyabuswa. In 2003 a certain Mrs. Esther Mathibela,

whom the municipality employs as a secretary, instituted a civil action in this court against the plaintiff. In that action Mrs.

Mathibela contends that, in the course and scope of his employment by the municipality, the plaintiff had sexually harassed her. She claims damages from the municipality in its capacity as the plaintiffs employer and from the plaintiff.

[2] The defendants jointly publish a newspaper called City Press. The newspaper is widely circulated in Gauteng, Mpumalanga, North West Province and in Limpopo. It is widely read by the general public.

[3] On 16 January 2005 City Press published an article concerning Mrs. Mathibela's sexual harassment allegations. The plaintiff contends that the article was defamatory of him and claims damages from the defendants. I annex, as annexure A to this judgment, a copy of the article.

[4]In their plea, the defendants admit that the article "is in a single respect incorrect in that it was inadvertently reported' that the plaintiff had been found guilty of sexually harassing a married woman who worked as a secretary for the municipality. Apart from that, thus the plea, the article was not defamatory. The plea continues: "Defendants plead they caused a correction and apology to be published ... which in the relevant respect vindicates and/or restored the reputation of the plaintiff'. The defendants- "correction and apology" appeared in the City Press of 27 February 2005. I annex a copy marked B.

[5] The issues between the parties may be summarised as follows: First, whether the article is defamatory of the plaintiff. Second, if the article is defamatory, whether the defendants' alleged apology vindicated the plaintiff and restored his reputation so that he has no claim for damages. If the first and second issues are resolved in the plaintiffs favour, the quantum of damages to be awarded. The last issue is that of the appropriate costs order.

[6] The plaintiff gave evidence and he called one witness, Mr S.C. Shabar a pastor of the church that the plaintiff attends in Siyabuswa where he works and lives. The plaintiff testified that he is married, 43 years old and he has one child, a boy of 14. His wife is expecting their second child. His wife worked for a medical doctor in Siyabuswa. He has been employed as the municipal manager since 2001. Before that, he was the chief executive officer of the transitional council, the municipality's predecessor. The municipality employs in excess of 2000 people.

[7] According to the plaintiff, Mrs. Mathibela alleges that he started sexually to harass her in 1998 when he still was the chief executive officer of the transitional council. She made these allegations already in 2001 and her summons was served in 2003. At that stage the council did not suspend the plaintiff from his office as manager. As Mrs Mathibela alleged in the summons that the plaintiff had acted in the course and scope of his employment, the municipality resolved to pay also the plaintiffs legal costs. This resolution was subject, however, thereto that the municipality would reconsider its resolution after the case had been concluded.

[8] I have pointed out that when Mrs Mathibela first made the allegations against the plaintiff, he was not suspended. In fact, the municipality attempted to institute disciplinary proceedings against Mrs Mathibela. She successfully launched urgent applications to stop the disciplinary proceedings. When the plaintiff gave evidence, the tide seems to have changed: he was suspended from his office as municipal manager. The suspension is due, partly to Mrs Mathibela's allegations and partly to unrelated disciplinary proceedings against him.

[9] When the article appeared in City Press, the plaintiff testified, he was in Nelspruit. His wife, who by men knew of Mrs Mathibela's

allegations, telephoned him and told him about it. A colleague likewise telephoned him. The plaintiff bought the newspapers and read the article. He did not know exactly what the word "lecherous" means, and looked it up in a dictionary. According to the plaintiff hie feelings were hurt because he was being called lecherous, because of the allegation that he had been criminally convicted and because of the implication, as he understood it, that he was a party to the misuse of municipality funds.

[10] The publication of the article adversely affected his family life, the plaintiff said, it caused his wife to be suspicious. His son read the article and asked the plaintiff whether he would have to resign his post. Members of the community spoke about the article and the gossip caused his wife to resign from her post at the medical practice in Siyabuswa. An opposition politician duplicated the article and distributed copies in the community.

[11] At work the plaintiff found it hard to work, as he had to do, with groups of his subordinates as he wondered what they were thinking.

[12] The plaintiff testified that the church community that he belongs to called him in as a result of the article and, though they did not judge him, offered to pray for him. Mr Shaba, a pastor of the church, testified on the plaintiff's behalf that he knows the plaintiff as a prominent member of the community. After he had seen the article in the newspaper, the plaintiffs wife approached Mr Shaba for advice. He advised her to stand by her husband and pray for him. The church leaders later called the plaintiff, spoke to him and encouraged him albeit that they were net going to take sides in the dispute regarding Mrs Mathibela's allegations.

[13] After the article had appeared, the plaintiff consulted his attorneys who wrote to the defendants claiming that the article was incorrect in a number of respects, namely by referring to the plaintiff as lecherous, by stating that the plaintiff had been convicted of an offence and that there was an appeal pending and that the council of the municipality was paying his legal costs which amounted to R100 000. The plaintiff's attorneys demanded damages in the sum of R1,5 million. Thereafter the apology was published. After the publication of the apology, the defendants attorneys wrote to the plaintiff's attorneys annexing a copy of the apology and stating that they did not intend debating the further contents of the letter of demand.

[14] The plaintiff testified that he did not regard the apology as sufficient as it did not retract the allegation that he was lecherous, and also not the implication that he was a party to the misuse of municipal funds. Counsel for the defendants put it to the plaintiff that he did not attempt to debate the contents of the apology after the defendants' attorney had sent ft to his attorneys. The plaintiff said that he left that to his attorneys.

[15] The defendants did not tender any evidence.

[16] In, his particulars of claim the plaintiff did not specify which parts of the article are defamatory but relied thereon that the article as a whole was defamatory. To determine whether the article was defamatory of the plaintiff, I am called upon, in the first place, objectively to determine the meaning of the article as far it concerns the plaintiff. The test is "what meaning the reasonable reader of ordinary intelligence would attribute to the statement in its context" (See FDJ Brand in LAWSA, (2nd edition) Vol. 7, paragraph 239 at p. 238).

[17] The article identifies the plaintiff by name as "a lecherous municipal manager" who has been convicted of "sexually

harassing a married woman who worked as a secretary for the council" and who is the plaintiffs subordinate (she "has to report to her tormentor"), in the context of the article the adjective "lecherous" bears its primary meaning of "Given to lechery, lewd and promiscuous” (Shorter Oxford English Dictionary).

[18] Having Identified the plaintiff as set out, the thrust of the article is that the "municipality has rallied behind" the plaintiff by using taxpayers' money to pay his legal costs. Moreover, the municipality is impliedly criticised for not taking Mrs Mathibela's charges seriously by not investigating them and by failing to suspend the plaintiff pending such an investigation. Although in this regard the main thrust of the criticism is against the municipality, the implication clearly is that the plaintiff, the guilty party, is a party to this improper conduct or that he is at least a willing beneficiary thereof.

[19] It is, I think, self evident that to state that a man has been found guilty of sexual harassment of a married woman is defamatory. As regards the use of the word "lecherous", Mr Roestorf for the defendants submitted that the meaning of the word is not generally known. As I understand the argument, it follows from that that calling a man "lecherous" would not "tend to lower the plaintiff in the estimation of right-thinking members of society generally because such right-thinking members would not understand it (The quotation is from LAWS A, Vol. 7 para. 237 where the learned author quotes Lord Atkin's well known test). I do not agree. There may well be many people who do not know the exact meaning of the word "lecherous", but there are no doubt a substantial number of reasonable persons of normal understanding and development who do know the meaning. To call a man "lecherous” is defamatory.

[20] It is in my view defamatory to imply that a person who has been found guilty of sexual harassment is, on top of that, party to having his costs paid with taxpayers' money and to a failure to take the complainant's complaints seriously. From answers that the plaintiff gave in cross-examination, it seems that the municipality in fact did not take serious note of Mrs Mathibela's complaints. The defendants' however did not raise truth and public benefit as a defence, and it is unnecessary in the present context to dwell thereon. I shall, if necessary, return in the context of quantum to the answers that the plaintiff gave.

[21] The defendant pleaded and Mr Roestorf contended that the apology that the, defendants published adequately vindicated the plaintiff. The apology directly addresses only, the incorrect statement that the plaintiff had been found guilty of sexually harassing Mrs Methibela. From the statement that the "civil case is still pending", an informed lawyer might gather that there never was a criminal case, but the reasonable person of normal understanding and development will probably not realise that. In any event, Mr Roestorf did not argue that the apology corrected more than the error as to the plaintiffs purported conviction.

[22] I have held that the article is defamatory In four respects: It stated that the plaintiff had been found guilty of sexually harassing Mrs Mathibela; it stated that the plaintiff is lecherous; it implied that the plaintiff is party to improper or injudicious use of taxpayers' money; it implied that the plaintiff was a party to the failure to take the complaints seriously. I assume without finding that there are instances in which an apology might adequately vindicate a defamed plaintiff. In this instance the apology did not address the full width of the defamation and cannot be adequate.

[23] In the light of the aforegoing I conclude that the plaintiff has succeeded in proving that he is entitled to damages for defamation.

The question is what the quantum of such damages should be.

[24] For the plaintiff Mr Mathibedi contended that between R200 000 and R250 000 should be awarded. For the defendant Mr Roestorf submitted that R12 000 would be adequate.

[25] One of the factors that may be taken into account when determining the amount of damages to be awarded to a defamed plaintiff is the motive and conduct of the defendant (LAWSA, Vof 7 para. 260). In this instance the motive of the defendants was to criticize the municipality, a legitimate motive in a free democracy. The criticism was based mainly on an error as to the facts . Although the defendants' apology went some way to correct the facts and to limit the harm done to the plaintiff's reputation, it did not go far enough. It left uncorrected the allegation that the plaintiff is lecherous and also the implication that taxpayer's money was improperly or injudiciously used. As for the implication that this municipality did not adequately take note of and react to Mrs Mathibela's complaints, the answers that the plaintiff gave in cross-examination indicate that the criticism was not entirely without foundation.

[26] Against the background of cur constitutional guarantee of inter alia, gender equality, most people regard sexual harassment as serious. It ts regarded as particularly serious when the perpetrator is in a position of authority over the victim. Much of the sting of these allegations against the plaintiff have been removed by the apology, but read in contend, the apology did not retract the statement that the plaintiff is lecherous. That conveys to the reader who read the article and the apology that, despite the fact that he had not been convicted, the allegations of sexual harassment are probably founded. The true facts regarding the payment of the plaintiff costs are also not stated, namely that the municipality's

decision to pay the costs was only provisional and was motivated thereby that it is alleged that the plaintiff acted within the course and scope of his employment. To summarise: The article read with the apology leaves the reader with the impression that the plaintiff is a lecherous man whose subordinate has made allegations of sexual harassment against him and who is party to the use of taxpayers money to defend the charges.

[27] The article was widely published and the community in which he lives took note of it, in that community the plaintiff is regarded as a leader. The allegations had a marked impact on the plaintiffs personal life.

[28] In Mogale and Others v Seima (SCA case no. 575/04) at paragraphs 9 to 12 and 16 Harms JA pointed out that awards in defamation cases do not serve a punitive function and are, generally, not generous. Having regard to those principles and the award in that case, Mr Mathibedi's contention for an award of between R200 000 and R250 000 is out of the question. On the other hand, the defamation that the plaintiff suffered in this case is substantially more serious than that suffered by the respondent in the Mogale matter. In my view an award of R35 000 will be fair in the circumstances.

[29] As to costs, Mr Mathibedi submitted that costs should be awarded on the attorney and client scale in view of the harm that the defendants have done to the plaintiff. I do not agree. There is no difference between a plaintiff in a defamation matter and other plaintiffs who have to approach the court for redress. The award that a plaintiff in a defamation case receives serves as the solatium for the infringement of his reputation. There is no reason to again compensate him by way of a punitive costs order. For the defendants Mr Roestorf argued that costs should be awarded on the appropriate magistrate's court scale. It is always difficult for a plaintiff to determine how much a court will award in a defamation case. In view thereof the courts tend to allow some room for error and sometimes award costs on the high court scale although the award falls within the jurisdiction of the magistrate's court. In this matter the award, however, falls so much short of the maximum that a magistrate's court can award that the plaintiff should have been advised to proceed in the magistrate's court. This approach is, in my view, in line with the cautionary remarks of Harms JA that I have referred to.

In the result the following order is made:

1. Judgment is granted in favour of the plaintiff against the defendants jointly and severalty, the one paying the other to be absolved, in the sum of R35 000.

2. The defendants are ordered, jointly and severally, the one paying the other to be absolved, to pay the plaintiffs costs on the appropriate magistrate's court scale, but Including the costs of counsel.

B. R. DU PLESSIS

Judge of the High Court

Plaintiff: COUNSEL: Adv. T. F. MathibediATTORNEY: M.N. Boabi

Defendants: COUNSEL: Adv. J.J. Roestorf

ATTORNEY: Couzyns Inc.