Pestana v Du Toit (A554/2011) [2012] ZAGPPHC 154 (8 August 2012)

Pestana v Du Toit (A554/2011) [2012] ZAGPPHC 154 (8 August 2012)

The court found that the respondent failed to discharge the onus of proving that the words 'die polisie soek jou' were defamatory in the circumstances. The evidence showed that the statement was made at the request of the respondent, who demanded a reason for his removal, and that those present (Naomi and Oelofse) were either already prejudiced or remained friends with the respondent, negating any lowering of reputation. The words were ambiguous and could have an innocent meaning, and the respondent did not demonstrate any tangible harm. Even if the statement was defamatory, the appellant rebutted the presumption of unlawfulness and intention, acting reasonably and in accordance with...

Citation
[2012] ZAGPPHC 154
Parties
Appellant: Yvonne Pestana; Respondent: Rudolph Johan Du Toit
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 August 2012
Case Number
A554/2011
Procedural Posture
Civil Appeal / Appeal Against Magistrate's Court Judgment
Outcome
Appeal upheld; magistrate's order set aside; respondent's action dismissed with costs.
Judges
Prinsloo
Legal Topics
Defamation, Animus Iniuriandi, Unlawfulness, Volenti Non Fit Iniuria, Quantum of Damages
Delict Defamation Animus Iniuriandi Unlawfulness Volenti Non Fit Iniuria Quantum of Damages

Case Brief

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Parties

Yvonne Pestana

Appellant

Rudolph Johan Du Toit

Respondent

Procedural Posture

Civil Appeal / Appeal Against Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the words 'die polisie soek jou' constituted a defamatory statement under the circumstances.
  2. 2 Whether the appellant acted unlawfully or with the intention to defame the respondent.
  3. 3 Whether the respondent discharged the onus of proving defamation on a balance of probabilities.

Ratio Decidendi

The court found that the respondent failed to discharge the onus of proving that the words 'die polisie soek jou' were defamatory in the circumstances. The evidence showed that the statement was made at the request of the respondent, who demanded a reason for his removal, and that those present (Naomi and Oelofse) were either already prejudiced or remained friends with the respondent, negating any lowering of reputation. The words were ambiguous and could have an innocent meaning, and the respondent did not demonstrate any tangible harm. Even if the statement was defamatory, the appellant rebutted the presumption of unlawfulness and intention, acting reasonably and in accordance with...

Court Disposition

Appeal upheld; magistrate's order set aside; respondent's action dismissed with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the magistrate a quo is set aside and replaced with: 'The action is dismissed with costs.'