Els v Weideman and Others

• Jurisdiction: South Africa
• Judge: Nugent JA, Heher JA and Maya JA
• Judgment Date: 30 November 2010
• Citation: 2011 (2) SA 126 (SCA)
• Docket Number: 512/09
• Hearing Date: 18 November 2010
• Counsel: DF Dörfling SC for the appellant. AM Breitenbach SC (with ML Norton and LJ Arnott) for the respondents.
• Court: Supreme Court of Appeal

Heher JA (Maya JA concurring): I

[1] This case is about what a newspaper may lawfully publish, but it is not about freedom of the press or freedom of expression. It concerns obedience to an extant court order.

[2] The appellant appeals against the whole of the judgment of Dlodlo J in the Western Cape High Court, in which the learned judge dismissed J

Heher JA (Maya JA concurring)

A with costs his application for an order that the respondents were guilty of contempt of court, and imposing sanctions on them. Dlodlo J granted leave to appeal to the full bench of his division. On application to this court by the appellant that order was replaced by one directing that the appeal be heard by this court.

B [3] The appellant is a singer and well-known personality in the South African entertainment world. He emigrated to New Zealand and was living there in February and March 2008 when the events giving rise to this appeal took place.

[4] Huisgenoot and You are magazines edited by the first respondent, C Ms Weideman, and owned and published by the second respondent, Media 24 Ltd. They are Afrikaans and English versions of the same magazine. The third respondent, Ms Venter, was the editorial head of the Johannesburg office of the magazines.

[5] In setting out the chronology that follows, I make extensive use of the D version deposed to by the respondents in the contempt proceedings, almost all of which is common cause.

[6] On Monday 11 February 2008 the Beeld newspaper published an article stating that one Robbie Klay, whom it described as a 21-year-old singer and actor, had been, over a period of seven years, the 'sex toy' E (seksspeelding) of one of the best-known men in the South African entertainment world. The article did not identify the man, saying Klay did not want the name to become known because that would ruin the man's life. According to the article, Klay had disclosed the name to Beeld, but in the article the man was referred to simply as 'die oom' (ie F a respected older man).

[7] The article contained detailed allegations by Klay, relating to the abuse he had suffered at the hands of this man, and explained that Klay had kept silent about the abuse because he had feared that his own career would suffer, as the man possessed power in the entertainment industry. G The article concluded by saying that all attempts by Beeld to contact 'die oom' the previous day had been unsuccessful: his cellphone was switched off and several people suspected he was overseas.

[8] At 11:16 (22:16 New Zealand time) on 11 February 2008, Ms Marie Opperman, a journalist who wrote for Media 24's magazines and had H previously written articles about Els's marriage and the birth of his daughter, sent an email to him, attaching an English version of the Beeld article. Opperman said that it was alleged that Klay had said, off the record, that Els was the man he was referring to. She said Huisgenoot was sending someone to interview Klay. She asked Els to comment, saying I the deadline for the article was the next evening.

[9] Over the following two days Opperman sent four further emails bearing a similar import. Most distastefully, she also pressured the appellant to persuade his wife, a person well known in South Africa in her own name, to comment on the allegations. Opperman also contacted the appellant's sister who informed her that she had earlier been told by J the appellant that he was busy with an answer to her emails.

Heher JA (Maya JA concurring)

[10] Els replied to Opperman's last email at 22:58 on 12 February 2008 A (09:58 on Wednesday 13 February New Zealand time):

'Stuur asb vir my die storie. Ek en my prokureur is tans aan die gesels daaroor en ek sal antwoord sodra ek die storie gekry het.

Terloops:

Ek kruip nie weg nie maar ek het niks om weg te steek nie en B daarom wil ek nie kommentaar lewer nie. Ek sal beslis 'n naamskendingsaak maak sodra my onskuld bewys is, daarvan kan Robbie en Huisgenoot seker wees.'

[11] At about 10:00 on 13 February Els's South African attorney contacted the office of the publisher of family magazines at Media 24. In the result, an undertaking was given to send a copy of the article to the C attorney.

[12] At 12:01 (23:01 New Zealand time) on 13 February the draft article was sent to Els and attorney Du Plessis by the third respondent, who also notified Du Plessis that she had done so. As indicated in the Opperman emails, the article was based on, and quoted, detailed allegations by Klay D that Els had sexually molested him from the age of 10 years.

[13] At 12:38 (23:38 New Zealand time) on the same day Els sent an email to the third respondent:

'My prokureur Koos du Plessis . . . sal jou kontak aangesien ek hom en E 'n advokaat aangestel het om hierdie saak namens my te hanteer. Maak seker jy maak kontak met hom voor julle publiseer asb want hierdie ding is groter as wat 'n mens dalk besef en die gevolge kan ernstig wees.'

[14] Shortly before 17:00 on 13 February 2008 Els's attorney informed Media 24's attorney that Els intended bringing an urgent application at F about 18:00 at the home of Sutherland AJ in Johannesburg. (Although Els alleges that earlier in the day his attorney sought an undertaking that the article would not be published until he had been given a fair opportunity to respond to it, that allegation was denied by the second respondent's attorney.)

[15] The application comprised a notice of motion without a supporting G affidavit. The respondents were Media 24 and Venter. Sutherland AJ heard argument from Els's counsel (who was present in person) and the respondents' counsel (over the telephone from Cape Town). He granted the relief sought and furnished brief oral reasons. Later that evening the learned judge emailed to the parties' legal representatives a document H which in essence contained the terms of the order, and the following day he gave more detailed written reasons.

[16] Sutherland AJ's order included interim relief phrased as follows:

'An interim interdict shall issue immediately against the first and second I respondents from publishing the article of which a copy was annexed as A to the notice of motion, pending the institution of an application for final relief by the applicant within 10 days hereof.'

Annexure A was the draft article which, earlier that day, Venter had sent to Els for his comments. J

Heher JA (Maya JA concurring)

A [17] The order did not expressly prohibit publication of the proceedings before Sutherland AJ. The fact that Els had applied for and obtained the interim interdict was, according to the respondents, widely publicised in the media.

[18] On 14 February 2008 the Cape newspaper Die Burger (also a B Media 24 publication) published an article which included the following:

'Huisgenoot en You se redakteur, Esmaré Weideman, het gisteraand gesê n|fa deeglike oorweging is besluit om voort te gaan met die publikasie van die artikel maar om nie die sanger se identiteit te openbaar nie.

C "Ons is verbaas deur die interdik aangesien die Appèlhof onlangs bepaal het die media se mond kan nie deur middel van 'n interdik gesnoer word nie, omdat die opsie bestaan om n|fa publikasie 'n lastereis in te dien. Nog meer verbasend is dat die interdik toegestaan is in die Witwatersrandse Provinsiale Afdeling van die Hooggeregshof, aangesien Media 24 se hoofkantoor in die Kaapse Provinsiale Afdeling van die Hooggeregshof D is.

In die lig daarvan dat minstens twee ander persone n|fa publikasie van mediaberigte na vore gekom het om dieselfde sanger van seksuele molestering te beskuldig, ag Huisgenoot dit in openbare belang dat ons voortgaan met die publikasie van E die artikel."'

[19] The contents of the article published in Die Burger on 14 February prompted one of Els's attorneys to telephone Venter about the impending publication in Huisgenoot and You, and to confirm the contents of their conversation in an email to Venter later that day. The email F included the following:

'Ons verstaan uit die artikel soos vanoggend in Die Burger gepubliseer, asook uit die gesprek hierbo na verwys, dat Huisgenoot/You ten spyte van die hofbevel van voornemens is om voort te gaan met die publikasie van 'n gewysigde weergawe van die artikel.

G Ons plaas op rekord dat indien ons kliënt se identiteit op enige wyse afgelei kan word uit bogenoemde, u asook Media 24 hulself skuldig sal maak aan minagting van die hof en sal ons by regte wees om 'n lasbrief vir u arrestasie uit te reik.'

[20] On 21 February 2008 editions of Huisgenoot and You were published, H each containing matter which, Els alleges, constituted the article referred to in the order of Sutherland AJ.

[21] On 25 February 2008 Els instituted contempt proceedings in the Western Cape High Court against Weideman, Media 24 and Venter. Although Weideman was not a party to the proceedings in Johannesburg, I she had knowledge of the order and was obliged to comply with its prohibition.

[22] Els identified the offending matter in each of the publications as:

1.

The front cover.

2.

The contents page.

3.

J The editorial.

Heher JA (Maya JA concurring)

4.

An article entitled 'MY JARE in GESENSOR! se KLOUE' (Huisgenoot) A and 'CENSORED! molested me SEXUALLY' (You).

5.

A further article in the 'advice' section entitled 'INSTINK WAT JOU KIND KAN RED' (Huisgenoot) and 'HOW THE ABUSE BEGINS' (You).

[23] Els alleged that the respondents had published the article intentionally B and in bad faith. (In argument before the court a quo, as the judgment of Dlodlo J makes clear, counsel on his behalf contended in the alternative that Weideman and Media 24 had been negligent and that negligence was sufficient to sustain their conviction of contempt of court because they were, respectively, the editor and the owner of the magazines. [1] That contention was...