Gold Reef City Theme Park (Pty) Ltd v Electronic Media Network Ltd and Another; Akani Egoli (Pty) Ltd v Electronic Media Network Ltd and Another

• Jurisdiction: South Africa
• Judge: Nicholls J
• Court: South Gauteng High Court, Johannesburg
• Year: 2011
• Citation: 2011 (3) SA 208 (GSJ)
• Counsel: AIS Redding SC (with JWG Campbell SC and T Dalrymple) for the plaintiffs. PF Louw SC (with K Hofmeyr) for the defendants.
• Docket Number: 2007/28863

Nicholls J: A

[1] This is an action in which the plaintiff companies claim general and special damages, on the grounds that the content of a television programme produced by the second defendant and broadcast by the first defendant is defamatory of them.

[2] Electronic Media Network Ltd (Mnet), the first defendant, is a B national television channel that flights a programme entitled 'Carte Blanche' on Sunday evenings at 19h00. The second defendant, Combined Artistic Productions (Pty) Ltd, is an independent production house commissioned by Mnet to compile, produce and present the Carte Blanche programme. Carte Blanche is a widely respected and highly- C acclaimed investigative-journalism programme aimed at the higher- income bracket. It was broadcast to approximately 450 000 people across the country on the Mnet channel. The first and second defendants shall be referred to as Mnet and Carte Blanche, respectively.

[3] On 6 March 2005 Carte Blanche anchor man Derek Watts introduced D one of the inserts that make up the programme with the following words:

'When parents take their children to enjoy the fun of an amusement park, they assume the rides are safe. The last thing on their minds is that something may go wrong. In a Carte Blanche investigation we reveal that parents should think twice before heading for the rides.' E

The insert dealt with fun rides at Gold Reef City, an entertainment complex in Johannesburg, which includes a casino, a theme park and an amusement park.

[4] Akani Egoli (Pty) Ltd (Akani) owns the entire Gold Reef City F complex and runs the casino. Gold Reef City Theme Park (Pty) Ltd (the theme park) operates the theme and amusement park in terms of a lease agreement it has with Akani. Both use the name Gold Reef City in the conduct of their respective businesses. Pursuant to the programme, Akani and the theme park instituted separate legal actions. G

[5] On 29 July 2005 Akani sued Mnet and Carte Blanche, alleging that certain statements in the context of the programme were wrongful and defamatory of it, in that they were intended to mean that five of the rides it operates were unsafe, alternatively the statements were made wrongfully and intentionally in respect of Akani, to whom the defendants owed H a duty of care. Akani claimed an amount of R200 000 in respect of general damages, and an amount of R3 661 347 in respect of special damages, against the defendants jointly and severally.

[6] On 15 November 2007, relying on the same facts as set out in the Akani action, the theme park sued the defendants, alleging that these I statements were intended to mean, and did mean, that the five rides were unsafe. Alternatively, these statements were false, and the defendants knew them to be false, and intended the theme park to suffer damages. The theme park claimed general damages in the sum of R200 000, and special damages in the sum of R43 105 092, against the defendants jointly and severally. J

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A [7] The plaintiffs in both instances have claimed under the actio iniuriarum for general and special damages. The alternative claims are based on the lex Aquilia. Akani relies on breach of a duty of care; the theme park on injurious falsehood.

[8] In both actions the defendants deny the meaning given to the B statements. In the Akani matter they plead that the statements meant that there was reason to be concerned about the safety of the five rides. In the theme park matter they do not plead what meaning they attach to the broadcast. In the event of it being found that the statements are defamatory, the defendants raise two defences: firstly, truth and in the public interest; and secondly, what the defendants refer to as the media C or reasonableness defence, as articulated in the Bogoshi case. [1]

[9] In addition to these defences it was submitted that, as a matter of law, the plaintiffs, being trading corporations, ought not to be entitled to sue for defamation. It was submitted that, if the plaintiffs can sue, their D claim should be limited to general damages. There is the further submission that, if the existing common law permits a claim for defamation under the actio iniuriarum, the law ought to be developed to limit the claim of such damages to non-trading plaintiffs.

[10] In terms of an order of court, the two actions were consolidated. At E the commencement of the trial I granted an application in terms of rule 33(4) of the Uniform Rules, that separated the issues of merits and quantum. This matter therefore proceeded on the question of liability only.

Background F

[11] The genesis of the programme was an email sent to Carte Blanche by Paul Boshoff (Boshoff) on 8 February 2005, claiming that the rides currently used at Gold Reef City were severely cracked and unsafe. Boshoff indicated that he had personally worked on three of the rides for the past year and that he was concerned about the safety of the remaining G 30 rides. He stated that he believed that the lives of people using the rides were in danger.

[12] Boshoff runs a firm called Bostech Engineering Services (Bostech). He is a technician in non-destructive testing (NDT), a method of detecting cracks on steel, not yet visible to the naked eye. He had made H an unsolicited call to Gold Reef City in 2004, as a result of which Bostech was commissioned to test and repair three of the rides — the Crazy Cocopan, the Runaway Train and the Golden Loop. In carrying out the work, Boshoff was assisted by another technician, Johannes Barnard (Barnard).

I [13] It appears that all went smoothly with work on the first two rides, but a payment dispute arose over the Golden Loop. Bostech was owed an outstanding amount of R120 669 that Gold Reef City had refused to

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pay, claiming that Boshoff was incentivised to create defects where none A existed. This they said was evidenced by the fact that he did not itemise each defect in his report. Boshoff accepted R49 300,46 in full and final settlement on 9 February 2005, the day after sending the email to Carte Blanche. Much was made of whether this money was due and owing to Bostech. In my view nothing turns on this dispute, except the undeniable existence of bad blood between Boshoff and Gold Reef City. B

[14] Boshoff, using his own words, felt 'very sour towards Gold Reef City', and admitted that the email he sent to Carte Blanche 'might have been written in a malicious way'. While admitting that this was a factor influencing him to send the email, he said the primary motivation was C the need to warn the public about the dangers of the amusement park. The plaintiffs argue that the email contained a series of lies and that Boshoff's concerns about safety only started when he did not get paid. The defendants claim these were exaggerations, rather than downright lies. There can be no doubt that Boshoff's email was to a large extent actuated by malice. D

[15] When the email was received by Carte Blanche it was referred to Susan Puren (Puren), a freelance journalist who had produced several inserts for Carte Blanche, and had received international recognition as a top investigative journalist. Puren contacted Boshoff to ascertain E whether he had proof of his allegations. She was provided with some photographs from Boshoff, as well as the Bostech reports. The photographs displayed images of rust and severely cracked bogies. This is the structure that attaches the car to the tracks of a ride.

[16] An arrangement was made for the following day, for Puren to visit F the park with Boshoff's assistant, Barnard. During the visit Puren, who has no technical expertise, stated that she observed a general state of bad maintenance. Much of what had been told to her by Boshoff was confirmed by Barnard.

[17] After the visit Puren was authorised by George Mazarakis (Mazarakis), G the executive producer of Carte Blanche, to investigate the story and to produce a standard-length insert of ten minutes. Soon thereafter Puren learnt of Boshoff's payment dispute with Gold Reef City, and questioned him about his motive in sending the email to Carte Blanche. He admitted he had a financial motive, but Puren was satisfied that he was genuinely concerned about the safety of the rides. This information was relayed to Mazarakis who saw Boshoff in order to interrogate his H motives. Mazarakis does not recall ever meeting Boshoff, although both Boshoff and Puren stated that he did so.

[18] The day after her visit to the amusement park with Barnard, Puren met with Ms Amanda van der Westhuizen (Van der Westhuizen), an I NDT expert with whom Puren had worked on a previous programme. Van der Westhuizen, on being shown the photographs, said she was shocked, but indicated that she was not the appropriate person to comment on the safety aspects. She referred Puren to Dr Roelf Mostert (Mostert), a metallurgical engineer specialising in fatigue-cracking, who had testified as an expert in other court cases. Puren saw Mostert the J

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A same day. He also expressed shock at the photographs he was shown. Puren then arranged for Van der Westhuizen and Mostert to join her for a visit to Gold Reef City.

[19] During the visit, described by Mostert as a 'site visit', Van der Westhuizen was concerned about the general state of disrepair and lack B of maintenance of the rides. Mostert believed that the overall picture of neglect pointed to an inadequate standard of asset-management integrity. He was particularly concerned about the evidence of a cracking process which he identified as fatigue-cracking. These he felt should have been eliminated by the design. Allowing repair work to be done at C night, while the rides were operational in the day, made it possible for cracks to grow to their critical point before they were repaired. Mostert further observed loose...