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
• Citation: 2011 (3) SA 208 (GSJ)

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
2011 (3) SA 208 (GSJ)

2011 (3) SA p208

Citation	2011 (3) SA 208 (GSJ)
Case No	2007/28863
Court	South Gauteng High Court, Johannesburg
Judge	Nicholls J
Heard	August 24, 2010; September 17, 2010
Judgment	September 28, 2010; September 29, 2010
Counsel	AIS Redding SC (with JWG Campbell SC and T Dalrymple) for the plaintiffs.; PF Louw SC (with K Hofmeyr) for the defendants.

Flynote : Sleutelwoorde B

C Defamation — Who may sue or be sued — Trading corporation — Trading corporation entitled to sue under actio injuriarum for general damages resulting from defamation — Semble: Claim for loss of profit to be restricted to claim under lex Aquilia.

Defamation — Defences — Justification — Media defendants — Defence of reasonable D publication — Test — Adherence to principles of responsible journalism — Fairness and balance required — Practical and flexible approach to be adopted in assessing whether all responsible steps taken before publication — Court to consider meaning sought to be conveyed and whether journalists in question could reasonably have believed that this was how ordinary viewer or reader would have understood it.

E Delict — Specific forms — Pure economic loss — Loss of profit — Defamation of trading corporation — Semble: Claim for loss of profit resulting from damage to reputation of trading corporation (ie claim for patrimonial damages) to be limited to claim under lex Aquilia — Allowing such claim under actio injuriarum would, by burdening defendant with presumptions of unlawfulness and intention, constitute unjustifiable limitation to right of freedom of F speech.

Headnote : Kopnota

Trading corporations as defamation plaintiffs

While it may not be identical to that which attaches to a human plaintiff, a trading corporation does have a reputation that is capable of being disparaged, and it can therefore sue for defamation under the G actio injuriarum. The argument that such a claim should be limited to one for general damages — and that any claim for special damages (loss of profit or revenue) should be restricted to a claim under the lex Aquilia — is a compelling one. By so limiting defamation claims by trading corporations — which may, due to their potential magnitude, have a chilling effect on freedom of speech — the onus is shifted so that the defendant is not H burdened with the presumptions of unlawfulness and intention, as is the case with claims under the actio injuriarum. (Paragraphs [42] – [51] at 219E – 221E.)

The media and the defence of reasonable publication in defamation cases

The defence of reasonable publication in defamation cases involving the media I affords the media a degree of protection when reporting on matters of public interest, provided it is done in a reasonable way. In order to qualify for such protection, the publication must be justifiable in the light of the prevailing circumstances, and absence of negligence is required. In assessing reasonableness, the court is called upon to determine whether all responsible steps were taken before publication. This would include considering the meaning that the journalists sought to convey, and whether J they could reasonably have believed that this was the meaning that would

2011 (3) SA p209

be understood by the average viewer. In this context, responsible journalism A attempts, in essence, to avoid reckless damage to reputations by presenting a fair and balanced account of events. (Paragraphs [80] – [83] at 226F – 227E.)

Whether the media defendant had acted reasonably in the circumstances of the present case

The plaintiffs, the operators of a theme park and a nearby casino, contended that B the first defendant television channel had defamed them by proclaiming in its 'Carte Blanche' programme that the rides at the theme park were dangerous. The court found that, since such a statement was on the face of it defamatory, Carte Blanche's defence of truth and public interest had to fail on the truth leg. As to its defence of reasonable publication, the court found that the first question that arose was whether Carte Blanche should have been more circumspect, and in particular whether it had been C negligent, (1) in uncritically accepting the facts given to them by a source with suspicious motives; and (2) in not testing the plaintiffs' responses to the source's allegations by providing them to the experts they had interviewed for the programme. The court pointed out that the public should be able to accept that what it was told by the media was substantially true — or, alternatively, there had to be a good reason for getting it wrong — and that D Carte Blanche's failure to at least present plaintiffs' responses as being worthy of proper consideration had resulted in an inexcusably one-sided programme, a defect exacerbated by its sensationalist tone and by the fact that most of the statements made in it had been found to be untrue. The court found that this had resulted in a programme that was made in a manner that was neither reasonable nor justified, and that the plaintiffs were E entitled to such damages as they were able to prove. (Paragraphs [79], [84], [92] – [95] and [97] – [100] at 226E – F, 227F, 228J – 229G and 229J – 230F.)

Cases Considered

Annnotations:

Reported cases

Southern Africa F

Caxton Ltd and Others v Reeva Forman (Pty) Ltd and Another 1990 (3) SA 547 (A): applied

Demmers v Wyllie and Others 1980 (1) SA 835 (A): referred to

Die Spoorbond and Another v South African Railways; Van Heerden and Others v South African Railways 1946 AD 999: referred to

Dhlomo NO v Natal Newspapers (Pty) Ltd and Another 1989 (1) SA 945 (A): referred to G

Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another 1993 (2) SA 451 (A): referred to

GA Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1: referred to

Hardaker v Phillips 2005 (4) SA 515 (SCA): referred to

Independent Newspapers Holdings Ltd and Others v Suliman [2004] 3 All SA 137 (SCA) (2005 (7) BCLR 641): referred to H

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771): dictum in paras [25] – [26] applied

MacKay v Phillip (1830) 1 Menz 455: referred to

Marais v Richard en 'n Ander 1981 (1) SA 1157 (A): referred to

Matthews and Others v Young 1922 AD 492: dictum at 503 applied I

Minister of Finance and Others v EBN Trading (Pty) Ltd 1998 (2) SA 319 (N): referred to

Mthembi-Mahanyele v Mail & Guardian Ltd and Another 2004 (6) SA 329 (SCA) (2004 (11) BCLR 1182; [2004] 3 All SA 511): applied

National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA) (1999 (1) BCLR 1; [1998] 4 All SA 347): applied J

2011 (3) SA p210

National Union of Distributive Workers v Cleghorn and Harris Ltd 1946 AD 984: referred to A

Neethling v Du Preez and Others; Neethling v The Weekly Mail and Others 1994 (1) SA 708 (A): dictum at 764C – G applied

NM and Others v Smith and Others (Freedom of Expression Institute as Amicus Curiae) 2007 (5) SA 250 (CC) (2007 (7) BCLR 751): referred to

S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665): referred to B

Tshabalala-Msimang and Another v Makhanya and Others 2008 (6) SA 102 (W): referred to

Van der Berg v Coopers & Lybrand Trust (Pty) Ltd and Others 2001 (2) SA 242 (SCA) ([2001] 1 All SA 425): dictum at 252B – C applied

Van Zyl v African Theatres Ltd 1931 CPD 61: referred to. C

Australia

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ((1997) 145 ALR 96): referred to

Tsvangirai v The Special Broadcasting Service (2002) NSWSC 532: applied. D

England

Armstrong v Times Newspapers Ltd [2005] EMLR 33: referred to

Bonnick v Morris [2003] 1 AC 300 (PC) ([2002] 3 WLR 820): compared

Brutus v Cozens [1973] AC 854 (HL) ([1972] 2 All ER 1297): referred to

Flood v Times Newspapers Ltd [2010] WLR (D) 187: referred to E

Jameel v Wall Street Journal Europe Sprl [2006] UKHL 44: referred to

Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 (HL): referred to

Reynolds v Times Newspapers Ltd and Others [1999] 4 All ER 609 (HL) ([2001] 2 AC 127): referred to

Skuse v Granada Television Ltd [1996] EMLR 276: applied. F

India

Rajagopal v The State of Tamil Nadu (1994) 6 SCC 632 (1995 AIR 264): referred to.

New Zealand G

Lange v Atkinson [1998] 3 NZLR 424 (CA): referred to.

Unreported cases

SA Taxi Securitisation (Pty) Ltd v Media 24 and Others (GSJ case No 2008/19376): applied H

Trustco Group International Ltd and Others v Shikongo (Namibia Supreme Court case No SA 8/2009, 7 July 2010): referred to.

Case Information

Action for general and special damages for defamation.

AIS Redding SC (with JWG Campbell SC and T Dalrymple) for the I plaintiffs.

PF Louw SC (with K Hofmeyr) for the defendants.

Cur adv vult.

Postea (September 29). J

2011 (3) SA p211

Judgment

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...