Jankielsohn v Booysen

• Jurisdiction: South Africa
• Judge: JP Daffue J
• Judgment Date: 11 November 2019
• Citation: 2019 JDR 2254 (FB)
• Docket Number: 859/2018
• Court: Free State Division, Bloemfontein

Daffue J:

I INTRODUCTION:

[1]

This case is in essence about the balancing of two constitutional rights, to wit the rights to dignity embodied in s 10 and freedom of expression in s 16. [1]

[2]

A well-known and high profile politician feels aggrieved by comments made by certain individuals in their personal capacities and also as members of and on behalf of the Youth League of an opposition party.

[3]

The following expression came to mind when evidence was led: "Die hoogste bome vang die meeste wind" or as the people of the Free State say in Sesotho: "Difate tse telele ke tsona tse tswarang moya o mangata."

II THE PARTIES AS CITED IN THE PLEADINGS:

[4]

The plaintiff is Dr Roy Jankielsohn, merely cited in paragraph 1 of the particulars of claim as a male person residing on a farm in the district of Bethlehem, born on 3 December 1967. He is therefore 51 years old. He was represented by Adv KN Peterson, instructed by Horn & Van Rensburg Attorneys.

[5]

1st defendant is Mr Reagan Booysen, the provincial secretary of the African National Congress Youth League ("the ANC Youth League") for the Free State Province.

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[6]

2nd defendant is Mr Sello Pietersen, the provincial spokesperson of the ANC Youth League of the Free State Province.

[7]

3rd defendant is Mr Thabo Meeko, a member of the Free State Provincial Legislature.

[8]

4th defendant is the ANC Youth League, a duly constituted voluntary organisation with legal personality, deriving its existence from its constitution. Adv IAM Semenya SC appeared for the defendants together with Adv M Ramaili.

III THE PLEADINGS:

The plaintiff's case

[9]

Plaintiff pleaded in paragraph 7 of the particulars of claim that 1st and 2nd defendants acted not only in their respective capacities as office-bearers of the ANC Youth League in the Free State, but also in their personal capacities.

[10]

Plaintiff pleaded in paragraph 8 that on 5 October 2017 1st and 2nd defendants jointly issued a statement on behalf of 4th defendant, attached as annexure "A". On the same date 3rd defendant shared and published the statement on Facebook, being a social media platform, widely distributed across the world. The publication is attached as annexure "B".

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[11]

The aforesaid statements contain words stated of and concerning the plaintiff as pleaded in paragraph 9 of the particulars of claim, inter alia that he is a "racist" and an "irrelevant white supremacist."

[12]

In paragraph 10 of the particulars of claim it is alleged that on or about 26 January 2018 2nd defendant repeated some of the allegations pertaining to plaintiff in an article published in The Weekly, a newspaper widely distributed in the Free State. A copy is attached as annexure "C."

[13]

In paragraphs 11 – 15 of the particulars of claim allegations are made that defendants defamed the plaintiff by using the words complained of which were intended and understood by readers of the publications to mean that plaintiff is (1) a racist, (2) a white supremacist, (3) a clown and (4) irrelevant in the political sphere within which the plaintiff finds himself. Consequently R1m is claimed from the four defendants, jointly and severally.

The defendants' defence

[14]

The defendants' special plea of lis pendens insofar as plaintiff also instituted action in the Magistrate's Court, sitting as an Equality Court, has been withdrawn in court before the leading of evidence.

[15]

The defendants admitted the first 7 paragraphs of the particulars of claim in their original plea filed on 11 April 2018 as well as the amended plea filed as recently as 16 May 2019. The significance of the date of filing of the amended plea will become clear later.

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The locus standi and positions held by the 1st to 3rd defendants are admitted. It is also admitted that 1st and 2nd defendants not only acted as office bearers of 4th defendant, but in their personal capacities as well. The ANC Youth League's locus standi as an organisation is also admitted.

[16]

In sub-paragraphs 2.1 – 2.5 of the amended plea it is averred that plaintiff had defamed the Premier of the Free State, Dr Ace Magashule, and that the statement of 5 October 2017 was published "in order to correct the politically unfounded allegations made by the Plaintiff." The media statement of 26 January 2018 was published "in response to the lawsuit against the Defendant and the defamatory statement against there then Premier Dr Ace Magashule, secondly by the journalist seeking clarity in relation to the lawsuit by the Plaintiff."

[17]

In sub-paragraph 2.7 it is pleaded in the alternative that "the utterances complained about were made within the defendant's constitutionally protected rights and freedoms, namely the freedom of expression contemplated in section 16 of the Constitution …. as well as the political rights within the meaning of Section 19 of the Constitution."

Sub-paragraph 2.7 was inserted when the plea was amended.

[18]

Defendants plead in paragraph 3 of the amended plea to paragraphs 11 - 15 of the particulars of claim, averring that "the statements were in essence true and those statements both in the newspaper and on facebook were done in the public interest."

They further aver that as the parties were politicians and plaintiff used the DA's website to attack and defame the Premier, they

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reacted and therefore their statements were made "during the political course or space, not outside the political space or course and the statements were germane to the issue in the political space, also the statements were not statements of fact but response concerning a matter of public interest, namely allegations made against there then Premier."

IV THE LIQUIDATION OF THE ANC YOUTH LEAGUE:

[19]

As indicated supra defendants admitted the ANC Youth League's standing as pleaded. During the trial defendants' senior counsel conducted the proceedings clearly based on instructions of all defendants and not a word was ever said by both legal teams that any of the parties, and fourth defendant in particular, lacked locus standi to carry on defending the action. I reiterate that the amended plea was filed this year, to wit on 16 May 2019.

[20]

On the verge of delivering this judgment, I came across media reports suggesting that the ANC Youth League had been liquidated earlier. I requested my secretary to inform both legal teams of these media reports and directed them to deal with the issue in writing on or before 25 October 2019, which they have done. I was also presented with a copy of a court order indicating that the ANC Youth League was finally wound up on 26 July 2018. The conclusion reached in both parties' written submissions is that this court cannot give judgment against the fourth defendant insofar as its liquidators, if any have been appointed, have not been joined in the proceedings. I agree for obvious reasons, bearing in mind the trite legal principle.

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Consequently plaintiff now seeks judgment against the three individual defendants only.

V THE RULING ON THE DUTY TO BEGIN:

[21]

Ms Peterson submitted that the defendants should start with the leading of evidence. She relied on the averments in the amended plea. I put it to her that the parties agreed in their rule 37 minutes that plaintiff bears the duty to begin and that he will begin. Mr Semenya confirmed that he accepted his brief for the trial based on such agreement. A week before the start of the trial I requested my secretary to communicate with the parties via e-mail in order to ensure that they properly comply with the new rule 37A(10). I was informed that the rule 37 minutes complied with the new rule. Defendants were never requested to revisit the agreement reached. Consequently, I did not deem it fair to make a ruling contrary to an agreement reached between the parties. Furthermore, although new defences are raised in the amended plea, defendants denied in the original plea that the statements were made wrongfully and with the intent to defame plaintiff.

VI THE EVIDENCE:

Roy Jankielsohn:

[22]

Mr Jankielsohn was the only witness that testified in plaintiff's case. He testified that he is the leader of the Democratic Alliance ("DA") in the Free State Provincial Legislature. He was leader of the official opposition in the Legislature between 2006 and 2009 and from 2014 to date. He is a member of the Federal Council of

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the DA. He also holds numerous other positions. Five degrees were conferred upon him, to wit a BA, BA Honours in Political Science, MA in International Relations, BA Honours in English and a Ph.D in Political Science. He is a former lecturer at the University of the Free State. He is the author of several academic publications and an external examiner for Ph.D students of the Northwest University. He was awarded the Robert S. McNamara World Bank Scholarship for research.

[23]

On 4 October 2017 plaintiff delivered a statement in the Provincial Legislature in his capacity as leader of the opposition. [2] The Premier of the province, Mr Ace Magashule, was attacked. It was noted that the Bahcesehir University in Turkey, a private university, had been misled into conferring an honorary doctorate on the Premier. According to plaintiff the university ought not to have conferred the degree if they had done research on Mr Magashule. He quoted a number of reasons in this regard.

[24]

During his testimony the plaintiff explained that the information relied upon was in the public domain. It is not deemed apposite to deal with the witness' evidence in this regard or the documentation relied upon in any detail. The examples quoted in the press release are, according to the witness, substantiated by newspaper articles, other...