Media 24 Ltd and Others v SA Taxi Securitisation (Pty) Ltd (Avusa Media Ltd and Others as Amici Curiae)

• Jurisdiction: South Africa
• Citation: 2011 (5) SA 329 (SCA)

Media 24 Ltd and Others v SA Taxi Securitisation (Pty) Ltd (Avusa Media Ltd and Others as Amici Curiae)
2011 (5) SA 329 (SCA)

2011 (5) SA p329

Citation	2011 (5) SA 329 (SCA)
Case No	437/2010
Court	Supreme Court of Appeal
Judge	Brand JA, Nugent JA, Maya JA, Snyders JA and Theron JA
Heard	May 5, 2011
Judgment	July 5, 2011
Counsel	J Suttner SC (with R Moultrie) for the appellants.; A Subel SC (with ARG Mundell SC) for the respondent.; W Trengove SC (with K Hofmeyr) for the amici curiae.

Flynote : Sleutelwoorde B

Defamation — Damages — Special damages — Plaintiff seeking to recover special damages resulting from defamatory statement must allege and prove elements of Aquilian action. C

Defamation — Damages — Corporation — General damages — Corporation has claim for general damages in defamation.

Headnote : Kopnota

A plaintiff who seeks to recover special damages resulting from a defamatory statement must allege and prove the elements of the Aquilian action. D (Paragraphs [4] and [9] at 332I – J and 334E – F.)

A corporation has a claim for general damages in defamation. (Paragraph [55] at 349E – F.)

Cases Considered

Annotations:

Reported cases E

Southern Africa

A Neuman CC v Beauty Without Cruelty International 1986 (4) SA 675 (C): referred to

Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A): referred to F

Administrator, Transvaal and Others v Traub and Others 1989 (4) SA 731 (A): referred to

Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A): referred to

Boka Enterprises (Pvt) Ltd v Manatse and Another NO 1990 (3) SA 626 (ZH): referred to G

2011 (5) SA p330

Bredell v Pienaar 1924 CPD 203: referred to A

Brisley v Drotsky 2002 (4) SA 1 (SCA): dictum in para [8] applied

Buthelezi v Poorter and Others 1975 (4) SA 608 (W): referred to

Cadac v Weber-Stephen Products Co and Others 2011 (3) SA 570 (SCA): referred to

Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another 2011 (4) SA 42 (CC) (2011 (2) BCLR 121): referred to B

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

Church of Scientology in SA Incorporated Association not for Gain v Reader's Digest Association SA (Pty) Ltd 1980 (4) SA 313 (C): considered

Combrinck v De Kock (1887 – 1888) 5 SC 405: referred to

Delta Motor Corporation (Pty) Ltd v Van der Merwe 2004 (6) SA 185 (SCA) ([2004] 4 All SA 365): referred to C

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

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

Ex parte Minister of Safety and Security and Others: In re S v Walters and Another 2002 (4) SA 613 (CC) (2002 (2) SACR 105; 2002 (7) BCLR 663): referred to D

Feldman (Pty) Ltd v Mall 1945 AD 733: referred to

Fellner v Minister of the Interior 1954 (4) SA 523 (A): referred to

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

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC): referred to

Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA): referred to

GA Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1: followed

Geary & Son (Pty) Ltd v Gove 1964 (1) SA 434 (A): referred to

Griffiths v Mutual & Federal Insurance Co Ltd 1994 (1) SA 535 (A): referred to F

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) (2000 (2) SACR 349; 2000 (10) BCLR 1079): referred to

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771): referred to G

Kritzinger v Perskorporasie van Suid-Afrika (Edms) Bpk en 'n Ander 1981 (2) SA 373 (O): referred to

Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC): dictum in para [195] followed

Maize Board v Tiger Oats Ltd and Others 2002 (5) SA 365 (SCA) ([2002] 3 All SA 593): referred to H

Matthews and Others v Young 1922 AD 492: applied

Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W): referred to

Minister of Finance and Others v EBN Trading (Pty) Ltd 1998 (2) SA 319 (N): dictum at 326G approved I

Minister of Finance and Others v Gore NO 2007 (1) SA 111 (SCA) ([2007] 1 All SA 309): referred to

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741): referred to

Mogale and Others v Seima 2008 (5) SA 637 (SCA): referred to J

2011 (5) SA p331

Multiplan Insurance Brokers (Pty) Ltd v Van Blerk 1985 (3) SA 164 (D): A referred to

S v Hoho 2009 (1) SACR 276 (SCA) ([2009] 1 All SA 103): referred to

S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC): followed

Schultz v Butt 1986 (3) SA 667 (A): referred to

South African Post Office v De Lacy and Another 2009 (5) SA 255 (SCA): B referred to

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) ([2006] 1 All SA 6): dictum in para [2] applied

Treatment Action Campaign v Rath and Others 2007 (4) SA 563 (C): referred to C

Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 (4) SA 376 (T): considered

Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1979 (1) SA 441 (A): referred to

University of Pretoria v South Africans for the Abolition of Vivisection and Another 2007 (3) SA 395 (O): referred to D

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

Young v Shaikh 2004 (3) SA 46 (C): referred to.

England

Broome v Cassell & Co [1972] AC 1027 (HL): referred to E

Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 (HL) ([1993] 1 All ER 1011): referred to

Jameel (Mohammed) v Wall Street Journal Europe Sprl [2006] UKHL 44 ([2007] 1 AC 359): dictum in para [26] approved

Pearl Assurance Company v Government of the Union of South Africa 1934 AC 570: referred to F

Rookes v Barnard [1964] AC 1129 (HL): referred to

South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 (CA): referred to.

European Union

Steel and Morris v The United Kingdom [2005] ECHR 103 ((2005) 41 EHRR 22): followed. G

Case Information

Appeal against a decision in the South Gauteng High Court, Johannesburg (Mathopo J).

J Suttner SC (with R Moultrie) for the appellants. H

A Subel SC (with ARG Mundell SC) for the respondent.

W Trengove SC (with K Hofmeyr) for the amici curiae.

Cur adv vult.

Postea (July 5). I

Order

(1)

The appeal is upheld with costs, including the costs of two counsel.

(2)

The order of the court a quo is set aside and replaced with the following: J

2011 (5) SA p332

'(a)

A The defendants' special plea with reference to the plaintiff's claim for general damages, referred to in para 16 and prayer 1 of its particulars of claim, is dismissed.

(b)

Save for para (a) above, the defendants' special plea is upheld.

(c)

The plaintiff's claim for special damages referred to in para 17 and prayer 2 of the particulars of claim, is dismissed.

(d)

B The plaintiff is ordered to pay the costs of these preliminary proceedings, including the costs of two counsel.'

Judgment

Brand JA (Maya JA, Snyders JA and Theron JA concurring):

[1] This appeal has its origin in a defamation action instituted by the C respondent against the three appellants in the South Gauteng High Court, Johannesburg. The respondent is a finance company that provides financial assistance to purchasers and lessees of taxis. The first appellant publishes a newspaper, City Press, which is distributed countrywide in South Africa. The second appellant is the editor of City Press. The action derived from an article which was published in City Press in D June 2008 under the title 'Taxi owners taken for a ride by finance body'. It was written by the third appellant.

[2] For reasons that will shortly become apparent, the appeal does not turn on the exact content of the article. Suffice it therefore to capture it E in broad outline. As can be inferred from the title, the article is highly critical of the way in which the finance body referred to in the article conducts its business. The respondent's case is that the finance body referred to would be understood by the readers of the article as relating to it. This is denied by the appellants in their plea. But because of the procedure adopted by the parties, the allegation must for present F purposes be assumed to be true. Among other things the article accused the respondent of 'cheating on taxi operators'; of conducting its business in a way that is illegal and criminal; of arbitrarily repossessing taxis; and of taking away the means of taxi owners to feed their families.

G [3] In its particulars of claim the respondent contended that the article was defamatory of it and that it was published with the intention to defame and to injure it in its business reputation. On these grounds it claimed general damages in an amount of R250 000 as well as special damages in the form of lost profits, that it allegedly suffered as a result of the defamation, in an amount exceeding R20 million.

H [4] The appellants' first response was an exception that the particulars of claim were vague and embarrassing, alternatively that it failed to disclose a cause of action. In due course, the exception was dismissed in the High Court with costs. We are not required to revisit that dismissal and no more needs to be said about the exception. The appellants' next step was I to file a document which contained both a special plea and a plea on the merits. The special plea challenged the respondent's right to obtain either...