Mineworkers Investment Co (Pty) Ltd v Modibane

• Jurisdiction: South Africa
• Judge: Willis J
• Judgment Date: 18 June 2002
• Citation: 2002 (6) SA 512 (W)
• Docket Number: 2001/20548 and 2001/21162
• Hearing Date: 04 June 2002
• Counsel: G J Marcus SC (with him M Chaskalson) for the plaintiff. Defendant appearing in person (the pleadings having been drafted by G I Hoffman SC and A J Eyles).
• Court: Witwatersrand Local Division

Willis J: B

[1] The plaintiff claims against the defendant in two separate defamation actions. They were consolidated and set down for trial together. The first action (case No 2001/20548) has three parts: claim A is based upon a letter written by the defendant to certain senior persons at Johnnic Holdings Ltd, the ultimate controlling C company of the Financial Mail, a weekly business journal having a national circulation of about 33 504 at the time; claim B arises from a telephonic conversation which the defendant had with a Mr Sizwe Mncwango, a strategy manager employed by BP SA (Pty) Ltd; claim C arises from statements made by the defendant to a Mr Steven Moti, a journalist employed by The Star and published in D that newspaper on 27 August 2001. This is a daily newspaper having a national circulation of some 163 963 at the time. The second action (case No 2001/21162) arises from a full-page advertisement written and paid for by the defendant which appeared on 27 September 2001 in Business Day, a daily newspaper also having a national E circulation of approximately 42 867 at that time. In the second action the plaintiff seeks additional relief in the form of an interdict restraining the defendant from making further defamatory statements about it. Following an agreement between the parties the two separate actions were consolidated. As mentioned before, they were set down for F trial together.

[2] The defendant, although he appeared in person at the trial, was represented by Adv G I Hoffman SC, assisted by Adv A J Eyles, when he filed his pleas. His attorneys were Cliffe Dekker Fuller Moore Inc. The defences raised in the pleas are bald denials that the alleged statements are defamatory. In claims B G and C of the first action, the defendant, in his plea, denied having made the statements to Mr Mncwango and Mr Moti respectively. Later, during the pre-trial conference, he admitted that he had indeed had the alleged conversations with these two gentlemen. H

[3] As a result of the narrowing of the issues in the pretrial conference, neither side led any evidence at the trial. The issues turned on:

(i)

whether the statements ( which it is common cause were made) were indeed defamatory; and

(ii)

if so, the appropriate remedy; and I

(iii)

if damages were to be awarded, the quantum thereof.

[4] The defendant wrote to a Mr Paul Edwards, the Chief Executive Officer of Johnnic Holdings Ltd, as well as to a Mr Thomas Qhena, a director thereof. They both received this letter. The defendant said the following in the letter: J

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(i)

'There is a very dark and ugly side to MIC, which is covered by a veil of pious pontification. This A underside is a mixture of greed, dishonesty, and the love of money which, as we should all know by now, is the root of all evil.

(ii)

We all know of recent events in which a well-known cleric with a long history of fighting injustice but ended up in jail! My personal experience is that MIC is no different. They are wolves in sheep's skin who are abusing their positions to B aggrandise themselves on the name of doing good ''for the people'' and in the process cheating people like me who are naïve enough to believe and trust their bona fides.

(iii)

I studied business ( B.Comm; MBA) and have been in business over twenty years and I got cheated because I naively trusted MIC and its shenanigans. C

(iv)

If anything the course of black business was robbed by MIC.

(v)

Empowerment has been used as little more than a buzzword as a short-cut to enrich some apparutchnics (spelling might be incorrect), very often through less than honest methods. D

(vi)

When the Bible of empowerment is written one day, this saga will be one of the sordid reminders of how the cause of empowerment was hi-jacked by modern day pirates for their own pockets disguised as Robin Hoods.'

The plaintiff is commonly known as 'MIC'.

[5] The words complained of by the plaintiff when the defendant spoke to Mr Sizwe Mncwango are 'there is an outstanding E claim of R120 million in respect of shares pertaining to the listing of Supergroup' and '(the plaintiff) seems to lack corporate governance'.

[6] The article in The Star reported that the plaintiff (together with a certain trust) owed him in excess of R120 million for shares 'sold without his (ie the defendant's) F consent'. The defendant admits that this is what he told Mr Moti.

[7] The full-page advertisement in Business Day is headed 'Black empowerment betrayal by Mineworkers Investment Company (MIC)'. It is verbose and full of hyperbole. It accuses Mr Clifford Elk, a director of the plaintiff, of 'a deliberate G misrepresentation of facts to the public'. It ends with the following ringing phrases:

'You can fool some of the people some of the time, but you cannot fool all the people all the time.

You can run but you cannot hide H

MIC= black (dis) empowerment.'

[8] A few weeks prior to the publication of this advertisement, the plaintiff's attorney had written to the defendant's attorney and requested an 'unconditional, unequivocal' undertaking that the defendant would make no further defamatory statements about the plaintiff. The reply, on behalf of the I defendant, contains a demure denial that the defendant had any such intention. This was sent less than a month before the publication of the advertisement.

[9] During the defendant's address, it became clear that he is aggrieved that an opportunity which he had expected for himself to acquire a stake J

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of 5,5% in the listing of the plaintiff had not materialised. A careful reading of the advertisement suggests the same. A It is not the defendant's case (and, most importantly, nowhere is it pleaded by the defendant) that any firm, mutually binding agreement had been reached between the defendant and any one else to this effect. Negotiations may have taken place between the defendant and certain senior executives of the plaintiff with this B in mind (or, at least the mind of the defendant) but nothing more. In other words, as between the plaintiff (and any of its executives) and the defendant there has been, on the defendant's own version of events from the Bar, no breach of contract or fraud.

[10] The enquiry is as to what the ordinary, reasonable, balanced and right-thinking person reading the words of which the C plaintiff complains would think of them. The words must be read in their context. The ordinary reader is taken to be a reasonable person of average intelligence and education. This enquiry must be done in order to determine whether the meaning of the words is defamatory. (See, for example, Helps v Natal Witness Ltd and Another 1937 AD 45 at 51; Johnson v Rand Daily Mails D 1928 AD 190 at 194; Young v Kemsley and Others 1940 AD 258 at 282; Rhodes University College v Field 1947 (3) SA 437 (A) at 461; SA Associated Newspapers Ltd v Schoeman 1962 (2) SA 613 (A) at 616G; Botha en 'n Ander v Marais 1974 (1) SA 44 (A) at 44E; South African Associated Newspapers Ltd and Another v Estate Pelser 1975 (4) SA 797 (A) at E 811A; Suid-Afrikaanse Uitsaaikorporasie v O'Malley 1977 (3) SA 394 (A) at 408D-E; Coulson v Rapport Uitgewers (Edms) Bpk 1979 (3) SA 286 (A) at 294B - 295B; SA Associated Newspapers Ltd en 'n Ander v Samuels 1980 (1) SA 24 (A); Demmers v Wyllie and Others 1980 (1) SA 835 (A) at 842B - 843E; Argus Printing and Publishing Co Ltd and Others v Esselen's Estate 1994 (2) SA 1 (A) at 20E - F; Sindani v Van der Merwe and Others 2002 (2) SA 32 (SCA) at 32C - D and F Channing v South African Financial Gazette Ltd and Others 1966 (3) SA 470 (W) at 473B - F which has been referred to with approval in several of the aforesaid judgments.)

[11] Applying this test, I am satisfied that the words upon which the plaintiff relies in claim A and C of the first action inform the reader that the plaintiff is dishonest. Insofar as the offending G words in claim B are concerned, they inform the reader not that the plaintiff is dishonest but that it is incompetent. In the second action, I accept that a reader would gain the impression that the defendant was somewhat emotional and perhaps exaggerating. I also accept, as I have said already, that upon a careful reading of the H advertisement, it is not clear what it is precisely that the plaintiff is alleged to have done wrong. Nevertheless, even though there may be room for other interpretations, one must determine what the ordinary reader would think in the context of the article as a whole, on a preponderance of probabilities. (See Sindani v Van der Merwe and Others (supra at 36C - D); Gluckmann v Holford 1940 TPD 336 and Channing v South African Financial I Gazette Ltd and Others (supra at 473F).) In my view, the ordinary reader would indeed think that the defendant was complaining that the plaintiff had been dishonest. As was said by Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 277, 'a layman reads in an implication much more freely'. This case was J

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referred to with approval in Argus Printing and Publishing Co Ltd and Others v Esselen's Estate (supra at 20F - G). A (See also Sindani v Van der Merwe and Others (supra at 36D - E).) I am strengthened in my view by the fact that the defendant, attempting to advance his case, submitted that he had placed the advertisement because he thought the plaintiff was a 'swindler' and the public should know about this. His plea did not, B however, contain a defence to this effect. Ultimately, as was said by Innes CJ in Sutter v Brown 1926 AD 155 at 163:

'(T)he question whether a statement is defamatory is a question of law for the decision of the Court; it depends upon the proper interpretation of the language used.' C

[12] In the absence of any of the recognised...