Mineworkers Investment Co (Pty) Ltd v Modibane

• Jurisdiction: South Africa

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

2002 (6) SA p512

Citation	2002 (6) SA 512 (W)
Case No	2001/20548 and 2001/21162
Court	Witwatersrand Local Division
Judge	Willis J
Heard	June 4, 2002
Judgment	June 18, 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).

Flynote : Sleutelwoorde E

Defamation — What is and what is not actionable — To be determined what ordinary, reasonable, balanced and F right-thinking person reading words complained of would have thought of them — Ordinary reader reasonable person of average intelligence and education — Words also to be read within their context — Generally, in absence of any recognised defences, allegations of dishonesty defamatory — Public policy, however, G not requiring intervention as far as any allegation of incompetence concerned.

Defamation — Remedies — Amende honorable — Remedy claimed as alternative to damages in form of apology — Remedy having fallen into disuse but not abrogated and remaining part of law — Harm done by defamatory statement being damage to victim's reputation, public H apology could 'set record straight', restoring victim's reputation and providing victim with necessary satisfaction without serious financial harm being caused to culprit — Even if amende honorable had never existed, legal imperatives of present constitutional framework would have required its invention — Remedy I entirely consonant with spirit, purport and objects of Bill of Rights in Constitution of the Republic of South Africa Act 108 of 1996 — Section 39(2) of Constitution.

Headnote : Kopnota

The plaintiff had instituted two separate defamation actions against the defendant. The actions were consolidated. The first action had three claims, each J

2002 (6) SA p513

based on a different incident of alleged defamation, viz a letter written to senior personnel of Johnnic A Holdings Ltd, a telephonic conversation with a senior member of the staff of BP SA (Pty) Ltd and statements made to a journalist employed by The Star, which statements were later published in that newspaper. The second action arose from a full-page advertisement in Business Day. The advertisement had been written and paid for by the defendant and contained allegedly defamatory material. The defendant's only defence was that the statements were not B defamatory. The Court had to determine whether the statements made had indeed been defamatory and, if so, the appropriate remedy. The plaintiff claimed an interdict and damages and, as an alternative, that the defendant be given the option of publishing a full-page apology in the Business Day.

Held, that the enquiry to be conducted in order to determine whether the meaning of the words was defamatory was to ask what the C ordinary, reasonable, balanced and right-thinking person reading the words complained of would have thought of them. The ordinary reader was a reasonable person of average intelligence and education. The words also had to be read within their context. (Paragraph [10] at 518C - C/D.)

Held, further, that, having conducted the enquiry, it was clear that the statements complained of would convey to the ordinary D reader that the defendant was complaining that the plaintiff had been dishonest and, in one particular instance, incompetent. In the absence of any recognised defences, allegations that a person was dishonest were indeed defamatory. As regards the allegation of incompetence, the ordinary, reasonable person had to take such accusations as a matter of opinion rather than fact. In attempting to E strike a balance between the plaintiff's right to a reputation and the defend- ant's right to freedom of speech, in the particular context of the matter it had to be found that the plaintiff's right to its reputation had to yield to the defendant's right to express an opinion as to the plaintiff's competence. Furthermore, public policy drew the line between what was permissible and what was not in defamation matters. Public policy required no intervention by the Court F in the instant matter as far as the allegation of incompetence was concerned. (Paragraphs [11], [12] and [13a] at 518G - G/H, 519C - C/D, 519J - 520A, 520I - J and 521C/D - D.)

Held, that the alternative remedy claimed by the plaintiff in the form of an apology, or the amende honorable, was a remedy which had fallen into disuse. This, however, did not mean that such remedy had been abrogated by such disuse. It remained part of the G law. (Paragraph [24] at 525C/D - D.)

Held, further, that, even if the amende honorable was no longer part of South African law, there were compelling reasons why a remedy analogous thereto should be available. If the only remedy available in a defamation action was damages, the risk of financial ruin could operate to restrict information being published which would in fact be in the public interest, thereby imposing indirect H restrictions on the right to freedom of expression. Furthermore, a damages award often did not afford an adequate protection to reputation. The harm done by a defamatory statement was damage to the victim's reputation and a public apology could 'set the record straight', restore the victim's reputation and provide the victim with the necessary satisfaction without serious financial harm being caused to the culprit. (Paragraph [25] at 525D/E - E and F - I.) I

Held, further, that, even if the amende honorable had never existed, the legal imperatives of the present constitutional framework would have required its invention. The remedy was entirely consonant with the spirit, purport and objects of the Bill of Rights referred to in s 39(2) of the Constitution of the Republic of South Africa Act 108 of 1996. In the circumstances of the J

2002 (6) SA p514

instant matter it would be just and equitable if the defendant were given a choice A between making a public apology and paying damages. (Paragraph [28] at 526H/I - 527A.) Ordered accordingly.

Cases Considered

Annotations

Reported cases

Argus Printing and Publishing Co Ltd and Others v Esselen's Estate 1994 (2) SA 1 (A): referred to B

Blower v Van Noorden 1909 TS 890: referred to

Borgin v De Villiers and Another 1980 (3) SA 556 (A): referred to

Botha en 'n Ander v Marais 1974 (1) SA 44 (A): referred to

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

Cambridge Plan AG v Cambridge Diet (Pty) Ltd and Others 1990 (2) SA 574 (T): referred to C

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2001 (10) BCLR 998): referred to

Channing v South African Financial Gazette Ltd and Others 1966 (3) SA 470 (W): referred to D

Chetcuti v Van der Wilt 1993 (4) SA 397 (Tk): referred to

Coulson v Rapport Uitgewers (Edms) Bpk 1979 (3) SA 286 (A): referred to

Crawford v Albu 1917 AD 102: discussed and compared

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

Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) (1996 (5) BCLR 658): considered E

Fein v Rabinowitz 1933 CPD 289: referred to

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

Fose v Minister for Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851): referred to

Gardener v Whitaker 1995 (2) SA 672 (E): discussed F

Gardener v Whitaker 1996 (4) SA 337 (CC) (1996 (6) BCLR 775): discussed

Genn v Genn 1948 (4) SA 430 (C): referred to

Gluckmann v Holford 1940 TPD 336: referred to

Green v Fitzgerald and Others 1914 AD 88: dictum at 117 applied

Hare v White (1865) 1 Roscoe 246: considered

Helps v Natal Witness Ltd and Another 1937 AD 45: referred to G

Hoffmann v South African Airways 2001 (1) SA 1 (CC) (2000 (11) BCLR 1211): referred to

Iyman v Natal Witness Printing & Publishing Co (Pty) Ltd 1991 (4) SA 677 (N): referred to

Jasat and Another v Paruk 1983 (4) SA 728 (N): referred to

Johnson v Rand Daily Mails 1928 AD 190: referred to H

Joubert and Others v Venter 1985 (1) SA 654 (A): referred to

Kommissaris van Binnelandse Inkomste en 'n Ander v Willers en Andere 1994 (3) SA 283 (A): referred to

Lewis v Daily Telegraph Ltd 1964 AC 234: referred to

Lumley v Owen 3 NLR NS 13: referred to

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

Marsh v Odendaalsrus Cold Storages Ltd 1963 (2) SA 263 (W): referred to

May v Udwin 1981 (1) SA 1 (A): referred to

Minister of Law and Order v Kadir 1995 (1) SA 303 (A): referred to

Mohamed and Another v Jassiem 1996 (1) SA 673 (A): considered

Muller v SA Associated Newspapers Ltd and Others 1972 (2) SA 589 (C): referred to J

2002 (6) SA p515

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39): referred to A

National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA): considered

Neethling v Du Preez and Others; Neethling v The Weekly Mail and Others 1994 (1) SA 708 (A): discussed

Nel v Waterberg Landbouers Ko-operatiewe Vereeniging 1946 AD 597: dictum at 607 applied B

Norton and Others v Ginsburg 1953 (4) SA 537 (A): referred to

Pearl Assurance Co v Union Government 1934 AD 560 ([1934] AC 570): referred to

Pretoria City Council v Walker 1998 (2) SA 363 (CC) (1998 (3) BCLR 257): referred to C

Queensland Insurance Co Ltd v Banque Commerciale Africaine 1946 AD 272: dictum at 286 applied

Rhodes University College v Field 1947 (3) SA 437 (A): referred to

Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T): referred to

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

S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) (2001 (5) BCLR...