Ndlozi v Media 24 t/a Daily Sun and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Wilson J |
| Judgment Date | 19 September 2023 |
| Citation | 2023 JDR 3563 (GJ) |
| Hearing Date | 08 August 2023 |
| Docket Number | 21/25599 |
| Court | Gauteng Local Division, Johannesburg |
Wilson J:
On 11 April 2021, the third respondent, Mr. Manayetso, a journalist, received a tip-off from a confidential source within the South African Police Service (“SAPS”). The tip-off was that the applicant, Dr. Ndlozi, had been named in a rape complaint made to SAPS on 9 April 2021. The source told Mr. Manayetso that, in the complaint, a woman had said that Dr. Ndlozi raped her. SAPS had opened a case of rape, and the confidential source supplied Mr. Manayetso with the case number allocated to the complaint. The source also supplied Mr. Manayetso with a number of further details, culled from the woman’s statement, that appeared in a story published in the Daily Sun later that day under Mr. Manayetso’s by-line. The Daily Sun is a newspaper controlled by the first respondent, Media 24. The second respondent, Ms. Nkosi, was the editor of the Daily Sun at the time.
Before publishing his article, Mr. Manayetso sought to confirm what the confidential source had told him with Dr. Ndlozi, and with the SAPS spokesperson for the Gauteng Province, a Captain Makhubele.
Mr. Manayetso telephoned Dr. Ndlozi at around 10h13 on 11 April 2021. Dr. Ndlozi did not answer, but the two men agreed to communicate by text. In a text message sent later that day, Mr. Manayetso outlined the tip-off he had received. He disclosed the identity of the complainant and the location and details of the assault she alleged. He asked Dr. Ndlozi for comment. The gist of Dr. Ndlozi’s response was that he had not been contacted by the police, that he did not know about the complaint, but that, on the details of the complaint Mr. Manayetso relayed to him, there was no possibility that he could
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have been the perpetrator. Dr. Ndlozi provided an account of his movements over the period apparently covered in the complaint. He adverted to eyewitnesses and CCTV footage that, he said, would demonstrate that he could not have been the complainant’s assailant. He expressed solidarity with the complainant, and said that he hoped that her true assailant was apprehended and punished.
Mr. Manayetso first contacted Captain Makhubele at 12h21 on 11 April 2021. No substantive response was forthcoming from the SAPS for the period of just under 8 hours between the first contact Mr. Manayetso had with Captain Makhubele, and the point at which Mr. Manayetso’s article was published online at around 20h00 on 11 April 2023. Just before 17h00, Captain Makhubele did refer Mr. Manayetso to an individual Captain Makhubele identified as “Peters”, but “Peters” did not respond before the Daily Sun published the article.
At 11h33 on 12 April 2021, a Brigadier Peters, who was probably the “Peters” to whom Captain Makhubela had originally referred, issued a statement to the media, in which he confirmed that the complaint reported in the Daily Sun online the night before had been made, but that Dr. Ndlozi was not a suspect in the police investigation of it. The statement goes on to criticise Mr. Manayetso and, by implication, the Daily Sun and Ms. Nkosi, for publishing the story without seeking comment from SAPS, and for basing the story substantially on the complainant’s statement, which Brigadier Peters said, could “only have been obtained through unlawful and unethical means”.
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Wilson J
In his first criticism, it appears that Brigadier Peters was misguided. On the papers before me, Mr. Manayetso plainly sought comment from SAPS before the Daily Sun published his story. Brigadier Peters’ second criticism, however, appears to have been well-founded. On a conspectus of all the facts, the Daily Sun published its story solely on the basis of what the confidential source had relayed to Mr. Manayetso over the telephone. There has never been any suggestion that the confidential source had the right – whether legal or ethical – to disclose the information that they did.
Be that is it may, the issues in this case do not turn on the morality of the confidential source’s conduct, or that of Mr. Manayetso and the Daily Sun in choosing to write about and publish what they were told.
What is at issue in this case is whether three statements the Daily Sun published on the basis of the confidential source’s tip-off were defamatory, and whether, if they were defamatory, the statements were nonetheless lawful because they were true, and it was for the public benefit that they be published. A subsidiary issue is whether either of these questions may appropriately be decided on motion.
In what follows I first set out, and identify the sting of, the three statements of which Dr. Ndlozi complains. I then draw the following conclusions: first, that the lawfulness of publishing the statements is an issue that can properly be decided on motion; second, that two out of three of the statements defamed Dr. Ndlozi; and third, that the two defamatory statements were substantially true, but that their publication, on the facts of this case, was not for the public benefit. These conclusions compel me to find that the respondents have
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unlawfully defamed Dr. Ndlozi, and that he is entitled to a declaration that this is so. He is also entitled to an order that the two defamatory statements be removed from Media 24’s online media platforms. Any further relief to which he may be entitled is a matter that should either be agreed between the parties, or on which oral evidence should be led. I will make an order setting out how that oral evidence, if it is necessary, should be taken.
The statements
In his founding papers, Dr. Ndlozi sets out three statements that he contends are defamatory. The first is a billboard, under the Daily Sun banner, which reads “‘MBUYISENI NDLOZI RAPED ME!’”. The billboard was published in hardcopy, and attached to lampposts in Johannesburg, one of which Dr. Ndlozi saw on Jan Smuts Avenue on 12 April 2023. It was also published electronically on the Daily Sun’s social media accounts. It was published separately from the article to which it adverts. The billboard is plainly a “teaser”, which is meant to stimulate curiosity and lead those who see it to read the article.
The Daily Sun published a tweet containing the billboard hours before the article first appeared online. It follows from all of this that the statement must be evaluated separately from the text of the article to which it refers. This is because an ordinary, reasonable reader cannot be presumed to have access to the article, and to be able to evaluate the billboard in the context the article supplies. It also follows from this that a decision to publish must have been taken by about 15h00 on 12 April 2021, which is around three-and-a-half hours after comment was first sought from the police. While it is true that the
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publication of the story was delayed to allow the police to revert, the intention was clearly to publish with or without police comment.
The gist or “sting” of the statement is that someone has accused Dr. Ndlozi of rape. The manner in which the statement is presented has the unfortunate and misleading implication that someone has approached the Daily Sun directly to tell the newspaper that Dr. Ndlozi raped them. But we know that did not happen. What happened is that Mr. Manayetso noted down what the confidential source told him. It was accepted before me that the Daily Sun never came into possession of the written complaint in which Dr. Ndlozi was named. A notice under Rule 35 (12) was issued on Dr. Ndlozi’s behalf demanding that the respondents produce the complaint. The notice went unanswered. The only reasonable inference to be drawn in the context of this case is that the respondents never had the complaint, and when they purported to quote from it, they were in fact quoting their confidential source.
The second statement of which Dr. Ndlozi complains is Mr. Manayetso’s article itself. The article was published online on the evening of 11 April 2021, and in the Daily Sun’s printed edition on 12 April 2021. The article sets out the portions of the complainant’s statement to SAPS as relayed to Mr. Manayetso by the confidential source. Again, the unfortunate impression is created that the article is quoting directly from the statement. The article also replicates Dr. Ndlozi’s vehement denial of any involvement, his characterisation of the complaint as a “terrible instance of mistaken identity” and his pledge to co-operate with any investigation. It specifically records that Dr. Ndlozi says he was not present at the place the complainant said she was raped and that he
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did not know her. The article does not contain any of the facts Dr. Ndlozi offered to exculpate himself. Nor, in its original form, did it contain SAPS’ confirmation that Dr. Ndlozi was not a suspect in its investigations. That was added later.
The gist of the article is that a complaint of rape has been made against Dr. Ndlozi and that Dr. Ndlozi denies any involvement in the attack alleged against him. In its original form, the article conveys the sense that there is an ongoing investigation into Dr. Ndlozi’s conduct. In its revised version, the article makes clear that Dr. Ndlozi is no longer being investigated.
The third statement is an article the Daily Sun published on 13 April 2021. It appears under the headline “We stand by our story!”. It is a short response to Brigadier Peters’ media release. It repudiates the allegation that comment was not sought from SAPS before Mr. Manayetso’s article was published. It notes that Dr. Ndlozi is not a suspect in the complaint (SAPS’ confirmation of this is the subject of a longer piece on the same page) and it chooses not to address Brigadier Peters’ imputation of unlawful and unethical conduct.
The gist of the third statement...
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