Reddell and Others v Mineral Sands Resources (Pty) Ltd and Others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
Reddell and Others v Mineral Sands Resources (Pty) Ltd and Others
2023 (2) SA 404 (CC)
2023 (2) SA p404
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Citation |
2023 (2) SA 404 (CC) |
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Case No |
CCT 67/21 |
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Court |
Constitutional Court |
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Judge |
Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J, Mlambo AJ, Theron J, Tshiqi J and Unterhalter AJ |
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Heard |
November 14, 2022 |
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Judgment |
November 14, 2022 |
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Counsel |
G Budlender SC (with S Budlender SC, S Kazee and E Cohen) for the applicants. |
Flynote : Sleutelwoorde
Defamation — Damages — Trading corporation — May claim general damages for defamation, save where statements concerned part of public discourse on issue of public importance.
Headnote : Kopnota
In this matter respondents were mining companies involved in mining operations on the Western Cape coast and applicants environmentalists who in a variety of public fora (television, lecture, radio, online social media) had made statements critical of the operations (see [3] and [6] – [9]).
These, the corporations alleged, were defamatory of them, and prompted them to sue for very considerable damages for their alleged injuria (see [4]).
To their claim, the environmentalists raised a special plea which came to be labelled the 'corporate defamation defence'. It was that the law did not give a trading corporation, as a remedy for defamation, a claim of general damages for non-patrimonial loss (see [2], [4] and [11]).
The corporations met the plea with an exception that no such defence existed in our law, and this exception the High Court upheld, bound by Supreme Court of Appeal (SCA) precedent that a claim of general damages indeed availed a trading corporation (see [5] and [11]).
The environmentalists then appealed to the Constitutional Court (CC) directly, directly as only the CC could overrule the SCA precedent (see [5]). The CC upheld the appeal, declaring that a trading corporation could be awarded general damages, save for where the speech concerned was part of public discourse on an issue of public importance (see [152]).
Reaching this conclusion, a first issue was the source of a trading corporation's right to reputation, and its obverse, the right to protect it (see [47]).
This, the CC held, was the common law, not the constitutional right to dignity as SCA authority had found (see [47], [68] and [87]).
Following from this was the question whether a trading corporation could suffer non-patrimonial loss from injury to its common-law right to reputation (see [92]).
The finding was affirmative: Roman law considered injury to reputation to be injury to two interests — internal (feelings, which a corporation could not possess) and external (good name and reputation, which a corporation did possess), with a solatium redressing both (see [94] – [96]).
Further flowing from this, as a derivative, was that a trading corporation was entitled to general damages for injury to its reputation (see [96]).
Against this background, the issue shifted to whether an award of general damages was constitutional, which issue devolved to whether such damages limited the right to freedom of expression (see [97] and [101]).
This the CC again answered in the affirmative, identifying the source of the limitation as the chilling effect such awards had on free speech (see [101]).
This in turn prompted the question of whether the limitation was justifiable, with the CC finding that permitting such an award in all instances would be unjustifiable, but excluding certain instances from susceptibility to such
2023 (2) SA p405
awards would render the limitation justifiable (see [101], [113] and [132]). Those instances would be statements made in the course of public discourse on issues of legitimate public interest (see [114]).
Ordered, accordingly, that leave to directly appeal be granted, and the appeal upheld to the limited extent that it be declared that a trading corporation could claim general damages for defamation, save where the speech concerned was part of public discourse on issues of public interest (see [152]).
Unterhalter AJ, diverging from the majority, found that the constitutional right to dignity could be interpreted to apply to trading corporations but that it was unnecessary to finally decide the point in that even if trading corporations were not protected by the right, such corporations had a common law right to defend their reputations (see [155] – [156] and [159]).
On this point Unterhalter AJ converged with the majority, agreeing that infringement of the common law right entitled a trading corporation to sue for general damages for non-patrimonial harm (see [165] – [166] and [170]).
The key difference, though, was Unterhalter AJ's view that the majority had not established a basis for finding that there was a limitation of the right to freedom of expression (on the grounds set out in [175] – [191]), and that even if there were one, such limitation could be justified (on the grounds set out in [193] – [205]).
Unterhalter AJ would have dismissed the appeal (see [210]).
Cases cited
Southern Africa
Ahmadiyya Anjuman Ishaati-Islam Lahore (South Africa) and Another v Muslim Judicial Council (Cape) and Others 1983 (4) SA 855 (C): referred to
Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449; [1996] ZACC 2): referred to
Caxton Ltd and Others v Reeva Forman (Pty) Ltd and Another 1990 (3) SA 547 (A): referred to
Church of Scientology in SA Incorporated Association not for Gain v Reader's Digest Association SA (Pty) Ltd 1980 (4) SA 313 (C): referred to
Daniels v Scribante and Another 2017 (4) SA 341 (CC) (2017 (8) BCLR 949; [2017] ZACC 13): referred to
Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8) BCLR 837; [2000] ZACC 8): referred to
De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2004 (1) SA 406 (CC) (2003 (2) SACR 445; 2003 (12) BCLR 1333; [2003] ZACC 19): referred to
Democratic Alliance v African National Congress and Another 2015 (2) SA 232 (CC) (2015 (3) BCLR 298; [2015] ZACC 1): referred to
Dhlomo NO v Natal Newspapers (Pty) Ltd and Another 1989 (1) SA 945 (A): referred to
Die Spoorbond and Another v South African Railways; Van Heerden and Others v South African Railways 1946 AD 999: referred to
Dikoko v Mokhatla 2006 (6) SA 235 (CC) (2007 (1) BCLR 1; [2006] ZACC 10): dictum in para [92] applied
Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another 2021 (2) SA 1 (CC) (2021 (1) SACR 387; 2021 (2) BCLR 118; [2020] ZACC 25): referred to
2023 (2) SA p406
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) (1996 (10) BCLR 1253; [1996] ZACC 26): applied
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1; [1995] ZACC 13): referred to
Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another 1993 (2) SA 451 (A) ([1993] ZASCA 3): referred to
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851; [1997] ZACC 6): referred to
Freedom of Religion South Africa v Minister of Justice and Others 2020 (1) SA 1 (CC) (2019 (11) BCLR 1321; [2019] ZACC 34): referred to
G A Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1: referred to
Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC) (2010 (1) BCLR 35; [2009] 12 BLLR 1145; [2009] ZACC 26): referred to
Geary & Son (Pty) Ltd v Gove 1964 (1) SA 434 (A): referred to
Gold Reef City Theme Park (Pty) Ltd v Electronic Media Network Ltd and Another; Akani Egoli (Pty) Ltd v Electronic Media Network Ltd and Another 2011 (3) SA 208 (GSJ): referred to
Goodall v Hoogendoorn Ltd 1926 AD 11: referred to
Herbal Zone (Pty) Ltd and Others v Infitech Technologies (Pty) Ltd and Others [2017] 2 All SA 347 (SCA): referred to
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; [2000] ZACC 12): referred to
Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC) (2002 (5) BCLR 433; [2002] ZACC 3): referred to
Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; [2002] ZACC 12): referred to
Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC) (2011 (6) BCLR 577; [2011] ZACC 4): referred to
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] ZASCA 117): considered
Mineral Sands Resources (Pty) Ltd and Another v Reddell and Two Related Cases 2021 (4) SA 268 (WCC): reversed in part on appeal
Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others 2023 (2) SA 68 (CC) ([2022] ZACC 37): referred to
Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W): referred to
Minister of Safety and Security and Another v Hamilton 2001 (3) SA 50 (SCA) ([2003] 4 All SA 117; [2001] ZASCA 22): referred to
Mtolo and Another v Lombard and Others 2022 (9) BCLR 1148 (CC) ([2021] ZACC 39): referred to
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) (1998 (2) SACR 556; 1998 (12) BCLR 1517; [1998] ZACC 15): referred to
National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA) (1999 (1) BCLR 1; [1998] 4 All SA 347; [1998] ZASCA 94): referred to
2023 (2) SA p407
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