Tsedu and Others v Lekota and Another
Jurisdiction | South Africa |
Judge | Harms DP, Mthiyane JA, Nugent JA, Van Heerden JA and Leach AJA |
Judgment Date | 17 March 2009 |
Citation | 2009 (4) SA 372 (SCA) |
Docket Number | 715/07 |
Hearing Date | 19 February 2009 |
Counsel | JJ Roestorf for the appellants. KS Tip SC (with GL Malindi) for the respondents. |
Court | Supreme Court of Appeal |
Nugent JA:
[1] The front page of the 7 August 2005 edition of City Press - a prominent Sunday newspaper - carried an article under the heading 'ANC top brass spied on one another - apartheid agent'. The article was J
Nugent JA
A written by Mr Hlongwa (the second appellant), Mr Tsedu (the first appellant) was the editor of the newspaper, and Media 24 (Pty) Ltd (the third appellant) was the proprietor and publisher.
[2] The respondents were identified by name as the 'ANC top brass' B referred to in the heading and their photographs accompanied the article. At the time the article appeared the respondents were both prominent office-bearers of the African National Congress (ANC) and they also held high office in government. Mr Lekota (the first respondent) was the national chairman of the ANC and also the Minister of Defence. Mr Ndebele (the second respondent) was the provincial C chairman of the party in KwaZulu-Natal and the Premier of that province.
[3] The respondents sued the appellants in the High Court at Johannesburg for damages, alleging that they had been defamed. Their claims D were upheld by that court (Tshiqi J) and damages were awarded to Lekota and Ndebele in the amounts of R150 000 and R112 500, respectively. This appeal is before us with the leave of that court.
[4] The article purported to be a report of what had been said in a book that had been published some three years earlier. [1] In the course of a radio E interview about the article shortly after it had appeared, Tsedu remarked to the interviewer that, if the respondents 'have problems with [what was said in the book] they should take the author of the book to court and not City Press'. It is evident from that remark that he was under the impression that a newspaper may publish defamatory statements with F impunity if they have been originated by someone else. Well, journalists who keep Kelsey Stuart's The Newspaperman's Guide to the Law [2] by their side know that that is not so from the following passage:
'A person who repeats or adopts and re-publishes a defamatory statement will be held to have published the statement. The writer of a letter G published in a newspaper is prima facie liable for the publication of it but so are the editor, printer, publisher and proprietor. So too a person who publishes a defamatory rumour cannot escape liability on the ground that he passed it on only as a rumour, without endorsing it.'
[5] A newspaper that publishes a defamatory statement that was made H by another is as much the publisher of the defamation as the originator is. Moreover, it will be no defence for the newspaper to say that what was published was merely repetition. For while the truth of the statement (if it is published for the public benefit) provides a defence to an action for defamation, the defence will succeed only if it is shown that the I defamation itself is true, not merely that it is true that the statement was made. The authors of Gatley on Libel and Slander (dealing with the tort
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of libel in English law, which in this and other respects substantially A coincides with our law) put that as follows: [3]
'The defendant must prove that the defamatory imputation is true. It is not enough for him to prove that he believed that the imputation was true, even though it was published as belief only. ''If I say of a man that I believe he committed murder, I cannot justify by saying and proving B that I did believe it. I can only justify by proving the fact of the murder.'' [4] The same is true if the defendant says that he is only repeating what others have said or that there is a rumour. So if the defendant has written, A said that P had been convicted of theft, it will be no defence for the defendant to prove that A did tell him so, that he honestly believed what A said, and only repeated it. He must prove C as a fact that P was convicted of theft. ''If you repeat a rumour you cannot say it is true by proving that the rumour in fact existed; you have to prove that the subject matter of the rumour is true.'' [5] This is the repetition rule.'
[6] There are, of course, circumstances in which the publication of even D false defamatory matter is protected - for example, when it repeats what was said in parliament or in a court of law, or if'upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time' [6] - and the fact that the defamatory matter is mere repetition might in some cases be relevant to whether a defence of that kind will be E allowed. But that does not arise in this case. The appellants have not sought to advance any defence of that kind, which would in any event have been bound to fail because the statements that are now complained of were not in the book at all. They were fabricated by the author of the article. F
[7] No doubt, there is considerable potential for slips to be made in a busy newsroom that runs against deadlines. But when alerted to the fact that something might have gone wrong it would be a wise editor who pauses for a moment to reflect on what has occurred. In this case the respondents' attorney wrote to the editor shortly after the article had G appeared complaining that it was defamatory and factually incorrect in parts. It seems to me that it would have been an elementary precaution in circumstances of that kind to call for the book and compare it to what had been said in the article. Had that been done it would have been evident that the statements that were said to be defamatory were not in the book. But that was not done and instead the respondents' complaints were H brushed aside. It was only on the eve of the trial that wiser counsel prevailed and a retraction and apology were belatedly published. That
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A notwithstanding, the appellants persisted in contending that they had done nothing unlawful, pinning their colours to a submission that the fabricated statements were not defamatory.
[8] In answering the question whether the article was defamatory the court below - prompted by the pleadings and the submissions that were B made before it - compared the article to the contents of the book and found that the article grossly misrepresented what had been said. That finding was interwoven in the reasons that were given by that court for its conclusion that the article was defamatory. In that respect the...
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Delict
...with the impression that 485 Para 52; Mthembi-Mahanyele (note 450) para 42.486 Para 53.487 Para 54.488 Paras 54–60. Tsedu v Lekota 2009 (4) SA 372 (SCA) para 5.489 National Media Ltd v Bogoshi (note 442).490 National Media Ltd v Bogoshi (note 442) 1212G–1213A.© Juta and Company (Pty) YeARBO......
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...Group Ltd and Others 2001 (4) SA 987 (NC) (2002 (2) BCLR 771): dictum in para [3] applied Tsedu and Others v Lekota and Another 2009 (4) SA 372 (SCA) ([2009] 3 All SA 46): dictum in para [13] applied J 2011 (6) SA p243 Union of Refugee Women and Others v Director: Private Security Industry ......
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Afriforum and Another v Malema and Another
...Co Ltd and Others v Esselen's Estate 1994 (2) SA 1 (A) ([1994] 2 All SA 160) at 20E; B and Tsedu and Others v Lekota and Another 2009 (4) SA 372 (SCA) ([2009] 3 All SA 46) at 377, para [97] When the words are sung with a chorus supplying additional words, then the addressor, albeit that the......
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Premier, Western Cape v Public Protector and Another
...(7) BCLR 793; [1995] ZACC 4): referred to S v Nkosinyana [1996] 4 All SA 456 (A): referred to Tsedu and Others v Lekota and Another 2009 (4) SA 372 (SCA) ([2009] 3 All SA 46): referred Tshwane City v Afriforum and Another 2016 (6) SA 279 (CC) (2016 (9) BCLR 1133; [2016] ZACC 19): referred t......
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Afriforum and Another v Malema and Another
...Group Ltd and Others 2001 (4) SA 987 (NC) (2002 (2) BCLR 771): dictum in para [3] applied Tsedu and Others v Lekota and Another 2009 (4) SA 372 (SCA) ([2009] 3 All SA 46): dictum in para [13] applied J 2011 (6) SA p243 Union of Refugee Women and Others v Director: Private Security Industry ......
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Afriforum and Another v Malema and Another
...Co Ltd and Others v Esselen's Estate 1994 (2) SA 1 (A) ([1994] 2 All SA 160) at 20E; B and Tsedu and Others v Lekota and Another 2009 (4) SA 372 (SCA) ([2009] 3 All SA 46) at 377, para [97] When the words are sung with a chorus supplying additional words, then the addressor, albeit that the......
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Premier, Western Cape v Public Protector and Another
...(7) BCLR 793; [1995] ZACC 4): referred to S v Nkosinyana [1996] 4 All SA 456 (A): referred to Tsedu and Others v Lekota and Another 2009 (4) SA 372 (SCA) ([2009] 3 All SA 46): referred Tshwane City v Afriforum and Another 2016 (6) SA 279 (CC) (2016 (9) BCLR 1133; [2016] ZACC 19): referred t......
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Du Plessis v Media 24 t/a Daily Sun and Another
...Uitsaaikorporasie v O'Malley 1977 (3) SA 394 (A): dictum at 402H – 403A applied E Tsedu and Others v Lekota and Another 2009 (4) SA 372 (SCA) ([2009] 3 All SA 46): referred Canada Hill v Church of Scientology of Toronto (1995) 126 DLR (4th) 129 (SCC) (30 CRR 2d 189): referred to. United Sta......
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Delict
...with the impression that 485 Para 52; Mthembi-Mahanyele (note 450) para 42.486 Para 53.487 Para 54.488 Paras 54–60. Tsedu v Lekota 2009 (4) SA 372 (SCA) para 5.489 National Media Ltd v Bogoshi (note 442).490 National Media Ltd v Bogoshi (note 442) 1212G–1213A.© Juta and Company (Pty) YeARBO......