The Thin Line between Freedom of Speech and Defamation

Oct 23, 2023 | , , , , | News

Recently Judge van Zyl handed down Judgment in a defamation claim in the Western High Court (August v Maimane (20866/2018; 20867/2018; 20868/2023; 20869/2018) [2023] ZAWCHC 254).

Bearing in mind the developments in social and other forms of media, and the potential repercussions of defamatory statements, I thought it prudent to discuss this case.

Defamation

Each of the defendants had tendered an amount in settlement to the plaintiffs, but Judge van Zyl exercised his discretion and ordered higher awards against the defendants, varying from R 100 000.00 to R135 000.000.  The Court further ordered a punitive cost order against the defendants, on the scale as between attorney and client. 

The plaintiffs had on 25 October 2018 resigned as members of the Municipal Council of the City of Cape Town, where they had served as municipal counsellors, and the Democratic Alliance.  After the plaintiffs had resigned, and on the same day, a report compiled at the City’s behest, known as the “Bowman’s Report”, was adopted by the City, which report related to the alleged misconduct of certain municipal officials within the City. 

The next day, on 26 October 2018, the defendants made a public statement to journalists representing that the plaintiffs’ resignations was not surprising, as they were implicated in the Bowman’s Report in covering up corruption in the City.  The defendants stated that the report “….made serious findings against those people  (t)hey must be investigated.”  This statement was widely published in the national print and electronic media. 

On 26 October 2018, the defendant published an electronic newspaper, known as Bokamoso, to a large national and international audience via email, stating inter alia, that:

 

“In Cape Town, the DA sought accountability. The City commissioned a report with independent legal firm Bowman Gilfillan, which made adverse findings against some Counsellors.

For five Cape Town councilors, the DA wasn’t a racist party last month. But now that a credible forensic investigation by credible legal firm has allegedly implicated them in tender irregularities, the DA is suddenly a racist party.

These five councilors have resigned, claiming racial victimhood. Can it be coincidence that they have suddenly decided the DA is racist now that they stand accused of maladministration?”

 

On 27 October 2018 the plaintiffs’ attorney sent a letter of demand to the defendants, demanding an unconditional retraction and correction of the statements in the same manner as they had been made, namely in a media statement and another published Bokamoso newsletter; together with an unequivocal apology for having made the statements. 

The defendants did not comply with the demands. 

On 29 October 2018, the defendant published another Bokamoso newsletter, saying, amongst other things, the following:

 

“Friday’s Bokamoso contained a factual inaccuracy regarding the role of the five former DA Counsellors in Gape Town, an error for which we apologise. Please find below the corrected version.

In Cape Town, the DA sought accountability. The city commissioned a report with independent legal firm Bowman Gilfillan, which made adverse findings against some councilors.

For five Cape Town councilors, the DA wasn’t a racist party last month. But now that they have been shown to be most ardent defenders of maladministration, despite evidence which has now been confirmed by a credible forensic investigation, the DA is suddenly a racist party. These five councilors have resigned, claiming racial victimhood. Can it be coincidence that they have suddenly decided the DA is racist?”

 

Shortly before the commencement of the trial – and about four years after the commencement of the litigation – the defendants admitted that the statements were wrongful and defamatory of the plaintiffs; that the statements were made with the intention to defame the plaintiffs and to injure their reputations, and that they were widely published to a large national and international audience, including different language print and electronic media; that the statements were understood by the readers thereof and were intended to mean that the plaintiffs were dishonest and that they were corrupt. The defendants further conceded that the defamation was serious and accepted that, prior to the making the statements, the plaintiffs were respected local politicians and public figures in their respective communities.  The defendant testified, however, that the impact of the defamation was short-lived and this is because the plaintiffs themselves, amongst others, made sure that the world knew the truth. 

The plaintiffs conceded during cross-examination that the media statements and other articles informed the general public that they were neither named nor implicated in the Bowman’s Report.  They also admitted to turning to social media and appearing on either TV or radio, or both, to refute the defendant’s claims. 

The plaintiffs extensively testified as to the impact of these defamatory statement on them. 

The judge made come comments in his judgement that I believe if important to take note of:

 

  • the defendants must have known that the plaintiffs were not implicated in the unlawful conduct attributed to them; 
  • the defendants had no reason to believe that the plaintiffs were dishonest; 
  • the publication of the defamation was very wide, and in several languages, across South Africa, as well as to international audience of readers; 
  • publication occurred on the platforms of Media 24, which has a vast readership as well as the SABS and ENCA television channels and radio stations; 
  • an unknown number of local and community radio stations also broadcast the allegations; 
  • the defamatory material was published and re-published several times since the cause of action arose and the additional defamation attracted further publication of defamatory material; 
  • the defamation at far reaching effects on the plaintiffs personal and professional lives, it also resulted in financial detriment to the plaintiffs after funding for their new political party and private party and private business ventures proof very difficult;
  • due to the long-time lapse, the fact that the defendant no longer speaks as the leader of opposition and the diminished interest of the public in the matter, it is unlikely that the plaintiffs’ reputation can ever be fully vindicated; 
  • the plaintiffs were political and public figures with long standing reputations, they were respected and trusted in their community and those reputations were affected by the defendants’ action; 
  • people tend to believe “where there is smoke there is fire” and the shadow of imputed dishonesty will follow the plaintiffs; 
  • the defendant did very little to rectify the situation and it was the plaintiffs who went about attempting to set the record state.

 

Although the parties involved in this matter are well known public figures within the South African political contexts, I am of the view that this case is a guide as to what the Courts views are on such defamatory conduct, and the potential orders that can follow as a result thereof. 

The practical advice I would give is to err on the side of caution and not to for one moment think a defamatory comment you make could not result in possible legal action against you. 

In the event that you are involved in such a matter, I recommend approaching an attorney for appropriate legal advice.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.

Author:

Michele Engela

Michéle Engela

Michéle Engela is a director at CK Attorneys.

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