2012 03 06 Judgment - Le Grange J
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Transcript of 2012 03 06 Judgment - Le Grange J
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IN "nlE HIGH COURTOF= S O U T ~ ' iAFRICA[\NESTERN CAPE HIGH COURT, CAPE TOWN]
CASE N O ~3946/2012
matter" between:
INGRID PEACOCK Appticant
And
NOSE\N'EEK (PTY) LTD
CHAUCHER PUBLICATIONS Second Respondent
. : n J [ ) G M E N T ~6 fliiARCH 12
[1] This tS an opposed application for interim relief. The Applicant, a local
business woman/ an that an article "Fashion Victim" which
her business dealings otrler business entities be I-ernovecl fmm the
Respondents' website, Facebook and or other sir'"nilal- social media websites as
i:1lticle is defamatory in nature.
resisting the rT:!!ief sought, an investigative joumalist (Mark ThomeS);
is employed by the Second Respondent a nd is news editor of Noseweek, and Third
Respondent, the editor of r\loseweek r named iVlartinWe!z, filed opposing affidavits.
WELZ
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[3J The editor of Noseweek admits in his answering affidavit that the contents of
the article are defamatory and will lower the Applicant in the esteem of the
reasonable reader. The defences of truth and public benefit and that of reasonable
journalism are however raised by the Respondents, According to them the article
questions Applicant's busIness ethics and practices which is a matter public
interest
[4"\, J The nub of the /\ppHcant's complaint essentially to statements in
article, which the Applicant avers are defamatory, untruthful and incite
consumers to refrain from doing business with ["Ier. The statements can 'In br'lef be
summarized as foHows:--
"WhIle mc.!ior shIres bankroll PeaLl?ck:5 wealthy lif(:style she c1700ses to
settle /7er own accounts only when she pleases!l;
"!\lose week has reliably learnt that attorneys at Cliffe
been to recover nearly R2 mt/lion in rent
1i1/aterfront;
/10lmeyr have
to the
Peacock di d a bunk when vacating he r Newlande; boutique - engaging a
removal firm to piLd? up the dead o f n(ght to remove he r stodt;
"She 1.5 also debt to a Canadian fabric supplief; Brian International; to the'
tune of Rl1000 for some samples Peacock commissioned';
"Peacock was o f a mind to counterclaim /:;:350 000 from R + R fo r loss
business -- because Stuttafords had rejected some o l the samples (rejr . ?ction
of a percentage o f samples is standard il7 the business"), [ According to the
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Applicant this is a misquotations of her response to Thomas as
contained in her email dated 16 November 2011 which states that:]
\\ Tamasa intende; instituting a counter daim against R-lR in the amount ol
000 for loss of profits due to the repudiation of the agreement betweenTamasa and R+R, by R+R';
"NO/l!l that Stut.tafords know they are buying goode; from Peacock, /lJIho
effectively makes use of slave labour - workers she chooses no t to paV - I:)
that Of(?"
[5] The Applicant, as a business woman, Ii any other member of civil
society, a legJtimate r'i9ht to protect her reputation anel Qood name unlawful
defamatory statements that injures person and lowel's Iler in the estimation
ordinary, intelligent or- hght-thinking rnem of society generally. does
allow the untawful and unjustified savag'lng an 'Indiv'ldual's reputation.
1996 (1) 673 (A) at 703 ThE:
complaint is essentiallv that certain statements in article are untrue,
defamatorYr to cause her' harm incite consumers to refrain from
doing with her, In her foundl the Appilcant records the
following:-
fI The a/ticle published by Noseweek is extremely degradlli9 and da.maging to
my good name and rama. I have already been inundated with calis from
people expresslhg their shock at the article and I humiliated by
untruthful and unlawful content which has been pub/ished about me,
The article has only reached the shelves and the internet ti7e last n:'W days
and I am approaching this Honourable COUit a to prevent ti-te furtherckcu/ation of the article during the month of Marr....1?J limiting tlJe
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[6J
4
publication and damage to my good no,me. I am the process of suffering
irreparable reputational hann which 0 claim {or damages will only partly
satisfy. The financial impact aSide l I f I Jose my business and the name which
I have built up over a period of approximaterv years it will have severe
consequences lo r my family file, standing in society and will potentialrv leave
me isolated with no hope o{ recovering {rom the blow /ivhich th.is article is
inflicting. With each and every passli7g hour that the c"ircu/ation o{ [c;sue no
14 9 o{ Noseweek is left unabated; as well as the internet publication o { the
article my reputation and thus my person is suffering ever inaeasing injury.
Whilst Welz contends in his email 29 Februarv ti7at 'the matter I ~ S 'no t
urgent:; since publication has a/ready taken place.." that 'For same
reason there is little pOint kl tlying retrieve those copies o { March
Noseweek that have not a/:;eady been sold; quite apart kom the (act that it
would be /ogistlcally Impossibie to retrieve the copies rema/rin!] in retail
outlets in the time you stipulate' it ma,V no t be e a 5 J ~but it is' tT70St o2rtainrv
not impo5 .
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.5
12. In the time available! I am attempting to obtain confirmation o f the
above. That substantiation which I have at the moment is the
fa/lowing:
1 The /li/aterfrvnt store.
1.1 I have access to the summons in action
18662/09 in the above Honourable Court.
Applicant has" annexed this as
The sLImmons emanates from DekkerHofineyT Inc a prominent and reputable firm
o f attomeys in this
.1.3 I am adv/.')ed that the SIlnatory to partlcula!::;
o f claim vvhicli contain defamatory averment,;
must have reasonable ground:; for s(gning the
said p a r t i c u l a r 5 ~(-all/ng which the signatory
1.4
and the o f attorneys /::; expos'ed to a
defamation action
(a)
(b )
particulars of ciaim proceed to allege:
tfJe d e f i ~ ' n d a n twas bound
lease which expired on 3.7 March 2012;
On Apn! 2009; the defendant
absconded from the leased p r e m i s e s ~
removed the stock and dosed the
store.
(c) At the time that she di d 501 the
defendant owed R34586535 and the
still had another yean:; to
go, At a bask.' month/V rental (ignoring
eEicai.gtior!s/ contributions operating
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12.2
123
(;
costs and marketing costs) the
outstanding rental (-or this period was
in excess o f R L5 million.
I S J have now seen the notice of Hrithdn:7wal of
the action something which Applicant could
have told me i( she deigned to speak to me, J
have attempted in the short time avat/able to
investigate why the action vvas withdrawn. lvty
attomey has made contact with Mr Melf7tjes
(the signatory, who has moved firms) but he
was reluctant to discuss the matter, I am
advised that are any number of /egal
technical reasons [/vhy action against
A p p l i c a n t ~ surety for the d e b t ~may have
been wlthdravvn, I am a/so advised tliat it is
entire/v likely that.'
The referred to in the particulars
o r claim and as set paragrap'fl
1. 4 above are
Respondents' - wit/-; the benefit of
proper discovery and o l
subpoena an - wi/I be able to
demonstrate that this is so,
regards' the Newlands s t o r e ~1 am attempting to
obt:gil7 an affidavit from the landlorcl'
k ; regards Brian International:
1 have ascertained from Brian International
that Applicant has indeed paid the sum of
P l l OOO.OC!; bu t has refused to pay another
invoice in regard to samples' in sum of
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U5D189. h'ad Applicant d e / ~ l n e dto speak to
me; this issue could have been clarified.
T1 annex hereto marked "MT5"; a
communication dated 8 !:.7eptember 2011 korn
the Applicant to attorney, I respectfully
draw attention to the second last paragt::Jph
which
'.[ have reFused to the (Jut5tanding
sarnp/ing Invoice, based on the way the
bulk order vvas dealt wIth and theirsubsequent address of attitude, ;
Respondents respectfully aller that
dJat Applicant does
no t pa y debts jJj/hen they are due; bu t
withholds payments it suits
her. //
In its decision publish the article, Welz in affidavit records the
following>
e d i t o r ~I have naturally been
investigation into the business dealings
since inception! of an
the Applicant conductedby Mark Thomas (ThomasJr a trained investigative journalist and
also the news editor of Noseweek He has regular/v reported to me
on It 5 progress and we have discussed the issues raised by it, I
approved the final text fo r publication
6, We had initially planned to pub/ish the story in the December 2{)11
15sue of Noseweek (which appeared the last week of lVovember
20.11) , bu t J hesitated and decided to hold -"tory over the
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9.1 Is published a print edition, vvhich is distributed to
subscribers and to approximately 2000 retail outlet')
natiol?lltlide.
9.2 /-las an onlirle edition; v.rhic/7 /5 open to approximately 1500
online 5ubscribe!:c;. O f t h e s f : : : ~approximatl::!/y half also
subscdbe to the print edition. Acc()rdingly only
approxlinately
edition only.
have acceS".5 to tile online
9.3 Has a moderate lacebook( in which the fact an upcoming
publication is announced. That IlV.hich appears on IP9 is theo n ~ vcontent ai/ai/able on lacebook as regards A p p l k a n ~ ,and
not advance a case con tent is
objectionable.
edition of VosE!week in article IP8 appears' has been
a f j 7 : i ~ 7 v i talludes to the paperlready. While
pubJicatkJl7; I respectlully draw the abOile Nonourable
that the Notice Motion to
onh'ne facebook presences otNosefiveek ,(
leaal in context of an seeking
prevent alleged defamatory dre ord'inary rules fjoverning
interim intei-cjicts. rnatter, tvvo constitutional r i ~ J h t s rfreedom of expression
and dignity are at odds and have to be balanced against each other, That balancing
process to be undertaken in a constitutional context. Our' Courts have
consistently held that, though cil"Cumstances may sometiriles dictate othel'wise)
freedom of speech is a right not to be ovetTidden lightly and at trle pOint which the
balance of convenience is determined consideration should be given to the fact that
the allegedly defamecJ if the lnterd'ict is refused r nonetheless have a
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J 0
cause of action which may result in an award for damages. I t is now well accepted
that cases involving an attempt to restrain publication must be approached with the
necessary caution.
The approach to adopted by our Courts in matters of this nature has been
at 402 (""F, where th e fo1!owlng was
"To sum cases involving' an attempt to restrain publication rnust be
ap!:!f'oached with caUL/em. I f section l S adds anvthJng to this proposition il:
wouk:l merely be to undeliine t h a t ~though C I ; ~ c u m s t a n c e smay sometimes'
dictate otherwise; j"reedom of" speech is a right no t to overridden
The appropriate stage fa r this consideration (lvould in most cases be the point
the balance LU!7ve!7ience is determined at that stage that
c017s/de/(=Jtion should be given to the T..'1ct tl7at t0e pers'on alleyed!y defamed
this case) w i / ~i f the interdict is refiJsed,_ nonetheles'S have a cause
wil! result in an award damages, weighed
against p o s : ~ ' J b ! ! i t l jon the other h a n a ~ a o( a right to U L . J U I I , : : J I is
to be end of matter as la r as pres.') is concemed
exercis'9 o f its discretion in g(Zmti,rig or refusing an interim interdict
regard should be ha d alia to the strength the applicants ca,c;e; the
seriousness o f d e l ~ ' 1 m a t i o ! 7 ;ti7e difficulty a respondent has In proving, in
the limited time afforded to i t in cases o f UlgencYI the defence which it
wishes to raise and the that the order m a y ~k7 substance though no t in
amount to a permanent interdict, N
[10J The Applicant ts presently seeking I'eiief in respect of the online and facebooi