The White Chief Of Natal:sir Theophilus Shepstone And The ...
IN THE HIGH COURT OF SOUTH AFRICA KWAZULU-NATAL … · on the first respondent’s property in...
Transcript of IN THE HIGH COURT OF SOUTH AFRICA KWAZULU-NATAL … · on the first respondent’s property in...
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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: 5126/2017D
In the matter between:
MINISTER OF POLICE First Applicant
STATISTICS SOUTH AFRICA Second Applicant
MINISTER OF PUBLIC WORKS Third Applicant
GOVERNMENT OF THE REPUBLIC OF
SOUTH AFRICA Fourth Applicant
and
SILVERMOON INVESTMENTS 145 CC
T/A OCEAN ECHO PROPERTIES First Respondent
SEAN NAIDOO Second Respondent
RAY NKONYENI MUNICIPALITY Third Respondent
SPECIAL INVESTIGATING UNIT Fourth Respondent
ORDER
1. The rule nisi issued on 9 May 2017 is discharged;
2. The application for an interdict in terms of paragraphs 1.2 to 1.4 of the Notice of
Motion is dismissed with costs, including the costs of two counsel where so
employed by the first and second respondents, such costs to be paid by the
applicants jointly and severally, the one paying the other to be absolved;
3. The costs in paragraph 2 above are those which are agreed or taxed, and are
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restricted to the drafting of the heads of argument and the costs of the opposed
motion on 1 November 2019;
4. There is no order as to costs in respect of all other appearances.
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JUDGMENT
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CHETTY J:
[1] The applicants, all being organs of state, brought an urgent application
against the first and second respondents to remove an advertising billboard erected
on the first respondent’s property in Marburg, Port Shepstone. In addition, the
applicants sought to interdict and restrain the first and second respondents from
publishing any false or defamatory matter concerning the Department of Public
Works or erecting any advertising billboard signage which is intended to convey any
false or defamatory messages concerning the Department of Public Works, Statistics
South Africa (‘Stats SA’), the South African Police Services (‘SAPS’) or the
Government of South Africa. It further sought costs in respect of the application
against the first and second respondents.
[2] The matter came before Masipa J as an urgent application on 9 May 2017. It
is not clear whether the application was opposed. Masipa J issued a rule nisi with
interim relief, directing the first and second respondents to remove the billboard and
restraining them from making any statements which the applicants construed to be
false, defamatory or untrue. No relief was sought against the third and fourth
respondents, and where reference is made hereinafter to the ‘respondents’ this is
intended to refer, for convenience, only to the first and second respondents. The
respondents thereafter filed their answering affidavits and the matter served before
me as an opposed application, where the applicants were seeking confirmation of
the rule. The first part of the relief obtained under the rule nisi is not before me as it
was in effect a final order, and pursuant to which the respondents removed the
offending billboard. What remains for determination is the relief sought in paragraphs
1.2 to 1.4 of the notice of motion restraining and interdicting the respondents from
saying or publicising anything which the applicants would construe to be defamatory.
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[3] The background facts are that the National Department of Public Works
concluded a lease agreement in 2005 with the respondents for an initial period of five
(5) years, in respect of certain structures located on property owned by the
respondents. The property is described as Sub 142 of Marburg, Port Shepstone.
The SAPS and Stats SA occupied separate premises on the same property. The
lease was subsequently renewed for successive periods. At the time of the hearing, I
was informed that the respondents had secured an eviction order against the SAPS
and Stats SA following a judgment by Masipa J under case number 6964/2017. An
agreement had been reached to allow the SAPS and Stats SA to occupy the
premises pending various discussions. Those proceedings do not have any bearing
on the issues before me.
[4] Since 2016 disputes have arisen with regard to claims by the respondents that
arrear rentals were due to them. They have instituted actions in at least two cases,
claiming R242 670 under case number 7998/2016, and R1.3 million for installations.
Under case number 6012/2016, the respondents claim R17.2 million in respect of
arrear rentals and in respect of installations an amount of R1.9 million.
[5] The applicants have resisted the claims of arrear rentals on the basis that
according to the Special Investigating Unit (‘SIU’) an amount of approximately R37
million has been overpaid in rentals to the respondents. The SIU, on behalf of state
entities being the SAPS and Stats SA, contends that whatever amounts the
respondents claim in respect of arrear rentals, the amount by which the applicants
have overpaid should be set off against the amount of rentals which have not been
paid.
[6] These disputes have resulted in considerable acrimony between the parties,
manifesting in the second respondent, Mr Sean Naidoo (‘Naidoo’) locking out Stats
SA from the leased premises in February 2016. The second applicant was
constrained to approach the court for a spoliation order, which was granted on 16
February 2017. As a result of the respondents’ actions in locking out the SAPS from
their leased premises, a spoliation order was granted in favour of the SAPS on 18
February 2017. A series of correspondence thereafter followed between the state
attorney acting for the applicants and the respondents in relation to a claim by the
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applicants that the extent of the leased premises had been over-estimated or
misrepresented in the lease agreement. On that basis, the state attorney contended
that the applicants had paid in excess of what was actually leased to them. They
appeared to be bolstered in their claims by a report of a land surveyor who inspected
the property in question in relation to the lettable floor area of the buildings on site.
[7] On 27 February 2017, the respondents gave the National Department of Public
Works one (1) months’ notice of the termination of the lease agreement. On 24 April
2017 the respondents again locked the SAPS out of their premises, with the court
again on 24 April 2018 granting an order restoring the SAPS to the premises.
[8] Undeterred, the respondents again threatened to lock the SAPS and Stats SA
from the premises, resulting in the state attorney demanding an unequivocal
undertaking from the respondents by 25 April 2017 that they would not proceed with
their threatened lockout. At the same time, it is quite clear that the respondents had
been seeking a meeting with the SIU and those representing the applicants in order
to resolve the issue of the alleged outstanding rentals. The respondents then
informed the state attorney on 26 April 2017 that they would proceed to resort to use
the landlord’s hypothec to attach the property of Stats SA in order to obtain security
for the payment of the amount of the rentals, which it contends is owed to it.
[9] On 28 April 2017 the respondents wrote to Public Works raising the issue of
alleged non-payment of rental. The respondents in their letter stated:
‘Your response will be greatly appreciated as it will determine whether I install your name
(PWD) or Stats SA’s name on the 6 m x 3 m billboard I am having made that will be installed
on my property facing the N2. One of you stole my rent and between you and Stats SA you
can decide who the guilty party is. You have one hour to respond (by 10h30am today).
Attached is an example of what happens when people steal.’
[10] On the afternoon of 28 April 2017, the respondents proceeded with their threat
to erect a billboard containing signage which reads as follows:
‘SA government’s first land grab in the new South Africa!!!
This property has been hijacked by the Department of Public Works for the SAPS.’
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[11] The applicants deny the innuendo contained in the billboard, yet acknowledge
that there is a dispute between the parties as to whether the respondents have
overcharged them in respect of the rental for the leased premises. The state attorney
then wrote to the third respondent enquiring whether the erection of the billboard was
in compliance with the municipality’s outdoor advertising sign by-laws. A meeting
subsequently took place between the municipality’s officials and Naidoo who refused
to take the sign down, contending that it was erected on private property and that he
had a ‘right’ to erect a sign. It is common cause that the sign was erected without the
consent of the municipality. Matters were exacerbated by the publication of an article
in a newspaper on 8 May 2017 under the headline ‘Landlord takes on state. They
are trying to grab my property, says KZN man.’ The applicants take issue with the
contents of the article in which Naidoo reportedly disputed the claims of the SIU of
overcharging, referring to the fraud claim of R31 million against him. At the same
time, he maintains that he was acting in a manner as a law-abiding citizen would do,
and that he responded in the manner he did as the applicants were depriving him of
his livelihood and refusing to pay him what was due to him.
[12] The applicants accordingly came to court contending that Naidoo had no right
to erect the billboard, nor did he have any right to use the billboard as a mechanism
to disseminate information which was untruthful and false, and that the respondents
had no right to publish false information pertaining to the applicants. The applicants
contend that they are suffering irreparable harm, particularly as Naidoo has
threatened to publish similar messages and there is no alternative available to them
to prevent a serious erosion of the public’s confidence in them.
[13] In opposing the relief sought, Naidoo who is the managing member of the first
respondent, contends that his views expressed in the billboard and his use of the
words ‘land- grab’ and ‘hijacking of the property’ were not unlawful, particularly in the
context where the applicants have sought to use the leased premises without paying
him the proper rentals. Given the manner in which a robust media in South Africa
has reported on matters concerning illegal land invasions, Naidoo maintains his use
of the words appropriately describes the applicants’ action, although he admits they
have a ring of sensationalism. In essence, he submits that his conduct was a justified
response to the actions of the lessees. By the time that Naidoo had filed his
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opposing papers, the billboard had been taken down in terms of the interim order
which was granted.
[14] Apart from the various defences which Naidoo raises, he alludes to permission
which the municipality granted him for the erection of a billboard. He contends that
as he had completed the prescribed forms and paid the required fee to the
municipality, his actions in erecting the billboard were lawful. He overlooks the fact
that no decision had been made in relation to his application. In my view, he was
being somewhat disingenuous in advancing this argument, particularly as he simply
informed the municipality that the purpose of the sign would be ‘Information Sign on
Private Land’. As at that time, on the basis of his correspondence to the state
attorney, he must have been fully aware of what he wished to say on the billboard,
but concealed this information from the municipality. As the applicants pointed out in
reply, when Naidoo was asked to furnish the municipality with a graphic sample of
the details of the sign to be erected, he failed to respond. Instead, he informed the
municipality via email that the application was for a ‘For Sale Sign’. His conduct in
this regard was devious and contrived. Mr Aboobaker SC, appearing with Mr Morgan
for the respondents, in argument attempted to rationalise this explanation advanced
by Naidoo, after the interim order had already been granted, ordering him to remove
the offending billboard. I was not persuaded by this argument.
[15] Mr Naidoo further contends that only the municipality, and not the applicants,
have locus standi in approaching the court for an order to remove the offending
billboard. While he may well be correct, it is apparent from what has transpired in this
matter that even after he was approached by the municipality to remove the sign, he
refused. According to Mr Mhlongo, an employee of the municipality, an inspection
was conducted at Naidoo’s property on 4 May 2017 after receipt of a complaint
regarding the billboard. On 5 May 2017 the municipal officials informed Naidoo that
the sign had been illegally erected. The officials’ attempts to remove it were halted
by Naidoo who responded aggressively towards them. His contention was that the
municipality was firstly required to obtain an order of court before he was compelled
to take down the billboard. After having erected the billboard, he then applied for
permission from the municipality. It is not in dispute that no such permission was
ever granted by the municipality.
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[16] In opposing the application, Naidoo contends that his actions were a reflection
of the true position between the parties (defence of truth); that it amounts to fair
comment and that he was correct in describing the conduct of the applicants as ‘land
grabbers’ and of engaging in ‘hijacking’. He proceeded to deal at length with the
report by the land surveyor, Mr Brown, and pointed out, in his opinion, why the
analysis by Brown was flawed, despite him not being an expert in this field.
[17] In light of the basis on which I have decided this matter, it is not necessary for
me to express my views on the correctness of the calculations of the floor area and
rentals, as advanced by either party, or of the merits of the defences raised by
Naidoo. I should state that some of the assertions made by him in his affidavit have
no relevance to the issues before the court, and are quite simply made as an attempt
to embellish his case.
[18] The case which the applicants have come to court was for the confirmation of
the rule nisi, as a result of which the respondents were directed to remove the
offending billboard. Mr Gajoo SC, who appeared together with Mr Ngcobo, for the
applicants, submitted that the billboard was erected without the approval of the
municipality and after being asked by the latter to remove the billboard, Naidoo
resisted and then conveniently made an ex post facto application for permission.
Even then, it was submitted that this application was premised on a falsehood in that
Naidoo informed the municipality that the sign he intended erecting was a ‘For Sale’
sign. To compound the applicants’ woes, a newspaper carried an article on the
billboard, including comment from Naidoo in which he justified the action taken.
[19] In support of the applicants’ case that the language used in the billboard was
both false and defamatory of the applicants, counsel referred to City of Cape Town v
Rudolph & others1 where the court referred to an orchestrated ‘land grab’ in the
context of unlawful occupiers who resorted to ‘self-help’. I should point out that this
was a submission made by the applicant in Rudolph and not a finding attributed to
the court. Counsel for the City of Cape Town also went on to suggest that the term
‘land grab’ was ‘. . .“designed in its intention or effect not only to be unlawful but also
1 City of Cape Town v Rudolph & others 2004 (5) SA 39 (C).
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to enhance general lawlessness or public disorder and occurs by way of self-help”’.2
The term ‘hijack’ similarly carries with it sinister and unlawful connotations of an
intention to deprive or rob someone of their property. It was suggested that in
present times, an appropriate comparator would be to refer to someone as being
‘captured’.
[20] Mr Gajoo submitted that the clear intention of the respondents was to portray
the actions of the applicants as wrongful and unlawful, although the respondents in
their opposing papers sought to downplay the seriousness of the connotation
applicable to those words. It was furthermore submitted that there was nothing to
substantiate the version of the respondents that the statement made was either true
or publicised for the benefit of the general public or that it was fair comment.3 If any
of the defences raised by the respondents on their papers had been established, it
would serve to exclude wrongfulness, and accordingly, the applicants’ claim would
be bound to fail. Brand JA in Modiri clarifies this aspect, pointing out that:4
’. . .Though both the presumption of intent and that of wrongfulness arise from a single
event, that is, the publication of a defamatory statement, the two presumptions are
essentially different in character. The presumption of intent to injure relates to the
defendant’s subjective state of mind. By contrast, the presumption of wrongfulness relates to
a combination of objective fact, on the one hand, and considerations of public and legal
policy, on the other. . .’
[21] At the same time, while the respondents attempted to take refuge in the
different interpretations that a reasonable reader of the billboard could attribute to the
words ‘land grab’ and ‘hijacking’, the court in Modiri noted that ’. . .the defendant is
not required to prove that the defamatory statement was true in every detail. What
the defence requires is proof that the gravamen or the sting of the statement was
true.’5 I can find no reason why that analysis cannot be applied to the second
respondent’s language used in the ‘offending’ billboard.
2 Rudolph at 54H.
3 Neethling v Du Preez & others; Neethling v The Weekly Mail & others 1994 (1) SA 708 (A); Modiri v
Minister of Safety and Security & others 2011 (6) SA 370 (SCA). 4 Modiri para 12.
5 Modiri para 13.
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[22] As matters turned out it became unnecessary to make any finding in relation to
the defences raised although I would venture to say that some of the arguments
advanced were thin. Accordingly I do not make any finding on the merits. This arises
because of the two points in limine raised by the respondents (one being raised for
the first time in their heads of argument), while the other of locus to seek the removal
of the billboard would have pertained exclusively to the relief in paragraph 1.1 of the
notice of motion, which is not before me as the billboard has long been removed
pursuant to the interim order issued on 9 May 2017.
[23] There was some objection by the applicants to these points being pursued in as
much as they were not clearly canvassed in the respondents’ opposing papers. Mr
Aboobaker submitted that the points in limine were matters of law in respect of which
the applicants in any event had seven (7) days prior to the hearing to prepare their
case. Mr Gajoo contended that where a point is not foreshadowed in the papers, a
litigant does not enjoy an unfettered right to raise it at any stage in the proceedings.6
There is nothing before me to indicate that the applicants have been prejudiced by
the respondents’ reliance on the points in limine or that they were unable to
sufficiently prepare to meet the arguments advanced. As will appear from what
follows, the respondents argument is based on case law dating back almost 70
years. I am not persuaded that there is any reason which militates against the
respondents relying on their points in limine, other than its possible effect on an
order of costs.
[24] The first of these arguments is that organs of state, like the applicants, do not
have a right to sue for defamation and accordingly have no locus standi to interdict
the publication of an allegedly defamatory statement by the respondents. The
6 I should point that although counsel for the applicants initially submitted that the issue of locus standi
was not raised by the respondents in their answering affidavit, that submission was later withdrawn. Counsel did not indicate where in the papers that aspect was canvassed. On my reading, the issue of locus standi is raised only at para 12.2 where the following is stated :
‘I respectfully submit that it is up to the Municipality to enforce compliance with its by-laws and that the Applicants are not entitled to do so. In the premises, the Applicants have no locus standi to launch an[d] application on the grounds that the Municipality by-laws have been infringed’.
In reply, the applicants contended that they did have locus standi, contending that this was ‘self-evident’. (See at 238, para 49). On the most generous of interpretations, the above paragraph from the answering affidavit pertains to the applicants over-stepping onto the area of exclusive competency of the municipality to enforce its own by-laws. It does not deal with the issue of whether the applicants had a right to approach the court to protect their ‘reputations’.
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second point in limine was that only the municipality could apply to court for an
interdict in the event of a breach of the municipal by-laws.
[25] I propose to deal with the second argument first. This argument finds traction in
the decision of Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and
Development Appeal Tribunal & others7 to the extent that the granting of the interdict
at the instance of the applicants would interfere with the powers or areas of
competence of municipalities. See Johannesburg Metropolitan Municipality v
Gauteng Development Tribunal & others8 and Minister of Local Government,
Environmental Affairs and Development Planning, Western Cape v Habitat Council &
others.9 While these cited cases refer to areas of municipal competence on which
other spheres of government, like the provincial authorities, may not thread, the
principle of separation of powers nonetheless applies.
[26] In this case the respondents contend that the power to approach the court for
an order that they (the respondents) take down the offending billboard, lay in the
hands of the municipality alone on the basis that such conduct would have violated
the by-laws. Had the municipality approved the erection of the signage for whatever
reason, the applicants could have applied to review the decision, as it would have
constituted administrative action in the context of PAJA.10 I raised with counsel, in
passing, whether the applicants, who are not owners of the property in question nor
ratepayers, would have locus standi to bring an application to compel the removal of
the offending billboard. The applicants’ position can be distinguished from that of the
appellants in Brashville Properties 51 (Pty) Ltd v Colmant & others11 and JDJ
Properties CC v Umngeni Local Municipality12 where it was held that locus was
satisfied on the basis of the parties having a sufficient interest in ensuring
7 Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal Tribunal & others
2016 (3) SA 160 (CC). 8 Johannesburg Metropolitan Municipality v Gauteng Development Tribunal & others 2010 (6) SA 182
(CC). 9 Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v
Habitat Council & others 2014 (4) SA 437 (CC). 10
The Promotion of Administrative Justice Act 3 of 2000. See further Walele v City of Cape Town & others 2008 (6) SA 129 (CC). 11
Brashville Properties 51 (Pty) Ltd v Colmant & others [2015] JOL 33555 (SCA). 12
JDJ Properties CC & another v Umngeni Local Municipality & another 2013 (2) SA 395 (SCA).
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compliance with the zoning controls in their area. This is not a question on which
any finding is required.
[27] As regards the locus of the applicants to have brought an application against
the first and second respondents for the interdictory relief, I am of the view that the
applicants have not established that they have standing in law. I was not persuaded
by Mr Gajoo’s contention, relying on Giant Concerts CC v Rinaldo Investments (Pty)
Ltd & others,13 that they were clothed with the necessary locus standi to institute the
application for the removal of the billboard. There is nothing on the papers to bring
the applicants within reach of an ‘own-interest litigant’ described by Cameron J in
Giant Concerts or furthermore, as to whether the contents of the billboard could have
affected their ‘interests’, in other words, their reputation as the government or state
departments. Neither of these have any fama in respect of which the State may
approach the courts to immunise it from criticism from its citizens.
[28] Mr Gajoo sought to contend that both the applicants and the municipality had
‘corresponding rights which co-exist’ and which give either the applicants or the
municipality locus to approach the court. I am not persuaded by that argument and
no authority was advanced for such proposition, nor was I able to find any. In any
event, such a proposition would fly in the face of the decisions such as Habitat
Council, Gauteng Development Tribunal and Tronox KZN. I would therefore uphold
the point in limine that the applicants lack the necessary locus standi in judicio to
obtain an order for the removal of the billboard on the property of the respondent.
Such action falls squarely within the authority of the municipality.
[29] I now turn to the challenge against the interdict based on the allegedly false
and defamatory statements contained in the offending billboard. As a starting point,
Mr Aboobaker relied on Herbal Zone (Pty) Ltd & others v Infitech Technologies (Pty)
Ltd & others,14 where an advertisement accused the respondents of selling
counterfeit products (passing-off) and thereby attributed illegal conduct to them. The
13
Giant Concerts CC v Rinaldo Investments (Pty) Ltd & others 2013 (3) BCLR 251 (CC). 14
Herbal Zone (Pty) Ltd & others v Infitech Technologies (Pty) Ltd & others [2017] 2 All SA 347 (SCA).
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court stated that the proper approach to an application for an interdict to prevent
the publication of defamatory matter is the following:15
‘. . .Such an interdict is directed at preventing the party interdicted from making
statements in the future. If granted it impinges upon that party's constitutionally
protected right to freedom of speech. For that reason such an interdict is only
infrequently granted, the party claiming that they will be injured by such speech ordinarily
being left to their remedy of a claim for damages in due course. Nugent JA said in this
Court:16
"Where it is alleged, for example, that a publication is defamatory, but it has yet to
be established that the defamation is unlawful, an award of damages is usually
capable of vindicating the right to reputation if it is later found to have been
infringed, and an anticipatory ban on publication will seldom be necessary for that
purpose."’
[30] In light of the above authority, it was submitted that even if the applicants did
have locus standi, at best their claim would be restricted to a claim for damages, on
the assumption that the applicants, as organs of state, would be able to quantify
such damages. Herbal Zone approved of the approach in Hix Networking
Technologies v System Publishers (Pty) Ltd & another17 as to how an
application for an interdict to restrain the publication of defamatory matter is
dealt with. In that case, reference was made to Heilbron v Blignaut18 where
Greenberg J said the following :
‘If an injury which [would] give rise to [a] claim in law is apprehended, then I think it is
clear law that the person against whom the injury is about to be committed is not
compelled to wait for the damage and sue afterwards for compensation, but can
move the Court to prevent any damage being done to him. As he approaches the
Court on motion, his facts must be clear, and if there is a dispute as to whether what is
about to be done is actionable, it cannot be decided on motion. The result is that if the
injury which is sought to be restrained is said to be a defamation, then he is not
entitled to the intervention of the Court by way of interdict, unless it is clear that the
defendant has no defence. Thus if the defendant sets up that he can prove truth and
public benefit, the Court is not entitled to disregard his statement on oath to that effect,
15
Herbal Zone para 36. 16
Midi Television (Pty) Ltd v Director of Public Prosecutions (WC) 2007 (5) SA 540 (SCA) para 20. 17
Hix Networking Technologies v System Publishers (Pty) Ltd & another 1997 (1) SA 391 (A). 18
Heilbron v Blignaut 1931 WLD 167 at 169.
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because, if his statement were true, it would be a defence, and the basis of the claim
for an interdict is that an actionable wrong, i.e. conduct for which there is no
defence in law, is about to be committed.’
[31] In light of this approach, it was contended that the applicants are not entitled
to an interdict as the respondents have raised a defence of truth and public
benefit. Apart from the interpretation which the court would have to place on these
words, the applicants would have to show that the respondents have no defence
in law. That, in my view, would not be possible in motion proceedings, particularly
where there are divergent views on whether the respondents over-reached or
misrepresented the lettable floor area and consequently over charged the
applicants. This, in large measure, is the dispute that led to the publication of the
billboard.
[32] In my view, the critical enquiry is whether an organ of state can competently
approach the court for an interdict to restrain the publication of defamatory matter.
The application before court is for an interdict to restrain the respondents from
publishing any material regarded by the applicants to be false or defamatory. The
harm that the applicants submit that they will suffer, is the serious erosion of ‘public
confidence’ in them. What they are therefore seeking is protection from reputational
damage.
[33] There is however a fundamental problem confronting the applicants, as it is
settled law that government or an organ of state is not capable of being defamed.
The decision in Moyane & another v Lackay19 reiterates this to be the position. In
that matter, Lackay had been the spokesperson for SARS until he tendered his
resignation, which was accepted by SARS. A few days after his resignation, Lackay
issued a statement in which he was critical of the running of the organisation, which
SARS interpreted that reasonable readers would form the impression that those in
charge SARS were dishonest, were liars and unprofessional. Moyane, in his capacity
as the Commissioner of SARS, sued Lackay for damages alleging that SARS had
been defamed as a result of his statement. A critical issue for the court to determine
was whether an organ of state could sue for an injury to its reputation.
19
Moyane & another v Lackay [2017] ZAGPPHC 1262.
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[34] In answering this question, the court made reference to Bitou Municipality &
another v Booysen & another20 where the municipality faced an exception on the
grounds that as an organ of state, it did not have locus to sue for defamation. The
excipients in Bitou relied on the seminal case of Die Spoorbond & another v South
African Railways; Van Heerden & others v South African Railways21 where the South
African Railways and Harbours sued for damages arising out of the publication of an
article in a newspaper which stated that the railway administration was operating its
trains in a dangerous fashion. It was alleged that the statements were false and
defamatory. Watermeyer CJ held that:22
'(T)he Crown's main function is that of Government and its reputation or good name is not a
frail thing connected with or attached to the actions of the individuals who temporarily direct
or manage some particular one of the many activities in which the Government engages,
such as the railways or the Post Office; it is not something which can suffer injury by reason
of the publication in the Union of defamatory statements as to the manner in which one of its
activities is carried on. Its reputation is a far more robust and universal thing which seems to
me to be invulnerable to attacks of this nature. No one who reads the alleged defamatory
statements would regard the reputation or good name of the Crown (regarded as a
perennially existing legal persona whose function is that of carrying on all the multifarious
activities of Government in the Union) as having been lowered or injured by these
publications. He knows that, though the railways are vested in the Crown, the Crown is only
a legal conception and takes no part in the management of the railways. He might regard the
noxious words as reflecting upon the individuals or group of individuals temporarily
responsible for the direction or management of the railways on behalf of the Crown but he
would not regard them as reflecting upon the good name of the Crown itself.’
In his separate concurring judgment, Schreiner JA added that:23
'(I)t seems to me that considerations of fairness and convenience are, on balance, distinctly
against the recognition of a right in the Crown to sue the subject in a defamation action to
protect that reputation. The normal means by which the Crown protects itself against attacks
upon its management of the country's affairs is political action and not litigation. . . But
subject to the risk of these sanctions and to the possible further risk, to which reference will
presently be made, of being sued by the Crown for injurious falsehood, any subject is free to
20
Bitou Municipality & another v Booysen & another 2011 (5) SA 31 (WCC). 21
Die Spoorbond & another v South African Railways; Van Heerden & others v South African Railways 1946 AD 999. 22
Die Spoorbond at 1009. 23
Die Spoorbond at 1012-1013.
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express his opinion upon the management of the country's affairs’ without fear of legal
consequences. I have no doubt that it would involve a serious interference with the free
expression of opinion hitherto enjoyed in this country if the wealth of the State, derived from
the State's subjects, could be used to launch against those subjects actions for defamation
because they have, falsely and unfairly it may be, criticised or condemned the management
of the country.’ (Italics is my emphasis)
[35] In light of the authoritative statement in Die Spoorbond that the State is
incapable of suing for damages, the court rejected the Bitou municipality’s attempt to
distinguish itself as local government, distinct from the State which renders services
at a national or provincial level. Traverso DJP dismissed this argument noting that:24
‘. . .The underlying ratio in all these decisions (and the authorities cited therein) remains
constant, namely that it will be contrary to public policy or public interest for organs of
government, whether central or local, to have the right to sue for defamation, as it would
impact on a citizen's right to freedom of speech. As pointed out by Lord Keith of Kinkel in the
Derbyshire Country Council case at 1017j:
“It is of the highest public importance that a democratically elected C governmental
body, or indeed any governmental body, should be open to uninhibited public
criticism.”'
[36] The common thread running through Die Spoorbond and Bitou Municipality is
that the State should not use the courts as a means to muzzle or stifle the right of
freedom of its citizens to criticise government, no matter how harsh it may be
perceived to be. In Bitou Municipality, a similar argument was made to that made in
Moyane where it was argued that a municipality should be treated differently and not
fall under the rule that a government cannot sue for defamation. It was argued that,
while ‘. . .the common law denies standing to the Crown (or in this case the State) to
sue for defamation . . . in respect of a municipality other considerations . . . apply.’25
[37] The court however rejected this argument, and found that ‘. . .municipalities are
part of the State, perform governmental functions at local level, and are obliged to
provide basic services.’26 The court in Moyane endorsed the approach in Bitou
Municipality, holding that is was ‘. . .illogical to want to regard SARS's standing to be
24
Bitou Municipality para 13. 25
Bitou Municipality para 7. 26
Bitou Municipality para 21.
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unique to those of other organs of state due to its functions’.27 There is, in my view,
no reason to treat the applicants before me any differently in light of the above
authority.
[38] As set out in Bitou Municipality, there are good reasons for our law not
recognising government institutions the right to sue for defamation. The court cited
with approval28 the dictum in Posts and Telecommunications Corporation v Modus
Publications (Pvt) Ltd29 which held that:
‘6. Whether, if the body concerned is, at least largely or effectively, a monopoly, providing
what are generally regarded as essential services traditionally provided by government, it
would be contrary to public policy to muzzle criticism of it.’
[39] The court in Moyane did however recognise that SARS may have a right to
claim damages, but clarified that this did not arise from a personality right. The court
appeared to be referring to the right to sue for ‘injurious falsehood’. The court held:30
‘[18] What SARS can have in relation to its reputation is not a personality right, as it is with
legal persons, but an integral part of its patrimony. The protection of its reputation is in the
sense of its goodwill, therefore lies, not in the claim for defamation but in a claim for actual
damages which constitute a patrimonial loss for which compensation can be claimed under
the actio legis Aquiliae and not the actio iniuriarum; see University of Pretoria v Tommie
Meyer Films (Edms) Bpk 1977 (4) SA 376 (T) at 387.’
[40] Having regard to the facts in the present matter, there is no suggestion in the
papers that the applicants intend to sue the respondents for damages – in fact, it is
expressly stated in the founding affidavit at paragraph 121 that ‘it is unlikely that the
applicants would be in a position to successfully sue the respondents for the
damages which are being and would continue to be suffered by them’. The
applicants allege that their only remedy is to obtain an interdict.
[41] The denial of governments the right to sue for defamation is recognised in
many other common law jurisdictions, including Canada, the United States and
27
Moyane para 15. 28
Bitou Municipality para 22. 29
Posts and Telecommunications Corporation v Modus Publications (Pvt) Ltd 1998 (3) SA 1114 (ZS) at 1123F. 30
Moyane para 18.
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Australia. An article in The Dalhousie Law Journal31 provides an indication on why it
is important to deny government institutions the right to sue for defamation. One
such reason is suggested to be the following:32
‘If it is prima facie tortious to say anything that would make a reasonable person think less of
a government (causing a reasonable person to think less of the plaintiff being the test of
defamation), then the government can stifle dissent by suing those who speak out against
them . . . Where governments can stifle dissent, democracy is at risk.’
[42] Young does recognise, however, that governments have a reputation to
protect, and terms it a ‘reputation as governing power’. The author acknowledges
that:33
‘If the police have a reputation for . . . abuses of power, they may face civil disobedience or
other kinds of resistance that make it harder for them to carry out their objectives.’
[43] Young states however that it is a different type of reputation to that enjoyed by
a natural person, and states that, while ‘. . .reputation as governing power is an
important and valuable interest, it is not one that should be protected by the law of
defamation’.34 She adds that ‘. . .any disputes between government and citizens
about a government’s performance must be resolved by convincing the public
through speech and actions’.35
[44] Since an organ of state is not capable of being defamed, this must entail that
the applicants have failed to establish that they have a ‘clear right’ to the interdictory
relief and that they will suffer any ‘harm’. In other words, since the applicants do not
have a reputation capable of being defamed (they do not ‘have a reputation and
dignitas, to be isolated from the persons who run it’36), there is no harm currently
being suffered or capable of being suffered in the future. There can therefore be no
basis for an interdict. In any event, even where a party is capable of suing for
defamation (such as a natural person, or a corporate entity37), our courts are
generally reluctant to grant interdicts to prevent the continued or future defamation,
31
Hilary Young 'Public Institutions as Defamation Plaintiffs' (2016) 39 Dalhousie Law Journal 249. 32
Young at 277. 33
Young at 276. 34
Young at 276. 35
Young at 276. 36
Moyane para 16. 37
Herbal Zone para 36.
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for the reason that it ‘impinges upon [the other] party's constitutionally protected right
to freedom of speech’, and the party seeking the interdict will ‘ordinarily being left to
their remedy of a claim for damages in due course’.38
[45] In a matter not dissimilar to the present case, in Cell C (Pty) Ltd & others v
Prokas & another,39 albeit involving private parties, the court had to determine
whether to grant an interim interdict against a disgruntled customer who had taken
out and paid for a large banner which directed allegedly defamatory statements
towards the cellular phone operator, with a play on the words that it was the ‘most
useless service provider in South Africa’ as ‘perceived by the owner of this billboard’.
There was no doubt that the respondent, Prokas, had indeed received shoddy
treatment at the hands of Cell C and resorted to the billboard after all his attempts to
resolve a dispute over a malfunctioning phone, failed. As in the present case, the
court reasoned at para [35] that it was not for Cell C to contend that Prokas was
breaching by-laws, but for the municipality, if it believed it had reason for doing so.
The court however did not elaborate on its reason for arriving at that conclusion.
[46] Weiner J in Cell C drew on the dictum of Cameron J in Citizen (1978) (Pty) Ltd
v McBride40 in the context of dealing with the defence of fair comment. Cameron J
observed that:41
‘[83] Protected comment need thus not be “fair or just at all” in any sense in which these
terms are commonly understood. Criticism is protected even if extreme, unjust, unbalanced,
exaggerated and prejudiced, so long as it expresses an honestly-held opinion, without
malice, on a matter of public interest on facts that are true. In the succinct words of Innes CJ
the defendant must “justify the facts; but he need not justify the comment”.’ (footnotes
omitted)
[47] In refusing the interim interdict the court noted that the ‘. . . criticism need not
be one that the court accepts. It does not have to be impartial or well balanced. It
only needs to be fair in the sense that . . . it [is] an honest, genuine expression of his
38
Herbal Zone para 36. 39
Cell C (Pty) Limited & others v Prokas & another [2014] ZAGPJHC 430. 40
The Citizen 1978 (Pty) Ltd & others v McBride (Johnstone & others, amici curiae) 2011 (4) SA 191 (CC). 41
McBride para 83.
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opinion’.42 Even if this court were to have ventured into the merits of the defence
mounted by the respondents, the applicants would have to show malice in order to
succeed. That would have indeed represented a high threshold for the applicants to
have surmounted. I accept Mr Gajoo’s contention that reliance on McBride can only
assist the respondents in the event where it is shown that the facts on which they
rely, are true. Where that is not established, the defence of fair comment is not
available to them. Whether the defence of fair comment is available to the
respondents is one which I do not have to determine in light of my ruling on the
points in limine raised by the respondents.
[48] The relief in the form of an interdict, based on reputational damages, was
simply not competent at the hands of the applicants. This is clear from the authorities
which I have referred to above. Consequently, in my view, the applicants ought to
have been non-suited because they lacked the locus standi to bring the application
for interdictory relief and consequently the rule nisi issued on 9 May 2017 ought not
to have been granted.
[49] In so far as costs, Mr Aboobaker submitted that the application should be
dismissed with costs on an attorney client scale. Mr Gajoo however drew to my
attention that the point in limine taken by the respondents regarding locus standi and
defamation was only raised in the respondents’ heads of argument. The respondents
did allude, albeit somewhat obliquely, to the issue of the locus standi of the
applicants vis-à-vis the municipality, in respect of their authority to seek the removal
of the billboard. This point was not advanced at the time when the interim order was
sought. If it had been advanced, I have no doubt that it would have been dispositive
of the relief sought in paragraph 1.1 of the notice of motion. Once the court granted
the interim order (although seemingly final in effect) the billboard was taken down.
The remainder of the relief sought had no impact on the municipality, and therefore
the point in limine pertaining to its exclusive powers became of academic
importance.
[50] The views expressed by Cameron J in Trinity Asset Management (Pty)
42
Cell C para 54.
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Limited v Grindstone Investments 132 (Pty) Limited43 are perhaps appropriate,
particularly where a party has a ‘bull-point’ which must be taken at the outset:44
‘[91] A good analogy is when an applicant at risk of harm seeks an interim interdict. When
the facts are unclear, the interdicting court must weigh prospects, probabilities and
harm. But when the respondent, who is sought to be interdicted, has a killer law point, it is
just and sensible for the court to decide that point there and then. The court is in effect ruling
that, whatever the apprehension of harm and the factual rights and wrongs of the parties’
dispute, an interdict can never be granted because the applicant can never found an
entitlement to it.’
[51] The basis on which the first and second respondents must prevail, in so far as
the application before me, is based solely on the point of law related to standing. As
I have stated, only one of these points were raised on the papers – that pertaining to
the applicants usurping the powers of the municipality. The second point relating to
the applicants being non-suited because of them being incapable for suing for
defamation, was only raised in the heads of argument. This was never canvassed on
the papers. If this had been raised on the papers (and no reason was advanced as to
why it was not), I am reasonably satisfied that the matter would not have proceeded
any further. It is, as Cameron J in Trinity Asset Management stated, a ‘killer point’.
[52] It is no excuse for the respondents in seeking their full costs, to contend that
counsel only came across the point when drafting heads of argument. The law points
raised in their heads of argument should have been put forward at the very outset.
[53] It is trite that I have a discretion regarding the awarding of costs, which must be
judiciously exercised. In the result, to the extent that the respondents should be
entitled to recover their costs, their success is tempered in that I am of the view that
they are only entitled to the costs of the opposed motion on 1 November 2019, such
costs to include that of two counsel, including the costs for preparation of the heads.
In respect of all other appearances and the costs pertaining to the filing of their
answering affidavit, I am of the view that no order as to costs should be made in that
regard.
43
Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd 2018 (1) SA 94 (CC). 44
Trinity Asset para 91.
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[54] In the result, I make the following order:
1. The rule nisi issued on 9 May 2017 is discharged;
2. The application for an interdict in terms of paragraphs 1.2 to 1.4 of the Notice of
Motion is dismissed with costs, including the costs of two counsel where so
employed by the first and second respondents, such costs to be paid by the
applicants jointly and severally, the one paying the other to be absolved;
3. The costs in paragraph 2 above are those which are agreed or taxed, and are
restricted to the drafting of the heads of argument and the costs of the opposed
motion on 1 November 2019;
4. There is no order as to costs in respect of all other appearances.
__________________
CHETTY J
Appearances
For the Applicant: Mr V I Gajoo SC & MJ Ngcobo
Instructed by: State Attorney KZN
Address: 6th Floor Metropolitan House Building
391 Anton Lembede Street
Ref: 283/544/16/S/P35
MR NDUMISO MAZIBUKO
For the Respondent: MR Aboobaker SC & Mr S Morgan
Instructed by: State Attorney KZN
Address: 6th Floor Metropolitan House Building
391 Anton Lembede Street
Ref: 592/000009/2017/S/P23
N Ramlall
Date of hearing: 01 November 2019
Date of Judgment: 24 April 2020
Judgment sent due via email due to national lockdown