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Kolver v RCP Media and Others (41518/06) [2007] ZAGPHC 113 (20 June 2007)

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Delivered 20 June 2007



IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)


CASE NO: 41518/06



In the matter between:


DANIEL GERHARDUS KOLVER Plaintiff/Respondent



and




RCP MEDIA First Defendant


MEDIA 24 BEPERK Second Defendant


JOHAN EYBERS Third Defendant


MARK GORY Fourth Defendant/Excipient



________________________________________________________________

JUDGMENT

________________________________________________________________


MURPHY J


1. The fourth defendant (the excipient) has filed an exception to the plaintiff’s particulars of claim annexed to the summons issued by the plaintiff on 14 December 2006.



2. The plaintiff is an attorney, notary and conveyancer practising in Pretoria. The first defendant is a company that is the owner of the Sunday newspaper, Rapport. The second defendant is the printer and distributor of the newspaper. The third defendant is employed by the first defendant as a journalist.


3. The fourth defendant has no direct relationship to the other defendants. However, he appears to be the source of a story that has caused offence to the plaintiff.


4. On 13 August 2006, an article appeared in the Rapport newspaper which reported on the relationship between the fourth defendant and his deceased same sex partner Mr Henry Brooks.


5. In the particulars of claim the plaintiff alleges that the defendants jointly and severally made the following false allegations in relation to him which were published in Rapport:


Toe gooi die eksekuteur, Mnr Daniel Kolver, hom kort daarna uit die huis en probeer dit onwettig verkoop.


Die Hooggeregshof het bevind Kolver is mede-verantwoordelik daarvoor dat Mark uit sy huis gegooi is.


6. Paragraph 4.3 of the particulars of claim avers the following:


Die voormelde valse bewerings was gepubliseer deur vierde verweerder in sy hoedanigheid as beriggewer, derde verweerder as verslaggewer en tweede en eerste verweerders in hulle hoedanigheid soos genoem in paragrawe 3.1 en 3.2 hierbo.”


7. The references to paragraph 3.1 and 3.2 of the particulars of claim are those particulars which stipulate that the first defendant is the owner of Rapport and the second defendant the printer and distributor.


8. The balance of the particulars deal with the fact that the statements are false in that the plaintiff did not throw the fourth respondent out of the house in an unlawful manner and hence that the statement is defamatory in relation to the plaintiff in that it implied that he acted unprofessionally and unlawfully. The plaintiff seeks damages in the sum of R500 000 for the alleged defamation.


9. The fourth defendant’s exception is to the effect that the particulars do not disclose a cause of action as against him.


10. From an analysis of the newspaper article it appears that the third defendant interviewed the fourth defendant. At different points throughout


the article the third defendant quotes the exact wording of the fourth defendant. However, the alleged defamatory words do not appear in quotation marks and thus are not directly attributed to the fourth defendant. In the result, it is not clear from the particulars what the exact words by the fourth defendant were, and secondly it is not stated to whom they were uttered.


11. There is no allegation in the particulars of claim that the fourth defendant publicised the offending statements. The plaintiff does not aver the nature of the act constituting publication, and whether it was talking, writing or printing. Nor does the plaintiff allege that the statements emanated from the fourth defendant. Furthermore, there is no allegation that the statements were made animus injurandi, with the intent to defame the plaintiff and injure his reputation.


12. I am therefore of the opinion that the plaintiff’s particulars of claim lack the averments necessary to support a right to judgment. The plaintiff has failed to aver the facta probanda in respect of the act of publication, the name of the person to whom publication was made by the fourth defendant, and the fact that the statement was made with the necessary intention to injure. In the premises the particulars lack averments necessary to sustain a cause of action against the fourth defendant.


13. I am not persuaded, as submitted by plaintiff’s counsel, that it is sufficient to allege a common intention on the part of the defendants and that contextually one should infer that the remarks were attributed to the fourth defendant even though they were not contained in quotation marks. As I have said, it is necessary when suing an individual defendant (as opposed to the media) to allege precisely the defamatory statement or conduct, the person to whom it was made and the intention to injure.


14. In the result the following orders are issued:


1. The exception to the plaintiff’s particulars of claim by the fourth defendant is upheld with costs.


2. The plaintiff’s particulars of claim against the fourth defendant are set aside.


3. The plaintiff is granted leave to file amended particulars within fifteen days of this order.






JR MURPHY

JUDGE OF THE HIGH COURT



Date Heard: 8 June 2007

For the Applicant: Adv E Prinsloo, Johannesburg

Instructed By: Danie Kolver Inc.

For the Respondent: Adv PM van Ryneveld

Instructed By: Joseph’s Inc., Johannesburg