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Manyatshe v South African Post Office Ltd (33008/2007) [2008] ZAGPHC 253; [2008] 4 All SA 458 (T) (5 May 2008)

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IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)

Date: 2008-05-07
REPORTABLE
Case Number: 33008/2007

In the matter between:

MAANDA MANYATSHE Applicant/Plaintiff

and

SOUTH AFRICAN POST OFFICE LTD Respondent/Defendant


JUDGMENT

SOUTHWOOD J

[1]      The plaintiff instituted action against the defendant claiming damages   in the sum of R269 980 000 which he allegedly suffered as a result       of       the defamatory statements about him which appeared in an article         published in the Mail & Guardian and were attributed to the      defendant. In essence the case against the defendant is that the         defendant associated itself with or was a party to the publication of the        defamatory statements and wrongfully failed to take steps either to      prevent the publication of the defamatory statements or to refute the    defamatory statements after publication.

[2]      This is an opposed application for the amendment of the plaintiff’s      particulars of claim. (The particulars of claim as they are sought to be         amended will be referred to herein as simply ‘the particulars of claim’.)        The defendant opposes the application on the grounds that the    particulars of claim will be excipiable, either because they will lack   averments necessary to sustain an action or because they will be         vague and embarrassing. The grounds of objection are appropriate to      an exception and accordingly the application will be dealt with as if it is      an exception. This is preferable to allowing the amendment in the        sure knowledge that the defendant will immediately note an exception     – De    Klerk & Another v Du Plessis & Others 1995 (2) SA 40 (T) at      43I-44B.

[3]      In terms of Rule 28(3) an objection to a proposed amendment must         clearly and concisely state the grounds upon which the objection is      founded. The defendant delivered a notice of objection stating that it   objects to the plaintiff’s proposed amendment on the basis that it does          not cure the defects in the unamended particulars of claim (that render          it excipiable) and contends that the amendment would render the          particulars of claim defective in the respects set out in annexure B to          the notice. That annexure identifies the defects in a number of          paragraphs of the particulars of claim, and does not pertinently state   what averments are lacking which are necessary to sustain the    plaintiff’s cause of action or what allegations in the particulars of claim      render the cause of action vague and embarrassing. Despite the   shortcomings in the      notice of objection the plaintiff’s counsel did not      object to the formulation of the grounds listed in annexure B and was    content to argue the matter on the papers as they stand.

[4]      It is well-established that ‘(T)he whole purpose of pleadings is to bring        clearly to the notice of the court and the parties to an action the issues       upon which reliance is to be placed’ and that ‘(T)he object of pleading          is to ascertain definitely what is the question at issue between the     parties: and this object can only be attained when each party states     his case with precision’ - Imprefed (Pty) Ltd v National Transport       Commission 1993 (3) SA 94 (A) at 107C-E. The court observed at   107E that the degree of precision obviously depends on the       circumstances of each case. I agree with defendant’s counsel’s   submission that where a plaintiff wishes to extend the ambit of the well-        settled action for defamation to include liability for an omission to    prevent publication or to set the record straight a high degree of       precision is required so that the defendant knows exactly what the case          is that he has to meet. It is also appropriate where a very large amount         of damages is claimed. It is trite that pleadings must be lucid and      logical and in an intelligible   form and that the cause of action (or    defence) must appear clearly from the allegations made – Trope v         South African Reserve Bank and Another 1992 (3) SA 208 (T) at    210H-I.

[5]      The ground of objection that the particulars of claim will be vague and          embarrassing is aimed at the formulation of the cause of action and not          its legal validity – Trope and Others v South African Reserve    Bank [1993] ZASCA 54; 1993 (3) SA 264 (A) at 269F-270H. A cause of action is vague        and embarrassing if its essential averments are contradictory, or are    inconsistent with, or are not supported by the documents annexed in      support of the averments, or if they are ambiguous or have no    discernible meaning – Trope v South African Reserve Bank 1992    (3) SA 208 (T) at 211B-E; Jowell v Bramwell-Jones and Others     1998 (1) SA 836 (W) at 899B-I; Nasionale Aartappel Ko p v         PriceWaterhouseCoopers Ing en andere 2001 (2) SA 790 (T) at      797I-798B. Although the defendant’s counsel contends that the    averments in the particulars of claim will be vague and embarrassing     and submits that the formulation of the claim is less then felicitious he        does not rely heavily on this ground of objection. According to the      argument, the defendant’s real objection is that the particulars of claim        will lack averments necessary to sustain the plaintiff’s cause of action.

[6]      This objection is aimed at the legal validity of the cause of action. The        objection is directed at an inherent defect in the pleadings. It accepts,        for purposes of the objection, that all the allegations contained in the         pleading are correct but contends that notwithstanding the correctness   of the allegations the pleading does not disclose a cause of action: i.e.        the correctness of the facts alleged in the particulars of claim is      accepted but the legal conclusion is disputed – Makgae v         Sentraboer (Ko peratief) Bpk 1981 (4) SA 239 (T) at 244H-245A. In         McKenzie v Farmers’ Co-operative Meat Industries Ltd 1922 AD 16          at 23 the court adopted the following definition of ‘cause of action’ –

         ‘every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.’

[7]      In order to avoid an exception on the ground that the particulars of     claim lack averments necessary to sustain an action, a plaintiff must    ensure that the essential facts (i.e. the facta probanda and not the facta       probantia or evidence necessary to prove the facta probanda) of his      claim are set out with sufficient clarity and completeness so that if the        correctness of these facts is accepted they support the legal conclusion         and legally entitle him to the relief he seeks – Makgae v        Sentraboer (Ko peratief) Bpk supra at 245D-E. The defendant must          persuade the court that upon every interpretation which the particulars          of claim can reasonably bear, no cause of action is disclosed –          Theunissen en Andere v Transvaalse Lewendehawe Ko p Bpk   1988 (2) SA 493 (A) at 500E: Lewis v     Oneanate (Pty) Ltd and   Another [1992] ZASCA 174; 1992 (4) SA 811 (A) at 817F-G.

 [8]      The facts which must be accepted for present purposes are the    following:

         (1)      From 1999 to October 2004 the plaintiff was employed by the               defendant as its Chief Executive Officer. During October 2004             the plaintiff resigned from the defendant’s employment and took                   up employment with MTN South Africa (Pty) Ltd (‘MTN’) as its              Chief Executive Officer.

         (2)      On or about 22 September 2006 the Mail & Guardian published               an article on its online publication and on a double page spread                  over pages 4 and 5 of the print newspaper, including various              editorials and other articles, and with a front page banner head-                 line which read ‘M & G Ungagged: MTN boss faces charges’.                 The article refers to the plaintiff, the MTN boss.

         (3)      The article contains the following statements:

                  (i)      ‘MTN boss faces charges’ – a reference to the plaintiff;

                  (ii)     The plaintiff has been accused of criminal conduct, i.e.                           ‘pushing through a deal’;

                  (iii)    ‘Manyatshe’s successor at the parastatal, Khutso Mam-                      peule (‘Mampeule’), has laid a criminal complaint against                          Manyatshe and two other former Post Office executives                      and the company that got the deal, Vision Design House’                            (‘Vision Design’);

                  (iv)     The contract in question was for the refurbishment of                               Post Office branches countrywide and was concluded                         between the defendant and Vision Design. The contract                      was initiated in 2003, under the plaintiff’s leadership;

                  (v)      The contract was cancelled by the plaintiff’s successor in                         October 2005, amid allegations that Post Office tender                     regulations had been flouted, board decisions ignored                      and costs to the Post Office massively and fraudulently                            inflated by Vision Design;

                  (vi)     Mampeule, the plaintiff’s successor as CEO of the defen-                           dant, has laid a criminal complaint against the plaintiff                                   with the Commercial Branch of the South African Police                     Services;

                  (vii)    In the affidavit made to the police as referred to in the ar-                      ticle, Mampeule had stated that the defendant’s board                      had instructed him to lay a criminal complaint against the                         plaintiff;

                  (viii)   Other ex-Post Office executives are also implicated in                     Mampeule’s affidavit;

                  (ix)     The plaintiff was complicit in driving the appointment of                          Vision Design as contractors to the Post Office ‘even if it                        meant misrepresenting the facts and flouting the pre-                               scribed procedures’;

                  (x)      As a result of inter alia the plaintiff’s conduct, tender pro-                     cedures were flouted, the board’s instructions were                                 ignored, and Vision Design charged grossly excessive                       fees for work performed, including secret profits of at                                     least R8 million;

                  (xi)     At the time of the plaintiff’s departure from the Post Office                      in November 2004 the Vision Design issue was already                       under investigation;

                  (xii)    The defendant, by way of its spokesman, Mr. Twiggs                                  Ziphu, issued the following statement:

         ‘Since prima facie evidence came to the fore that a number of people benefited from serious irregularities pertaining to certain suspect/onerous contracts, certain contracts were cancelled during 2005. The cancellation of these contracts as well as the company’s publicly declared objective to uproot fraud and corruption, have resulted in a number of executives either being dismissed or leaving the company. Since the conduct of some of these former executives constitutes a breach of their fiduciary duties and an act financial misconduct [which is a criminal offence in terms of the PFMA], the company handed the matter to the South African Police Service in February 2006.’

         (4)      The plaintiff alleges that the article meant, alternatively, implied              that:

                  (i)      The defendant had good grounds for believing and                                    alleging that the plaintiff had been involved in criminal                                   conduct, namely fraud and corruption, during his tenure                            as Chief Executive Officer of the defendant;

                  (ii)     The suspected criminal conduct of the plaintiff contributed                        to the awarding of irregular contracts to a contractor,                                     Vision Design House;

                  (iii)    The plaintiff was complicit in orchestrating the non-com-                          pliance with the defendant’s tender procedures, and the                            directives issued by the defendant’s board;

                  (iv)     Vision Design overcharged the plaintiff for work per-                               formed in the amount of at least R8 million;

                  (v)      The plaintiff was complicit in facilitating the payment to                         Vision Design of substantial amounts of money, to which                            it was not lawfully entitled;

                  (vi)     At the time of his departure from the defendant’s service,                         the issue was under investigation by the defendant;

                  (vii)    The defendant has prima facie evidence that a number of                            people, including the plaintiff, improperly benefited from                         serious irregularities pertaining to the Vision Design                              contract;

                  (viii)   As a result, the defendant cancelled the contract with                              Vision Design;

                  (ix)     The allegations that have emerged in the course of the                     investigations undertaken by the defendant, as well as                     the defendant’s publicly declared objective to uproot fraud                        and corruption, have resulted in a number of executives                            (including the plaintiff) either being dismissed or leaving                        the company;

                  (x)      The conduct of some of the former executives, including                            the plaintiff, constitutes a breach of fiduciary duties and                        acts of financial misconduct, which is a criminal offence in                       terms of the Public Finance and Management Act                              (‘PFMA’);

                  (xi)     The defendant has laid, and is pursuing, criminal charges                          against the plaintiff and others.

         (5)      The plaintiff alleges that a reasonable person reading the article                might reasonably understand the words to convey a meaning                 defamatory of the plaintiff in the following respects:

                  (i)      The plaintiff is corrupt;

                  (ii)     During his tenure as CEO of the defendant, the plaintiff                           conspired to bypass the Post Office tender regulations in                          order to benefit a contractor;

                  (iii)    As a result, the contractor charged secret profits and                              overcharged the defendant to the tune of at least R8                                million;

                  (iv)     The plaintiff was responsible, alternatively, partly                                responsible, for the state of affairs which allowed the                                     contractor to overcharge the defendant for work done;

                  (v)      The plaintiff’s conduct amounts to fraud, a breach of his                          fiduciary duties, and an act of financial mismanagement                            in terms of the PFMA;

                  (vi)     The plaintiff was under investigation at the time of his de-                       parture from the defendant’s employment, and that the                      investigation prompted the plaintiff to resign;

                  (vii)    The defendant has laid, and is pursuing, criminal charges                          against the plaintiff arising from the allegations of fraud                        and corruption referred to above;

                  (viii)   The plaintiff is not a law abiding citizen;

                  (ix)     The plaintiff is not an honest person;

                  (x)      The plaintiff is not fit to occupy a senior position in busi-                      ness;

         (6)      Mampeule at all times acted within the course and scope of his            duties as Chief Executive Officer of the defendant.

         (7)      The defendant did not authorise Mampeule or any other person              to lay criminal charges against the plaintiff on behalf of the de-                fendant and the defendant is not pursuing criminal charges                         against the plaintiff.

         (8)      The defendant:

                  (i)      did not take any steps to prevent the publication of the                           defamatory statements;

                  (ii)     released the statement which, apparently, is the state-                             ment quoted at the end of the article;

                  (iii)    since the publication of the article has taken no steps                                     whatsoever to rebut the defamatory statements published                            regarding the plaintiff, despite requests to do so.     

         (9)      The defendant foresaw, alternatively, ought reasonably to have            foreseen that an outsider would have taken cognisance of the              defamatory statements.

         (10)     The plaintiff’s reputation in the community has been diminished                   as a result of the article published in the Mail and Guardian.                     The plaintiff’s reputation as a leading businessman in South Af-                  rica has been irreparably damaged by the defamatory state-                         ments against him and in particular the statement that the defen-                 dant was pursuing criminal charges against the plaintiff.

         (11)     The defamatory statements in the article rendered the plaintiff’s                 continued employment as CEO of MTN impossible and untena-                 ble. The plaintiff was compelled to resign from his position as                   CEO of MTN as a result of the defamatory statements and the               public scandal and embarrassment that it caused for the defen-            dant as well as MTN. Had the defendant publicly stated that it            was not pursuing and had not brought criminal charges against             the plaintiff, the plaintiff’s reputation in the business community               would not have been tarnished to such an extent that he would             have had to resign from MTN.

         (12)     As a result of the defamatory statements and the defendant’s              failure to publicly state that it had not brought criminal charges                against the plaintiff and was not pursuing such charges against                   him, which led to the plaintiff’s resignation from MTN the plaintiff              suffered damages amounting to R169 980 000.                                       
[9]      The plaintiff’s particulars of claim are not elegantly formulated. In some       respects they are not lucid and in some respects they are not logical    and they contain a number of allegations which are merely conclusions    of fact or law. In summarising the facts which must be accepted for      purposes of this judgment only the allegations of fact have been taken   into account and not the conclusions. For purposes of this judgment      the meaning of the article and the sting of the defamation alleged by    the plaintiff has been accepted.

[10]    The plaintiff claims damages for defamation arising out of the article   which appeared in the Mail and Guardian newspaper on 22 September        2006. On the face of it the article is defamatory of the plaintiff and, as       already mentioned, for purposes of this judgment, it will be accepted    that it is. Although the defamatory article was published by the         Mail and Guardian newspaper, which the plaintiff has not sued, the       plaintiff seeks to hold the defendant liable for the defamation.

[11]     Publication (i.e. the act of making known a defamatory statement, or     the act of conveying an imputation by conduct, to a person or persons    other than the person who is the subject of the defamatory imputation)   is an essential requisite for liability for defamation – Burchell: The   Law of Defamation in South Africa (‘Burchell Defamation’) 67;    Jonathan Burchell Principles of Delict (‘Burchell Delict’) 161,          Neethling’s Law of Personality Neethling. Potgieter. Visser 2 ed         131 para 2.1; Law of Delict Neethling. Potgieter. Visser 4 ed 338        paras 3.2.1 and 3.2.2; Whittington v Bowles 1934 EDL 142 at 145.         Because publication is a requirement for liability for defamation the    plaintiff must expressly aver and prove that publication of the alleged          defamation took place – Cramer v Tothill (1) 1945 TPD 365 at 366;        Mathi v Mia 1935 TPD 337 at 338-339; Lubbe v Robinsky 1923 CPD   110 at 111.

[12]     It is well-established that every person who participates in the         publication of the defamatory statement may be liable. Thus, where       the defamatory statement appears in a newspaper, not only the author     but also the editor, printer, publisher and proprietor can all be held   responsible for the publication – Burchell Defamation 77; Burchell       Delict 162; Neethling Personality 131.

[13]     According to the learned author of Burchell Defamation, publication    can also take place by omission where there is a legal duty to act – 67          and 75-76; Burchell Delict 161. This principle is not disputed by the    parties.

[14]     The plaintiff alleges that the defendant published the defamatory        statements by two positive acts and by two omissions –

         (1)      in paragraph 17, the plaintiff alleges a positive act, the defen-                 dant ‘uttered and/or associated itself with and was a party to the                publication of the defamatory statements’;

         (2)      in paragraph 15.2, the plaintiff alleges a positive act, the defen-               dant released the statement ‘which in the context of the allega-                  tions made in the article in which it appeared, the statement re-                 leased by the defendant clearly confirmed the thrust of the arti-                 cle, alternatively, did nothing to rebut the thrust of the article;               and in particular the allegations that:

                  (a)      the defendant had reasonable grounds for suspecting                                 and alleging that the plaintiff was guilty of fraud and                                     corruption;

                  (b)      the defendant was pursuing criminal charges against the                            plaintiff’;

         (3)      in paragraph 15.1, the plaintiff alleges an omission, that the                     defendant ‘did not take any steps to prevent the publication of                   the wrongful and defamatory information’;

         (4)      in paragraph 15.3, the plaintiff alleges a further omission, that                 since the publication of the wrongful and defamatory information                  the defendant ‘has taken no steps whatsoever to rebut the                          wrongful and defamatory statements published regarding the                plaintiff, despite requests to do so, and despite the obvious con-                tinuing damage to the plaintiff’s good name and reputation’.

[15]     With regard to the omissions alleged the plaintiff alleges that the      defendant’s conduct is wrongful because:

                  (a)      The defendant bore a legal duty towards the plaintiff not                          to cause damage to the plaintiff’s good name and reputa-                           tion in the business and wider community. This duty                                 arose from:

                           (i)      the plaintiff’s previous employment relationship                                    with the defendant;

                           (ii)     the plaintiff’s prominence within the South African                                 business community;

                           (iii)    the position of the defendant as an organ of state                                  involved in public administration which is required                                 under section 195 of the Constitution of the Repu-                                  blic of South Africa, 1996, to maintain a high stan-                                dard of professional ethics, to be accountable, to                                  foster transparency by providing the public with                                    accurate information, and to cultivate good human                                   resource management and career development                                  practices, to maximise human potential; and

                           (iv)     the constitutional right to dignity enjoyed by the                                  plaintiff which the defendant was obliged to re-                                             spect and promote, in terms of section 10 of the                                    Constitution.

                  (b)      By virtue of the relationship between the parties, the de-                         fendant bore a duty towards the plaintiff not to publish, or                       allow to be published, false statements and in particular                          the allegation that the defendant had laid and was pur-                    suing criminal charges against the plaintiff.

                  (c)      In addition, the defendant, once the false statements had                          been published and received wide attention, bore a duty                            to the plaintiff to set the record straight by stating publicly                            that it had not authorised the bringing of criminal charges                        against the plaintiff, and was not pursuing criminal char-                         ges against the plaintiff.

[16]     The allegation in paragraph 17 that the defendant ‘wilfully uttered      and/or associated itself with and was party to the defamatory    statements’ is a bald conclusion unsupported by any facts as to when,    where and in what manner the defendant did any of these things.          These positive acts cannot be related to other acts alleged in the       particulars of claim. Therefore the facta probanda have not been set     out. The paragraphs therefore lack averments to sustain the      conclusion and accordingly the cause of action.

[17]     The allegations in paragraph 15.2 that the statement confirmed the       thrust of the article is not borne out by the statement itself which is a        vague and general statement which does not deal with the matters         contained in the Mail & Guardian article or identify the plaintiff as one of     the former executives referred to. The allegation is therefore not       supported by the statement and is vague and embarrassing. The    allegations ‘in the context of the allegations made in the article in which      it appeared’; that the statement ‘clearly confirmed the thrust of the    article’ and that the statement ‘did nothing to rebut the thrust of the          article’ are meaningless if not nonsensical since the statement was      issued before the article was published. They are therefore also vague   and embarrassing. Insofar as the statement itself is alleged to be       publication of defamatory matter it does not refer to the plaintiff and          therefore is not defamatory of him. There are no allegations to indicate         that the plaintiff was identifiable as one of the executives referred to.        The particulars of claim therefore lacks averments to sustain this cause         of action.

[18]    The allegations in paragraphs 15.1 and 15.3 read with paragraph 16       squarely raise the issue of publication by omission which obviously      must be expressly pleaded and proved. The key allegations are that       the defendant bore a duty not to allow to be published false statements          and in particular the allegation that the defendant had laid and was     pursuing criminal charges against the plaintiff and that once the false          statements had been published the defendant bore a duty to set the       record straight by stating publicly that it had not authorised the bringing      of criminal charges against the plaintiff and was not pursuing criminal          charges against the plaintiff.

[19]     There appears to be scant authority for holding a person liable for      defamation because he or she failed to take steps to prevent the         publication of a defamatory statement to a third person. The only        authority referred to is Byrne v Deane [1937] KB 818 which is    mentioned in Burchell Defamation at 75. The facts of the case differ     totally from the facts of the present case because the defendant’s       inaction was closely related in time to the publication and the          defendants had the power to prevent the publication by removing the      notice from the wall. As pointed out by the defendant’s counsel with     reference to Die Spoorbond v South African Railways 1946 AD 999          at 1008 and 1013 the absence of precedent is significant.

[20]     As a general rule a person does not act wrongfully for the purposes of   the law of delict if he or she fails to act to prevent harm to another   person. A person will be liable only if the omission was wrongful. That          will be the case if, in the circumstances, the person had a legal duty to        act positively to prevent harm from occurring. In general, the question          is answered with reference to the legal convictions of the community –   Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 596F-597C;   Minister of Law and Order v Kadir [1994] ZASCA 138; 1995 (1) SA 303 (A) at 317C-   318I; Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 27G-         I; Minister of Safety and Security v Van Duiwenboden 2002 (6) SA         431 (SCA) paras 13-17.

[21]     Where the defamatory statement is published in a newspaper two   years after the plaintiff left the employment of the defendant the facts         are far removed from the case of Byrne v Deane supra. In my view         the facts alleged by the plaintiff in paragraphs 16.1 and 16.2 would not         give rise to the legal duty alleged. I agree with the defendant that at          least the plaintiff must aver (and prove) that the plaintiff was innocent of     the conduct alleged (i.e. the allegations of misconduct were untrue)     and that the defendant knew that the plaintiff was innocent of the       conduct alleged (i.e. the defendant knew that the allegations of         misconduct were untrue). It may be necessary for the plaintiff to go     further and make other allegations but I am not called upon to deal with         this.

[22]     With regard to the allegations in paragraph 15.3 that once the false     statements had been published and received wide attention        (presumably because they were published in the Mail & Guardian) the      defendant bore a duty to the plaintiff ‘to set the record straight’ by   stating that it had not authorised the bringing of criminal charges      against the plaintiff and was not pursuing criminal charges against the          plaintiff, the defendant contends that this implicates the defendant’s   right of freedom of expression in section 16 of the Constitution, that   freedom of expression includes both the right to speak freely and the    right to say nothing at all and that the court should not lightly infringe       the defendant’s constitutional right to refrain from speaking. For this          argument reliance was placed on Wooley v Maynard 430 US 705 at   714 (1977) where the court said –

‘The right to speak and the right to refrain from speaking are complementary components of the broader concept of “individual freedom of the mind”’.

         As I understood the argument the defendant’s right to freedom of         expression trumps the plaintiff’s right to his dignity and good name.

[23]     This argument cannot be upheld. It is inconsistent with the approach of          the Constitutional Court in S v Mamabolo (ETv, Business Day and          the Freedom of Expression Institute Intervening) 2001 (5) BCLR   449 (CC). The learned authors of South African Constitutional Law        The Bill of Rights Cheadle Davis Hayson discuss the case at 11-4:

‘Notwithstanding the imposing body of comparative jurisprudence and literature, the implication of the right to freedom of expression is heavily dependent on the manner in which the right fits within a particular constitutional scheme. This point was made forcibly by Kriegler J in S v Mamabolo (ETv, Business Day and the Freedom of Expression Institute Intervening) [2001] ZACC 17; 2001 (5) BCLR 449 (CC):

“The balance which our common law strikes between protection of an individual’s reputation and the right to freedom of expression differs fundamentally from the balance struck in the United States. The difference is even more marked under the two respective constitutional regimes. The United State’s Constitution stands as a monument to the vision and libertarian aspirations of the Founding Fathers; and the First Amendment in particular to the values endorsed by all who cherish freedom. But they paint eighteenth century revolutionary insights in broad, bold strokes. The language is simple, terse and direct, the injunctions unqualified and the style peremptory. Our Constitution is a wholly different kind of instrument. For present purposes it is sufficient to note that it is infinitely more explicit, more detailed, more balanced, more carefully phrased and counterpoised, representing a multi-disciplinary effort on the part of hundreds of expert advisors and political negotiators to reduce a blueprint for the future governance of the country”.

         Kriegler J then went on to deal with the critical difference between the two constitutional regimes:

         “The fundamental reason why the tests evolved under the First Amendment cannot lock onto our crime of scandalising the court, is because our Constitution ranks the right to freedom of expression differently. With us it is not a pre-eminent freedom ranking above all others, it is not even an unqualified right. The First Amendment declaims an unequivocal and sweeping commandment; section 16(1), the corresponding provision in our Constitution is wholly different in style and significantly different in content. It is carefully worded, ennumerating specific instances of the freedom and is immediately followed by a number of material limitations in the succeeding subsection. Moreover the Constitution, in its opening statement and repeatedly thereafter, proclaims three conjoined, reciprocal and covalent values to be foundational to the Republic: human dignity, equality and freedom. With us the right to freedom of expression cannot be said to automatically trump the right to dignity. The right to dignity is at least worthy of protection as is the right to freedom of expression. How these two rights are balanced, in principle in any particular set of circumstances, is not a question that can or should be addressed here. What is clear though and must be stated, is that freedom of expression does not enjoy superior status in our law.”

         Not only does this dictum mandate a careful balancing of the rights within the Constitution, it also provides an important caution against uncritical borrowings from comparative jurisprudence and, in particular, from First Amendment jurisprudence emanating from the United States Supreme Court.’

[24]     The final argument by the defendant is that the plaintiff does not set out       sufficient facts to justify a finding that the failure to act was wrongful.      The defendant contends that the plaintiff’s particulars of claim must    allege at least the following –

         (1)      The plaintiff was innocent of the matters of which he was                          accused in the Mail & Guardian article;

         (2)      The defendant knew as a matter of fact that the plaintiff was                      innocent of these matters;

         (3)      The plaintiff has not set out any steps that the defendant ought                  to have taken to rebut the defamatory statements;

         (4)      The defendant does not aver that if the defendant had taken                        those steps his damage would have been avoided.

         In my view the plaintiff must make these allegations and set out the     necessary facta probanda. In the absence of these facts the      particulars of claim lack averments necessary to sustain the plaintiff’s         cause of action.

[25]     The defendant’s objection to the amendment must therefore be upheld      and the application for amendment dismissed. Costs will follow the       result and will include the costs of two counsel. Both parties were      represented by two counsel.

         Order

[26]     The application for amendment is dismissed with costs which costs        shall include the costs consequent upon the employment of two    counsel.




___________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT



CASE NO: 33008/07


HEARD ON: 12 February 2008


FOR THE APPLICANT/PLAINTIFF: ADV. P.M. KENNEDY SC
ADV. G.A. FOURIE

INSTRUCTED BY: Mr. L. Shein of Lawley Shein Attorneys


FOR THE RESPONDENT/DEFENDANT: ADV. G.J. MARCUS SC
ADV. C. STEINBERG


INSTRUCTED BY: Ms Magardie of Damons Magardie Richardson
Attorneys

DATE OF JUDGMENT: 7 May 2008