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 (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 Koöp 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 (Koöperatief) 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 (Koöperatief) 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 Koöp Bpk 	1988 (2) SA 493 (A) at 500E:  Lewis v 	Oneanate (Pty) Ltd and 	Another 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 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 (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