---

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

Case No: 45168/2011

In the matter between:

PETER DON BRANDT                                                               Plaintiff

and

INDEPENDENT NEWSPAPERS

(PTY) LIMITED                                                                             Defendant

JUDGMENT

PRINSLOO,J

[1]      The Plaintiff claims some R500 0,000.00 in damages from the Defendant for alleged defamation.

[2]      Before me, Mr. Broodryk appeared for the Plaint .md Mr. Seape appeared for the Defendant.

BRIEF SYNOPSIS:

[3]     On 8 August 2008 the Defendant, in its three newspapers, The Cape Times, The Star and The Pretoria News, published an article written by its Court reporter, containing details of a judgment handed down in the Vereeniging Circuit Court of this Division by Victor J on the previous day, 7 August 2008.

[4]       The case involved the murder of a police officer, Captain Anna-Marie Potgieter in 2006.

[5]      It was case number CC420/2006, the State v. John Johannes Dhlomo (also known as Johannes Tiisetso Dlomo, and the case I will refer to as "Dhlomo & Another").

[6]       Dhlomo, as Accused No. 1, was convicted of the murder and a number of other charges and sentenced to life imprisonment and some lesser sentences of imprisonment which would run concurrently with the main sentence. The second accused was acquitted.

[7]      Broadly speaking, Dhlomo had testified that the Plain.,, his employer at the time, had offered him R5,000.00 to kill the late Captain Potgieter, who was his girlfriend at the time.

[8]     The Plaintiff was not one of the accused before the Court.

[9]      In the Particulars of Claim, the Plaintiff alleges that the articles which appeared in the newspapers are wrongful and defamatory of the Plaintiff in that they were intended and were understood by the readers of the newspapers to mean that the Plaintiff is a murderer.

[10]    Defendant resisted the claim, inter alia, by raising the defence of qualified privilege.

THE PLEADINGS:

[11]       I tum to quoting relevant extracts from the pleadings.

•       Extracts from the Particulars of Claim:

"4.

On 8 August 2008 the Defendant published in its newspapers, Cape Times, The Star and Pretoria News, wrongfully and with the intent to injure the Plaintiff an article with the following words regarding and about Plaintiff, namely:

4.1     In an hour-long judgment, Judge Margaret Victor ruled that Dhlomo had shot Potgieter dead for R5,000.00 in a cold, calculated contract killing orchestrated by Brandt;

4.2      Judge Victor ruled that on Sunday 15 January, 2006, Dhlomo had met Brandt on his smallholding in Vereeniging, where they concluded an agreement (that Dhlomo wil kill Anna-marie Potgieter for R5,000.00);

4.3      A copy of the article is attached hereto as Annexures 'Al ', 'A2' and 'A3 '.

[My note: The three articles, in the electronic format, are attached as these annexures, and the actual newspaper (the front page of The Star of Friday 8 August 2008 was received as Exhibit B).]

5.

Plaintiff was humiliated and degraded bv these words and article and suffered damages as a result thereof in the sum of R500,000.00 (five hundred thousand Rand) in respect of contumelia.

6.

The article by the Defendant is wrongful and defamatory of the Plaintiff in that they were intended and were understood by the readers of the Newspapers to mean that the Plaintiff is a murderer.

7.

The statement was understood by the general public and was intended by the Defendant to mean that the Plaintiff is a murderer. ";

•       These are extracts from the Plea:

" 2.  AD PARAGRAPH 4:

2.1     The Defendant admits that the articles attached as Al, A2 and A3 to the Particulars of Claim were published in the Cape Times, Pretoria ews and The Star respectively on 8 August 2008.

2.2      The Defendant pleads that the content of Annexures Al, A2 and A3 is the same article.

2.3       The Defendant admits the contents of paragraph

4.1 and 4.2 in so far as they accurately record the contents of Al , A2 and A3.

2.4       The remaining allegations are denied.

3.        AD PARAGRAPH 5:

3.1        These allegations are denied.

3.2        Alternatively and in the event that the Honourable Court rules that the statements quoted in paragraphs 4.1 and 4.2 of the Particulars of Claim and amount to contumelia, the Defendant pleads that the publication of the article was lawful because:

3.2.1     The content of the article is based on statements contained in the judgment of Judge Margaret Victor regarding her findings in the criminal trial of John Dhlomo and were made in open Court;

3.2.2       The content of the article is a fair and accurate record of the Judge's findings;

3.2.3        The journalist who wrote the article, Gill Gifford, attended at Court when Judge Margaret Victor handed down judgment;

3.2.4                                                                                                      Accordingly, publication of the article is protected by qualified privilege as it constitutes a fair and accurate report of Court proceedings. [Emphasis added]

4.       AD PARAGRAPH 6:

4.1      These allegations are denied.

4.2       Alternatively and in the event that this Honourable Court rules that the statements quoted in paragraphs 4.1 and 4.2 of the Particulars of Claim are defamatory of the Plaintiff, the Defendant pleads that the publication of the article was lawful because:

4.2.1       The content of the article is based on statements contained in the judgment of Judge Margaret Victor regarding her findings in the criminal trial of John Dhlomo and were made in open Court;

4.2.2        The content of the article is a fair and accurate record of the Judge's findings;

4.2.3         The journalist who wrote the article, Gill Gifford, attended at Court when Judge Margaret Victor handed down judgment;

4.2.4        Accordingly, publication of the article is protected by qualified privilege as it constitutes a fair and accurate report of Court proceedings. [Emphasis added]

5.

5.         AD PARAGRAPH 7:

5.1      These allegation sare denied. "

[12]    Importantly, in my view, the Plaintiff did not file a replication.

THE EVIDENCE:

[13]    Only the Plaintiff   and the Court reporter, on behalf of the defendant, Ms. Gifford, gave evidence.

In the brief summary of the evidence, an attempt will be made to deal only with aspects which I consider to be of direct relevance.

(i)    PETER DON BRANDT:

[14]      He is 55 years old, born on 1 July 1962, and stays in Heidelberg, Gauteng. He is attached to a company of assessors.

[15]       He has a mother and a brother and a fiance as well as two children, aged 24 and 20 respectively, from a previous marriage.

[16]        He has a matric qualification, but was attached to the South African Police Services from 1982 to 1992.

[17]        Both witnesses remarked from time to time in the course of their testimony that their memories were vague with regard to certain details because the murder was already committed more than twelve years ago and the publication appeared approximately ten years ago.

[18]     If I understood his evidence correctly, the Plaintiff said that at the time of the murder, the deceased was his girlfriend and they were staying together

on a farm, or smallholding.

[19]      He knew about the trial which was taking place in Vereeniging and had an arrangement with the prosecutor and the investigating officer that he would give evidence. He was not supposed to attend the trial (a strange remark, although he may have intended to say that he was not supposed to sit in Court when other evidence was being given) and these Court officials undertook to call him when it was his turn to testify.

[20]       He also made a statement (presumably to the police). This statement does not form part of the record.

[21]       Surprisingly, he only got wind of the outcome of the trial when a friend phoned him pointing out that according to the newspaper the Judge had ruled that he was a murderer. He went to the news stand, bought the paper and read the article.

[22]      He was angry and decided to take the matter further. He consulted his attorney in Vereeniging. He wanted his attorney "to take the Judge on". The attorney applied for a transcript of the record.

[23]      If I understood him correctly, he was advised that the Learned Judge had never said that he was involved as a contract killer. She was only summarising evidence to that effect.

[24]       From the cross-examination of Ms. Gifford, I gather that the Plaintiffs counsel was taking her to task for having overlooked the difference between the Learned Judge making findings as opposed to quoting from the evidence presented by the Accused. At times, Ms. Gifford was also accused of being negligent in this regard.

[25]    Before continuing with the summary of the Plaintiffs evidence, it is convenient at this particular point,   to mention   that there was some confusion in the proceedings before me (which received a fair amount of attention) about the wording of the actual judgment:

•       In one version of the judgment in Exhibit A (A254 to A265) there is a little sub-heading, early in the judgment and just after the Learned Judge had disposed of the formalities, reading: "A brief summary of Accused 1's facts". Then follows the "Brief summary". On the following page, A256, the following little heading appears: "The factual findings of the Court",·

•       The attorneys on both sides, before the trial, made dedicated efforts to obtain a signed copy of the judgment from the Learned Judge and/or the Registrar. It is not clear whether a signed copy was ever obtained, but another copy of the judgment was supplied, presumably by the Registrar or the Secretary of the Learned Judge, which was later included in Exhibit A as A300 to A311;

•        This latter copy was checked by both parties who, jointly, listened to an audio recording of the Learned Judge handing down the judgment and, before me, they placed their agreement on record that this copy, A300 to A311, corresponds exactly with what the Learned Judge had said. It is obvious that I have to focus my attention on this last-mentioned judgment, although the document handed up as part of the bundle is unsigned;

•         In this "second" judgment the first little sub-heading reads" "Brief summary of the facts", and not "A brief summary of Accused J ' s facts".   The second little sub-heading corresponds exactly with

that in the first-mentioned judgment, namely "The factual findings of the Court";

•      It is useful, and convenient, given the nature of the attack of the Plaintiff on the newspaper article, to quote the relevant extracts from the judgment, starting with the first sub-heading and ending some two paragraphs into the second sub-heading:

"Brief summary of the facts:

On the fateful day of Sunday the 15 January 2006 Accused 1 and on a smallholding in the district of Vereeniging concluded an agreement with one Pieter Don Brand hereinafter referred to as Brand. Accused 1 had been in the employ of Brand for at least four years. Accused 1 concluded an oral agreement with Brand to kill Brand's girlfriend, the deceased, one Annemarie Potgieter.

The expressed terms of the oral agreement were as follows:

Accused 1 would shoot and kill the deceased. Accused 1 would dispose of her body. Accused 1 was to murder the deceased on Monday 16 January 2006. Brand would pay the amount of R5,000.00 to Accused 1 for carrying out this dastardly deed. Payment would be made on completion of the murder. Payment would be effected on Wednesday the 1B'h January 2006 and Accused 1 was not to tell anyone.

Pursuant to the agreement Brand gave Accused 1 a firearm with ten to 15 rounds of ammunition. Brand showed him how to use the firearm. Accused 1 did not carry out Brandt's instruction on the Monday, but decided to do so on the Tuesday because Brand would be returning to the smallholding on the Wednesday with the reward of R5,000.00. Accused 1 kept the firearm hidden in his room until the Tuesday.

The factual flndings of the Court:

Early on Tuesday morning Accused 1 came to work with the firearm. The deceased came back from her early morning cycling trip and it would appear that she got into the bath. She was preparing to go and write her exam at UN/SA in Tshwane. Accused 1 crept up on her from the back and shot her while she was naked in the bath. He took the car keys and left the premises and came back at approximately 17h00 in the afternoon to move the deceased's body.

In carrying out this task of moving the deceased 's body, he misled Accused 2 and got into the deceased 's house on the pretext of moving some irons. He told Accused 2 that these irons had to be moved from one part of the garden to the

other and that his employer would pay for his services. Once he got to the house with Accused 2, he there and then instructed him to help move the body in a wheelbarrow from the house to a refuse dump where he left the body .... ";

•       It is clear that what is said under the second sub-heading flows seamlessly from what is said under the first sub-heading "Brief summary of the facts". Under the second sub-heading, one finds, in effect, simply a continuation of the narrative. From this, it is difficult to understand an argument that Ms. Gifford, who was in Court when the judgment was handed down, and who is an experienced reporter, would have, negligently to boot, confused a situation of the Court relating the evidence of the Accused with the Court summarising the judgment;

•       I add that Dhlomo had also made a confession along the lines of what was quoted above, the correctness of which he confirmed in his evidence, although, initially, he attempted to advance a different version which he later in his evidenced confessed to have been false. Portions of the confession are quoted as part of Dhlomo's cross-examination. The actual document was not part of the record.

Here follows an extract of an exchange between the prosecutor and Dhlomo on the subject:

"I will refer you to your statement which you made to Senior Superintendent Naiker at a later stage .... 'On Monday, 16 January, at about 8h30 in the morning my boss, Peter Don, confronted me and told me that him and his wife, the deceased, I do not know her name, I always called her Mrs was going through a divorce and he wanted me to kill his wife before the divorce went through. Peter promised to pay me R5,000.00 if I kill his wife and get rid of her body.      I did not kill my boss' wife on Monday because I knew my boss was only coming back on Wednesday, so I decided to kill her on Tuesday ... '. "

[26]      It is fair to assume, although I need not go that far, that reporter Gifford was in Court when this evidence was led as she said in her testimony before me that she attended all the hearings before the Learned Judge Victor, after she had taken over the proceedings when another Judge had postponed the matter without becoming seized therewith.

[27]       I now continue with the summary of the Plaintiffs evidence, and will not deal at length with evidence and cross-examination dealing with the subject of the confusion regarding the wording of the two versions of the judgment.

[28]     He was called in by one of his superiors in the police who also enquired about the fact that the Learned Judge had ruled that he was a murderer.

[29]      His fiance also informed him that friends had called and enquired about the material contained in the newspaper.

[30]     He pointed out that the heading of the article in the actual newspaper, The Star of 8 August 2008, also contains a sub-heading: "Officer's boyfriend alleged to have masterminded contract killing", which does not appear in the electronic versions attached to the summons.

In her evidence, Ms. Gifford testified that this sub-heading would have been introduced by one of the sub-editors before publication.   Nothing turns on this. It can also be mentioned that the first paragraph of Ms. Gifford's article (the electronic copy) reads as follows: "John Dhlomo liked Captain Anna-Marei Potgieter - who once gave him a T-shirt - but he would kill her for R5,000.00 in a contract killing allegedly masterminded by her boyfriend."

It is useful to note the use of the word "allegedly" both in the sub­ heading of the newspaper article and the allegation in the first paragraph of Ms. Gifford's article, which I quoted.

[31]      In cross-examination he was asked about his evidence that he never attended the trial and had an arrangement with the prosecutor that he would be called if necessary. He said he attended one of the sessions of the trial. The trial went on for some time. He was never there for any significant amount of time.

[32]            He did not hear the evidence of the State witnesses or the defence witnesses.

[33]            He was not present when the judgment was given.

[34]            He had no interaction at all with the reporter, Ms. Gifford.

[35]            He was asked to read out the third paragraph of Ms. Gifford's article, which is the one complained of in paragraph 4.1 of the Particulars of Claim (already quoted).

[36]            For some reason, the only other paragraph complained of in the article, which is a relatively lengthy affair running into two pages, is the fifth paragraph, the contents of which I have also quoted (reflected in paragraph

4.2 of the Particulars of Claim).

[37]            Because of the nature of the evidence given by the Plaintiff, I am not able to criticise the demeanour of the witness or the quality of his evidence.

(ii)              GILLIAN GAIL GIFFORD:

[38]            She was called by the Defendant after the Plaintiff had closed his case.

[39]            She is 48 years old and a news editor for Health eNews Services. It is a small health news agency, gathering health news and syndicating it to clients and various media houses.

[40]            Ms. Gifford briefly testified about a very impressive career as a journalist:

•    She started in 1988 (some 30 years ago when she must have been about 18 years old) at a community newspaper;

•    Then she went to The Star in 1996 and stayed there for four years, two of which as a crime reporter (also a Court reporter);

•     She was then approached by the SABC to head up their crime desk for TV and radio (in 2000) for a period of one year;

•     She went back to The Star, again as a crime and Court reported for 12 years;

•     In 2014 she was approached by eNCA to help with the coverage of an extremely high profile trial involving a disabled athlete;

•     She was head-hunted for this assignment because of her reputation;

•    She went into public relations from early 2015 until mid-2016 when she took up her present position;

•     She confirmed that as a reporter for many years she focussed on crime reporting and Court proceedings;

[41]       She got involved in covering the trial under consideration when a colleague had to move over to another case, a prominent trial that he had been covering earlier.

[42]       The present trial is also a prominent one and The Star preferred to put more experienced reporters on the bigger cases.

[43]   She had been following the case closely because she had previously encountered the late Captain Potgieter who made a very good impression on her when attached to the Child Protection Unit.

[44]       She never encountered the Plaintiff.

[45]       She was in Court when the judgment was handed down. She attended about four or five sessions, she couldn't remember exactly because of the ten year time lapse. She covered the trial during the period when it was presided over by Judge Victor, "... right from the start".

[46]      It is common cause that the judgment was delivered on 7 August 2008, the day before her article appeared in the newspaper.

[47]     After sitting through the lengthy session when the judgment was delivered, she wasn't left with enough time to finalise the article for publication on the same day.

[48]      Of importance, in my view, is the way she described her noting of the judgment. I paraphrase from my notes:

"I remember sitting in Court because I had been covering the trial already. I was fairly familiar with the material and I knew the different role players in Court so I had my notebook with me and then I followed the judgment as Judge Victor delivered it. "

[49]     She didn't have the transcribed version of the Learned Judge's handing down of sentence the next day at her disposal when preparing her report which was published. This appears at A249 and A312 respectively. For reasons already mentioned, the version in the "second" transcription, which was agreed to be the correct one, covering A312 to A317, is to be considered inasmuch as it may be necessary.

The only reason why I consider it to be relevant, for illustrative purposes, to quote the introductory remarks of the Learned Judge when handing down the sentence, is to demonstrate that this reflected her findings and not a mere summary of the evidence of Dhlomo, for example. This is also in line with Ms. Gifford's understanding of the judgment when she was in Court noting it and when she wrote her article. The reasons have been explained. Ms. Gifford also testified that she attended, not only the handing down of the judgment, but also of the sentence:

" Accused 1 was a hired killer acting for reward. The crime was not committed impulsively after a number of days when there was time to plot and prepare. He concluded the agreement to kill on the Sunday. He was supposed to kill on the Monday but only did so on the Tuesday because that suited his purposes for payment on the Wednesday.

He did not want anything to go wrong between the killing and the payment. The attack was a stealthy one, it took place when the victim was most vulnerable whilst she was in the bath ...."

[50]       On the recollection of Ms. Gifford, she was the only journalist in Court when the judgment was given.

[51]      In her evidence in chief, she was asked to comment on the Plaintiffs case that her report was inaccurate in that the Learned Judge never ruled that the Plaintiff was a murderer. She was referred to paragraphs 4.1 and 4.2 of the Particulars of Claim (supra). Her answer was of particular importance, in my view, if one considers the legal position regarding the defence of qualified privilege, which I will deal with in due course. I paraphrase from my notes:

"I believe my report was accurate and that's what I heard Judge Victor say." [Emphasis added]

[52]    Then followed a long debate about the different versions of the transcribed judgment. I have dealt with the subject.

[53]    After the publication of the article on 8 August 2008, no one approached her to complain that the article was not accurate. It only came to her attention that there was some issue about the article when the Defendant's attorney called her several years after the publication.

[54]      In cross-examination, and dealing with what was put to her to the effect that the article was inaccurate, she again said, importantly:

"I could only report on what the Learned Judge said in Court,   I did not draw any further inferences from that." [Emphasis added]

[55]     It was put to her that there couldn't have been a ruling against the Plaintiff because he wasn't an accused. She answered that it was " not for me to decide what the judge can say". She also said " if the judge refers to someone as a murderer in Court, I would be entitled to report that".

[56]      When asked if she would consider the word " murderer" in isolation with reference to a person who is not a murderer to be defamatory, she said "no, not if I report on what the judge said in Court. It is not me that said the personis a murderer, it is the judge saying it in open Court".

[57]       She confirmed that, as a Court reporter, she did get some "on the job training" on media law and ethics and there was also an editor with legal knowledge and experience which could be consulted. If further advice was required, the reporter could call the media lawyers which are the present attorneys of record of the Defendant.

[58]      When questioned in cross-examination about the Plaintiffs stance, supra, that there was a difference between the mere summing up of the evidence (the first sub-heading in the discredited version of the judgment) and the actual findings of the learned judge (the second sub-heading,supra, which is identical in both transcriptions), she said:

"My understanding was that this was the judge's brief summary of the facts, not evidence." [Emphasis added]

[59]     When asked about the Plaintiffs evidence that he was as State witness waiting to testify, she said she had no knowledge thereof and did not attempt to ascertain from the investigating officer or the prosecutor which names were on the witness list.

[60]      When asked again about the question of a judge making a finding against someone who is not before the Court as an accused, she said:

"It is my understanding that a judge is entitled to say that somebody not present in Court committed a particular act. It had happened before in trials I had covered and I believe that is what happened here. "

[61]      When asked, rather technically, about the use of the word "rule" in her article and also in the extracts quoted in paragraphs 4.1 and 4.2 of the Particulars of Claim, she expressed the view that the use of alternative words such as "said" or "found" would not have led the average reader or layperson to understand the article differently.

[62]       When asked whether she agreed that the evidence that the Plaintiff was a witness waiting to be called to testify "is different" from being ruled a murderer and being missing, she said that she couldn't agree because she did not know that the Plaintiff was a witness.

[63]      When it was put to her that the Defendant newspaper was negligent in not going to the trouble of finding out what "the situation" with the Plaintiff was, she disagreed completely, stating that in many trials there are very long witness lists and often not anyone is called to testify. She didn't believe it would be relevant or appropriate for her to contact any uncalled witnesses to get their side of the story ... "My job was to simply report on what took place in Court".

Importantly, in my view for present purposes, is her statement that "It would not be normal practice to contact someone involved in a story that was about a Court judgment. The finding of the Judge would be the story. It would be accepted that that is what the Court found and another version of this would not be relevant". [Emphasis added]

[64]            It was put to her that in the judgment there is no finding or ruling or order "which referred to the Plaintiff". She answered that in the judgment "the Judge does refer to the Plaintiff and she stated quite clearly what he had done ". This is a correct statement, in my view.

[65]     When it was put to her that it was negligent of the Defendant to make use of the word "ruling" in the article, she answered that it would depend in which context or specific meaning of the word "ruling" the questioner was referring to.

[66]     It was put to her that the article contains quite unnecessary "sting" in that it refers to the Plaintiff as having gone missing. This is a reference to the second paragraph in the article (not listed as one of those complained of in paragraph 4 of the Particulars of Claim) which reads:

"And while Dhlomo, 21, was condemned by the Vereeniging High Court, Peter Don Brandt has gone missing. Dhlomo was convicted of killing the policewoman on Thursday. "

The answer of the witness was that she couldn't recall the exact context in which the word "missing" was used ... "but most certainly the Plaintiff was never at Court when these proceedings were ongoing, even though he was implicated in a High Court judgment".

[67]      When asked in re-examination whether, in similar cases, where the story is about a judgment, it forms any part of her duties to go behind the judgment to try and exonerate or prove the innocence of anyone that may have been referred to in the judgment. She answered "never".

[68]       I considered Ms. Gifford to be an extremely knowledgeable and credible witness. She was not in any way discredited in lengthy and intensive cross-examination. I consider the article she had written to be a true reflection of the judgment which she has reported on.

[69]      So much for a brief summary of the evidence that was presented during the trial.

BRIEF REMARKS ABOUT THE LEGAL POSITION:

[70]      When dealing with the subject of defamation, the learned author Harms, in Amler's Precedents of Pleadings, 81h   edition, offers the following useful summary, on page 163, of the defence of qualified privilege (I quote only the essence of the summary and all the case references are omitted):

"Qualified privilege- essentials:

This defence is available if the defamatory words were published in the discharge of a duty or exercise of a right to a person who had a duty or a right to receive  the statemen.t A typical case is a statement made in the course of litigation. The test is an objective one and the court will judge by the standard of the reasonable person, having regard to the relationship between the parties and the surrounding circumstances.

The onus rests on the Defendant.

The Defendant must allege and prove (prima facie) that the statement was pertinent or  germane to the issues.

Qualified privilege - rebuttal:

The Plaintiff may rebut the defence by alleging (in her or his replication) and proving:

(a)      that the statement did not have some foundation in the evidence or circumstances surrounding the case, that it was not germane; or

(b)       malice - that is, an indirect or improper motive.

Public media:

A member of the public media may escape liability for a defamatory publication disseminated via the media if the defamatory publication was reasonable. The general criterion of reasonableness determines whether a defamatory publication was wrongful or not. Reasonableness in this context must not be conflated with negligence. If publication is justifiable, the question of fault cannot arise and the defence is not lack of animus iniuriandi. "

[71]      In my view, the onus resting on the Defendant was clearly and adequately discharged. The Defendant duly alleged and proved that the statement was pertinent or germane to the issues:

•      In paragraphs 3 and 4 of the Plea, extracts of which I quoted, the Defendant pleads, inter alia, that the content of the article is based on statements contained in the judgment of the Learned Judge Victor regarding her findings in the criminal trial of John Dhlomo which was made in open Court. It is pleaded that the content of the article is a fair and accurate record of the Learned Judge's findings. For the reasons mentioned, I have found that this is correct.

It was pleaded that the journalist who wrote the article, Gill Gifford, attended at Court when the judgment was handed down. This evidence is undisputed.

It was pleaded, accordingly, that publication of the article is protected by qualified privilege as it constitutes a fair and accurate report of Court proceedings;

•      In the spirit of the summary presented by the learned author, it is clear that the "words were published in the discharge of a duty or exercise of a right" (by an official Court reporter employed by a nationally circulated newspaper) ... "to a person who had a duty or right to receive the statement" (obviously the readers of the newspaper);

•     The conduct of Ms. Gifford, and the Defendant newspaper, clearly falls well inside the ambit of the conduct which would, objectively, be expected from the reasonable person or diligens paterfamilias; and

•      There is no question whatsoever that the statement or article was pertinent or germane to the issues.

[72]      As indicated by_the learned author, the Plaintiff may rebut the defence of qualified privilege by alleging (in his or her or its replication) and proving:

(a)       that the statement did not have some foundation in the evidence or circumstances surrounding the case, that it was not germane (for the reasons mentioned, the opposite is true); or

(b)        the statement or article was inspired by an indirect or improper motive (clearly, again, the opposite is true - there was no suggestion either from the Plaintiff that such indirect or improper motive existed).

[73]      In the circumstances, there was no rebuttal whatsoever of the defence of qualified privilege relied upon by the Defendant. Indeed, the Plaintiff has not even bothered to file a replication.

[74]        In Borgin v. De Villiers & Another, 1980(3) SA 556 (AD) the Learned Judge of Appeal said the following, in this defamation case, at 577 E- G:

"The test is an objective one. The Court must judge the situation by the standard of the ordinary reasonable man, having regard to the relationship of the parties and the surrounding circumstances. The question is did the circumstances in the eyes of a reasonable man create a duty or interest which entitled the party sued to speak in the way in which he did? And in answering this question the Court is guided by the criterion as to whether public policy justifies the publication and requires that it be found to be a lawful one. "

This is clearly the case in the matter under consideration.

CONCLUSIONS:

[75]            For all the reasons mentioned, I have come to the conclusion, and I find, that the Plaintiffs claim must fail.

[76]            As to costs, there is no reason why the usual rule should not apply, namely that the costs should follow the result.

THE ORDER:

[77]      I make the following order:

1.   The claim is dismissed;

2.    The Plaintiff is ordered to pay the costs.

W.R.C. PRINSLOO

JUDGE OF THE GAUTENG DIVISION, PRETORIA 

Heard on:                          22^nd and 23^rd of March 2018

Counsel for the Plaintiff:     K. Broodryk

Instructed by:                     J. Broodryk Attorneys

Counsel for the Defendant: M. Seape

Instructed by:                         Webber Wentzel Incorporated

---