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SOUTH GAUTENG HIGH COURT, JOHANNESBURG

REPORTABLE

CASE NO: 2009/35637

DATE:12/09/2011

In the matter between:

BELLINGAN, MICHAEL..................................................................... Plaintiff

and

ELECTRONIC MEDIA NETWORK LIMITED................................... Defendant

JUDGMENT

[1] The parties will be referred to as in the action. The plaintiff seeks leave to amend two sets of particulars of claim one under Case No. 03/24137 and 09/35637. These actions have been consolidated.

[2] The trial actions relate to defamation under the actio iniuriarum, remunerative loss under the actio legis Aquiliae and loss of amenities of life under the action for pain and suffering.

[3] The plaintiff was formerly a security policeman who served under the apartheid regime. He was also convicted of the murder of his wife. The claims arise out of broadcasts made by the respondent in relation to claims under case number 03/24137 during September 2000, August 2003 and November 2003 and the second action under case number 09/35637 on 27, 28 and 29 March 2007.

[4] The amendments sought to be introduced relate to the following: the falsity of the programme namely that the plaintiff replaced a hair from his beard at the crime scene with a hair from the head of the murder victim; that he was associated with the murders of Wits lecturer David Webster, Matthew Goniwe and Stephen Biko; that his late wife was about to institute divorce proceedings against him, that he had a history of violence, he made violence his business, that he was involved in the murder and naming of political activists, that he moved to New Zealand with his children and new wife and fled South Africa and only returned because Interpol were after him, that he was in danger and threat of arrest in New Zealand, that he detonated a teargas canister at his engagement party, that he caused his late wife intense, emotional and physical suffering, that he intercepted post addressed to NUMSA and that he robbed NUMSA of R300 000,00 and that he was unrepentant for killing his ex-wife. The effect of the broadcasts were an infringement of his right to dignity, reputation, his right not to be treated in an inhuman degrading way; his right to privacy; freedom of association and his right to trade.

[5] The intended amendments also refer to the fact that the broadcasts disturbed the privacy and mental tranquillity of his children and that these broadcasts caused him a post-traumatic stress disorder. The broadcasts were in breach of the provisions of section 123(1) and 123(2)(a) of the Correctional Services Act No. 111 of 1968. The broadcasts purported to be of an academic or scientific value and in reality had no such value. The broadcasts were deleterious to his family because the programmes were unbalanced and biased against him and portrayed him as a dangerous and violent person. He also introduced the concept of negligence in so defaming the plaintiff. The defendant also distributed the programme to the United Kingdom, Ireland and various other broadcast channels in Australia, Asia and Europe. The plaintiff also sought to incorporate the element of intention into his claim for pure economic loss.

[6] The plaintiff seeks an amendment as set out in his notices dated 11 August 2011. It is the applicant's that case that the above amplify existing causes of action.

[7] The respondent opposes the amendments on the following bases. The proposed amendment introduced new causes of action which had already prescribed prior to the delivery of the notices of amendment. The objection also states that a new claim based on the actio lex Aquilia is introduced in that the amendment seeks to allege falsity and fault on the part of the respondent in relation to the broadcasts. The respondent contended that this new cause of action had prescribed in terms of section 11 of the Prescription Act of 1969 such prescription having taken place on 29 March 2010 in relation to case 09/35637. In relation to the 03/24137 case a similar objection is made that a new cause of action, the actio lex Aquilia, is introduced but that such prescribed in September 2003. The plaintiff argued the amendments fully in respect of both cases.

Prescription

[7] Section 15(1 )of the prescription Act 68 of 1969 provides that

"The running of prescription shall, subject to the provisions of ss (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. The arising out of the actio lex Aquilia is a debt different from that of the actio iniuriarum.

[8] In determining whether the amendments introduce a new debt and whether such debt has prescribed it is necessary to analyse the proposed amendments in relation to the unamended summonses. The parties are ad idem that the facts giving rise to the actions based on the actio legis Aquiliae and the actio iniuriarum action are separate rights of action. Although there is a measure of overlapping, the facta probanda in the actio legis Aquiliae differs in a material way from the facta probanda in a claim for actio iniuriarum.¹

[9] If an amendment serves only to clarify an existing cause of action then the amendment is permissible.

"only a clarification of a step in the proceedings which,... has insufficiently or imperfectly set out... (a)... cause of action that throughout has been relied upon".²

[10] In Associated Paint & Chemical Industries (Pty) Ltd t/a Albestra paint and Lacquers v Smit³ provides that as a general rule a plaintiff is not precluded by prescription from amending his claim, provided the debt which is claimed in the amendment is the same or substantially the same debt as originally claimed, and provided of course that prescription of the debt originally claimed has been interrupted.

[11] In Sentrachem Ltd V Prinsloo⁴ it was held that even if a summons is excipiable on the basis that it does not disclose a cause of action it can nevertheless serve to interrupt prescription provided that it is not so defective as to amount to nullity. The amendment must be identifiable as the original cause of action.

[12] In First Rand Bank Ltd v Nedbank (Swaziland) Ltd⁵ Scott JA referred to CGU Insurance Ltd v Rumdel Construction (Pty) Ltd⁶:

"'debt' "and hence its correlative 'right of action'" was noted to bear a wide and general meaning'; and not the technical meaning given to 'cause of action', being the phrase ordinarily used to describe the set of material facts relied upon to establish the right of action. Even a summons which fails to disclose a cause of action for want of one or other averment may therefore interrupt the running of prescription provided only that the right of action sought to be enforced in the summons subsequent to its amendment is recognisable as the same or substantially the same right of action as that disclosed in the original summons"

[13] In relation to the amendments sought by the plaintiff if the amendment is to clarify or expand the claim then the running of prescription will have been interrupted⁷.

[14] In this matter it is necessary to determine whether the right of action relied upon in the particulars of claim as amended "is recognisable as the same or substantially the same as that relied upon in the particulars of claim in its original form."⁸

[15] Further considerations relate to the fact that the respondent was always aware of the allegations and material facts. This is a fair conclusion in this case. The amendment must be allowed if it is to traverse the dispute between the parties⁹ or where there is no prejudice¹⁰. No prejudice has been claimed by the respondent save that it is the respondent's case that the amendment introduces a different debt¹¹ under the actio lex Aquilia.

[16] After counsel for the plaintiff had completed his argument on the amendment to all the respondents objection, all the objections were withdrawn save for the amendment of claim F which is specifically pleaded as such in the 09/35637 case.

CLAIM F

[17] It is the applicant's case that these averments have been added to ensure that the particulars of claim in Claim F comply with the requirements of the recent judgment Media 24 Ltd and Others v S A Taxi Securitisation (Pty) Ltd Case No. 437/2010. The plaintiff in order to succeed wishes to introduce the essential allegation referred to in Media 24 Ltd supra that the representation must have been made intentionally and knowingly. It was submitted that in order for him to succeed in respect of his claim for pure economic loss resulting from a defamatory publication it should be pleaded to include wrongfulness if the publication was false and the defendant knew it to be so.

[18] It is the defendant's contention that the amendments to Claim F make out a new cause of action founded on the actio legis Aquilia being a delictual claim. In the unamended papers reference of the breach of the written undertaking is made. By introducing concepts following upon the Media 24 judgement the plaintiff has sought to introduce a delictual claim along the lines of the Lillicrap case where an election could be made one way or the other. Now that the plaintiff has made an election to sue in delict the previous contractual claim has prescribed.

[19] The applicant in its unamended summons pleads in paragraph 34 that on 27 28 and 29 March 2007, the defendant published a documentary programme featuring the plaintiff as the subject matter in Afrikaans in a series Criminal Master Brain. The plaintiff claims that as a result of the broadcast he was dismissed from his employment The broadcast caused him to suffer loss in the amount of approximately R2 530 713.00

[20] The programme was published in breach of a written undertaking furnished by the respondent and accepted by the plaintiff. The defendant acted wrongfully alternatively the defendant should have foreseen that plaintiff would loose his job alternatively would have foreseen as a reasonable possibility that plaintiff would lose his job. The notice of amendment which the plaintiff seeks to introduce incorporates additional facts referring to the programme where the plaintiff is described in negative terms. The plaintiff also introduces the concept that the defendant knew these facts to be false, alternatively was reckless as to whether they were true or false, that it was contrary to public policy and against public interest to broadcast the programme contents of the documentary.

[21] A claim for loss of income is one of pure economic loss and must be based on the actio legis Aquiliae. The four well-known elements of an Aquilian action, are, (a) a wrongful act or omission, (b) fault (in the form of either dolus or culpa), (c) causation and (d) patrimonial loss, the facts must be pleaded.

[22] In assessing whether the facts supporting the first element were present in the unamended summons wrongfulness must be assessed from the facts pleaded. Wrongfulness "is a function if that conduct together with its consequences for a particular plaintiff ¹². The summons in its unamended form pleads wrongfulness. In a claim for pure economic loss wrongfulness depends on the existence of a legal duty and that the imposition of that duty is a matter for judicial determination involving criteria of public and legal policy. In the result, conduct causing pure economic loss will only be regarded as wrongful - and therefore actionable - if public or legal policy considerations require that such conduct should attract legal liability for the resulting damages¹³.

[23] In Minister of Finance v Gore NO¹⁴; South African Post Office v De Lacy¹⁵ fault in the form of negligence was insufficient and intent was required as an integral part of wrongfulness

[24] By amending to introduce an intentional wrong, following upon Media 24 the plaintiff has merely amplified his cause of action. The concept of falsity was pleaded in the unamended summons. Paragraphs 9 and 10 of the notice of amendment add the averment of intention and public policy.

[25] Claim F in the unamended summons refers to the essential elements of the actio legis Aquiliae. The wrongful act is pleaded in paragraph 40 of the unamended summons. Fault in the form of either dolus or culpa was pleaded by the averment that the defendant intended that he would lose his job and income as set out in paragraph 41 of the unamended summons. The third essential element of causation was pleaded in the unamended summons viz that the publication caused him to lose his employment as set out in paragraph 41 of the unamended summons. The fourth element of patrimonial loss was pleaded in paragraph 43 of the unamended summons by referring to the quantum of the claim.

[26] The requisites of the actio legis Aquiliae founding a right of action for pure economic loss were pleaded in the unamended summons. In my view the defendant has not distinguished the facts which must be proved in order to disclose a cause of action (the facta probanda) from the facts which prove them (the facta probantia) in persisting in its objection to the intended amendment to claim F. Upon a proper application of the above tests, I find that the plaintiff has not introduced a new cause of action based on the actio legis Aquiliae. The actio legis Aquiliae was present in the unamended summons. In any event the facts giving rise to the much wider concept of a right of action were pleaded in the unamended summons.

[27] Counsel for the defendant very properly abandoned the majority of the objections but only at the stage when the plaintiffs counsel had completed full argument. The defendant submitted that the appropriate order on costs should be that each party should pay their own costs. The plaintiff was however faced with a fully opposed application on a vast array of objections. The preparation was thorough and extensive. In the result save for the cost of the notices of amendment it is appropriate for the defendant to pay the costs.

The order that I would make is:

1. In case no 09/35637 the plaintiff is granted leave to amend his particulars of claim as set out in the notice in terms of Rule 28 (1) dated 11 August 2011.

2. In case no 03/24137 the plaintiff is granted leave to amend his particulars of claim as set out in the notice in terms of Rule 28 (1) dated 11 August 2011.

3. Save for the cost of the notice in terms of rule 28(1) under case no 09/35637 and the cost of the notice in terms of rule 28(1) under case no 03/24137, the defendant is ordered to pay the costs of the applications.

VICTOR J

Counsel for plaintiff: Mr Mervyn Dendy Attorney

for plaintiff: C L Gordon Attorneys.

Counsel for defendant: Mr Andrew Redding SC together with Mr lain Currie Attorney

for defendant: Webber Wentzel.

Date of hearing: 8 September 2011

Date of Judgement: 12 September 2011

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