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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2019/36566

In the matter between:

MBUSISWA NGCOBO                                                                           Plaintiff/Respondent

And

ASHLEY DICKEN                                                                            1st Defendant/Excipient

LUYANDA GIDINI                                                                           2nd Defendant/Excipient

JERIDAH MAKGAE                                                                        3rd Defendant/Excipient

ZOKHANYO PIKASHE                                                                    4th Defendant/Excipient

ROBYN VILAKAZI                                                                           5th Defendant/Excipient

MOAGI MPSHE                                                                               6th Defendant/Excipient

SIBUSISO NDUNA                                                                          7th Defendant/Excipient

 

J U D G M E N T

 

LAMONT, J:

[1] The plaintiff instituted action against the seven defendants for damages he alleged he suffered as a result of the publication and republication by the defendants to various persons of certain matters concerning him. He alleged that what had been published of him was false, defamatory per se and was understood by a reasonable reader to carry defamatory meanings and/or have the stings alleged. The defendants took exception to the particulars of claim. Three complaints were levied at the pleading. These were:-

1 the republished matter comprises news articles written by persons other than the defendants hence it is unclear why the plaintiff alleges the defendants caused the republication,

2 the claim for special damages is a claim for pure economic loss which is available as a delictual action. Wrongfulness is an element of a delictual action and has not been pleaded,

3 the allegations were published prior to the plaintiff serving on a board - it is alleged by the plaintiff that his harm arose after publication and republication of the allegations.

[2] A plaintiff may hold a defendant liable for a third-party republication of defamatory statements only if the plaintiff can establish that the defendant authorized the republication or that the defendant intended republication by the third party because “repetition is the natural probable result”. For this reason, the plaintiff must specifically plead that the defendant authorized the publication by the third party or that the repetition by the third party was a natural probable result of the defendant’s publication.[1]  The relevant portion of the plaintiff’s pleading reads as follows

“15. The defendants caused the same or substantially the same statements carrying the same or substantially the same meanings and/or stings, to be re-published… In an article in the print edition of the… Newspaper;… In an article on the… News website; in an article on the… News website; and… on ABASA website.”

[3] The plaintiff has pleaded expressly that the defendants caused the republication.

[4] A plaintiff seeking to recover special damages resulting from defamatory statements must allege and prove the elements of the Aquilian action.[2]

[5] The plaintiff pleads in paragraph 24 the following:-

1 ‘the defendants made false representations to others concerning the plaintiff;

2 the defendants knew that such representations were false;

3 the defendants intended or foresaw that the plaintiff would suffer professional harm as a result of such false representations; and

4 indeed caused the plaintiff to suffer professional harm, inter alia in the loss of his seat on the… board and the consequent remuneration…’.

[6] The allegation sets out that the publication was false to the knowledge of the defendants and that they knew that a loss to the plaintiff would follow. The mere fact that the publication was false to the defendant’s knowledge constitutes wrongfulness.[3]

[7] The fact that the plaintiff pleaded that the defendants knew that a loss would follow, in my view even more clearly establishes the alleged wrongfulness of the conduct. A pleader need not use special magical words or even any particular words to set out that which he wishes to convey. It is sufficient if on a reading of the pleading that which must be conveyed is contained within it.

[8] The third exception raised by the defendants is that the plaintiff started serving on the board after the publication of the articles in question and that it is contradictory to allege that he was required to resign from the board sometime thereafter. The argument of the defendants sets up a claim that the plaintiff has a premise that the person responsible for appointing the plaintiff to the board was aware of the statements before they appointed the plaintiff. The defendants submit that if it is the plaintiff’s case that the persons who appointed him only became aware of the statements after the publication that fact must be alleged by the plaintiff to establish the causation element. The submission of the defendant in my view requires the plaintiff to set out facts rather than make allegations.

[9] The plaintiff has alleged quite clearly and cogently that the statements caused the loss of his seat on the board. The causal link is established by the linking of the publication of the statements made by the defendants to the loss of the seat by the plaintiff. All the statements alleged to have been published were in any event made prior to the plaintiff’s removal from the board.

[10] Accordingly in my view the exception falls to be dismissed with costs.

 

                                           __________________________________________

                                                                            C G LAMONT

                                           JUDGE OF THE HIGH COURT OF SOUTH AFRICA

                                             GAUTENG LOCAL DIVISION, JOHANNESBURG

 

           

COUNSEL PLAINTIFF/REPONDENT: Adv. B. Winks

APPLICANT’S ATTORNEYS: Rupert Candy Attorneys

COUNSEL FOR THE DEFENDANTS/EXCIPIENTS: Adv. M. Seape

RESPONDENT’S ATTORNEYS: Norton Rose Fulbright

DATE OF HEARING: 04 May 2020

DATE OF JUDGMENT: 08 May 2020

[1] Buthelezi v Poorter [1975] 4 All SA 518 (W)

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