---

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

                                                                                                CASE NO: 5260/2017

                                                                                                DATE HEARD: 31/01/2019

                                                                                         DATE DELIVERED 26/02/2019

In the matter between

ISOBEL MEYER                                                                  PLAINTIFF

and

PETER BASSET                                                                 DEFENDANT

JUDGMENT

ROBERSON J:-

[1]        In this action the plaintiff claims damages from the defendant for defamation.  The plaintiff is an estate agent, and through a Close Corporation runs the Pam Golding franchise in Port Alfred.  The defendant is a retired attorney.  Both parties reside on the Port Alfred Marina.

[2]        The plaintiff alleged that during March or April 2016 at a social gathering at the home of Mr Shane Lang, the defendant uttered the following statements, or words and sentiments bearing substantially a similar meaning:

“Isobel Meyer is a whore.”

“Isobel is fucking Stewart Boucher to get what she wants.”

“Isobel Meyer is a fucking bitch.”

“Isobel is whoring around to get her way, not only as Chairperson on the Marina but also to get business for Pam Golding.”

“Isobel Meyer is a slut who sleeps around with anyone to promote her business.”

[3]       In his plea to this paragraph, the defendant admitted calling the plaintiff a “fucking bitch” and pleaded further that:

“he may have said something to the effect, in crude terms, that she was engaged in a sexual relationship with Mr Boucher within the context of her accusations levelled against him concerning the affairs of the Royal Alfred Marina Homeowners Association and denies the further averments set out in this paragraph.”

The defendant denied that the words were defamatory.

[4]        The plaintiff was not present at the social gathering.  Mr Peter Charter was present and he testified.  He has been a resident of Port Alfred for many years and has known the plaintiff for a long time.  She is a family friend.  The persons present at the gathering, which took place on 19 March 2016, were Charter and his wife, the defendant and his wife, Lang and his wife (the hosts), a woman named Louise, Ms Bev Young and her son, and another couple.  Most of those present were Marina residents.  Charter had not met the defendant prior to this occasion.  He learned that he was a retired attorney from KwaZulu-Natal. 

[5]    During the course of the evening, while the hosts and the guests were sitting in a semi-circle around the fire, the conversation turned to Marina affairs.  The defendant was on the other side of the fire from Charter.  The defendant was angry about Marina affairs and the unfair pursuit of one Schlemmer.  He stood up and moved towards the fire and spoke about what the plaintiff was doing to obtain business on the Marina.  He said she was whoring around, sleeping around and fucking around for business, and was a bitch.  The defendant mentioned one name, that of Boucher, and said that the plaintiff was sleeping with Boucher in order to benefit her business.  Charter said “he only mentioned one person’s name but it was said in such a way that it generalised, but Stewart Boucher’s name was mentioned”.  The defendant continued in this manner for a few minutes, holding the floor and ranting about the Marina and the plaintiff sleeping around with other men.  Charter could not remember the exact sentences but did remember some abusive words. 

[6]        Charter’s wife shook her head and walked away, and Mrs Lang also walked away.  Eventually Charter told the defendant that he did not know the Isobel he was speaking about.  Charter was shocked at the fact that the defendant said these things to someone he did not know.  He did not believe what the defendant said but thought that with his background and being an attorney he would have had some reason for his statements.  Charter was of the opinion that the defendant’s conduct put a damper on the evening and that the gathering ended sooner than it would normally have done.

[7]        Some months after these events Charter met the plaintiff at her invitation and told her what the defendant has said.  He could not repeat verbatim what the defendant had said but told her his interpretation of what was said.

[7]        The plaintiff testified.  She is married with three children.  Through hard work over 20 years she has given her children a good education and become a successful estate agent, winning many awards.  These awards generate publicity.  She has sold many properties on the Marina and in other areas.  She has always conducted her business honestly and ethically.  The only person with whom she has had sexual relations is her husband.  She is a member of the Executive Committee of the Royal Alfred Marina Homeowners Association and was chairperson in 2015 and 2016. 

[9]        About two weeks after the gathering at the Langs’ she learned from a friend what had been said by the defendant at the gathering.  In August 2017 she met Charter and he told her what the defendant had said.  She was devastated and could not believe that anyone could tell such lies.  Her confidence was affected and she wondered whether people believed what had been said and what they thought of her.  She thought that people would not want to do business with an immoral person. She found it difficult to concentrate on running her business.  She became an emotional wreck and withdrew socially.  The incident is on her mind when she wakes up and goes to sleep.  She takes sleeping tablets and medication for depression.  Although she has a condition one of the symptoms of which is insomnia, it is under control.   

[10]      Her attorney sent a letter of demand to the defendant on 10 October 2017.  In that letter a written apology was requested for approval.  If approved it was to be circulated to the guests at the gathering.  Payment of R1,5 million was demanded in addition to the apology.

[11]      A without prejudice written apology dated 17 October 2017 was received from the defendant but was not acceptable because the defendant made excuses for his conduct. 

[12]      The defendant’s bundle of documents was received as an exhibit and the plaintiff was taken through various documents during cross-examination.  In the without prejudice letter of apology the defendant referred to the acrimony between them and that his conduct was an embarrassing lapse of judgment, for which he tendered his unreserved apology.  The plaintiff maintained that any acrimony was between the defendant and the Executive Committee and not between her and the defendant.  She did not want the apology to be sent to the people who had attended the gathering.  Her attorney wrote to the defendant pointing out that the apology did not include an acknowledgment that the defendant’s statements were malicious, untrue and intended to injure her reputation.  A further letter of apology dated 26 October 2017 was sent by the defendant.  In this letter he said, inter alia:

“Even viewed in the light of the acrimonious tensions which existed between us at the time, there is neither excuse nor justification for what I said.  My comments were malicious and wrongful and said with reckless disregard for the truth.  I sincerely regret the personal hurt and damage to your good name and reputation my conduct has caused you.  It was an embarrassing lapse of judgement and self-control on my part for which I tender my unreserved apology.

I also wish to record my regret for the distress and anguish which I believe my transgression has caused you and your family.  I am deeply and sincerely sorry for that.”

[13]      In the covering email to this letter the defendant stated that what he had said was said maliciously and with the object of hurting the plaintiff and/or damaging her reputation.  He also offered to pay the plaintiff’s reasonable legal costs.

[14]      This letter was still not acceptable to the plaintiff.  The defendant was requested to delete two paragraphs.  In the first he said that although they lived in paradise on the Marina they were sidetracked by strife.  In the second he said that he had decided to distance himself from negative influences and focus on the good things that had made him choose to settle on the Marina.  The incident at the gathering highlighted for him the importance of maintaining that focus.  The plaintiff said that the incident had nothing to do with other people and that the defendant was making light of her emotional hurt.  In her attorney’s letter requesting the deletion of the two paragraphs it was stated that she was prepared to accept R850 000.00 for her damages.

[15]      The letters of apology were not shown to the persons who had been present at the gathering.  The plaintiff said that it would not have made much difference if they had been shown to them because these persons had repeated what the defendant had said and what had been said was spread around the town.  The plaintiff later said that if the apology had been disclosed to the people at the gathering, it would have been a step in the right direction.

[16]      In a later email to the defendant the plaintiff’s attorney said that the plaintiff was prepared to meet the defendant, in accordance with the defendant’s request to convey the sincerity of his apology.  The deletion of the two paragraphs was again raised, as well as the fact that the defendant had not mentioned anything about settling the quantum of the plaintiff’s claim.

[17]      The defendant indicated to the plaintiff’s attorney that he was prepared to remove the two paragraphs and that he would like to discuss the issue of quantum when they met.  The attorney replied to the effect that no meeting would take place until the two paragraphs were deleted and there was a settlement offer.  If these conditions were not met, summons would be issued.

[18]      This was seemingly the end of the road with regard to negotiations.  The defendant sent a long email to the plaintiff’s attorney setting out why he did not agree to pay any damages.  He referred to the high amount claimed and said he believed he had a valid counter-claim.  He did not say what his cause of action was.  He maintained that he owed the plaintiff an apology and was still prepared to pay her legal costs.  If that was not acceptable, he invited the issue of summons.

[19]      The defendant closed his case without testifying or calling witnesses.

[20]      Defamation consists of the wrongful and intentional publication of a defamatory statement concerning the plaintiff.  (Le Roux and Others v Dey 2011 (3) SA 274 (CC) at para [84].)

[21]      In Le Roux Brand AJ said the following at paras [89]-[91] (footnotes omitted):

“[89]     Where the plaintiff is content to rely on the proposition that the published statement is defamatory per se, a two-stage enquiry is brought to bear. The first is to establish the ordinary meaning of the statement. The second is whether that meaning is defamatory. In establishing the ordinary meaning, the court is not concerned with the meaning which the maker of the statement intended to convey. Nor is it concerned with the meaning given to it by the persons to whom it was published, whether or not they believed it to be true, or whether or not they then thought less of the plaintiff. The test to be applied is an objective one. In accordance with this objective test the criterion is what meaning the reasonable reader of ordinary intelligence would attribute to the statement. In applying this test it is accepted that the reasonable reader would understand the statement in its context and that he or she would have had regard not only to what is expressly stated but also to what is implied.

[90]      The reasonable reader or observer is thus a legal construct of an individual utilised by the court to establish meaning. Because the test is objective, a court may not hear evidence of the sense in which the statement was understood by the actual reader or observer of the statement or publication in question.

[91]      At the second stage, that is whether the meaning thus established is defamatory, our courts accept that a statement is defamatory of a plaintiff if it is likely to injure the good esteem in which he or she is held by the reasonable or average person to whom it had been published. In the present context this succinct exposition attracts three annotations:

(a) Because we are employing the legal construct of the “reasonable”, “average” or “ordinary” person, the question is whether the statement was “calculated [in the sense of likelihood] to expose a person to hatred, contempt or ridicule”.  Evidence of whether the actual observer actually thought less of the plaintiff is therefore not admissible.  The test is whether it is more likely, that it is more probable than not, that the statement will harm the plaintiff. The view of Neethling  that a mere tendency or propensity – as opposed to a likelihood – of harm would suffice, does not appear to be supported by any authority in our law.

(b) If it is found that the statement is ambiguous in the sense that it can bear one meaning which is defamatory and others which are not, the courts apply the normal standard of proof in civil cases, that is, a preponderance of probabilities. If the defamatory meaning is more probable than the other, the defamatory nature of the statement has been established as a fact. If, on the other hand, the non-defamatory meaning is more probable, or where the probabilities are even, the plaintiff has failed to rebut the onus which he or she bears. Consequently it is accepted as a fact that the statement is not defamatory. Or, as stated somewhat more succinctly in Channing v South African Financial Gazette Ltd. and Others:

“If, upon a preponderance of probabilities, it is found that to those [ordinary] readers the article bore a defamatory meaning, then (subject to any defences which may be established), the plaintiff succeeds, even though there is room for a non-defamatory interpretation: if not, the plaintiff fails.”

(c) Examples of defamatory statements that normally spring to mind are those attributing to the plaintiff that he or she has been guilty of dishonest, immoral or otherwise dishonourable conduct.  But defamation is not limited to statements of this kind.  It also includes statements which are likely to humiliate or belittle the plaintiff; which tend to make him or her look foolish, ridiculous or absurd; and which expose the plaintiff to contempt or ridicule that renders the plaintiff less worthy of respect by his or her peers.  Everyday experience demonstrates that a caricature or cartoon can be more devastating to the image of the victim than, say, an accusation of dishonesty.”

[22]      Mr de la Harpe, who appeared for the defendant, fairly accepted that the evidence of Charter could not be challenged.  Charter was in my view an honest, fair and objective witness and I accept his evidence.  The statements made by the defendant, barring the words “fucking bitch”, even though Charter could not repeat precisely what was said and to some extent gave his summary, were clearly defamatory and I did not understand the defendant to dispute that they were.  The defendant’s statements meet the test set out by Brand AJ in Le Roux para [91] (supra).  The statements were likely to injure the good esteem in which the plaintiff, a successful and well known estate agent who maintained strong family values, was held by the reasonable person to whom the statements were addressed.  Not only was she said to be sexually promiscuous for material benefit but also unethical in her practice as an estate agent.  There was a hint of a defence of justification in the defendant’s plea but the contents of the letter of apology of 26 October 2017 and the covering email admit all the elements of defamation.  This case was really about the quantum of damages to be awarded.

[23]      FDJ Brand Defamation LAWSA 7 second edition sets out the factors which may be taken into account in determining a suitable award of damages.  They are:  the nature of the defamatory statement; the nature and extent of the publication; the reputation, character and conduct of the plaintiff; and the motives and conduct of the defendant.

The nature of the defamatory statements

[24]      I consider the defendant’s statement to contain serious defamatory material.  The plaintiff’s standards of sexual propriety were besmirched to a considerable extent.  She was accused of having extra-marital sexual relations with more than one man.  The accusation that she did so to further her business was an accusation of unethical professional conduct in a regulated profession which is, as the plaintiff said, very competitive.  It was clear from the plaintiff’s evidence that she was very hurt, both personally and professionally, by the statements and that they have had a lingering effect.

The nature and extent of the publication

[25]      I think it most probable that everyone present at the gathering heard what the defendant said.  They were all sitting around the fire and the defendant was “holding the floor”.  The publication was limited to ten people.  The publication was therefore not extensive.  The plaintiff said that the statements spread around town but there was no direct evidence of this.  Reference was made by counsel for the plaintiff to the matter of Moolman v Slovo 1964 (1) SA 760 (W) in which republication was discussed and reference was made to the judgment in Vengtas v Nydoo and Others 1963 (4) SA 358 (D) where the following was said at 393E-G:

“It seems to me that a person who publishes a defamatory statement is prima facie not liable for damages flowing from its unauthorised and voluntary republication by the person to whom, in the first instance he published it, but there may be exceptional cases in which he is liable.  Those exceptional cases are (1) where the person who published the defamatory statement originally authorised or intended that there should be republication to the third person, or (2) where its repetition to the third person was the natural and probable result of its original publication to him who repeated it, or (3) where he to whom the original publication was made was under a moral duty to repeat it to the third person and the original publisher was aware, at the time of the original publication, of the facts and circumstances out of which that duty arose.  Normally republication is not the necessary, natural or probable consequence of the original publication; ……………..  Furthermore, in my view, the onus is on the plaintiff to establish liability for the republication of a defamatory statement.”

[26]     Counsel for the plaintiff appeared to rely on the second exception mentioned in Vengtas.  I am of the view that there is insufficient evidence to prove that republication was the natural and probable result of the publication of the statements.  The defendant was speaking to a small group of people on a social occasion, at least some of whom would have known the plaintiff.  Charter knew her and it is significant that his wife and Mrs Lang walked away at the defendant’s outburst, obviously not impressed. 

The reputation, character and conduct of the plaintiff

[27]      The plaintiff’s evidence that she is faithful to her husband, a devoted mother, and operates her business ethically and honestly was not disputed.  She was not present at the gathering so there was no altercation between her and the defendant.  The defendant did not testify so any suggestion that he was provoked by her conduct as an Executive Committee member was not supported by evidence.

The motives and conduct of the defendant

[28]      The language that was used by the defendant was ugly and degrading and displayed a vicious dislike of the plaintiff.  He introduced the topic of the plaintiff and did not utter just one statement, but carried on in the same manner for a few minutes.  I am of the view that an aggravating feature was the fact that he said these things about the plaintiff to a person he had never met before, namely Charter.  He admitted that he acted maliciously.  On the other hand, the defendant did apologise not long after he received the letter of demand and after this apology was not accepted, tendered another apology which was a full admission of the elements of defamation.  It would have been better if the plaintiff had shown this letter to the persons who had attended the gathering.  If those persons were in doubt about the truth of the defendant’s statements, the apology would have remedied that doubt.  I also think it would have to some extent consoled the plaintiff to know that the apology had been shown to these persons.

[29]      In Mogale and Others v Seima 2008 (5) SA 637 (SCA) Harms JA discussed the approach to damages in defamation claims at paragraphs [10] and [11]:

“[10]  As to the general approach to quantum, there are many dicta that create the impression that compensation may be awarded as a penalty imposed on the defendant and that the amount is not only to serve as compensation for the plaintiff’s loss of dignity, for example Die Spoorbond and another v South African Railways  1946 AD 999 at 1005. These dicta were put in context by Didcott J in Fose v Minister of Safety and Security [1997] ZACC 6[1997] ZACC 6; ;  1997 (3) SA 786 (CC) at 830 para [80] when he said the following:

‘Past awards of general damages in cases of defamation, injuria and the like coming before our courts have sometimes taken into account a strong disapproval of the defendant's conduct which was judicially felt. That has always been done, however, on the footing that such behaviour was considered to have aggravated the actionable harm suffered, and consequently to have increased the compensation payable for it. Claims for damages not purporting to provide a cent of compensation, but with the different object of producing some punitive or exemplary result, have never on the other hand been authoritatively recognised in modern South African law.’

[11]  In like vein Hattingh J said in Esselen v Argus Printing and Publishing Co Ltd and others  1992 (3) SA 764 (T) at 771F-I:

‘In a defamation action the plaintiff essentially seeks the vindication of his reputation by claiming compensation from the defendant; if granted, it is by way of damages and it operates in two ways – as a vindication of the plaintiff in the eyes of the public, and as conciliation to him for the wrong done to him. Factors aggravating the defendant's conduct may, of course, serve to increase the amount awarded to the plaintiff as compensation, either to vindicate his reputation or to act as a solatium.

In general, a civil court, in a defamation case, awards damages to solace plaintiff's wounded feelings and not to penalise or to deter the defendant for his wrongdoing nor to deter people from doing what the defendant has done. Clearly punishment and deterrence are functions of the criminal law, not the law of delict. Only a criminal court passes sentence with the object of inter alia deterring the accused, as well as other persons, from committing similar offences in future; it is not the function of a civil court to anticipate what may happen in the future or to 'punish' future conduct (cf Lynch v Agnew  1929 TPD 974 at 978 and Burchell The Law of Defamation in South Africa (1985) at 293).’”

[30]      Insofar as counsel for the plaintiff referred to authorities where punitive damages were awarded, reliance on these authorities was misplaced.

[31]      In Mogale at paragraph [18] Harms JA also referred to the fact that:

“our courts have not been generous in their awards of solatia …………….. a practice that is to be commended……..”

[32]      Counsel were polarised in the amounts they submitted would be an appropriate award.  Counsel for the plaintiff submitted that R700 000.00 was appropriate whereas counsel for the defendant submitted that an amount from R30 000.00 to R40 000.00 was appropriate.

[33]      In Tsedu and Others v Lekota and Another 2009 (4) SA 372 (SCA), Nugent JA stated at para [25]:

“Monetary compensation for harm of this nature is not capable of being determined by any empirical measure. Awards made in other cases might provide a measure of guidance but only in a generalized form and I do not think it would be helpful to recite other awards.”

[34]      Nonetheless I have had regard to some of the authorities to which I was referred as well as others.  In Isparta v Richter and Another 2013 (6) SA 529 (GNP) a Facebook publication suggested that the plaintiff encouraged and tolerated sexual deviation, even paedophilia.  There was no apology.  R40 000.00 was awarded.  In Chetcuti v Van der Wilt 1993 (4) SA 397 (Tk) the defamatory statement was a complaint that the plaintiff and his wife were physically and sexually abusing their foster children.  There was no apology and limited publication.  R15 000.00 was awarded.

[35]      Insofar as the accusation of unethical professional conduct is concerned, in Gishen v Babu, Witwatersrand Local Division, case number 2005/6018, judgment delivered 1 November 2007, R35 000 was awarded to the plaintiff, an attorney, to whom unethical and dishonest conduct was ascribed.  There was limited publication.  The defendant persisted with his allegations at trial.  See also Gelb v Hawkins 1960 (3) SA 687 (A) where it was said that an attorney had deliberately deceived the court and had been party to the leading of perjured testimony.  The award was increased on appeal to £75.

[35]  It was submitted on behalf of the defendant that the plaintiff’s delay in instituting proceedings was a factor mitigating the amount to be awarded.  The only authority I could find on delay was Pienaar v Pretoria Printing Works Ltd 1906 TS 805, referred to in Neethling Potgieter and Visser Law of Delict fifth edition at 234.  In this matter the plaintiff had deliberately waited almost a year before claiming damages because he thought he would be defamed more seriously in the meantime.  This is not the case in the present matter and I do not accord any significance to the delay before demand was made.

[37]      Having regard to all the factors in this matter to which I have referred, the awards in other cases and their present day value, the differences in circumstances in those cases, including the varying degrees of seriousness of the defamation, and the fact that the plaintiff was defamed in relation to her sexual morality and her professional ethics, I consider an appropriate award to be R70 000.00.  

Costs

[38]      The monetary jurisdiction of the Magistrate’s Court, with some exceptions, is R200 000.00.  In all the circumstances of this case it could not have been reasonably expected to be awarded an amount in excess of R200 000.00, let alone R850 000.00 or R700 000.00.

[39]      In Mogale (supra) Harms JA said the following at para [19]:

“ ……………………….. the idea that defamation and other injuria claims may, without regard to their monetary value, of right be instituted in the high courts is outdated …………….”

[40]      It was recorded in the minute of the Rule 37 conference in this matter that the defendant was of the view that the amount claimed was excessive and if the plaintiff was successful in being awarded an amount within the Magistrate’s Court jurisdiction she should not be entitled to recover costs on the High Court scale.

[41]      The following order will issue:  the defendant is to pay to the plaintiff:

[41.1]  R70 000.00

[41.2] Interest thereon at the prescribed rate from date of judgment to date of payment.

[41.3]  Costs of the action on the Magistrate’s Court scale.

[41.4]   Interest on such costs at the prescribed rate from a date 14 days after date of allocatur to date of payment.

_____________

J M ROBERSON

JUDGE OF THE HIGH COURT

Appearances:

For the Plaintiff: Adv S Cole, instructed by Whitesides Attorneys, Grahamstown

For the Defendant:  Adv D De la Harpe, instructed by Huxtable Attorneys, Grahamstown

---