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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL LOCAL DIVISION, DURBAN

 

CASE NO: 5126/2017D

In the matter between:

 

MINISTER OF POLICE                                                                                       First Applicant

STATISTICS SOUTH AFRICA                                                                          Second Applicant

MINISTER OF PUBLIC WORKS                                                                      Third Applicant

GOVERNMENT OF THE REPUBLIC OFSOUTH AFRICA                                                                                                                  Fourth Applicant

 

and

 

SILVERMOON INVESTMENTS 145 CC

T/A OCEAN ECHO PROPERTIES                                                                   First Respondent

SEAN NAIDOO                                                                                                    Second Respondent

RAY NKONYENI MUNICIPALITY                                                                  Third Respondent

SPECIAL INVESTIGATING UNIT                                                                   Fourth Respondent

ORDER

1.          The rule nisi issued on 9 May 2017 is discharged;

2.          The application for an interdict in terms of paragraphs 1.2 to 1.4 of the Notice of Motion is dismissed with costs, including the costs of two counsel where so employed by the first and second respondents, such costs to be paid by the applicants jointly and severally, the one paying the other to be absolved;

3.          The costs in paragraph 2 above are those which are agreed or taxed, and are restricted to the drafting of the heads of argument and the costs of the opposed motion on 1 November 2019;

4.          There is no order as to costs in respect of all other appearances.

JUDGMENT

CHETTY J:

[1]          The applicants, all being organs of state, brought an urgent application against the first and second respondents to remove an advertising billboard erected on the first respondent’s property in Marburg, Port Shepstone. In addition, the applicants sought to interdict and restrain the first and second respondents from publishing any false or defamatory matter concerning the Department of Public Works or erecting any advertising billboard signage which is intended to convey any false or defamatory messages concerning the Department of Public Works, Statistics South Africa (‘Stats SA’), the South African Police Services (‘SAPS’) or the Government of South Africa. It further sought costs in respect of the application against the first and second respondents.

[2]          The matter came before Masipa J as an urgent application on 9 May 2017. It is not clear whether the application was opposed. Masipa J issued a rule nisi with interim relief, directing the first and second respondents to remove the billboard and restraining them from making any statements which the applicants construed to be false, defamatory or untrue. No relief was sought against the third and fourth respondents, and where reference is made hereinafter to the ‘respondents’ this is intended to refer, for convenience, only to the first and second respondents. The respondents thereafter filed their answering affidavits and the matter served before me as an opposed application, where the applicants were seeking confirmation of the rule. The first part of the relief obtained under the rule nisi is not before me as it was in effect a final order, and pursuant to which the respondents removed the offending billboard. What remains for determination is the relief sought in paragraphs 1.2 to 1.4 of the notice of motion restraining and interdicting the respondents from saying or publicising anything which the applicants would construe to be defamatory.

[3]          The background facts are that the National Department of Public Works concluded a lease agreement in 2005 with the respondents for an initial period of five (5) years, in respect of certain structures located on property owned by the respondents. The property is described as Sub 142 of Marburg, Port Shepstone. The SAPS and Stats SA occupied separate premises on the same property. The lease was subsequently renewed for successive periods. At the time of the hearing, I was informed that the respondents had secured an eviction order against the SAPS and Stats SA following a judgment by Masipa J under case number 6964/2017. An agreement had been reached to allow the SAPS and Stats SA to occupy the premises pending various discussions. Those proceedings do not have any bearing on the issues before me.

[4]          Since 2016 disputes have arisen with regard to claims by the respondents that arrear rentals were due to them. They have instituted actions in at least two cases, claiming R242 670 under case number 7998/2016, and R1.3 million for installations. Under case number 6012/2016, the respondents claim R17.2 million in respect of arrear rentals and in respect of installations an amount of R1.9 million.

[5]          The applicants have resisted the claims of arrear rentals on the basis that according to the Special Investigating Unit (‘SIU’) an amount of approximately R37 million has been overpaid in rentals to the respondents. The SIU, on behalf of state entities being the SAPS and Stats SA, contends that whatever amounts the respondents claim in respect of arrear rentals, the amount by which the applicants have overpaid should be set off against the amount of rentals which have not been paid.

[6]          These disputes have resulted in considerable acrimony between the parties, manifesting in the second respondent, Mr Sean Naidoo (‘Naidoo’) locking out Stats SA from the leased premises in February 2016. The second applicant was constrained to approach the court for a spoliation order, which was granted on 16 February 2017. As a result of the respondents’ actions in locking out the SAPS from their leased premises, a spoliation order was granted in favour of the SAPS on 18 February 2017. A series of correspondence thereafter followed between the state attorney acting for the applicants and the respondents in relation to a claim by the applicants that the extent of the leased premises had been over-estimated or misrepresented in the lease agreement. On that basis, the state attorney contended that the applicants had paid in excess of what was actually leased to them. They appeared to be bolstered in their claims by a report of a land surveyor who inspected the property in question in relation to the lettable floor area of the buildings on site.

[7]          On 27 February 2017, the respondents gave the National Department of Public Works one (1) months’ notice of the termination of the lease agreement. On 24 April 2017 the respondents again locked the SAPS out of their premises, with the court again on 24 April 2018 granting an order restoring the SAPS to the premises.

[8]          Undeterred, the respondents again threatened to lock the SAPS and Stats SA from the premises, resulting in the state attorney demanding an unequivocal undertaking from the respondents by 25 April 2017 that they would not proceed with their threatened lockout. At the same time, it is quite clear that the respondents had been seeking a meeting with the SIU and those representing the applicants in order to resolve the issue of the alleged outstanding rentals. The respondents then informed the state attorney on 26 April 2017 that they would proceed to resort to use the landlord’s hypothec to attach the property of Stats SA in order to obtain security for the payment of the amount of the rentals, which it contends is owed to it.

[9]          On 28 April 2017 the respondents wrote to Public Works raising the issue of alleged non-payment of rental. The respondents in their letter stated:

‘Your response will be greatly appreciated as it will determine whether I install your name (PWD) or Stats SA’s name on the 6 m x 3 m billboard I am having made that will be installed on my property facing the N2. One of you stole my rent and between you and Stats SA you can decide who the guilty party is. You have one hour to respond (by 10h30am today). Attached is an example of what happens when people steal.’

[10]       On the afternoon of 28 April 2017, the respondents proceeded with their threat to erect a billboard containing signage which reads as follows:

‘SA government’s first land grab in the new South Africa!!!

This property has been hijacked by the Department of Public Works for the SAPS.’

[11]       The applicants deny the innuendo contained in the billboard, yet acknowledge that there is a dispute between the parties as to whether the respondents have overcharged them in respect of the rental for the leased premises. The state attorney then wrote to the third respondent enquiring whether the erection of the billboard was in compliance with the municipality’s outdoor advertising sign by-laws. A meeting subsequently took place between the municipality’s officials and Naidoo who refused to take the sign down, contending that it was erected on private property and that he had a ‘right’ to erect a sign. It is common cause that the sign was erected without the consent of the municipality. Matters were exacerbated by the publication of an article in a newspaper on 8 May 2017 under the headline ‘Landlord takes on state. They are trying to grab my property, says KZN man.’ The applicants take issue with the contents of the article in which Naidoo reportedly disputed the claims of the SIU of overcharging, referring to the fraud claim of R31 million against him. At the same time, he maintains that he was acting in a manner as a law-abiding citizen would do, and that he responded in the manner he did as the applicants were depriving him of his livelihood and refusing to pay him what was due to him.

[12]       The applicants accordingly came to court contending that Naidoo had no right to erect the billboard, nor did he have any right to use the billboard as a mechanism to disseminate information which was untruthful and false, and that the respondents had no right to publish false information pertaining to the applicants. The applicants contend that they are suffering irreparable harm, particularly as Naidoo has threatened to publish similar messages and there is no alternative available to them to prevent a serious erosion of the public’s confidence in them.

[13]       In opposing the relief sought, Naidoo who is the managing member of the first respondent, contends that his views expressed in the billboard and his use of the words ‘land- grab’ and ‘hijacking of the property’ were not unlawful, particularly in the context where the applicants have sought to use the leased premises without paying him the proper rentals. Given the manner in which a robust media in South Africa has reported on matters concerning illegal land invasions, Naidoo maintains his use of the words appropriately describes the applicants’ action, although he admits they have a ring of sensationalism. In essence, he submits that his conduct was a justified response to the actions of the lessees. By the time that Naidoo had filed his opposing papers, the billboard had been taken down in terms of the interim order which was granted.

[14]       Apart from the various defences which Naidoo raises, he alludes to permission which the municipality granted him for the erection of a billboard. He contends that as he had completed the prescribed forms and paid the required fee to the municipality, his actions in erecting the billboard were lawful. He overlooks the fact that no decision had been made in relation to his application. In my view, he was being somewhat disingenuous in advancing this argument, particularly as he simply informed the municipality that the purpose of the sign would be ‘Information Sign on Private Land’. As at that time, on the basis of his correspondence to the state attorney, he must have been fully aware of what he wished to say on the billboard, but concealed this information from the municipality. As the applicants pointed out in reply, when Naidoo was asked to furnish the municipality with a graphic sample of the details of the sign to be erected, he failed to respond. Instead, he informed the municipality via email that the application was for a ‘For Sale Sign’. His conduct in this regard was devious and contrived. Mr Aboobaker SC, appearing with Mr Morgan for the respondents, in argument attempted to rationalise this explanation advanced by Naidoo, after the interim order had already been granted, ordering him to remove the offending billboard. I was not persuaded by this argument.

[15]       Mr Naidoo further contends that only the municipality, and not the applicants, have locus standi in approaching the court for an order to remove the offending billboard. While he may well be correct, it is apparent from what has transpired in this matter that even after he was approached by the municipality to remove the sign, he refused. According to Mr Mhlongo, an employee of the municipality, an inspection was conducted at Naidoo’s property on 4 May 2017 after receipt of a complaint regarding the billboard. On 5 May 2017 the municipal officials informed Naidoo that the sign had been illegally erected. The officials’ attempts to remove it were halted by Naidoo who responded aggressively towards them. His contention was that the municipality was firstly required to obtain an order of court before he was compelled to take down the billboard. After having erected the billboard, he then applied for permission from the municipality. It is not in dispute that no such permission was ever granted by the municipality.

[16]       In opposing the application, Naidoo contends that his actions were a reflection of the true position between the parties (defence of truth); that it amounts to fair comment and that he was correct in describing the conduct of the applicants as ‘land grabbers’ and of engaging in ‘hijacking’. He proceeded to deal at length with the report by the land surveyor, Mr Brown, and pointed out, in his opinion, why the analysis by Brown was flawed, despite him not being an expert in this field.

[17]       In light of the basis on which I have decided this matter, it is not necessary for me to express my views on the correctness of the calculations of the floor area and rentals, as advanced by either party, or of the merits of the defences raised by Naidoo. I should state that some of the assertions made by him in his affidavit have no relevance to the issues before the court, and are quite simply made as an attempt to embellish his case.

[18]       The case which the applicants have come to court was for the confirmation of the rule nisi, as a result of which the respondents were directed to remove the offending billboard. Mr Gajoo SC, who appeared together with Mr Ngcobo, for the applicants, submitted that the billboard was erected without the approval of the municipality and after being asked by the latter to remove the billboard, Naidoo resisted and then conveniently made an ex post facto application for permission. Even then, it was submitted that this application was premised on a falsehood in that Naidoo informed the municipality that the sign he intended erecting was a ‘For Sale’ sign. To compound the applicants’ woes, a newspaper carried an article on the billboard, including comment from Naidoo in which he justified the action taken.

[19]       In support of the applicants’ case that the language used in the billboard was both false and defamatory of the applicants, counsel referred to City of Cape Town v Rudolph & others[1] where the court referred to an orchestrated ‘land grab’ in the context of unlawful occupiers who resorted to ‘self-help’. I should point out that this was a submission made by the applicant in Rudolph and not a finding attributed to the court. Counsel for the City of Cape Town also went on to suggest that the term ‘land grab’ was ‘. . .“designed in its intention or effect not only to be unlawful but also to enhance general lawlessness or public disorder and occurs by way of self-help”’.[2] The term ‘hijack’ similarly carries with it sinister and unlawful connotations of an intention to deprive or rob someone of their property. It was suggested that in present times, an appropriate comparator would be to refer to someone as being ‘captured’.

[20]       Mr Gajoo submitted that the clear intention of the respondents was to portray the actions of the applicants as wrongful and unlawful, although the respondents in their opposing papers sought to downplay the seriousness of the connotation applicable to those words. It was furthermore submitted that there was nothing to substantiate the version of the respondents that the statement made was either true or publicised for the benefit of the general public or that it was fair comment.[3] If any of the defences raised by the respondents on their papers had been established, it would serve to exclude wrongfulness, and accordingly, the applicants’ claim would be bound to fail. Brand JA in Modiri clarifies this aspect, pointing out that:[4]

’. . .Though both the presumption of intent and that of wrongfulness arise from a single event, that is, the publication of a defamatory statement, the two presumptions are essentially different in character. The presumption of intent to injure relates to the defendant’s subjective state of mind. By contrast, the presumption of wrongfulness relates to a combination of objective fact, on the one hand, and considerations of public and legal policy, on the other. . .’

 

[21]       At the same time, while the respondents attempted to take refuge in the different interpretations that a reasonable reader of the billboard could attribute to the words ‘land grab’ and ‘hijacking’, the court in Modiri noted that ’. . .the defendant is not required to prove that the defamatory statement was true in every detail. What the defence requires is proof that the gravamen or the sting of the statement was true.’[5] I can find no reason why that analysis cannot be applied to the second respondent’s language used in the ‘offending’ billboard.

[22]       As matters turned out it became unnecessary to make any finding in relation to the defences raised although I would venture to say that some of the arguments advanced were thin. Accordingly I do not make any finding on the merits. This arises because of the two points in limine raised by the respondents (one being raised for the first time in their heads of argument), while the other of locus to seek the removal of the billboard would have pertained exclusively to the relief in paragraph 1.1 of the notice of motion, which is not before me as the billboard has long been removed pursuant to the interim order issued on 9 May 2017.

[23]       There was some objection by the applicants to these points being pursued in as much as they were not clearly canvassed in the respondents’ opposing papers. Mr Aboobaker submitted that the points in limine were matters of law in respect of which the applicants in any event had seven (7) days prior to the hearing to prepare their case. Mr Gajoo contended that where a point is not foreshadowed in the papers, a litigant does not enjoy an unfettered right to raise it at any stage in the proceedings.[6] There is nothing before me to indicate that the applicants have been prejudiced by the respondents’ reliance on the points in limine or that they were unable to sufficiently prepare to meet the arguments advanced. As will appear from what follows, the respondents argument is based on case law dating back almost 70 years. I am not persuaded that there is any reason which militates against the respondents relying on their points in limine, other than its possible effect on an order of costs.

[24]       The first of these arguments is that organs of state, like the applicants, do not have a right to sue for defamation and accordingly have no locus standi to interdict the publication of an allegedly defamatory statement by the respondents. The second point in limine was that only the municipality could apply to court for an interdict in the event of a breach of the municipal by-laws.

[25]       I propose to deal with the second argument first. This argument finds traction in the decision of Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal Tribunal & others[7] to the extent that the granting of the interdict at the instance of the applicants would interfere with the powers or areas of competence of municipalities. See Johannesburg Metropolitan Municipality v Gauteng Development Tribunal & others[8] and Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v Habitat Council & others.[9] While these cited cases refer to areas of municipal competence on which other spheres of government, like the provincial authorities, may not thread, the principle of separation of powers nonetheless applies.

[26]       In this case the respondents contend that the power to approach the court for an order that they (the respondents) take down the offending billboard, lay in the hands of the municipality alone on the basis that such conduct would have violated the by-laws. Had the municipality approved the erection of the signage for whatever reason, the applicants could have applied to review the decision, as it would have constituted administrative action in the context of PAJA.[10] I raised with counsel, in passing, whether the applicants, who are not owners of the property in question nor ratepayers, would have locus standi to bring an application to compel the removal of the offending billboard. The applicants’ position can be distinguished from that of the appellants in Brashville Properties 51 (Pty) Ltd v Colmant & others[11] and JDJ Properties CC v Umngeni Local Municipality[12] where it was held that locus was satisfied on the basis of the parties having a sufficient interest in ensuring compliance with the zoning controls in their area. This is not a question on which any finding is required.

[27]       As regards the locus of the applicants to have brought an application against the first and second respondents for the interdictory relief, I am of the view that the applicants have not established that they have standing in law. I was not persuaded by Mr Gajoo’s contention, relying on Giant Concerts CC v Rinaldo Investments (Pty) Ltd & others,[13] that they were clothed with the necessary locus standi to institute the application for the removal of the billboard. There is nothing on the papers to bring the applicants within reach of an ‘own-interest litigant’ described by Cameron J in Giant Concerts or furthermore, as to whether the contents of the billboard could have affected their ‘interests’, in other words, their reputation as the government or state departments. Neither of these have any fama in respect of which the State may approach the courts to immunise it from criticism from its citizens.

[28]       Mr Gajoo sought to contend that both the applicants and the municipality had ‘corresponding rights which co-exist’ and which give either the applicants or the municipality locus to approach the court. I am not persuaded by that argument and no authority was advanced for such proposition, nor was I able to find any. In any event, such a proposition would fly in the face of the decisions such as Habitat Council, Gauteng Development Tribunal and Tronox KZN. I would therefore uphold the point in limine that the applicants lack the necessary locus standi in judicio to obtain an order for the removal of the billboard on the property of the respondent. Such action falls squarely within the authority of the municipality.

[29]       I now turn to the challenge against the interdict based on the allegedly false and defamatory statements contained in the offending billboard. As a starting point, Mr Aboobaker relied on Herbal Zone (Pty) Ltd & others v Infitech Technologies (Pty) Ltd & others,[14] where an advertisement accused the respondents of selling counterfeit products (passing-off) and thereby attributed illegal conduct to them. The court stated that the proper approach to an application for an interdict to prevent the publication of defamatory matter is the following:[15]

‘. . .Such an interdict is directed at preventing the party interdicted from making statements in the future. If granted it impinges upon that party's constitutionally protected right to freedom of speech. For that reason such an interdict is only infrequently granted, the party claiming that they will be injured by such speech ordinarily being left to their remedy of a claim for damages in due course. Nugent JA said in this Court:[16]

"Where it is alleged, for example, that a publication is defamatory, but it has yet to be established that the defamation is unlawful, an award of damages is usually capable of vindicating the right to reputation if it is later found to have been infringed, and an anticipatory ban on publication will seldom be necessary for that purpose."’

 

[30]       In light of the above authority, it was submitted that even if the applicants did have locus standi, at best their claim would be restricted to a claim for damages, on the assumption that the applicants, as organs of state, would be able to quantify such damages. Herbal Zone approved of the approach in Hix Networking Technologies v System Publishers (Pty) Ltd & another[17] as to how an application for an interdict to restrain the publication of defamatory matter is dealt with. In that case, reference was made to Heilbron v Blignaut[18] where Greenberg J said the following :

‘If an injury which [would] give rise to [a] claim in law is apprehended, then I think it is clear law that the person against whom the injury is about to be committed is not compelled to wait for the damage and sue afterwards for compensation, but can move the Court to prevent any damage being done to him. As he approaches the Court on motion, his facts must be clear, and if there is a dispute as to whether what is about to be done is actionable, it cannot be decided on motion. The result is that if the injury which is sought to be restrained is said to be a defamation, then he is not entitled to the intervention of the Court by way of interdict, unless it is clear that the defendant has no defence. Thus if the defendant sets up that he can prove truth and public benefit, the Court is not entitled to disregard his statement on oath to that effect, because, if his statement were true, it would be a defence, and the basis of the claim for an interdict is that an actionable wrong, i.e. conduct for which there is no defence in law, is about to be committed.’

 

[31]       In light of this approach, it was contended that the applicants are not entitled to an interdict as the respondents have raised a defence of truth and public benefit. Apart from the interpretation which the court would have to place on these words, the applicants would have to show that the respondents have no defence in law. That, in my view, would not be possible in motion proceedings, particularly where there are divergent views on whether the respondents over-reached or misrepresented the lettable floor area and consequently over charged the applicants. This, in large measure, is the dispute that led to the publication of the billboard.

[32]       In my view, the critical enquiry is whether an organ of state can competently approach the court for an interdict to restrain the publication of defamatory matter. The application before court is for an interdict to restrain the respondents from publishing any material regarded by the applicants to be false or defamatory. The harm that the applicants submit that they will suffer, is the serious erosion of ‘public confidence’ in them. What they are therefore seeking is protection from reputational damage.

[33]       There is however a fundamental problem confronting the applicants, as it is settled law that government or an organ of state is not capable of being defamed. The decision in Moyane & another v Lackay[19] reiterates this to be the position. In that matter, Lackay had been the spokesperson for SARS until he tendered his resignation, which was accepted by SARS. A few days after his resignation, Lackay issued a statement in which he was critical of the running of the organisation, which SARS interpreted that reasonable readers would form the impression that those in charge SARS were dishonest, were liars and unprofessional. Moyane, in his capacity as the Commissioner of SARS, sued Lackay for damages alleging that SARS had been defamed as a result of his statement. A critical issue for the court to determine was whether an organ of state could sue for an injury to its reputation.

[34]       In answering this question, the court made reference to Bitou Municipality & another v Booysen & another[20] where the municipality faced an exception on the grounds that as an organ of state, it did not have locus to sue for defamation. The excipients in Bitou relied on the seminal case of Die Spoorbond & another v South African Railways; Van Heerden & others v South African Railways[21] where the South African Railways and Harbours sued for damages arising out of the publication of an article in a newspaper which stated that the railway administration was operating its trains in a dangerous fashion. It was alleged that the statements were false and defamatory. Watermeyer CJ held that:[22]

'(T)he Crown's main function is that of Government and its reputation or good name is not a frail thing connected with or attached to the actions of the individuals who temporarily direct or manage some particular one of the many activities in which the Government engages, such as the railways or the Post Office; it is not something which can suffer injury by reason of the publication in the Union of defamatory statements as to the manner in which one of its activities is carried on. Its reputation is a far more robust and universal thing which seems to me to be invulnerable to attacks of this nature. No one who reads the alleged defamatory statements would regard the reputation or good name of the Crown (regarded as a perennially existing legal persona whose function is that of carrying on all the multifarious activities of Government in the Union) as having been lowered or injured by these publications. He knows that, though the railways are vested in the Crown, the Crown is only a legal conception and takes no part in the management of the railways. He might regard the noxious words as reflecting upon the individuals or group of individuals temporarily responsible for the direction or management of the railways on behalf of the Crown but he would not regard them as reflecting upon the good name of the Crown itself.’

 

In his separate concurring judgment, Schreiner JA added that:[23]

'(I)t seems to me that considerations of fairness and convenience are, on balance, distinctly against the recognition of a right in the Crown to sue the subject in a defamation action to protect that reputation. The normal means by which the Crown protects itself against attacks upon its management of the country's affairs is political action and not litigation. . . But subject to the risk of these sanctions and to the possible further risk, to which reference will presently be made, of being sued by the Crown for injurious falsehood, any subject is free to express his opinion upon the management of the country's affairs’ without fear of legal consequences. I have no doubt that it would involve a serious interference with the free expression of opinion hitherto enjoyed in this country if the wealth of the State, derived from the State's subjects, could be used to launch against those subjects actions for defamation because they have, falsely and unfairly it may be, criticised or condemned the management of the country.’ (Italics is my emphasis)

 

[35]       In light of the authoritative statement in Die Spoorbond that the State is incapable of suing for damages, the court rejected the Bitou municipality’s attempt to distinguish itself as local government, distinct from the State which renders services at a national or provincial level. Traverso DJP dismissed this argument noting that:[24] ‘. . .The underlying ratio in all these decisions (and the authorities cited therein) remains constant, namely that it will be contrary to public policy or public interest for organs of government, whether central or local, to have the right to sue for defamation, as it would impact on a citizen's right to freedom of speech. As pointed out by Lord Keith of Kinkel in the Derbyshire Country Council case at 1017j:

“It is of the highest public importance that a democratically elected C governmental body, or indeed any governmental body, should be open to uninhibited public criticism.”'

 

[36]       The common thread running through Die Spoorbond and Bitou Municipality is that the State should not use the courts as a means to muzzle or stifle the right of freedom of its citizens to criticise government, no matter how harsh it may be perceived to be. In Bitou Municipality, a similar argument was made to that made in Moyane where it was argued that a municipality should be treated differently and not fall under the rule that a government cannot sue for defamation. It was argued that, while ‘. . .the common law denies standing to the Crown (or in this case the State) to sue for defamation . . . in respect of a municipality other considerations . . . apply.’[25]

[37]       The court however rejected this argument, and found that ‘. . .municipalities are part of the State, perform governmental functions at local level, and are obliged to provide basic services.’[26] The court in Moyane endorsed the approach in Bitou Municipality, holding that is was ‘. . .illogical to want to regard SARS's standing to be unique to those of other organs of state due to its functions’.[27] There is, in my view, no reason to treat the applicants before me any differently in light of the above authority.

[38]       As set out in Bitou Municipality, there are good reasons for our law not recognising government institutions the right to sue for defamation. The court cited with approval[28] the dictum in Posts and Telecommunications Corporation v Modus Publications (Pvt) Ltd[29] which held that:

‘6. Whether, if the body concerned is, at least largely or effectively, a monopoly, providing what are generally regarded as essential services traditionally provided by government, it would be contrary to public policy to muzzle criticism of it.’

 

[39]       The court in Moyane did however recognise that SARS may have a right to claim damages, but clarified that this did not arise from a personality right. The court appeared to be referring to the right to sue for ‘injurious falsehood’. The court held:[30] ‘[18] What SARS can have in relation to its reputation is not a personality right, as it is with legal persons, but an integral part of its patrimony. The protection of its reputation is in the sense of its goodwill, therefore lies, not in the claim for defamation but in a claim for actual damages which constitute a patrimonial loss for which compensation can be claimed under the actio legis Aquiliae and not the actio iniuriarum; see University of Pretoria v Tommie Meyer Films (Edms) Bpk 1977 (4) SA 376 (T) at 387.’

[40]       Having regard to the facts in the present matter, there is no suggestion in the papers that the applicants intend to sue the respondents for damages – in fact, it is expressly stated in the founding affidavit at paragraph 121 that ‘it is unlikely that the applicants would be in a position to successfully sue the respondents for the damages which are being and would continue to be suffered by them’. The applicants allege that their only remedy is to obtain an interdict.

[41]       The denial of governments the right to sue for defamation is recognised in many other common law jurisdictions, including Canada, the United States and Australia. An article in The Dalhousie Law Journal[31] provides an indication on why it is important to deny government institutions the right to sue for defamation. One such reason is suggested to be the following:[32]

‘If it is prima facie tortious to say anything that would make a reasonable person think less of a government (causing a reasonable person to think less of the plaintiff being the test of defamation), then the government can stifle dissent by suing those who speak out against them . . . Where governments can stifle dissent, democracy is at risk.’

 

[42]       Young does recognise, however, that governments have a reputation to protect, and terms it a ‘reputation as governing power’. The author acknowledges that:[33]

‘If the police have a reputation for . . . abuses of power, they may face civil disobedience or other kinds of resistance that make it harder for them to carry out their objectives.’

 

[43]       Young states however that it is a different type of reputation to that enjoyed by a natural person, and states that, while ‘. . .reputation as governing power is an important and valuable interest, it is not one that should be protected by the law of defamation’.[34] She adds that ‘. . .any disputes between government and citizens about a government’s performance must be resolved by convincing the public through speech and actions’.[35]

[44]       Since an organ of state is not capable of being defamed, this must entail that the applicants have failed to establish that they have a ‘clear right’ to the interdictory relief and that they will suffer any ‘harm’. In other words, since the applicants do not have a reputation capable of being defamed (they do not ‘have a reputation and dignitas, to be isolated from the persons who run it’[36]), there is no harm currently being suffered or capable of being suffered in the future. There can therefore be no basis for an interdict. In any event, even where a party is capable of suing for defamation (such as a natural person, or a corporate entity[37]), our courts are generally reluctant to grant interdicts to prevent the continued or future defamation, for the reason that it ‘impinges upon [the other] party's constitutionally protected right to freedom of speech’, and the party seeking the interdict will ‘ordinarily being left to their remedy of a claim for damages in due course’.[38]

[45]       In a matter not dissimilar to the present case, in Cell C (Pty) Ltd & others v Prokas & another,[39] albeit involving private parties, the court had to determine whether to grant an interim interdict against a disgruntled customer who had taken out and paid for a large banner which directed allegedly defamatory statements towards the cellular phone operator, with a play on the words that it was the ‘most useless service provider in South Africa’ as ‘perceived by the owner of this billboard’. There was no doubt that the respondent, Prokas, had indeed received shoddy treatment at the hands of Cell C and resorted to the billboard after all his attempts to resolve a dispute over a malfunctioning phone, failed. As in the present case, the court reasoned at para [35] that it was not for Cell C to contend that Prokas was breaching by-laws, but for the municipality, if it believed it had reason for doing so. The court however did not elaborate on its reason for arriving at that conclusion.

[46]       Weiner J in Cell C drew on the dictum of Cameron J in Citizen (1978) (Pty) Ltd v McBride[40] in the context of dealing with the defence of fair comment. Cameron J observed that:[41]

‘[83] Protected comment need thus not be “fair or just at all” in any sense in which these terms are commonly understood. Criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, so long as it expresses an honestly-held opinion, without malice, on a matter of public interest on facts that are true. In the succinct words of Innes CJ the defendant must “justify the facts; but he need not justify the comment”.’ (footnotes omitted)

[47]       In refusing the interim interdict the court noted that the ‘. . . criticism need not be one that the court accepts. It does not have to be impartial or well balanced. It only needs to be fair in the sense that . . . it [is] an honest, genuine expression of his opinion’.[42] Even if this court were to have ventured into the merits of the defence mounted by the respondents, the applicants would have to show malice in order to succeed. That would have indeed represented a high threshold for the applicants to have surmounted. I accept Mr Gajoo’s contention that reliance on McBride can only assist the respondents in the event where it is shown that the facts on which they rely, are true. Where that is not established, the defence of fair comment is not available to them. Whether the defence of fair comment is available to the respondents is one which I do not have to determine in light of my ruling on the points in limine raised by the respondents.

[48]       The relief in the form of an interdict, based on reputational damages, was simply not competent at the hands of the applicants. This is clear from the authorities which I have referred to above. Consequently, in my view, the applicants ought to have been non-suited because they lacked the locus standi to bring the application for interdictory relief and consequently the rule nisi issued on 9 May 2017 ought not to have been granted.

[49]       In so far as costs, Mr Aboobaker submitted that the application should be dismissed with costs on an attorney client scale. Mr Gajoo however drew to my attention that the point in limine taken by the respondents regarding locus standi and defamation was only raised in the respondents’ heads of argument. The respondents did allude, albeit somewhat obliquely, to the issue of the locus standi of the applicants vis-à-vis the municipality, in respect of their authority to seek the removal of the billboard. This point was not advanced at the time when the interim order was sought. If it had been advanced, I have no doubt that it would have been dispositive of the relief sought in paragraph 1.1 of the notice of motion. Once the court granted the interim order (although seemingly final in effect) the billboard was taken down. The remainder of the relief sought had no impact on the municipality, and therefore the point in limine pertaining to its exclusive powers became of academic importance.

[50]       The views expressed by Cameron J in Trinity Asset Management (Pty) Limited v Grindstone Investments 132 (Pty) Limited[43] are perhaps appropriate, particularly where a party has a ‘bull-point’ which must be taken at the outset:[44]

‘[91] A good analogy is when an applicant at risk of harm seeks an interim interdict. When the facts are unclear, the interdicting court must weigh prospects, probabilities and harm. But when the respondent, who is sought to be interdicted, has a killer law point, it is just and sensible for the court to decide that point there and then. The court is in effect ruling that, whatever the apprehension of harm and the factual rights and wrongs of the parties’ dispute, an interdict can never be granted because the applicant can never found an entitlement to it.’

 

[51]       The basis on which the first and second respondents must prevail, in so far as the application before me, is based solely on the point of law related to standing. As I have stated, only one of these points were raised on the papers – that pertaining to the applicants usurping the powers of the municipality. The second point relating to the applicants being non-suited because of them being incapable for suing for defamation, was only raised in the heads of argument. This was never canvassed on the papers. If this had been raised on the papers (and no reason was advanced as to why it was not), I am reasonably satisfied that the matter would not have proceeded any further. It is, as Cameron J in Trinity Asset Management stated, a ‘killer point’.

[52]       It is no excuse for the respondents in seeking their full costs, to contend that counsel only came across the point when drafting heads of argument. The law points raised in their heads of argument should have been put forward at the very outset.

[53]       It is trite that I have a discretion regarding the awarding of costs, which must be judiciously exercised. In the result, to the extent that the respondents should be entitled to recover their costs, their success is tempered in that I am of the view that they are only entitled to the costs of the opposed motion on 1 November 2019, such costs to include that of two counsel, including the costs for preparation of the heads. In respect of all other appearances and the costs pertaining to the filing of their answering affidavit, I am of the view that no order as to costs should be made in that regard.

[54]       In the result, I make the following order:

1.          The rule nisi issued on 9 May 2017 is discharged;

2.          The application for an interdict in terms of paragraphs 1.2 to 1.4 of the Notice of Motion is dismissed with costs, including the costs of two counsel where so employed by the first and second respondents, such costs to be paid by the applicants jointly and severally, the one paying the other to be absolved;

3.          The costs in paragraph 2 above are those which are agreed or taxed, and are restricted to the drafting of the heads of argument and the costs of the opposed motion on 1 November 2019;

4.         There is no order as to costs in respect of all other appearances.

 

 

 

CHETTY J

 

Appearances

 

For the Applicant:            Mr V I Gajoo SC & MJ Ngcobo

Instructed by:                   State Attorney KZN

Address:                          6^th Floor Metropolitan House Building

391 Anton Lembede Street

Ref:                                 283/544/16/S/P35

MR NDUMISO MAZIBUKO

 

 

For the Respondent:         MR Aboobaker SC & Mr S Morgan

Instructed by:                   State Attorney KZN

Address:                           6^th Floor Metropolitan House Building

391 Anton Lembede Street

Ref:                                  592/000009/2017/S/P23

N Ramlall

 

Date of hearing:              01 November 2019

Date of Judgment:          24 April 2020

 

·               Judgment sent due via email due to national lockdown

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