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REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

NATAL PROVINCIAL DIVISION

CASE NO: 362/2007

In the matter between

ZWELINI LAWRENCE MKHIZE Plaintiff

and

MEDIA 24 LIMITED Defendant

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JUDGMENT

delivered on 17 March 2008

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HUGO J

The plaintiff sued the defendant, the publisher of inter alia the newspaper City Press for defamation arising from an article that was published in the City Press on 4 March 2007.

It is as well to recite the whole of that article.

It reads:

“ ‘Assassination plot’ uncovered in KZN

Mandla Zulu and Wonder Hlongwa

The National Intelligence Agency and crime intelligence units in KwaZulu-Natal have allegedly uncovered a plot to assassinate ANC deputy provincial chairperson Zweli Mkhize.

City Press understands that intelligence agents have put a man, who masterminded the assassination of UDM strongman Sifiso Nkabinde, under permanent surveillance as the primary suspect.

KwaZulu-Natal safety and security MEC Bheki Cele confirmed that there had been threats on Mkhize’s life, adding that ‘as security people we are working around that’.

He declined to comment further saying ‘these are security matters and I definitely cannot discuss them’.

Sources within the intelligence services said the man allegedly called Mkhize to demand payment for the assassination of Nkabinde in January 1999.

The suspect had engineered Nkabinde’s assassination but later testified against his accomplices when he turned state witness. He was granted amnesty.

During his testimony, the man told the court that Mkhize had promised him thousands of rands in exchange for Nkabinde’s assassination. (My emphasis)

At the time, Mkhize repeatedly denied involvement in the Nkabinde murder.

Mkhize is a senior ANC leader in KwaZulu-Natal and is known to be a staunch supporter of ANC deputy president Jacob Zuma.

Mkhize’s assassination would have added fuel to an already tense situation in KwaZulu-Natal between factions supporting Zuma and those behind Mbeki.

Revelations of an alleged assassination plot against Mkhize surfaced earlier this week just days before he delivered his provincial budget.

Several attempts to get comments from the man believed to be a threat to Mkhize were unsuccessful.

Mkhize’s spokesperson Mashu Cele refused to comment, saying ‘this is a security issue and we don’t discuss security issues’.

National Intelligence Agency spokesperson Lorna Daniels refused to comment.”

The only relevant portion of the article is however the emphasised sentence.

In order to understand the impact of this sentence is it necessary to give some background.

For many years the plaintiff had been a leading member of the ANC in this province and for the past several years has been a member of the Executive Council, firstly for Health and latterly for Finance and Economic Affairs.

During the 1990s a leading member of the ANC in the Richmond area was one Sifiso Nkabinde. He however ran into difficulties with the ANC and was eventually expelled from the party. He proceeded to join the National Democratic Movement a then fairly new political party led by Mr Bantu Holomisa.

Matters in the Richmond area became very tense and there was a great deal of violence in the area. The plaintiff was sent to the area to try and achieve calm. I pause to say that the plaintiff and Nkabinde had previously worked together as senior members of the ANC.

Nkabinde was murdered in January 1999 and in 2000 several people were charged with his murder.

Amongst the State witnesses who testified in that trial was one Bruce Mhlongo who was an admitted member of the murderous gang but who had turned State witness in return for indemnity.

It was Mhlongo’s evidence that he had heard that the plaintiff had offered the sum of R200 000 to the killers of Nkabinde but he emphasized that this was hearsay and that he had never spoken to Mkhize himself.

This was reported by the City Press in its edition of 26 March 2000, which report contained the following sentence:

“However he admitted under cross-examination the promise was hearsay and he had never discussed this with Mkhize.”

There the matter rested until March 2007 when the article in question here was published by the City Press.

It will be noted that in the latter article there is no qualification relating to the hearsay nature of Mhlongo’s evidence.

At the trial before me it was admitted by the defendant that the passage concerned was defamatory and the only issue that arose before this Court was therefore the question of whether damages should be awarded to the plaintiff and, if so, what the amount of such damages should be.

With that in mind I shall return to the events that followed upon the publication of the article in question.

On 8 March 2007 the plaintiff’s attorney addressed a letter to the senior editor of the City Press claiming that the article contained defamatory matter inasmuch as the article falsely states that:

“Sources within the intelligences services said that the man had allegedly called Mkhize to demand payment for the assassination of Nkabinde in January 1999”

and

“During his testimony, the man told the Court that Mkhize had promised him thousands of rand in exchange for Nkabinde’s assassination.”

In the said letter the editor was referred to the previous article in March 2000 when the hearsay aspect was referred to.

The letter demanded an apology to the plaintiff for the defamation and contained certain demands as to what the apology should contain.

On the day following the publication in City Press, The Witness in Pietermaritzburg published an article gleaned from City Press in which the same statements were contained. A similar letter was written to The Witness and The Witness thereupon published an apology a few days later and no further action was taken against it.

City Press on the other hand in response to this letter instructed its attorneys to write to plaintiff’s attorneys in the following terms:

“The testimony given during the trial referred to in the report, is a matter of public record. Reporting thereon is not actionable.

The alleged statement your client ascribes to the report dated 26 March 2000 does not exist in that report.

Your client declined the opportunity afforded to him to comment on the latest allegations. Notwithstanding, your client’s previous denial of involvement was reported.

Under the circumstances, the report is a factual, balanced report on a matter that is clearly in the public interest. As such the report is not actionable, either as alleged or at all.”

Thereupon action was instituted and both the City Press articles were attached to the summons. A plea was filed in July 2007 in which certain technical defences were taken as to the citation of the defendant which defences were met with a suitable amendment. On the merits of the claim however the following was pleaded:

“12.1 In amplification of Defendant’s denial of liability, Defendant pleads that:

12.2.1 the report as a whole is true and in the public interest alternatively, it was not published recklessly or negligently, further alternatively is not actionable;

12.2.2 the statement contained in the report ‘told the Court that Mkhize had promised him thousands of rands in exchange for Nkabinde’s assassination’ (‘the statement’) read in context of the report is not defamatory of Plaintiff either in its primary meaning or secondary meaning;

12.2.3 that statement amounts to fair comment of a matter of public interest and is therefore not actionable;

12.2.4 that statement was necessary and reasonable in the context of the report in order for the report to make sense to readers;

12.2.5 the statement was made with the intention of placing the new allegations of and concerning the Plaintiff in perspective and was not done recklessly, negligently or with intent to defame Plaintiff;

12.2.6 the Defendant has done everything reasonable in order to verify a correct perspective of events having regard to the testimony at trial and the contents of the previous report.”

How this plea could have been made in the light of the annexures to the plaintiff’s summons is not clear. It shows in my view a recklessness on the part of the defendant both as to the contents of its articles and as to its reaction to the summons that was issued.

It was only in February this year, that is about one month before the trial commenced, that the defendant made an unconditional tender to the plaintiff tendering in full and final settlement of the action and undertaking to publish an apology as set out in an annexure in the next edition of its newspaper and also tendering to pay costs on a party and party scale.

This offer was not accepted and was repeated at the pre-trial conference with the addition that the apology shall be published in a manner no less prominent than the original article and also containing a tender for costs on an attorney and client scale. Again this offer was not accepted inasmuch as it was again made in full and final settlement of the claim.

That then in broad outline is the factual background to the decision that must be made as to whether monetary damages should be ordered and, if so, what the quantum thereof should be.

As I have said, the plaintiff is a prominent political figure in KwaZulu-Natal and indeed to a degree nationally who has held for many years important portfolios in the provincial cabinet, who has qualified himself as a medical doctor and has practised successfully as such and who has been prominent in the province in quelling the disputes that have arisen between the Inkatha Freedom Party and the ANC. He enjoys a wide reputation as a seeker after peace and as an honest and responsible politician. None of that is disputed and indeed Mr Kuny S.C for the defendant was at pains during argument to express his client’s appreciation of the high reputation that the plaintiff enjoys.

The City Press had at the time in question a circulation of some 180 000 copies per week and, although the figures are not available, it is possible to conclude that the readership must be at least twice that.

The publication enjoys a nationwide distribution and will be read by persons who are not particularly familiar with Dr Mkhize’s reputation or by people that belong to different parties or factions who will be only too ready to accept imputations of this nature against prominent members of the ANC.

Mr Kuny for the defendant has argued strenuously that publication of an apology should suffice and has pointed out that the plaintiff took no steps to refer this matter to the Ombudsman for the newspaper industry or for mediation in a manner that would not necessitate the approach to a Court.

I must say I find this approach somewhat surprising in the light of the defendant’s persistent attitude in correspondence and in the pleadings that it was innocent of any misdoings. The defendant is the party that I should have expected to suggest that the matter be adjudicated upon by the Ombudsman or in some other manner. Instead it obdurately defended its position until, as I have said, a month before trial. Mr Kuny relied heavily on the minority judgments of SACHS and MOKGORO JJ in the case of Dikoko v Mokhatla 2006 (6) SA 235 (CC).

As I have said, these are both minority judgments and go against the judgment of MOSENEKE DCJ who accepted that the Constitutional Court has jurisdiction to interfere with an award of damages but in that case declined to do so. I shall return to this case later.

I have no doubt that a monetary award should be made to the plaintiff in this case and the question therefore is what the quantum thereof should be.

As in third party matters but possibly more so here it is very difficult to rely on previous awards because the circumstances are so vastly different in each case. Nevertheless, some guidelines may be found.

In the Dikoko case (supra) the plaintiff was the executive mayor of the Southern District Municipality in the North West Province. The defendant was the chief executive officer of that municipality. There was a dispute in the municipality as to Mr Dikoko’s overdue indebtedness to the council for the over-use of his cell-phone. Mr Dikoko was called upon to give an explanation to the North West Provincial Public Accounts Standing Committee. During the hearing Mr Dikoko is reported to have said:

“I might say maybe it was politically motivated. That is why I am saying it could have been best if [Mr Makhotla] was here to tell why because . . . my personal view might have been he did it deliberately for it to accrue and build a big sum, because some of the colleagues in the Council, more especially from our other political parties want to misconstrue when they give information out, whether to the media or so, wanting to make it as if it was R21 000 for one month whilst it was R21 000 for three years.”

The defamation alleged was that the defendant had deliberately acted so as to falsely implicate the plaintiff in greater debt than was in fact the case.

This statement was of course published to the members of the Standing Committee and apparently in the local press. No apology was ever forthcoming from the defendant and for this defamation the trial Court awarded a sum of R110 000 in damages. The Supreme Court of Appeal refused leave to appeal against this award and, as I have said, the Constitutional Court in its majority ruling gave leave to appeal but dismissed the appeal thereby holding that the award of R110 000 was not to be disturbed.

On the face of it this seemed to be a fairly high award for a comparatively minor defamation of a comparatively minor public figure with fairly limited publication. I am aware however that all the features that went into assessing this amount may not have been fully described in the judgment of the Constitutional Court.

In the case of Young v Shaikh 2004 (3) SA 46 (C) the defendant, an attorney and brother of the better known Schabir Shaikh was involved in a television interview on so-called eTV which had a viewership of between 400 000 and 600 000 viewers on the first occasion it was published and between 200 00 and 300 000 on the second occasion. The defendant made a vicious attack on the plaintiff who was a partially successful bidder for the arms contract. The plaintiff had maintained that another member of the Shaikh family, namely “Chippy”, who was the chief of procurements for the contract, had a conflict of interests and had not dealt with his bid fairly.

The defamation itself in that case was, I believe, a good deal more vicious and malicious than in the present case but the plaintiff was not nearly as prominent a figure as is the plaintiff in the present case. In both cases publication was widespread and the differences in the numbers really make no material difference. The Court awarded a sum of R150 000 in damages. In that case the plea had contained an apology in the following terms:

“The defendant hereby unconditionally and unreservedly apologises to the plaintiff and further tenders to pay the plaintiff’s costs of this action up to and including the consideration of this plea.”

There was also in evidence an apology that the trial Court found to be half-hearted. It was quite properly found by the trial Court that the apology in the plea was of no real value in the sense that its publication was very limited and that the apology in open Court was half-hearted. No other apology had been tendered because it seems that no apology had been asked for.

In the present case, as I have said, a fairly fulsome apology was tendered and full publication thereof was also envisaged. This fact must to a degree mitigate the monetary value of the award to be made.

In the unreported case of Charles Mogale & Others v Seima, SCA Case No 575/04, judgment delivered on 14 November 2005, the SCA reduced an award of R70 000 made by the trial Court to an amount of R12 000. In that case a fairly junior advocate had been accused in a gossip column of a newspaper of having given his girlfriend (a well-known TV presenter) “a hot klap” through the face. Reading between the lines of this judgment the learned trial Judge clearly made some unfortunate entries into the arena and misdirected himself in various ways. In that judgment HARMS JA points out that:

“life is robust and oversensitivity does not require legal protection;”

and of quantum:

“too high an award of damages may act as an unjustifiable deterrent to exercise the freedom of expression and may inappropriately inhibit the exercise of that right.”

It was also pointed out that damages awarded for matters such as defamation do not contain a punitive element.

The Court pointed out that in this case the act of which the plaintiff was accused was criminal and morally irreprehensible but it was also contained in a gossip column which the average reader would have taken with a pinch of salt. All in all the Court found that this was a fairly minor defamation of fairly minor character and, as I have said, reduced the damages to R12 000.

As I have said, it is difficult to reconcile all these judgments with each other and apply them in the present case. What is important in the present case seems to be the fact that the plaintiff is a well known political leader with an impeccable reputation, that publication was a fairly wide one, that there was an obdurate refusal by the City Press to acknowledge the fact that it had defamed the plaintiff and to apologise for such defamation until it tendered an apology at a stage when it was too little and too late.

On the other hand I cannot find that the publication itself was malicious. The article as a whole cannot be seen as an attack on the plaintiff.

Taking such guidance as I can from the cases I have quoted and also the other cases quoted by Mr Stewart for the plaintiff I believe that an adequate award for damages in the present case would be R150 000.

Mr Stewart has argued that I should award costs on an attorney and client scale because it would be inherently unfair for his client to be out of pocket in a case that he has clearly won. That regrettably is the case of almost every litigant that wins a case in our courts. Such litigants are always faced with the prospect of having to pay their own so-called attorney and client costs. Apart from contracts that provide for the payment of attorney and client costs, such costs are usually only awarded when the litigation procedure itself has been tainted with some misconduct on the part of the loser. In the present case the defendant, as I have pointed out repeatedly, persisted in its denial of responsibility. This denial was perverse to say the least in the light of the very clear annexures to the plaintiff’s summons. I have no doubt that had the defendant seen the light at a much earlier stage and tendered the form of apology that it has now tendered this litigation may well not have proceeded. I am comforted in this view by the attitude of the plaintiff towards The Witness which did publish an apology.

I believe that this fact entitles the plaintiff to a cost award on the attorney and client scale.

I make the following order:

1. There will be judgment for the plaintiff in the sum of R150 000 with costs on an attorney and client scale, which costs shall include the costs of the engagement of senior counsel.

2. The respondent shall publish in the City Press the tendered apology (as amended by the parties) in a manner which is at least as prominent as the original article. (A copy of the apology is attached hereto as Annexure “A”.)

ANNEXURE “A”

APOLOGY TO ZWELI MKHIZE

On 4 March 2007, City Press published an article entitled “Assassination plot uncovered in KZN”. The article dealt with a plot which had allegedly recently been uncovered to assassinate the ANC deputy chairperson and MEC for Finance and Economic Development in KwaZulu-Natal, Dr Zweli Mkhize. In the article reference was made, as background, to the much publicised trial, which was held in Pietermaritzburg during 2000, of the alleged murderers of the late Sifiso Nkabinde.

The article, in referring to those proceedings, stated that an accomplice witness “told the court that Mkhize had promised him thousands of rands in exchange for Nkabinde’s assassination”.

This statement created the impression that the witness had testified in court that Dr Mkhize had made such a promise to him personally and directly, whereas this was not in fact stated by the witness. The witness testified in his evidence, both in chief and under cross-examination, that his understanding and belief concerning Dr Mkhize’s alleged involvement in the murder of Nkabinde, was hearsay only and was based upon what he had been told by Joel Mkhize (accused No 1) and others, whom he admitted could have been lying.

City Press concedes that the article of 4 March 2007 incorrectly gave the impression that evidence in the trial had directly implicated Dr Mkhize in the murder whereas it had not.

City Press regrets this error and apologises for any embarrassment the statement may have caused Dr Mkhize.

DATE OF HEARING : 3 and 4 March 2008

DATE OF JUDGMENT : 17 March 2008

COUNSEL FOR PLAINTIFF : Mr A M Stewart S C

INSTRUCTED BY : Attorney John Wills

4 Stranack Street

PIETERMARITZBURG

COUNSEL FOR DEFENDANT : Mr D A Kuny S C

INSTRUCTED BY : Willem de Klerk & Associates

P O Box 84162

GREENSIDE 2034

c/o Hathorn Cameron & Co

49 Braid Street

PIETERMARITZBURG

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