THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case No 575/04

In the matter between:

CHARLES MOGALE

First Appellant
JOHNNIC PUBLISHING LIMITED &
NAP PUBLICATIONS

Second Appellant
ALLIED PUBLISHING LIMITED

Third Appellant

and

EPHRAIM SEIMA

Respondent

Coram:
HARMS, ZULMAN, NAVSA, JAFTA, JJA and NKABINDE
AJA
Heard:
1   NOVEMBER 2005
Delivered: 14 NOVEMBER 2005
Subject:
Defamation quantum

J U D G M E N T

HARMS JA/

HARMS JA:
[1] The editor, the publisher and the distributor of the Sowetan
Sunday World newspaper are appealing an award of damages for
defamation against them. In a gossip column named Shwashwi the
paper carried on 2 September 2001 an item in concerning the
plaintiff, the present respondent. The plaintiff at the time was an
advocate practicing of about four years’ standing at the Pretoria Bar.
He had a romantic relationship with Ms Michelle Molatlou, a television
presenter of a magazine programme called Mamepe. Shwashwi
reported that the plaintiff, after a wedding reception and being
annoyed by the fact that Ms Molatlou had taken notice of other men,
gave her, in the local slang, a ‘hot klap’ through the face. (‘Klap’ is the
Afrikaans word for a slap.) Wounded by the defamatory statement,
the plaintiff decided to claim damages amounting to R150 000. The
court below, per Motata J, awarded R70 000. Dissatisfied with the
size of the award, the appellants (the defendants) sought leave to
appeal from the trial judge, which he refused. This Court eventually
granted the necessary leave.

[2] The hearing of the application in the court below lasted many
hours during which some remarks fell from the bench that gave rise

to further grounds of appeal and additional written argument. I do not
intend to dwell on these remarks simply because an appeal is
supposed to be directed against the judgment and order and not
against ex post facto attempts to justify what was contained in or
omitted from the judgment, or against gratuitous remarks made
during the course of argument. This would not have happened if the
trial court, in the exercise of its inherent jurisdiction, had contained
the hearing of the application for leave to appeal within reasonable
limits. There is no reason why in all such cases strict time limits
should not be imposed, either at the outset or during the argument,
on both sides. A cue may be taken from the US Supreme Court that
allows half an hour a side, and the Federal Appeal Courts that allow a
quarter of an hour a side, for the hearing of oral argument in a full
appeal. Oral argument may even be dispensed with, considering that
this Court and the Constitutional Court routinely dispose of
applications for leave to appeal without oral argument. A judge of first
instance knows the issues in the case and has a judgment dealing
with them and ought to be able, in the light of the notice of application
for leave to appeal, to dispose of the application one way or the other
without too much ado. And if leave is sought orally as soon as

judgment is delivered, normally the matter can and should be
disposed of there and then.

[3] Reverting then to the facts of the case, already on the first page
of the newspaper the reader was alerted to the fact that the
Shwashwi column carried an item ‘TV STAR GETS HOT KLAP’. The
main heading in the column read ‘SICK WAY TO TREAT A LADY’.
For the sake of context I quote the full text of the item, which hardly
qualifies as an article:

‘Michelle Molatlou, the sultry Mamepe presenter was left with an inflamed
cheek after her boyfriend Ephraim Sima gave her a hot klap last Saturday.
The incident happened after the wedding of Sidney Baloyi, the socialite
and SABC producer, in Giyani, Northern Province, at about 5pm at the Masingita
filling station in Giyani in front of surprised gawkers.
Sima apparently swung into action after catching her eyeing Baloyi’s best
man, the former Woza Weekend presenter James Shikwambane.
She had a plaster on her cheek this week, which apparently sent the
Mamepe producers into a tizz during the shooting of the magazine programme.
Sima has reportedly been irritated by rumours linking Molatlou to Metro
FM head Leasley Nhloko and several other men. Egad.’

[4] The plaintiff relied on three sentences, which concern him, as
being defamatory. They are the introductory sentence stating that he

gave Ms Molatlou a ‘hot klap’; the sentence alleging that he swung
into action; and the allegation that he was ‘reportedly irritated by
rumours’. Let me immediately state that the second and third
sentences can by no stretch of the imagination be considered
defamatory and I do not find any indication that the trial judge thought
otherwise.

[5] The plaintiff proceeded to allege that the article was defamatory
and meant that (i) the plaintiff is abusive; (ii) he behaved in a violent
manner towards his girlfriend in public; (iii) he is a man of violent and
aggressive behaviour; and (iv) he behaved in a manner unbecoming
of his profession. The defendants admitted from the outset that the
item bore the meaning set out in (ii) but they pleaded that the report
was substantially true and in the public interest.

[6] During preparation for trial the defendants could not trace some
of the original informants and those they did locate were not prepared
to testify. In consequence, the defendants in a letter of 7 October
2003 (the trial was initially set down for the next day) conceded that
the article was defamatory in the sense set out in (ii); they abandoned
all their defences; and they stated that they would rely on a lack of

intention to injure and the freedom of expression as factors that
reduce the quantum of damages. The letter ended with a tender of
‘an apology and retraction to be published in the Sowetan Sunday World. Such
apology will specifically retract the allegation that your client struck Ms Molatlou,
express regret for the publication and apologise for it.’

[7] The tender was not accepted and the apology was
consequently not published. The trial nevertheless did not proceed as
intended on the given day and commenced only on 4 February 2004.
During his testimony the plaintiff was asked to comment on the
meaning of the article as an ordinary member of the newspaper
reading public. Over the defendants’ objections the question was
allowed and the plaintiff proceeded to say what the pleadings said the
article meant. Shortly afterwards the plaintiff conceded that the
evidence was inadmissible to prove the meaning of the article but the
court said that the question had been allowed in the context of
damages (whatever that might mean). The evidence was clearly
inadmissible (Demmers v Wyllie and others 1978 (4) SA 619 (D) at
624A-C) but it does not matter because the judge below nowhere
held that (i), (iii) and (iv) were established and consequently did not

make any finding against the defendants based on that evidence,
rightly so in my mind.

[8] The sole issue is then one of quantum. The determination of
quantum in respect of sentimental damages is inherently difficult and
requires the exercise of a discretion, more properly called a value
judgment, by the judicial officer concerned. Right-minded persons
can fairly disagree on what the correct measure in any given case is
and it is therefore the rule that a court of appeal has a limited power
of intervention. The court of appeal usually considers what it would
have awarded and if there is a palpable or manifest discrepancy
between that amount and that awarded by the trial court, it will
interfere (e.g. Salzmann v Holmes 1914 AD 471 at 480 and Sutter v
Brown 1926 AD 155 at 171). A court of appeal may also interfere if
the court of first instance materially misdirected itself and in this
regard it is important for a court of second instance to know what
factors a trial court took into account in determining the award,
something conspicuously lacking in this case.

[9] The Constitution, in line with the common law, places a great
value on human dignity (including reputation). It also, more so than

the common law, emphasises the right to the freedom of expression.
These two rights have to be balanced, a somewhat delicate and
difficult exercise. But it is not only in regard to justification of a
defamation that the freedom of expression impacts on the right of
dignity. It also impacts on questions such as the interpretation of an
allegedly defamatory statement: life is robust and over-sensitivity
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 is not, however, without interest to note that since or due
to the influence of the Code Napoleon civil law countries such as
Germany do not recognise a damages claim for defamation unless
the defamation is a criminal defamation. Our own indigenous law also
does not in general allow damages claims for defamation unless
allegations of witchcraft are involved (Olivier et al ‘Indigenous law’ 32
Lawsa 1st re-issue para 202-205) but our Roman Dutch common law
provides for defamation claims for all on the same basis.

[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 (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 a 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).’

[12] I mention this because the learned trial judge was not made
aware of these principles and he apparently considered that an
award, which would teach newspapers to limit themselves to inform
and entertain the public without affecting anyone, was justified. The
‘teach them a lesson’ theme underlies the judgment, as the learned
judge himself later emphasised. In this regard he erred.

[13] Turning then from the general to the particular. The main factor
determining quantum is the seriousness of the defamation. (FDJ
Brand ‘Defamation’ 7 Lawsa 2 ed para 260 provides a useful
checklist of factors.) Admittedly, the allegation attributed a criminal

act, which is at the same time morally reprehensible, to the plaintiff.
That much is common cause. The fact of the matter is, however, that
the report itself provides some kind of justification for the ‘klap’,
namely the alleged flirtations of his girlfriend. The ordinary reader, I
believe, would have seen that as a provocation that somewhat
reduced the plaintiff’s culpability.

[14] The second factor is the nature and extent of the publication.
The newspaper had a circulation of about 90 000 to 95 000 and a
readership of many more, maybe even ten times more. The
publication was accordingly in local terms wide. On the other hand,
the item formed part of a gossip column and the average reader
would have taken anything there stated with more than a pinch of
salt: the item was not dressed up as hard news but as gossip, i.e.,
‘casual conversation or unsubstantiated reports about other people’
(according to the Concise Oxford English Dictionary).

[15] The third factor is the reputation, character and conduct of the
plaintiff. The defendants did not attack the reputation or character of
the plaintiff and as he said, everyone he knows accepted that the
allegation was untrue. However, not unlike politicians, persons who

move in or close to the limelight have to expect that their lives will be
to some extent in the public domain and they must be prepared to
endure somewhat more than the ordinary citizen has to endure.

[16] Lastly, the motives and conduct of the defendants are relevant.
The reporter (Mr Molele) testified that he had received the information
about the assault from four persons. He cross-checked the facts and
was satisfied of their correctness since his informants told the same
story. He did not ask for the plaintiff’s version because it he thought it
unlikely that the plaintiff would admit the allegations. Afterwards he
could not trace all his sources for purposes of the trial and those he
could find were not prepared to testify. (He gave their names.) There
can be no doubt that the reporter must have had at least one source
for his story. The information concerning the attendance of the couple
at a wedding in Giyani was correct. How did he obtain that? There is
no suggestion that he ever harboured a personal grievance against
the plaintiff or his girlfriend (both of whom he knew personally) or that
the report was actuated by malice. There is accordingly no reason to
disbelieve his evidence on this point. Although the trial court held that
the reporter was not the originator but only the conveyor of the gossip
it also held that the report was ‘unsubstantiated’, a finding that was

not explained and which is inexplicable in the light of the evidence as
a whole. (The demeanour finding, namely that the reporter was
generally evasive and suffered from amnesia about a matter that had
nothing to do with the case, added nothing to the judgment as did the
finding that the plaintiff was an impressive witness because he
admitted that he had not read all the case law on quantum.)

[17] As mentioned, as soon as the defendants realised that they
could not establish the truth of the statement they tendered a
published apology. This was not to the satisfaction of the plaintiff, why
I have some difficulty to understand. He did not make a
counterproposal. The apology may have been late, but the
defendants until then had reason to believe that none was called for.
The trial court erred in disregarding this material factor.

[18] To sum up: having regard to the foregoing and the general
trend of awards in recent times and the fact that our courts have not
been generous in their awards of solatia (Argus Printing & Publishing
Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A) at 590), a
practice that is to be commended, I believe that a proper award in this
case should have been R12 000,00. There is a material discrepancy

between this amount and that awarded and there is accordingly more
than sufficient reason to interfere with the award.

[19] The defendants made an unconditional tender of R20 000,00
with costs taxed at the high court scale already on 12 September
2003. However, they only tendered their apology on 7 October 2003.
It would accordingly be fair to award the plaintiff his costs until the
latter date. Although the matter was one for the magistrates’ courts –
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 – in the light of the defendants’ tender to pay costs on the
high court scale I shall hold them to it.

[20] In the event the following order is made:
(a)
The appeal is upheld with costs.
(b)
The order of the court below is set aside and replaced with
the following:
(i)
Judgment for the plaintiff in the amount of R12 000,00
with costs on the High Court scale until 7 October
2003.

(ii)
The plaintiff is to pay the costs of the defendants as
from 8 October 2003, including the costs of the
postponement on that day.

__________________
L T C  HARMS
JUDGE OF APPEAL

AGREE:
ZULMAN JA
NAVSA JA
JAFTA JA
NKABINDE AJA