2012 03 06 judgment - le grange j

8/2/2019 2012 03 06 Judgment - Le Grange J

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IN "nlE HIGH COURTOF= S O U T ~ ' iAFRICA[\NESTERN CAPE HIGH COURT, CAPE TOWN]

CASE N O ~3946/2012

matter" between:

INGRID PEACOCK Appticant

And

NOSE\N'EEK (PTY) LTD

CHAUCHER PUBLICATIONS Second Respondent

. : n J [ ) G M E N T ~6 fliiARCH 12

[1] This tS an opposed application for interim relief. The Applicant, a local

business woman/ an that an article "Fashion Victim" which

her business dealings otrler business entities be I-ernovecl fmm the

Respondents' website, Facebook and or other sir'"nilal- social media websites as

i:1lticle is defamatory in nature.

resisting the rT:!!ief sought, an investigative joumalist (Mark ThomeS);

is employed by the Second Respondent a nd is news editor of Noseweek, and Third

Respondent, the editor of r\loseweek r named iVlartinWe!z, filed opposing affidavits.

WELZ


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[3J The editor of Noseweek admits in his answering affidavit that the contents of

the article are defamatory and will lower the Applicant in the esteem of the

reasonable reader. The defences of truth and public benefit and that of reasonable

journalism are however raised by the Respondents, According to them the article

questions Applicant's busIness ethics and practices which is a matter public

interest

[4"\, J The nub of the /\ppHcant's complaint essentially to statements in

article, which the Applicant avers are defamatory, untruthful and incite

consumers to refrain from doing business with ["Ier. The statements can 'In br'lef be

summarized as foHows:--

"WhIle mc.!ior shIres bankroll PeaLl?ck:5 wealthy lif(:style she c1700ses to

settle /7er own accounts only when she pleases!l;

"!\lose week has reliably learnt that attorneys at Cliffe

been to recover nearly R2 mt/lion in rent

1i1/aterfront;

/10lmeyr have

to the

Peacock di d a bunk when vacating he r Newlande; boutique - engaging a

removal firm to piLd? up the dead o f n(ght to remove he r stodt;

"She 1.5 also debt to a Canadian fabric supplief; Brian International; to the'

tune of Rl1000 for some samples Peacock commissioned';

"Peacock was o f a mind to counterclaim /:;:350 000 from R + R fo r loss

business -- because Stuttafords had rejected some o l the samples (rejr . ?ction

of a percentage o f samples is standard il7 the business"), [ According to the


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Applicant this is a misquotations of her response to Thomas as

contained in her email dated 16 November 2011 which states that:]

\\ Tamasa intende; instituting a counter daim against R-lR in the amount ol

000 for loss of profits due to the repudiation of the agreement betweenTamasa and R+R, by R+R';

"NO/l!l that Stut.tafords know they are buying goode; from Peacock, /lJIho

effectively makes use of slave labour - workers she chooses no t to paV - I:)

that Of(?"

[5] The Applicant, as a business woman, Ii any other member of civil

society, a legJtimate r'i9ht to protect her reputation anel Qood name unlawful

defamatory statements that injures person and lowel's Iler in the estimation

ordinary, intelligent or- hght-thinking rnem of society generally. does

allow the untawful and unjustified savag'lng an 'Indiv'ldual's reputation.

1996 (1) 673 (A) at 703 ThE:

complaint is essentiallv that certain statements in article are untrue,

defamatorYr to cause her' harm incite consumers to refrain from

doing with her, In her foundl the Appilcant records the

following:-

fI The a/ticle published by Noseweek is extremely degradlli9 and da.maging to

my good name and rama. I have already been inundated with calis from

people expresslhg their shock at the article and I humiliated by

untruthful and unlawful content which has been pub/ished about me,

The article has only reached the shelves and the internet ti7e last n:'W days

and I am approaching this Honourable COUit a to prevent ti-te furtherckcu/ation of the article during the month of Marr....1?J limiting tlJe


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publication and damage to my good no,me. I am the process of suffering

irreparable reputational hann which 0 claim {or damages will only partly

satisfy. The financial impact aSide l I f I Jose my business and the name which

I have built up over a period of approximaterv years it will have severe

consequences lo r my family file, standing in society and will potentialrv leave

me isolated with no hope o{ recovering {rom the blow /ivhich th.is article is

inflicting. With each and every passli7g hour that the c"ircu/ation o{ [c;sue no

14 9 o{ Noseweek is left unabated; as well as the internet publication o { the

article my reputation and thus my person is suffering ever inaeasing injury.

Whilst Welz contends in his email 29 Februarv ti7at 'the matter I ~ S 'no t

urgent:; since publication has a/ready taken place.." that 'For same

reason there is little pOint kl tlying retrieve those copies o { March

Noseweek that have not a/:;eady been sold; quite apart kom the (act that it

would be /ogistlcally Impossibie to retrieve the copies rema/rin!] in retail

outlets in the time you stipulate' it ma,V no t be e a 5 J ~but it is' tT70St o2rtainrv

not impo5 .


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.5

12. In the time available! I am attempting to obtain confirmation o f the

above. That substantiation which I have at the moment is the

fa/lowing:

1 The /li/aterfrvnt store.

1.1 I have access to the summons in action

18662/09 in the above Honourable Court.

Applicant has" annexed this as

The sLImmons emanates from DekkerHofineyT Inc a prominent and reputable firm

o f attomeys in this

.1.3 I am adv/.')ed that the SIlnatory to partlcula!::;

o f claim vvhicli contain defamatory averment,;

must have reasonable ground:; for s(gning the

said p a r t i c u l a r 5 ~(-all/ng which the signatory

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and the o f attorneys /::; expos'ed to a

defamation action

(a)

(b )

particulars of ciaim proceed to allege:

tfJe d e f i ~ ' n d a n twas bound

lease which expired on 3.7 March 2012;

On Apn! 2009; the defendant

absconded from the leased p r e m i s e s ~

removed the stock and dosed the

store.

(c) At the time that she di d 501 the

defendant owed R34586535 and the

still had another yean:; to

go, At a bask.' month/V rental (ignoring

eEicai.gtior!s/ contributions operating


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12.2

123

(;

costs and marketing costs) the

outstanding rental (-or this period was

in excess o f R L5 million.

I S J have now seen the notice of Hrithdn:7wal of

the action something which Applicant could

have told me i( she deigned to speak to me, J

have attempted in the short time avat/able to

investigate why the action vvas withdrawn. lvty

attomey has made contact with Mr Melf7tjes

(the signatory, who has moved firms) but he

was reluctant to discuss the matter, I am

advised that are any number of /egal

technical reasons [/vhy action against

A p p l i c a n t ~ surety for the d e b t ~may have

been wlthdravvn, I am a/so advised tliat it is

entire/v likely that.'

The referred to in the particulars

o r claim and as set paragrap'fl

1. 4 above are

Respondents' - wit/-; the benefit of

proper discovery and o l

subpoena an - wi/I be able to

demonstrate that this is so,

regards' the Newlands s t o r e ~1 am attempting to

obt:gil7 an affidavit from the landlorcl'

k ; regards Brian International:

1 have ascertained from Brian International

that Applicant has indeed paid the sum of

P l l OOO.OC!; bu t has refused to pay another

invoice in regard to samples' in sum of


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U5D189. h'ad Applicant d e / ~ l n e dto speak to

me; this issue could have been clarified.

T1 annex hereto marked "MT5"; a

communication dated 8 !:.7eptember 2011 korn

the Applicant to attorney, I respectfully

draw attention to the second last paragt::Jph

which

'.[ have reFused to the (Jut5tanding

sarnp/ing Invoice, based on the way the

bulk order vvas dealt wIth and theirsubsequent address of attitude, ;

Respondents respectfully aller that

dJat Applicant does

no t pa y debts jJj/hen they are due; bu t

withholds payments it suits

her. //

In its decision publish the article, Welz in affidavit records the

following>

e d i t o r ~I have naturally been

investigation into the business dealings

since inception! of an

the Applicant conductedby Mark Thomas (ThomasJr a trained investigative journalist and

also the news editor of Noseweek He has regular/v reported to me

on It 5 progress and we have discussed the issues raised by it, I

approved the final text fo r publication

6, We had initially planned to pub/ish the story in the December 2{)11

15sue of Noseweek (which appeared the last week of lVovember

20.11) , bu t J hesitated and decided to hold -"tory over the


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9.1 Is published a print edition, vvhich is distributed to

subscribers and to approximately 2000 retail outlet')

natiol?lltlide.

9.2 /-las an onlirle edition; v.rhic/7 /5 open to approximately 1500

online 5ubscribe!:c;. O f t h e s f : : : ~approximatl::!/y half also

subscdbe to the print edition. Acc()rdingly only

approxlinately

edition only.

have acceS".5 to tile online

9.3 Has a moderate lacebook( in which the fact an upcoming

publication is announced. That IlV.hich appears on IP9 is theo n ~ vcontent ai/ai/able on lacebook as regards A p p l k a n ~ ,and

not advance a case con tent is

objectionable.

edition of VosE!week in article IP8 appears' has been

a f j 7 : i ~ 7 v i talludes to the paperlready. While

pubJicatkJl7; I respectlully draw the abOile Nonourable

that the Notice Motion to

onh'ne facebook presences otNosefiveek ,(

leaal in context of an seeking

prevent alleged defamatory dre ord'inary rules fjoverning

interim intei-cjicts. rnatter, tvvo constitutional r i ~ J h t s rfreedom of expression

and dignity are at odds and have to be balanced against each other, That balancing

process to be undertaken in a constitutional context. Our' Courts have

consistently held that, though cil"Cumstances may sometiriles dictate othel'wise)

freedom of speech is a right not to be ovetTidden lightly and at trle pOint which the

balance of convenience is determined consideration should be given to the fact that

the allegedly defamecJ if the lnterd'ict is refused r nonetheless have a


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cause of action which may result in an award for damages. I t is now well accepted

that cases involving an attempt to restrain publication must be approached with the

necessary caution.

The approach to adopted by our Courts in matters of this nature has been

at 402 (""F, where th e fo1!owlng was

"To sum cases involving' an attempt to restrain publication rnust be

ap!:!f'oached with caUL/em. I f section l S adds anvthJng to this proposition il:

wouk:l merely be to undeliine t h a t ~though C I ; ~ c u m s t a n c e smay sometimes'

dictate otherwise; j"reedom of" speech is a right no t to overridden

The appropriate stage fa r this consideration (lvould in most cases be the point

the balance LU!7ve!7ience is determined at that stage that

c017s/de/(=Jtion should be given to the T..'1ct tl7at t0e pers'on alleyed!y defamed

this case) w i / ~i f the interdict is refiJsed,_ nonetheles'S have a cause

wil! result in an award damages, weighed

against p o s : ~ ' J b ! ! i t l jon the other h a n a ~ a o( a right to U L . J U I I , : : J I is

to be end of matter as la r as pres.') is concemed

exercis'9 o f its discretion in g(Zmti,rig or refusing an interim interdict

regard should be ha d alia to the strength the applicants ca,c;e; the

seriousness o f d e l ~ ' 1 m a t i o ! 7 ;ti7e difficulty a respondent has In proving, in

the limited time afforded to i t in cases o f UlgencYI the defence which it

wishes to raise and the that the order m a y ~k7 substance though no t in

amount to a permanent interdict, N

[10J The Applicant ts presently seeking I'eiief in respect of the online and facebooi

2012 03 06 judgment - le grange j

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