Publication: Sunday Times Issued: Date: 2005-11-20 Reporter: Carmel Rickard Reporter:

High Court Judge ‘Taught A Lesson’ in Defamation Case

 

Publication 

Sunday Times

Date

2005-11-20

Reporter

 Carmel Rickard

Web Link

www.sundaytimes.co.za

 

A judge who held that it was time to “teach newspapers a lesson” by imposing a high damages award for publishing a defamatory statement, has been taught a lesson of his own.

Judge John Motata of the Pretoria High Court had ordered Sowetan Sunday World to pay a Pretoria advocate, Ephraim Seima, R70 000 for saying that Seima had given his TV presenter girlfriend a “hot klap” across the face.

In the course of a number of extraordinary remarks from the Bench, Judge Motata said that there was no reasonable prospect of success if the matter went on appeal, nor that any other court would come to a different conclusion about the damages awarded.

However, five judges of the Supreme Court of Appeals in Bloemfontein this week had other views. They ruled that the R70 000 in damages was way too much and that “a proper award in this case should have been R12 000”.

Judges Louis Harms, Ralph Zulman, Mahomed Navsa, Chris Jafta and an acting colleague, Bess Nkabinde of the Mafikeng Bench (widely tipped as the next Constitutional Court appointee), all agreed that if awards were too high in such cases it could act as “an unjustifiable deterrent” to the exercise of freedom of expression, and could have a chilling effect.

“Life is robust, and over sensitivity does not require legal protection,” they said.

They also commented on Judge Motata’s apparent belief that he was justified in making an award “which would teach newspapers to limit themselves to inform and entertain the public without affecting anyone”.

“The ‘teach them a lesson’ theme underlies the judgment. In this regard he erred,” the Appeal Court said.

Among other remarks about race during argument last year on whether he would grant leave to appeal, Judge Motata said that the law in South Africa today “is the law how whites understand it”.

“How long must we perpetuate the law which was thrown down our throats by the whites?” he asked.

A transcript of the entire debate between the judge and counsel was submitted to the Appeal Court when the newspaper successfully petitioned for the right to appeal even though the High Court had refused permission.

In their decision the five judges said that when an appeal was heard, it was important to know what factors the initial court had taken into account in deciding what damages to award; this was “conspicuously lacking” in the Seima case judgment.

They said Judge Motata had not explained how he had come to find that the initial newspaper report was “unsubstantiated”; his finding in this regard was “inexplicable” in the light of the evidence as a whole, they said.

They also criticised his finding that the reporter “was generally evasive and suffered from amnesia about a matter that had nothing to do with the case”.

They were equally unhappy that he had found Seima to be an “impressive witness” merely because he had admitted during the hearing that he had not read all the case law on how to decide what damages to award.

A senior legal practitioner, who asked not to be named, said this week that in this case the Appeal Court judges were indicating that the tendency to make prohibitively high damages awards in defamation matters ran counter to Constitutional principles.

With acknowledgements to Carmel Rickard and Sunday Times.