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13 Oct 2021
BY Aslam Moosajee AND Vishana Makan

Defamation matters: PR specialists may be just as important as your lawyers

Instituting and successfully prosecuting a defamation claim can be challenging and expensive. More often than not, the most valuable advice an aggrieved individual can receive, in the face of a defamatory statement, is that even if there is an actionable defamation case, a damages claim may be a hollow victory. This is because the awards are low and costs are high and if the claim is eventually tried in open court, which can take at least about 18 months to get to court, the long-forgotten story will get a new lease of life.

Defamation suits should also not be used as a means to silence or intimidate the public in matters of public importance. In the Johannesburg High Court judgment of Koko v Tanton, a former CEO of a state owned entity launched an application against a 72-year-old female principal of a preschool, for relief that included an order declaring the statements or publications made and published by the this principal on Twitter were defamatory, demeaning, false and unlawful and damages in the amount of ZAR500 000,00 was claimed by Mr Koko.

Mr Koko contended that the offending tweet insinuated that he was dishonest and/or a thief. Shortly after, Mr Koko instituted an application against the principal. Mr Koko made the following statement during a broadcasted interview: “she needs a big klap so that others can learn that the time for impunity is gone”. However, at the hearing, Mr Koko did not proceed with the relief originally claimed, save that he persisted with claiming the cost for the legal proceedings from the principal. The offending tweet had been deleted months prior to the hearing of the application.

The court found that Mr Koko’s conduct in bringing the application constituted an abuse of the court process and met the criteria for Strategic Litigation Against Public Participation (“SLAPP”). The court quoted with approval the Supreme Court of Appeal’s (“SCA”) judgement in EFF & Others v Manuel. In the Manuel case the SCA held that the application procedure is inappropriate for a claim for damages for defamation, even where there are no material disputes of fact.

Damages for defamation as well as the demand for an apology ought to be pursued through action proceedings. This principle has been reaffirmed in the recent SCA judgment of NBC Holdings (Pty) Ltd v Akani Retirement Fund Administrators (Pty) Ltd which stated that claims for damages and an apology could only be resolved after hearing oral evidence.

Instead of spending thousands of ZAR (or in many cases hundreds of thousands of ZAR) in a costly legal battle, that will most likely fail to achieve its purpose, aggrieved persons are better advised to utilise some of the funds that they would have spent on court proceedings, to instruct their lawyers to work with a reputable public relations company and to assist in formulating appropriate responses to any backlash the defamatory statement may have caused. By doing so, at least the other side of the story will be published and any resultant damage can be curtailed. This approach will go a long way to ensuring that the aggrieved person does not give the story a new lease of life, which inevitably happens after a court hearing.

 

Aslam Moosajee

Executive | Dispute Resolution

amoosajee@ENSafrica.com

+27 82 461 5917

 

Vishana Makan

Associate | Dispute Resolution

vmakan@ENSafrica.com

+27 66 493 2372