|This case dealt with an exception to the Plaintiff’s amended Particulars of Claim. The Plaintiff alleges that the Defendant maliciously and intentionally published defamatory statements about her on the internet, and seeks damages and a final interdict, directing the removal of the publications.
In 2005, the Plaintiff, appointed by the Family Advocate, filed her report to the court in relation to litigation between the Defendant and the unmarried mother of his son. The Defendant lodged a complaint with the Health Professions Council of South Africa (“HPCSA”), who in December 2014, found the Plaintiff guilty of unprofessional conduct. In October 2015, following an internal appeal, the finding was set aside, exonerating the Plaintiff. However, the Defendant created his webpage and published his first post in December 2014, which reported the HPCSA’s finding that the Plaintiff was guilty of unprofessional conduct. The Defendant also created several “tags” to promote the webpage.
The Defendant’s exception was premised on four grounds namely, that:
1. The first post cannot be interpreted as defamatory;
2. The particulars of claim are vague and embarrassing in that the post was not misleading nor incorrect;
3. There is no allegation that the second post was defamatory; and
4. There is no legal basis to allege that the Defendant was under a legal duty to remove the website.
The Plaintiff alleged the Defendant’s website was established with the sole intention of defaming her, and that the post was wrongful and defamatory. The Defendant contended that the first post made a qualified report of the HPCSA’s finding and does not convey normative meaning on the part of the reporter.
The High Court considered the Defendant’s exception in relation to the elements of defamation, outlining that in order to avoid liability the Defendant must rebut the elements of wrongfulness or intention. Defamation is defined as the wrongful and intentional publication of defamatory words or conduct that refers to the Plaintiff.
|The Court confirmed that a professional person can recover damages if the impugned article or utterances are likely to humiliate or belittle the Plaintiff and/or render him/her less worthy of respect by his/her peers. Despite the first post becoming outdated and incorrect, and the Plaintiff demanding it be removed, the Defendant refused and instead made a second posting. The court found that it is unlikely that the reasonable, normally intelligent, and right-thinking member of society who reads that a professional person has been found guilty of unprofessional conduct would associate with such person.
The Court held that there was no vagueness in the Plaintiff’s Particulars of Claim and found that the alleged truth of the defamatory charge can only be considered in light of the evidence to be led at the trial. The Court accordingly dismissed the exception, with costs, and directed the Defendant to plead within 20 (twenty) days of the order.
In this case the Court considered the Defendant’s exception in light of the elements of defamation. It is trite that where a Defendant seeks to avoid liability in respect of a defamation claim he/she has the onus rebut the elements of wrongfulness or intention. Accordingly, the Court took this into consideration in the hearing of the exception and found that the Particulars of Claim were not vague and embarrassing, and that the alleged truth of a defamatory charge can only be considered in light of the evidence led at the trial.
Written by Wesley Pons Checked by Charlotte Clarke