Katz v Welz (Chaucer Publications)

Defamatory statements made and published concerning a prominent attorney penalised in an action for damages which is one that seeks to protect the personal rights of persons, including the right to a good name, unimpaired reputation and esteem by others and in our new constitutional order, reputation forms part of the concept of human dignity which is a fundamental constitutional value. Consequently  the law of defamation intersects ‘two fundamental values, both protected by the Constitution, namely the rights to freedom of expression, including freedom of the press and other media, and the protection of reputation or good name’.

Essence

Defamatory statements penalised by award of damages of R330 000 against Noseweek editor for defamatory articles concerning a prominent practising attorney. 

Decision

(WCC 22440/2014) [2021] ZAWCHC 76 (26 April 2021)

Order:

Upheld claim for defamation and ordered defendants to pay damages of R330,000, with interest, and costs.

Judges

Ncumisa Mayosi AJ

Delivered: 26 April 2021

Reasons

“38    Mr Welz asserts as one of his defences this form of qualified privilege, on the basis that the defendants had a moral or ‘social’ duty to make the publications, which were made to people who had a right to receive the information. This defence cannot be sustained, because the courts do not recognise, as between a newspaper and its readers, a community of interest sufficient to sustain the defence of qualified privilege. Though it may be said that the press has a duty to publish, every reader of the newspaper cannot be regarded as having a sufficient interest in the subject matter.”

Quotations from judgment

Note: Footnotes omitted and emphasis added

INTRODUCTION

1 This is an action for damages for defamation, in which the plaintiff is Mr Leonard Katz, a director of Edward Nathan Sonnenbergs Inc. which is a firm of attorneys that practices nationally and internationally in the name and style of ENS Africa (ENS). The plaintiff is a senior attorney, who has practised as an attorney, uninterrupted, since his admission to practice on 28 January 1987.

2 The plaintiff specialises in insolvency law, corporate rescue and recoveries. In addition to being the national head of ENS’s Insolvency, Business Rescue, Corporate Recoveries Department, he is also the head of the Durban office of ENS.

3 The first defendant is Mr Martin Welz, a senior journalist and the editor of a monthly magazine known as Noseweek that is sold and circulated throughout South Africa, and in Namibia. Mr Welz began his career as a journalist in 1975 and has practiced as such, uninterrupted, since then. He has held senior positions at various national news publications, including the position of Pretoria Bureau Chief for the Sunday Times; Parliamentary Correspondent for the Sunday Express and head of investigations at Rapport. Mr Welz has been the editor of Noseweek since it was founded in 1993.

4 The second defendant, Chaucer Publications, is the owner, publisher and distributor of Noseweek.

5 In addition to being the editor of Noseweek, Mr Welz is also the sole director and corporate controller of Chaucer Publications.

. . . . .

10 In the view of Mr Katz, these words were intended and were understood by readers of Noseweek to mean that he, amongst other things, acted fraudulently and/or fraudulently manufactured a debt in order to liquidate a company; that as an attorney, has no integrity and has acted without scruples; has charged fees which are unjustified and/or are unconscionable and/or to which he was not entitled; and rendered false invoices.

11 It is common cause that the July 2014 and August 2014 editions of Noseweek were delivered to its subscribers and were offered for sale and sold to members of the general public.

12 Mr Welz and Chaucer Publications admitted that for the third quarter of 2014 (the period from July to September 2014), total sales of 16 967 copies of Noseweek were recorded.

13 Mr Katz seeks damages for defamation in the amount of R1 000 000.00

14 In his defence Mr Welz denies that the material to which Mr Katz objects is defamatory.

In the alternative, in the event of this Court finding that the impugned material is defamatory, Mr Welz asserts that

  • the content published was substantially true and was published in the public interest; or
  • amounted to fair comment premised on substantially true facts; or
  • that it was published on a privileged occasion in that the defendants had a moral or social duty to make the publication, which was made to people who had a right to receive the information; and/or
  • that the contents to which Mr Katz objected were published reasonably in the circumstances.

15 Mr Welz further asserts that when reading the passages complained of and all other material published in Noseweek, its readers would be familiar with, or quickly register what he describes as the publication’s ‘uniquely free, irreverent and occasionally entertainingly cheeky style of writing’, a style which he says Mr Katz himself has on occasion described as ‘satirical’.

Mr Welz further asserts that the passages complained of are a reasonable response to documents, statements and court records that are quoted in the Noseweek reports concerned – said documents, statements and court records having been either generated by Mr Katz himself, or with his knowledge, or at his behest, or being known to him.

16 Chaucer Publications also denies any defamation, and raises in the alternative the defences of public interest privilege; or reasonable publication; or fair comment or truth and public benefit. It says that Noseweek is subscribed to and circulated within a niche market of professional persons ‘who are not insensitive to the publication’s typically extravagant journalistic style, and accordingly understand and appreciate same.’

17 The trial commenced on 24 February 2020 and was concluded on 25 September 2020. It was heard over a period of 19 days. Mr Katz was represented by Adv Manca SC assisted by Adv Engelbrecht. Mr Welz represented himself. Chaucer Publications was represented by Adv Fehr and Adv Bishop, who was briefed for the purposes of argument only.

LEGAL PRINCIPLES APPLICABLE TO DEFAMATION

18 An action for damages is one that seeks to protect one of the personal rights to which every person is entitled, that is the right to a good name, unimpaired reputation and esteem by others. In our new constitutional order, reputation forms part of the concept of human dignity which is a fundamental constitutional value. In the result, the law of defamation lies at the intersection of two fundamental values, both protected by the Constitution, namely the rights to freedom of expression, including freedom of the press and other media, and the protection of reputation or good name.

19 The elements of defamation are

(a) the wrongful and
(b) intentional
(c) publication of
(d) a defamatory statement concerning the plaintiff.

20 The question whether a statement is defamatory in its ordinary meaning, or is per se defamatory involves a two-stage inquiry. The first is to establish the natural or ordinary meaning of the statement. The second is whether that meaning is defamatory.

Stage 1: The natural or ordinary meaning of statements

21 The test to be applied is an objective one. This Court is not concerned with the meaning which the maker of the statements intended to convey, or with the meaning those to whom it was published gave to it or whether they believed it. In accordance with the objective test, the question is what meaning the reasonable reader of ordinary intelligence would attribute to the statement in its context. In applying this test, it is accepted that the reasonable reader would understand the statement in its context and that he or she would have had regard not only to what is expressly stated but also to what is implied. With regard to context, headlines are not to be read in isolation since the ordinary reader is taken to have read the article as a whole.

22 It must also be borne in mind that the ordinary reader is subject to limitations. He or she is not a lawyer called upon to interpret the precise meaning of some legal document.

Stage 2: Is the meaning of the statements defamatory?

23 At the second stage, our courts accept that a statement is defamatory of a plaintiff if it is likely to injure the good esteem in which he or she is held by the reasonable or average person to whom it had been published. The well-known test proposed by Lord Atkin in Sim v Stretch is that a statement is defamatory if it would

“tend to lower the plaintiff in estimation of right-thinking members of society generally.”

Although this test has been widely applied, it should be qualified in two respects.

First, it is recognised that the reference to “right-thinking persons” is no more than a convenient description of a reasonable person of normal understanding and development. That is, it is a legal construct of an individual utilised by the courts.

24 Second, it has been accepted that the reference to the views of society generally is not to be equated with views held by the national community, but that it also includes views held by a substantial and respectable section of the community.

Defamatory statements include statements affecting moral character, imputing for example dishonesty, unethical or unprincipled behaviour; reflecting on office, profession or occupation, or which expose a person to enmity, ridicule or contempt.

25 This Court agrees with the submissions made on behalf of the plaintiff, and finds that the statements written and published by the defendants in the cover page, the editorial and the Brakspear article are indeed defamatory of Mr Katz.

26 The ordinary meaning of the statements convey or imply that Mr Katz

  • deliberately acted to subvert the course of justice,
  • is dishonest,
  • has conducted himself in an unlawful manner,
  • has been guilty of unprofessional conduct or conducted himself in an unprofessional manner,
  • has acted fraudulently and/or devised fraudulent schemes,
  • is a dishonest person generally,
  • is unfit to practice as an attorney,
  • is prepared to act unlawfully and/or unprofessionally on behalf of his clients in return for the payment of money,
  • as an attorney has no integrity and has acted without scruples and that this has been a matter of public knowledge for years,
  • has exploited his clients,
  • has acted in a criminal manner,
  • has acted in disregard of the law and
  • has fraudulently manipulated court proceedings,
  • has charged fees which are unjustified and/or are unconscionable,
  • has fraudulently manufactured a debt in order to liquidate a company,
  • deliberately misled the court,
  • has acted in a criminal manner,
  • has acted in disregard of the law and
  • has rendered false invoices for his fees.

27 The statements are accordingly likely to injure the good esteem in which Mr Katz is held by the reasonable average person to whom they were published.

Defences available for defamation

28 Where in defamation proceedings the publication of a defamatory statement is admitted, two presumptions arise, namely that the publication was wrongful and the defendant acted animo iniuriandi. The onus is then upon the defendant to establish either some lawful justification or excuse, or the absence of animus iniuriandi.

29 In this matter the defendants have admitted publication of the defamatory statements, and accordingly the onus shifts to them to establish their defences.

30 It has been confirmed by both the Supreme Court of Appeal and the Constitutional Court that the defendants bear a full onus of proving their defences, on a balance of probabilities.

31 I deal in turn with the legal principles applicable to each of the defences raised by the defendants, and pursued by them in the argument of the matter.

Truth and public benefit

32 It is lawful to publish a defamatory statement which is true, provided the publication is for the public benefit.

33 A defendant who relies on the defence of truth and public benefit must plead and prove that the defamatory statement complained of is in substance true. What must be established is the “sting of the charge”, or the “gist of the defamation” and the fact that there is some exaggeration in the language used does not deprive the defence of its effect.

Absolute and qualified privilege

34 The general principle is that it not unlawful to publish a defamatory statement on an occasion which the law regards as privileged. The consideration underlying the principle is that on these recognised occasions the law regards the free flow of information as so important that it should not be hampered by the fear of liability for defamation.

35 Absolute privilege can only be created by statute. It is therefore not a defence that is available to the defendants in this particular matter.

36 Unlike the defence of absolute privilege, qualified privilege does not afford absolute immunity to the publisher of a defamatory statement. The protection conferred by this defence is provisional and the publication will be wrongful if the publisher acted with an improper motive.

37 The three categories of occasions that enjoy qualified privilege are recognised, namely:

(a) statements published in discharge of a duty or exercise of a right;
(b) statements published in the course of judicial or quasi-judicial proceedings; and
(c) reports of proceedings of courts, Parliament and public bodies.

These occasions should not be regarded as numerus clausus. Whether a particular instance is privileged depends upon public policy considerations.

38 Mr Welz asserts as one of his defences this form of qualified privilege, on the basis that the defendants had a moral or ‘social’ duty to make the publications, which were made to people who had a right to receive the information. This defence cannot be sustained, because the courts do not recognise, as between a newspaper and its readers, a community of interest sufficient to sustain the defence of qualified privilege. Though it may be said that the press has a duty to publish, every reader of the newspaper cannot be regarded as having a sufficient interest in the subject matter.

Fair comment

39 It is lawful to publish a defamatory statement which is fair comment on facts that are true and are matters of public interest. The immunity afforded to such a publication is provisional, and the publication will be wrongful if the publisher acted with an improper motive. Four requirements have been set by the courts for successful reliance on this defence:

  • 39.1 the defamatory statement must amount to comment or opinion as opposed to a statement of fact;
  • 39.2 the comment must be fair;
  • 39.3 the facts on which the comment is based must be true and must be expressly stated or clearly indicated in the document or speech containing the defamatory statement;
  • 39.4 the comment must relate to a matter of public interest.

40 It is often difficult to distinguish comment and fact, particularly where comment is presented as fact. The test is an objective one in that the statement must be recognisable to the ordinary reasonable person as a comment and not as a statement of fact. The general rule is that the comment must be based upon facts expressly stated or clearly indicated so that the reader is able to distinguish between what is fact and what is comment. It is not necessary to set out the facts verbatim and in full, but there must be some reference in the article that indicates what facts are being commented on.

Media privilege / reasonable publication

41 In National Media Ltd v Bogoshi the Supreme Court of Appeal accepted that publication of a defamatory statement by the press may, even in the absence of stereotyped defences excluding wrongfulness (for example truth for public benefit, fair comment and privilege), be lawful if the publication was reasonable. What would be regarded as reasonable in any given case is dependent on all the circumstances of the case.24

42 However, since the defence deals with defamatory statements that can cause extraordinary harm that could be false, it is to be applied with great caution and restraint.

43 The requirement of reasonableness demands a high degree of circumspection from editors and editorial staff on account of the nature of their occupation, the powerful position of the media and the credibility which it enjoys amongst large sections of the community. Although no definitive list of potentially relevant factors is possible, the test of reasonableness includes, according to Bogoshi’ s case, considerations such as:

  • 43.1 the nature, extent and tone of the defamatory allegations;
  • 43.2 the severity of the consequences of publication;
  • 43.3 the nature of the information on which the allegations were based and the reliability of their source;
  • 43.4 the steps taken to verify the information, including the opportunity given to the person concerned to respond; and
  • 43.5 the need to publish before establishing the truth of the allegations in a positive manner.

44 I now turn to analyse the defences raised by the defendants with reference to the evidence placed before the Court.

. . . .

163 The SCA in Bogoshi held as follows:

‘Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.’

. . . .

PRINCIPLES RELATING TO THE AWARD OF DAMAGES FOR DEFAMATION

203 The successful plaintiff in a defamation action is entitled to an award of general damages as a solatium to compensate the plaintiff for the impingement on his or her dignity and reputation. Despite the recognised impropriety of damages as a remedy in certain circumstances, the present position in our law seems to be that, apart from an interdict, a claim for damages is the only remedy available to someone who has suffered an infringement of a personality right.

204 The court has a wide discretion in determining the award of general damages ex aequo et bono having regard to all the circumstances of the case and the prevailing attitudes of the community. Generally speaking,

“our courts have not been generous in their awards of solatia. An action for defamation has been seen as the method whereby a plaintiff vindicates his reputation, and not as a road to riches.”

The idea of “punitive damages” in order to punish the defendant, rather than to compensate the plaintiff for his or her loss or harm, has been rejected by the majority of the Constitutional Court.

205 There is no formula for the determination of general damages. That flows from the infinite number of varying factors that may come into play. Factors which the courts have taken into account include those set out below.

The nature of the defamatory statements written and published

206 This goes to the seriousness of the defamatory statement made against a plaintiff. Imputations of serious dishonesty may cause greater hurt to dignity and reputation than imputations of private immorality or political unreliability, and may attract greater awards of damages.

207 The statements published by the defendants regarding Mr Katz are highly defamatory. Accusing any person, let alone an attorney, of corruption and/or fraud is about as serious and damaging an allegation as can be made.

The nature and extent of the publication

208 A defamatory statement published in a serious journal with a wide circulation may attract a higher award than a publication of an ephemeral nature to a limited number of people. Re-publication or repetition which is the natural and probable result of the initial publication may also be taken into account.

209 There was nothing ephemeral about the publication of the defamatory statements concerning Mr Katz. Mr Welz published his repetition of them well into 2020, culminating with a letter to prospective funders of his defence in this litigation – in February 2020 – where he asserted the essence of the statements once more, and vowed to vindicate their truth in these proceedings. He has failed to do so here.

210 As stated above, the defendants admitted that just for the third quarter of 2014 (July to September 2014), total sales of 16 967 copies of Noseweek were recorded. Circulation was surely widened even beyond this as a result of the publication of letters and related articles that occurred since the initial publication of the defamatory statements.

211 Mr Welz certainly regards Noseweek as a serious journal, judging by the offence he took to it having been described as a tabloid by Kgomo J in his judgment. Its circulation at the time of the initial publication of the defamatory articles, combined with the subsequent re-publications to which I have alluded, and about which more is said below, can hardly be said to be anything but wide.

The reputation, character and conduct of the plaintiff

212 The plaintiff may adduce evidence of his or her character and reputation and standing in the community. Mr Katz did not do so in this case.

213 In correspondence addressed to the Court on 18 January 2021, the attorneys of record for the second defendant drew this Court’s attention to the judgement delivered by the Supreme Court of Appeal on 17 December 2020, in the matter of Economic Freedom Fighters and Others v Manuel [2020] ZASCA 172, specifically paragraphs 119 to 127 of the judgement which, it was submitted, addressed the issue of damages where a plaintiff has chosen not to lead evidence, and the general quantum of damages awarded in defamation matters.

In these paragraphs of its judgement, the SCA dealt with the question of whether or not the court a quo should have referred the question of the quantum of damages to be awarded to Mr Manuel, to oral evidence. The SCA ultimately held that the court a quo should have done so.

214 Whilst the correspondence did not go as far as to say that the fact that the plaintiff did not personally lead any evidence regarding the harm to his reputation should be held against him, the suggestion embedded in the referral of this Court to those specific paragraphs of the SCA’s judgement is either that his failure to lead evidence in this regard disentitles him to any damages, or that this should be a factor to be considered by this Court in assessing the question of damages.

215 The fact that no evidence is led on reputation does not mean that only nominal damages must be awarded, or none at all, since it is accepted that every person has a reputation that is worthy of protection. As the SCA has confirmed and as the courts have held in several other cases, there is no empirical measure to determine compensation for damages of this nature. This Court, in determining an appropriate award, must have regard to all the facts and circumstances of a particular case.

216 In any event, and in addition to the principles set out above, as to Mr Katz’s reputation and esteem after the publication of the defamatory articles evidence was put before the Court on his behalf of a letter written by one of Noseweek’s readers and published in its June 2018 edition that compared Mr Katz’s conduct as previously described in Noseweek (as one of Nedbank’s lawyers) to the conduct of the Nazis in the concentration camps during WWII. Mr Katz is Jewish. The impact of the articles on Mr Katz’s reputation and esteem is patent from the repugnance of the association, or comparison, made in this letter.

217 The defendant may also adduce evidence of the plaintiff’s lack of reputation or general bad character, but not of particular facts which show only that the plaintiff ought to be a person of bad reputation. Mr Katz is certainly not the most popular person to Mr Welz and the witnesses that he called, based on what they view as his abrasive, rude and arrogant manner. However, the reputation and respect to which a person is entitled may be different from his or her popularity. Further, the grounds for which the plaintiff’s character is to be impeached should be placed at issue in the pleadings, and notice should be given of the intention to adduce evidence on matters in mitigation not raised in the pleadings. This has not occurred in this case.

218 The extent to which the defendants prove that the defamatory statements made were true may be taken into account where a plea of truth and public benefit fails. My finding above is that the defendants have not discharged the onus on them to prove, on a balance of probabilities, the truth of the defamatory statements written and published in July and August 2014, and accordingly there can have been no public benefit in them, nor can the comments made in relation to those statements (which were presented as fact, though not true) have been fair.

The motives and conduct of the defendant

219 The fact that the defendant has embarked on a deliberate and unfounded attempt to destroy the plaintiff’s reputation will be an aggravating factor. The conduct of the defendant from the date of the publication of the statements to the date of the judgement is relevant. Expressions of regret and apology may be mitigatory. There have been no such expressions from the defendants in this case.

220 The conduct of Mr Welz since the first publication of the defamatory statements in July 2014 is, in my view, an aggravating factor in the question of what can be appropriate damages to award in this matter.

221 In the September 2014 edition of Noseweek, the defendants published a letter sent by Mr Katz to the defendants, in which he, referring to the defamatory articles in the July 2014 edition, pointed out that if the defendants had applied their minds to the various affidavits filed in the Brakspear matter, they would have come to the view that West Dunes was validly placed into liquidation and that the true facts could be established from the affidavits (including those of Mr Brakspear’s attorney and counsel) filed in the application to set aside the winding up of West Dunes.

Mr Katz expressly stated that the defendants deliberately chose to ignore what was said in answer to Mr Brakspear’s wild allegations. Mr Katz asserted that the defendant’s failure to have regard to the affidavit of Mr Brakspear’s own attorney, which accords with his affidavit filed in that matter (confirmed, on oath, by two counsel) was, at best, reckless, and at worst, dishonest.

222 Mr Welz published his response and stated, “In short, so far, we stand by our story”.

223 On 20 October 2014, Mr Brakspear’s application for an order setting aside the winding up of West Dunes was dismissed with costs. In the judgement the court concluded that Mr Brakspear’s allegations of impropriety, fraud and fictitiousness were nothing more than wild, reckless, unsubstantiated allegations. The court found:

“[251] The evidence of the applicant (Mr Ian Brakspear) himself must be treated with great circumspection where it is not consistent with that of his own legal team, the Nedgroup Trust or the liquidators. That is so because he jumped from one standpoint to another and back without blinking an eyelid. In my view and finding he was a mendacious witness whose evidence was resplendent or shot through with contradictions and inherent improbabilities. […]

[252] He was evasive while giving evidence and/or answering questions during his cross-examination. He has conceded to being angry, frustrated and combustible, it was clear that he was to some degree actuated by extreme malice towards the liquidators, Nedgroup Trust and its attorney, Leonard Charles Katz who was and is a senior practitioner with attorneys’ firm, Edward Nathan Sonnenbergs among others. This was amply demonstrated, not only in the allegations in his affidavits but also in his “know this Katz” email of 1 November 2012.

[253] The applicant confirmed in his evidence that it was his “life mission” to bring about the downfall of Mr Katz. As a result, it is my view that because of his hostility and vindictiveness he (applicant/Mr Brakspear) cannot reasonably be said to have had a commensurate ability to present or view facts objectively. It also bears mention that as part of his ostensible vendetta, he used the fringe publication, Noseweek edited by his friend and adviser at court, Mr Martin Welz, as a platform to publish allegations which may amount to criminal defamation unless they are proven to be true or in the public interest, among others.”

224 Notwithstanding this, the defendants persisted with their assertion that the facts contained in the defamatory articles published in July 2014 were true.

225 In the December 2014 edition of Noseweek, the defendants, in response to the Kgomo J judgement and Mr Katz advising that he intends to institute defamation proceedings against the defendants, wrote and published the following:

“On another day and under different circumstances I might have been just a bit rattled by all of that. But I know that Noseweek’s earlier stories on the subject were squarely based on the evidence quoted in them. I also know that several of the judge’s statements quoted here are either half- truths, or simply nonsense.”

226 On 17 March 2015, the National Prosecuting Authority declined to prosecute anybody arising out of the allegations made by Mr Brakspear.

227 On 9 December 2015, Mr Brakspear’s petition for leave to appeal to the Supreme Court of Appeal, against the Kgomo J judgement, was dismissed.

228 None of the above events convinced Mr Welz and the second defendant to change their stance.

229 Instead, in the December 2015 edition of Noseweek, the defendants published an editorial penned by Mr Welz in response to these proceedings having been instituted by the plaintiff against the defendants. In it the defendants published the following:

“Judge Kgomo’ s judgement, which Mr Katz found so much to his liking is undoubtedly the most arrogantly, ludicrously, incompetent High Court judgements I have read in my long career. On that score, it might have been just sadly unfortunate. However, it also reflects malicious bias, which makes it reprehensible. … Katz’s summons was a gift. It offers me the opportunity to fully unpack all the damning evidence in an open court room, should not have happened already elsewhere.”

230 On 9 March 2016, Mr Brakspear’s application for further consideration for leave to appeal in terms of section 17 (2) (f) of the Superior Court Act, 2013 was dismissed.

231 During or about July 2016, the defendants refused Mr Katz’s offer to settle these proceedings on the basis that the defendants publish a retraction and apology and agree to pay his party-and-party costs to date.

232 On or about 1 May 2018, the defendants published an article with the title “How Nedbank lied, and lied, and lied” in which the defendants again recounted Mr Brakspear’s version of events.

233 On 5 July 2018, the Royal Court of Jersey struck out the Brakspears’ claims.

234 On 22 July 2018, the defendants published another article regarding the Brakspear saga titled “Nedbank offshore saga continues”. In it the defendants again refer to Mr Katz and published a picture of him with the remark immediately thereunder “Standing up to rogue bankers and their lawyer Leonard Katz”.

235 On 2 August 2019, the Court of Appeal of Jersey dismissed the Brakspears’ appeal.

236 On 18 February 2020, shortly before the trial proceedings in this matter were due to commence, Mr Welz distributed an email to Noseweek’s “shareholders and its friends and major supporters over the years.” In the email, which was a request for funding to assist the defendants in these proceedings, Mr Welz published the following statements:

“In Noseweek I have frequently championed the cause of the self-made successful businessman who, in a moment of weakness falls victim to the legal manipulations of one or other big financier, assisted by one or other less scrupulous attorney. Mr Leonard Katz, head of insolvency at Edward Nathan Sonnenbergs (ENS, “the largest law firm in Africa”) is one such attorney. …
We have made a discovery of thousands of pages of documents related to a number of cases in which Mr Katz has acted in what I can only euphemistically describe as manipulated liquidations…
Ian Brakspear’s cases in South Africa (there were three over a four-year period) failed, but Katz’s propensity to manipulate, bully and to lie baldly in court documents – assisted by his favourite counsel – was a significant factor. By suing us, Katz has opened the way to us to prove it, now with the benefits of vastly more evidence and experience. What in those cases was merely probable, is now easily shown to be true.”

237 The truth of the matter is, in the present proceedings neither Mr Welz nor the second defendant have unpacked any evidence, let alone evidence that is damning, establishing the substantial truth of the statements written and published by them concerning Mr Katz, and accordingly they have failed to uphold their defences to Mr Katz’s summons. In addition, no evidence has been placed before this Court demonstrating that Mr Welz’s biting, derisory and condescending commentary in response to the Kgomo J judgement was justified. Unfortunately therefore for Mr Welz, the gift presented by Mr Katz’s summons failed, in my view, to deliver the anticipated fruits.

238 Persistence in a defence of truth and public benefit which fails may increase the award, as may recklessness and irresponsibility on the part of the defendants.

239 The defendants persisted with their defamation of Mr Katz and refused to retract and apologise for the defamatory articles published in July 2014, notwithstanding the ever-growing confirmation that the statements contained therein were not true and that there was no justification for the offending statements published in those articles.

240 In the circumstances, the defendants have abused their powerful position as members of the media and a publisher of a widely distributed magazine to launch and sustain a vicious unsubstantiated attack against the person of Mr Katz.

They appear to have turned a blind eye to the injunction in Bogoshi, that members of the press should not labour under the impression that they have a licence to lower the standards of care which must be observed before defamatory matter is published (which in this case, persisted with long after publication and the objective facts showed otherwise) in a newspaper, wherein the Supreme Court of Appeal cited Professor Visser’ s view that a high degree of circumspection must be expected of editors on account of the nature of their occupation, particularly in light of the powerful position of the press and the credibility and the credibility which it enjoys among large section of the community.

241 As stated above, in considering the amount of damages to be awarded in a case for defamation, the Court has to take into account that essentially the plaintiff seeks the vindication of his reputation by claiming compensation from the defendants and as a conciliation of the wrong done to him. The aggravating factor is the conduct of the defendants and the manner in which the defamatory statements were made and their attitude subsequent to the publication.

242 Considering all of the factors which I have set out above, all of which I consider to be aggravating, this case justifies a significant award in damages. Awards in other cases provide generalised guidance on what award might be appropriate.

242.1 In Hlongwana v Tiso Blackstar Group (Pty) Ltd an award of R300 000 (for a claim of R2 000 000) was made for defamatory allegations published in Times Live and Sowetan Live that the plaintiff (an advocate and arms dealer) was involved in the arms deal scandal, specifically links with Gupta family and received bribes.

242.2 In Engelbrecht and another v Independent Media (Pty) Ltd and another , a recent case with some similar facts to this one, the court awarded R300 000 on a claim of R5 million, where allegations that the insolvency practitioner plaintiffs were corrupt, fraudulent and intimidated opponents where published in a certain newspaper and on internet sites which are widely distributed between the Council of the Bar, the Judiciary and the side bar in Johannesburg, where the plaintiffs practice.

243 The court concludes that the defendants have failed to discharge the onus on them of proving that the defamatory statements were true and published in the public interest; constituted fair comment and that their publication was reasonable in the circumstances.

244 Weighing up all of the above circumstances, to which regard may properly be had in the assessment of damages in matter of this kind, I am of the view that an appropriate award of damages would be R330 000.00.

COSTS

245 The usual rule, namely that the successful party should be entitled to the costs of the proceedings, applies to these proceedings.

246 The factors that are relevant to the costs order in this matter are set out below.

247 On 18 July 2016, Mr Katz addressed a letter to the defendants in which he advised that he was prepared to settle the claim against them provided that the defendants published an apology and retraction in the September and October 2016 editions of Noseweek and that the defendants accept liability for his partyand-party costs. The defendants refused to do so.

248 The defendants refused to retract, or apologise for the defamatory statements published regarding Mr Katz and, instead, republished them on more than one occasion, as set out above.

249 In these proceedings, Mr Welz has conceded in evidence that:

  • 249.1 at least certain of the defamatory statements published concerning Mr Katz were known to be false;
  • 249.2 the defendants have been in possession of documentary evidence that demonstrates the defamatory statements to be false; and
  • 249.3 a number of courts, both in this country and in Jersey, have rejected as false Mr Brakspear’s version, which was written and published by the defendants;
  • 249.4 the allegations made in the defamatory statements, either directly or the essence of them, were repeatedly published, thereby continuing their dissemination.

250 A further factor to consider is the fact that these trial proceedings were extended for much longer than was required. This is directly attributable to Mr Welz generally being unprepared in the conduct of his defence, leading irrelevant evidence and often being late for the commencement of the hearings.

251 Such conduct would ordinarily warrant a punitive costs order. However, I do not deem a punitive costs order to be just and equitable in the circumstances of this case. Mr Welz was a lay litigant. He could not afford representation, and exercised his right to defend himself. He has already been mulcted with costs on two occasions during the conduct of this lengthy trial – once for a postponement application that went against him, whilst on another occasion he was ordered to pay the wasted costs of that day after his witnesses failed to turn up.

CONCLUSION

252 In the result, I make the following order:

252.1 The first and second defendants are ordered, jointly and severally, to pay damages to the plaintiff in the sum of R330 000.
252.2 The first and second defendant shall pay interest on the sum of R330 000 at the mora rate from the date of this judgement to the date of payment.
252.3 The defendants are to pay, jointly and severally, the costs of the action such costs to include the costs attendant upon the employment of two counsel.

Court summary