IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case No: CCT 62/2005
In the matter between:-
DIKOKO, DAVID Applicant
and
MOKHATLA, THUPI ZACHARIA Respondent
APPLICANT'S WRITTEN ARGUMENT REGARDING THE AWARD OF DAMAGES
1. Pursuant to leave granted by the above Honourable Court, the Applicant hereby submits additional argument regarding the quantum of damages to be awarded in this matter.
2. It is submitted that a Court of Appeal will approach the matter thus:-1
1 Norton & Others v Ginsberg 1953 (4) SA 537 (A) at 551F – 552C
"In deciding whether the damages should be reduced or increased in the present case, I bear in mind what was said by Watermeyer, J.A., in the case of Sandler v. Wholesale Coal Suppliers Ltd., 1941 A.D. 194 at pp. 199 and 200:
'Attempts have been made in several cases in which the assessment of damages was a matter of estimation rather than calculation to define the class of case in which a Court of Appeal should interfere. For example, in Salzmann v. Holmes, 1914 A.D.
471 at p. 470 it was said that the Court would interfere if the damages awarded were 'palpably excessive or clearly disproportionate in the circumstances of the case'; in Sutter v.
Brown, 1926 A.D. 155 at p. 173 if the damages were ' manifestly inadequate'; in Versfeld v. South African Citrus Farms Ltd., 1930 A.D. 452 at p. 462 it was said that the Court would not interfere unless it could be shown that the damages were 'grossly extravagant or unreasonably'; in Black & Others v. Joseph, 1931 A.D. 132 at p. 150, unless the damages were 'so high as to be manifestly unreasonably'. These citations suggest that a Court of Appeal should not interfere unless there is some striking disparity between its estimate of the damages and that of the trial Court.
And further unless there is some unusual degree of certainty in its mind that the estimate of the trial Court is wrong. But is does not follow that a Court of Appeal must renounce its functions as a
Court of Appeal by deferring to the estimate of the trial Court in case of doubt or difficulty. It was pointed out by Innes, C.J., in the case of Hulley v Cox, 1923 A.D. 234 at p. 246 where he said:
'An appellate tribunal is naturally slow to interfere with the discretion of a trial Judge in the matter of damages. But this is not the verdict of a jury; and we are bound to intervene if we think that due effect has not been given to all the factors which properly enter into the calculation, or if the final award is in our opinion excessive.'
Three remarks can be compared with somewhat similar remarks made by Greer, L.J., in an English case – Flint v. Lovell, 1935 (1) K.B. 354 at pp. 359, 360. Seeing that an appeal is a re-hearing of all the questions involved in an action, including the quantum of damages, a Court of Appeal must necessarily decide upon the figure which it thinks should have been awarded. When it has done that, if the figure arrived at, considered from all aspects differs substantially from the figure awarded, the Court of Appeal must give effect to it. If it does not do so, it is deferring to the judgment of the trial Judge and not carrying out its functions as a Court of Appeal by exercising its own judgment upon the matter which is before it on appeal. "
3. In the circumstances it is submitted that this Court is at large to interfere with the award of damages of the court below. The factors to be taken into account were set out in Buthelezi v Poorter & Others2:-
"On the authority of Muller v South African Associated Newspapers Ltd &
Others 1972 (2) SA 589 C at 595A; Black & Others v Joseph 1931 AD 132 at 146; Veldsman v Holmes 1914 AD 471 at 480; Gelb v Hawkins 1960 (3) SA 687 A at 693D, Mr Kentridge contended, quite correctly, that the Court must have regard to all the circumstances of the case including, inter alia – and I quote the words of Watermeyer J in Muller's case –
'The character and status of the Plaintiff, the nature of the words used, the effect that they are calculated to have upon him, the extent of the publication, the subsequent conduct of the defendant and, in particular his attempts, and the effectiveness thereof, to rectify the harm done."'
4. In a case where a limited publication of the defamatory statement takes place, it is regarded that the injury of the reputation of the defamed person to have been comparatively slight and that an award should be commensurate therewith. In this regard see Simpson v Williams.3
2 1975 (4) SA 608 (W) at 613G-H
3 1975 (4) SA 412 (N)
5. The fact that a limited publication took place was also properly taken into account in Chetcuti v Van Der Wilt.4 See Van Der Berg v Cooper &
Lybrand Trust (Pty) Ltd and Others 2001 (2) SA 242 SCA at 259J.
6. Although on the record before this Honourable Court there appears to be no formal apology from the Applicant, we respectfully submit that the Applicant's own conduct was speculative5 whilst at the same time he did not have the intention to injure the Respondent6 and setting out his high regard for the Respondent7, such is akin to an apology to the Respondent.
7. "There is (also) no evidence that the defamatory statement was believed or that the respondent has in fact been lowered in the esteem of colleagues or others, or that he has suffered any consequence of note as a result of the defamation apart from the personal affront to his dignity."8
8. "Comparisons of the kind suggested serve a very limited purpose. In the nature of things no two cases are likely to be identical or sufficiently similar so that the award in one can be used as an accurate yardstick in the other. Nor will the simple application of an inflationary factor necessarily lead to an acceptable result. The award in each case must depend upon the facts of the particular case seen against the background of prevailing attitudes in the community. Ultimately a Court
4 1993 (4) SA 397 Tk GD at 410A
5 Record, Vol III, p 122, l 2 – 23; p 150, l 20 – p 151, l 18
6 Record, Vol III, p 122, l 24 - 25
7 Record, Vol III, p 122, l 26 to p 123, l 1 - 7
8 Van Der Berg v Cooper & Lybrand Trust (supra) at 260B
must, as best it can, make a realistic assessment of what it considers just and fair in all the circumstances. The result represents little more than an enlightened guess. Care must be taken not to award large sums of damages too readily lest doing so inhibits freedom of speech or encourages intolerance to it and thereby fosters litigation."9
9.
9.1. We submit that given the occasion, how the words used were understood by those present at the meeting and the limited publication of the words, the amount of R110 000,00 awarded by the trial court is extremely excessive.
9.2. The meeting involved the overseeing and management of public funds.10 In this regard we submit that councillors who are called upon to give explanations at such meetings should be able to ventilate their opinions and the blameworthiness of what the Applicant stated must be viewed in the context of councillors being given the scope to articulate their views and opinions at such meetings.
9.3. From the record of the meeting it is plain that the Applicant repeatedly expressed his wish that the Respondent could have been
9 Van Der Berg v Cooper & Lybrand Trust (supra) at 260G-H
10 Vol I, p 51
present to give the explanation to the committee himself.11 The Applicant stated as follows at the meeting:-
"And when it was brought for now I might say maybe it was politically motivated. That is why I am saying it could have been best if Mr Mogale was here to tell why, because one of the routes my personal view might have been he did it deliberately for it to accrue and build a big sum. Because some of the colleagues in Council, more especially from our other political parties want to misconstrue when they give the information out, whether to the media or so, wanting to make it as if it was R21.000,00 for one month, whilst it was R21.000,00 for three years."12
9.4. There is no evidence of how the words were understood by those present at the meeting. What is apparent is that the answers given by the Applicant satisfied (and were accepted) by the committee as meaning that there was an agreement between Applicant and Respondent which focussed away from the policy that was applicable.13 This is what the committee understood and there is no evidence of any negative inferences against the Respondent being drawn by the committee to whom the utterances were made.
11 Vol I, p 38, l 7 – 9; p 39, l 23 – 25; p 44, l 2 - 3
12 Vol I, p 44 – first paragraph
13 Vol I, p 47 – third paragraph
10. In Van der Berg (supra) the Appellant, a senior counsel, had sued for defamation resulting from certain allegations made against him in affidavits by the trustees of an insolvent estate. The trustees had alleged that the Appellant had manipulated some attorneys to renege on some undertakings they had given to hand over some documents. In assessing the damages the court found that there was limited publication of the defamatory statement to a restricted class of persons and that the Respondents had made no apology or retraction of the statement. The court also found that there was no evidence that the defamatory statement was believed or that the Appellant was lowered in the esteem of legal colleagues or others, or that he had suffered any consequence of note apart from the personal attack to his dignity. The court awarded damages in the amount of R30 000,00.
11. We submit that the Van Der Berg judgment offers an approach which can be followed in this case. We submit that an amount of R20 000,00 to R30 000,00 would be adequate compensation having regarding to the facts of this case. The Respondent's claim of R500 000,00 was not realistic and should not have been pursued in the High Court.
12. In the result, we submit that leave to appeal should be granted to the Applicant and the appeal in regard to the amount awarded for damages be upheld with costs including the costs occasioned by the application for leave to appeal to the High Court and the Supreme Court of Appeal, all such costs to include the costs of two counsel.
13. We submit that the order of the trial court should be substituted with an order as follows:-
"1. The Defendant is ordered to pay the Plaintiff an amount of R20 000,00 (R30 000,00);
2. The Defendant is to pay the costs of suit on the magistrates court scale."
LöTTER WEPENER SC
T J BOKABA
Defendant's Counsel Chambers
27 March 2006f
