Case number: CCT 62/2005
In the matter between:
DIKOKO: DAVID Applicant
and
MOKHATLA: THUPI ZACHARIA Respondent
WRITTEN ARGUMENT IN RESPECT OF THE QUANTUM OF DAMAGES
1. These heads of argument are filed in response to applicant’s written heads of argument dated 27 March 2006.
2. The applicant does not contend in his heads of argument that the quantum of damages is a constitutional matter within the ambit of such phrase in Section 167(7) of the Constitution.
3. Even though it is not specifically stated the applicant probably argues that the quantum of damage is an issue connected with a decision on a constitutional matter as is provided for in Section 167(3)(b) of the Constitution.
4. The respondent contends that:
4.1. the Honourable Constitutional Court will only entertain the question of the quantum of damage if it is seized with the appeal on the constitutional issue i.e. if it grants leave to appeal on the constitutional issue;
4.2. the Honourable Constitutional Court will not grant leave to appeal in respect of the quantum of damages in isolation.
In terms of Section 168(3) of the Constitution the Supreme Court of Appeal is the highest court of appeal except in constitutional matters.
5. The respondent reiterates its submission at the hearing namely that the Honourable Constitutional Court should refuse leave to appeal on the constitutional point.
6. The respondent accepts the submissions on behalf of the applicant to the effect that once the Honourable Constitutional Court indeed deals with the question of quantum of damage it is in the same position as any court of appeal. It will not interfere merely because it would have assessed the damage in a different amount.
7. The applicant did not contend that the assessment of the quantum of damage by the Honourable Court a quo as such constitutes an infringement of a constitutional right of the applicant.
8. If the Honourable Constitutional Court does entertain the question of quantum of damage the respondent wishes to point out that:
8.1. the applicant’s counsel at the trial in argument expressly contended that should the Honourable Trial Court find in favour of the respondent, an appropriate award would be in the region of R70 000,00;
8.2. the applicant in its application to the Supreme Court of Appeal by implication contended that an appropriate
award, alternatively as award that could not be faulted would be R70 000,00;
8.3. paragraph 32 of the affidavit of the applicant in such application was identical to paragraph 39 of the application before the Honourable Constitutional Court;
8.4. respondent submits that the Honourable Constitutional Court should have due regard to the fact that the Honourable Supreme Court of Appeal did not consider the award of the Honourable Trial Court as “palpably excessive or clearly disproportionate”, alternatively
“grossly extravagant or unreasonable”, alternatively,
“manifestly unreasonable”.
8.5. the applicant in its present written application does not contend for an award of between R20 000,00 and R30 000,00, but seems to suggest that an appropriate award, alternatively an award that could not be faulted would be R70 000,00.
Volume 1, p. 18, par. 39.
9. The respondent submits in the circumstances that the present suggestion by the applicant is opportunistic.
10. Should the Honourable Constitutional Court entertain the question of damages the respondent submits that the following factors supports the amount the Honourable Trial Court awarded.
11. The remarks of the applicant were made at a meeting that was open to the public and indeed attended by the local press. It resulted in the local press reporting on what the applicant said.
12. The applicant on his own admission is guilty of sheer speculation on the spur of the moment.
13. The applicant did not seriously express the wish that the respondent should give an explanation to the committee. The indication was of a rhetorical nature. Respondent indeed was present (even though he was not in the meeting at that point in time) and available. Had the applicant been serious, the route to
take would have been to indeed see to it that the NWPPASC hear the explanation of the respondent.
14. The explanation by the applicant was baseless and ruthless.
15. The applicant calls what he said “meaningless political refric”.
The problem is that the applicant in advancing meaningless political refric made the most damning remarks about the respondent. There can be no doubt that the remarks carried the import and sting pleaded by the respondent in paragraph 6 of the particulars of claim.
Volume 1, p. 88-9
16. The Honourable Trial Court correctly found as follows:
“It is clear from the defendant’s explanation that he used the plaintiff as a scapegoat. The defendant refused to accept responsibility for the excess on his cell phone account ...”
Volume 1, p. 30.
“It is simply not fair for a person to deny responsibility and blame someone else for your predicament when in fact you
are solely responsible for the predicament you find yourself in.”
Volume 1, p. 32.
17. Even at the hearing the applicant blamed the respondent and did not accept responsibility.
“Yes. So it was the responsibility of the administrative person, he did not do his job. He used to blame, not you? ...
Yes. To this day that is what you say? ... To this day that is what I say.”
Volume 3, p. 130 lines 5-8.
18. The Honourable Constitutional Court should take into account that the approach of the applicant is cowardly. It is the more so if it is viewed against the background that the respondent was courteous towards the applicant and regarded the matter as a highly sensitive issue. “.... because the chairperson was a very senior politician in the council and me as the Chief Executive Officer having him as my political head. So clearly there was no way that I could confront him in a disrespectful manner. So I felt that being the political head of the council and neither head of administration you know, that responsibility would be there,
you know, that relationship of respect. So I would not confront ...”
Volume 2, p. 67 lines 16-22.
19. It is submitted that the Honourable Constitutional Court should take into account that the respondent was defamed in the very arena where his performance as a municipal manager and his accountability was the focus point.
20. That is of much more importance than publication to for example the general public over national television.
21. It is for that very reason that the decision in Young v Shaikh, 2004(3) SA 46 (C) is apposite. In that case the plaintiff was awarded an amount of R150 000,00.
22. In the circumstances it is submitted that the award does not induce a sense of shock or any similar reaction.
23. It is submitted that the Honourable Trial Judge considered the question of damages properly and made a serious and fair
assessment. At worst for the respondent the award may be on the high side. It is in the very nature of awards of damages for defamation that some are on the low side and some are on the high side. It is submitted that the Honourable Constitutional Court should not interfere with such award.
DATED AT PRETORIA ON THIS THE ... DAY OF MARCH 2006
_________________________________________
Q PELSER SC
COUNSEL FOR RESPONDENT
