In the past year or so, the Supreme Court of Appeal (SCA) handed down judgment in two defamation appeals that have an impact on how plaintiffs obtain remedies to vindicate their reputation. Both of these cases were appeals from defamation cases brought through the procedure of an application or motion (where evidence is given through affidavits) as opposed to the procedure of a trial (where evidence is given through oral evidence).
In my view, in these cases, the SCA adopted a retrogressive approach which is likely to set back our law of defamation for decades, just when we should be developing the law to keep up with the digital media. The victims will be worthy plaintiffs who will suffer severe reputational damage as a result of unlawful defamatory statements about them.
Thanks to the progressive approach of the High Court in both cases (and some others, too), our defamation law had finally developed to offer successful, deserving plaintiffs a package of remedies in motion proceedings to vindicate their harmed reputations fairly quickly and efficiently – a declaration by the court that the statement was false and defamatory; a retraction or apology; an order that the statements be taken down (if they are still being published on the internet); an interdict that the statements can’t be repeated; and damages.
This full package of remedies is important to restore the dignity and reputation of those defamed – and, in the digital age, to address harmful disinformation. They are also important because, in the digital age, disinformation moves around the world at the speed of light, and no remedy is worthwhile unless it is a nimble one.
Then the SCA intervened.
In late 2020, the SCA (in a judgment prepared by Judges Mahomed Navsa and Malcolm Wallis) rightly found that the Economic Freedom Fighters (EFF) had defamed Trevor Manuel, in alleging he acted corruptly in his role as chair of the panel set up to recommend the new SARS commissioner ( ZASCA 172). The SCA upheld the High Court’s declaratory order that the statement was unlawful, defamatory and false, ordered the EFF to remove the statement from its social media accounts, and interdicted the EFF from repeating the statement.
But the SCA referred the damages award and apology claimed by Manuel to an oral hearing, saying these remedies couldn’t be obtained through the motion procedure. Damages have always had to be claimed through trial proceedings, said the SCA, and the apology sought was inextricably linked to the damages claim.
Then in October 2021, the SCA (in a judgment of Wallis) doubled down: it refused to confirm a retraction obtained in the High Court by Akani Retirement Fund Administrators against a competing pension fund administrator, NBC Holdings ( ZASCA 136). NBC wrote a letter alleging that the High Court found strong evidence of corruption and that the appointment of Akani was unlawful. The SCA held that the retraction remedy could not be obtained through the motion procedure, even if damages were not also sought.
The upshot of the two SCA cases is that, if a deserving litigant requires the protection of the law after being unlawfully defamed, the full package of vindicatory remedies is not available to her unless she starts the long, slow, very expensive business of going to trial. If she wins, years later and long after the defamatory statement had done its damage, she would be entitled to the full package.
If, however, she was to choose to try and bring an expeditious and far less expensive application on affidavit, she would only be entitled to a declaration of falsity, an interdict and a take-down order. Damages and retractions or apologies can’t be obtained.
Now the general rule in our law as to which process to use when you litigate is that the motion procedure can only be used if there are no material factual disputes. So if this is so – if there is no material dispute about damage to reputation – why shouldn’t a deserving plaintiff be able to get the full package of remedies in motion cases? Why force a plaintiff to rather seek full vindication in an expensive trial, often years after the defamation is published?
The primary reason that the SCA gave in the Manuel case was because “this has always been the position”; that illiquid damages claims always involve factual disputes.
While the SCA is right that traditionally damages have been claimed in trial proceedings, it has now elevated this practice to an absolute bar to using motion proceedings. It did so by placing far too much emphasis on tradition and history. Yet the Constitutional Court has cautioned that “the common law is not to be trapped within the limitations of the past”.
And damages for defamation are indeed capable of being decided in motion proceedings. It is not as if in motion cases there is no evidence of harm to reputation: the plaintiff will provide evidence of harm in her affidavit. Whether material factual disputes arise must be determined taking into account how the defamer replies to that evidence.
I believe the SCA has confused the process of bringing evidence to court with the process of testing the evidence. If it is brought via oral evidence, it can be tested in cross-examination. If it is brought on affidavit, it must be resolved on the respondent’s – that is, the defamer’s – version, as is the ordinary rule. There is nothing mysterious or intractable about this process. The major difference is that it is of course more difficult for the defamed person to succeed on affidavit, but that is a risk many people are willing to take in order to get a quicker, less expensive result.
This is all the more so in defamation litigation where, most often, the plaintiff never even goes into the witness box: once it is proved that the statement is defamatory, the court presumes that the plaintiff’s reputation has been harmed and requires no direct evidence from the plaintiff herself. The court then decides the quantum of damages due to the plaintiff based on a value judgement, not on a mathematical calculation of the type necessary in damages for medical negligence, for example.
In my view, there is nothing wrong, in principle, with bringing a damages claim in a defamation case in motion proceedings. After all, as Manuel argued in his application to the Constitutional Court to appeal this aspect of the case, our courts decide matters as weighty as the constitutionality of the death penalty in motion proceedings. It is hard to conceive of why it should be so difficult to do so when deciding what the quantum of damages in a defamation case should be.
The Constitutional Court can also be criticised for its order last year that it was not in the interests of justice “at this stage” to hear Manuel’s appeal on the issue of using the motion procedure to obtain damages and apologies. This begs the question: at what stage would it be in the interests of justice for the Constitutional Court to hear the case, since the whole point was to avoid having the remedies of damages and the apology only decided after an oral hearing?
In the NBC Holdings case, the SCA, with respect, exacerbated even further the harm to defamation law, by ruling that there is an absolute bar to obtaining a retraction or apology using motion proceedings (even if the plaintiff does not ask for damages), as such relief remains “compensatory”, just like damages – “and for that reason requires oral evidence”.
Until a brave soul challenges these two rulings in a case that would have to go to the Constitutional Court, defamation plaintiffs are stuck in this parallel universe. This has left our law in a most unsatisfactory state.
Very few deserving plaintiffs who can have their case decided in motion proceedings will choose the longer, more costly trial route. They will have to be content with vindication in the form of a declaration of falsity and interdicts, and forget about damages and apologies. The opportunity to confirm dignity-enhancing, effective relief from disinformation has been squandered.
Dario Milo is a partner at Webber Wentzel attorneys and acted for Trevor Manuel in the Manuel v EFF case, with advocates Wim Trengove SC, Carol Steinberg SC and Michael Mbikiwa.
This post originally appeared in the Daily Maverick and is reproduced with permission and thanks.