DEFAMATION AND LIST OF RAPISTS
Defamation – Inclusion on list of rapists – University memorial service for slain student – Defendant did not believe it to be true – Circulation of list extensive – Damages for harm to reputation – Past and future medical expenses.
Ramokgopa v Nxumalo [2022] ZAWCHC 175at [29]-[37]
Facts: The killing of University of Cape Town (UCT) student, Ms Uyinene Mrwetyana, in a post office close to campus caused a public outcry and it was an emotional period for the country and young students at UCT in particular. The university held a highly publicised memorial service for the slain student and a list of alleged “Rapists at UCT” was read out that included the plaintiff who was identified as an “assaulter and rapist”. In addition to that reading out, the list was disseminated to attendees at the memorial service and made its way onto social media platforms.
Claim: That the defendant had defamed the plaintiff and that he had suffered both patrimonial and non-patrimonial harm.
Discussion: The many attempts made to give the defendant an opportunity to defend the claim against her; the evidence of the clinical psychologist on the effect on the plaintiff; that the plaintiff satisfied criteria for a diagnosis of post-traumatic stress disorder; the plaintiff’s testimony on how at the time he was a 20-year-old final-year bachelor of social science student and how he was rejected because of his inclusion on the list; section 10 of the Constitution and the right to dignity; and the right to freedom of expression.
Findings: The publication of the plaintiff’s name as a sexual offender was done while the defendant did not believe it to be true. That was wrongful. The plaintiff has been injured in his dignity. The circulation of the list was extensive and is repeated annually at the anniversary of the tragic event that led to the initial publication of the list. It is extremely defamatory to the plaintiff and he will continue to suffer and be stigmatised. A person reading that list will form a negative view of the plaintiff and consider him to be a rapist as the list indicates.
Order: Default judgment is granted against the defendant for payment of the sum of R80,000 in respect of the harm to the plaintiff’s reputation, as well as amounts for past and future medical expenses. The defendant is directed to apologise to the plaintiff in writing and to broadcast a formal written apology retracting what she said about the plaintiff via her social media accounts.
BAARTMAN J
~
PATIENT DIES FROM FALL AT HOSPITAL
Medical negligence – Patient dying from fall from fifth floor of hospital – Delirium tremens and schizophrenia – Treatment, restraints and monitoring – Negligence established.
Williams v MEC for Health, Eastern Cape [2022] ZAECQBHC 26at [29]-[50]
Facts: Mr Williams went to Livingstone Hospital for treatment of his apparent psychosis; visual disturbances; confusion; hallucinations and sleeplessness. It emerged that he was suffering from severe alcohol withdrawal, a condition known as delirium tremens, and secondary schizophrenia. He died from injuries sustained after falling from the fifth floor of the hospital.
Claim: By the wife of the deceased for damages, contending negligence on the part of staff at the hospital. The court is to determine liability.
Discussion: Whether it was reasonably foreseeable that the deceased would wander around the hospital in a state of psychosis and confusion, whilst having visual and auditory hallucinations and alcohol withdrawal delirium; whether the staff failed to secure the deceased and to monitor him; the expert testimony of the professional nurse and the general surgeon; the correctness of the medical records; the distinction between opinion evidence and the evidence of fact, upon which such opinion is based; the conflicting views of the expert witnesses; and the treatment of the deceased after his admission to the hospital.
Findings: The treatment regimen administered to the deceased in no way mirrored that of the acceptable regimens as per the published guidelines and fell woefully short. The plaintiff has proven negligence on behalf of the staff in that they failed to properly sedate the deceased in order to restrict his movements and adequately treat his condition.
Order: It is declared that the defendants are liable for such damages as might be agreed or proved.
BANDS AJ
~
DEFAMATION AND WHATSAPP GROUP
Defamation – Whatsapp group for residential complex – Being called racist – During acrimonious exchange of messages – Members of group would have understood it in the context of statements before and after – Not amounting to defamation.
Phaleng-Podile v Dovey [2022] 28223-2020 (GJ)at [33]-[40]
Facts: Applicant and respondent are among 42 residents of the Ambiance residential scheme who were on a Whatsapp group for the residents. During the first Covid lockdown in 2020 the applicant posted a message on the Whatsapp group in which she alerted residents that two people were walking around the scheme as a form of exercise, in breach of the recently announced lockdown regulations. An exchange of messages followed between applicant and respondent, with the respondent ending with, “Nice – you racist.”
Claim: Based on defamation and seeking an award of R500,000 as a solatium for the infringement of her good name and reputation.
Discussion: The contention by the applicant that the assertion that she was a racist on a Whatsapp group was wrongful and defamatory of her character and reputation, and that the publication of the statement infringed her inherent self-worth as a professional, spouse, parent and fellow unit holder; and the offer of an apology by the respondent and the contention that the statement constituted a comment or opinion and not a statement of fact, and that it would have been understood in that way by a reasonable reader.
Findings: That in light of the trail of messages on the Whatsapp group, it was more probable that the applicant’s own insulting statements, which she directed at the respondent immediately beforehand, would have lowered her in the estimation of right-thinking members of society than that the respondent’s insult would have had that effect. The average reasonable person reading the statement would read it in the context in which it was made, including the statements that immediately preceded it and also the further statements that followed. The statement made by the respondent in the particular context would not have served to lower the applicant in the estimation of right-thinking members of society. The applicant did not plead as an alternative to the defamation cause of action, an iniuria arising from the insult.
Order: The application is dismissed. There is no order as to costs.
TODD AJ
~
ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.
