THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No:  581/2010

In the matter between:

MOGALE WINSTON STANFORD MODIRI

Appellant

v

THE MINISTER OF SAFETY AND SECURITY
First Respondent
SUPERINTENDENT ADAM WIESE

Second Respondent
THEMBA KHUMALO

Third Respondent
MEDIA 24 LIMITED

Fourth Respondent
DEON DU PLESSIS

Fifth Respondent
YOLISWA SOBUWA

Sixth Respondent

Neutral citation:
Modiri v The Minister of Safety and Security (581/2010)
[2011] ZASCA 153 (28 September 2011).

Coram:
BRAND JA, MAYA JA, MHLANTLA JA, MAJIEDT JA AND
MEER AJA

Heard:
7 September 2011

Delivered:
28 September 2011

Summary:
Defamation – newspaper article to the effect that police officer
informed journalist that appellant had been suspected by the police of
serious criminal conduct – gist of article found to be substantially true and
its publication for public benefit – fact that policeman did not actually
convey this information to journalist and that some of the peripheral
statements published were also untrue – found not to preclude reliance on
the defence of truth and public benefit.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from:
Free State High Court, Bloemfontein (Hancke J sitting as
court of first instance):
The following order is made:
a.
The two condonation applications by the appellant are granted, but the
appellant is ordered to pay the costs incurred by the third to sixth
respondents in opposing these applications.
b.
The appeal is partly upheld and the third to sixth respondents are ordered
to pay the appellant’s costs of appeal.
c.
The order of the court a quo is set aside and replaced by the following:

‘1.
The plaintiff’s claims against all six defendants are dismissed.
2.
The plaintiff is ordered to pay the costs incurred by the third to sixth
defendants.
3.
The third to sixth defendants are ordered to pay the costs incurred
by first and second defendants.’
________________________________________________________________

JUDGMENT
________________________________________________________________

BRAND JA (Maya JA, Mhlantla JA, Majiedt JA and Meer AJA concurring):

[1] This appeal has its origin in a defamation action originally instituted by the
appellant in the Free State High Court. The appellant, Mr Mogale Modiri, is a
businessman of Bloemfontein in the province of the Free State. On 3 March
2004, an article appeared in the Daily Sun newspaper which is distributed, inter
alia in the Free State province, under the title ‘Mangaung Crime Crackdown’. The
article commenced by informing the reader that the ‘Mangaung police are getting
on top of the crime situation in the Bloemfontein area’. It then proceeded to

convey some general information about police business which it ascribed to a
senior police officer, Superintendent Adam Wiese. Thereafter it continued with
the following statements which eventually gave rise to the defamation action:
‘Daily Sun readers in the area are asked to help the police in catching Stanford Modiri,
who is allegedly involved in drug dealing, cash-in-transit heists and car theft.
Wiese said: “We will catch him, but it would be great to have some help. The problem is
that he uses other people to do his dirty work for him.”’

[2] Departing from the premise that Superintendent Wiese had said what the
article attributed to him, the appellant at first brought his action against Wiese’s
employer, the Minister of Safety and Security, and against Wiese personally as
the first and second defendants. On appeal they are the first and second
respondents, to whom I shall refer as ‘the police respondents’. In their plea the
police respondents emphatically denied, however, that Wiese ever made the
statements ascribed to him by the writer of the article. Following upon this denial,
the appellant sought and obtained the leave of the court a quo to join the present
third to sixth respondents as defendants in the action. I shall refer to these
respondents collectively as ‘the media respondents’. The third to fifth
respondents are, in the order of their citation, the editor, the owner and the
publisher of the Daily Sun. The sixth respondent is a newspaper journalist and
the writer of the challenged article, Ms Yoliswa Sobuwa. In their plea the media
respondents contradicted the statement by Wiese, that he did not tell Ms Sobuwa
what she attributed to him in the article. They insisted that he did. In any event,
they denied that the article was either defamatory, wrongful or published with the
intent to defame.

[3] In the court a quo the trial came before Hancke J. The first witness for the
police respondents was Superintendent Wiese. In essence, he stood by the
denial, foreshadowed in his plea, that he ever made the statements about the
appellant that Ms Sobuwa ascribed to him in the article. What had happened,
Wiese explained, was that Ms Sobuwa came to see him in his office on 26
February 2004. She was in the company of Mr S Z Bahumi who was known to

Wiese as a member of the National Intelligence Agency (NIA). Wiese was not
told that Ms Sobuwa was a journalist and he assumed that she was a colleague
of Bahumi. According to Wiese, his acquaintance with Bahumi stemmed from a
previous incident during 2001 when firearms and other items were stolen at the
police station where Wiese was then the commanding officer.

[4] At the time of these incidents of theft, there were suspicions that some of
the policemen at the station were involved and that these policemen could have
some connection with the appellant. This was recorded in a letter written by
Wiese to police headquarters in Pretoria on 18 February 2002. According to this
letter, two of the policemen suspected of involvement in the incidents of theft
were associated with an individual who was employed by the appellant, while the
appellant, in turn, was known in police circles for his alleged involvement with
armed robbery, vehicle theft and drugs. In short, Wiese confirmed in cross-
examination that there is a close correlation between the allegations in the letter,
on the one hand, and the contents of the impugned article, on the other, with
regard to the appellant’s involvement in crime.

[5] Probably because of this letter, the appellant’s name came up in the
conversation between Bahumi and Wiese where Ms Sobuwa was present.
During the course of this conversation, so Wiese testified, Bahumi said that the
NIA had a file on the appellant and that according to information available to him,
the appellant was involved in drug dealing, cash-in-transit heists and car theft but
that it was difficult to apprehend him because he made use of others to do his
dirty work. In short, according to Wiese’s testimony, the statement that Ms
Sobuwa attributed to him in the impugned article, mostly derived from Bahumi.
Wiese denied, however, that either he or Bahumi ever invited readers of the Daily
Sun to assist the police in the apprehension of the appellant. That, Wiese said,
could only come from the writer of the article. What also transpired from Wiese’s
evidence was that Bahumi had passed away some time prior to the
commencement of the trial.

[6] A further witness called to testify on behalf of the police respondents was
Senior Superintendent Gerber, who was a member of the Organised Crime
Investigation Unit of the police, known as the Scorpions. His evidence turned on
a comprehensive written application which he prepared in July 2005 for
permission to initiate an investigation under the name project Vulindlela, into a
crime syndicate. The application document was based on information available to
the police at the time. According to this information the syndicate, of which the
appellant was the confirmed leader, involved itself in motor vehicle thefts and
related crimes. The crimes referred to in the application were committed in
various places in the country, including Bloemfontein, on a regular basis since
1984. In motivation of the special project, which would require considerable
expenditure and manpower, the application stated that over a number of years
the police had been unable to apprehend the leaders of the syndicate through
conventional investigation methods. The primary difficulty, so the application
explained, was that despite the fact that upon their arrest the actual perpetrators
of the crimes identified their leaders, including the appellant, they were unwilling
to testify against these leaders in court. In consequence, the leaders were able to
continue their community-threatening illegal activities with impunity.

[7] Gerber further testified that the application to embark upon project
Vulindlela succeeded and that, as a result of the ensuing investigations, leaders
of the syndicate, including the appellant, were arrested in September 2005 and
appeared in court on charges of motor vehicle theft. At the time, these arrests
and appearances were widely reported in the press. However, because the
potential state witnesses refused to testify, the charges had to be withdrawn.
After the arrests, Gerber said, the incidence of motor vehicle theft in the
Bloemfontein area declined from about 130 to about 60 per month. In cross-
examination Gerber could not say when the enquiry which preceded the
application started, but that information about the appellant’s alleged involvement
had come to his personal knowledge when he joined the vehicle theft unit in
about 1991. Moreover, Gerber said, the information involving the appellant as a

ringleader in criminal activities had been available in the police circles for a
number of years.

[8] In the court a quo, the media respondents closed their case without
presenting any evidence. Moreover, Hancke J found that no criticism could
legitimately be levelled against the witnesses who testified on behalf of the police
respondents. Consequently, he accepted that Wiese never made the statements
defamatory of the appellants that were ascribed to him in the impugned article. In
the result the appellant’s action against the police respondents was dismissed
with costs. On appeal the appellant did not contend that the court a quo had
erred in dismissing his claim against these respondents but submitted that it
should have ordered the media respondents to pay their costs. In the result, the
police respondents took no part in the appeal proceedings. In this court the only
remaining issue with regard to the police respondents therefore related to
whether it is the appellant or the media respondents who should be held liable for
their costs in the court a quo.

[9] With reference to the media respondents, Hancke J found that, although
the article complained of contained a number of inaccuracies, the sting of the
defamatory part was substantially true and its publication for the public benefit. In
the result, he upheld the ground of justification raised by the media respondents,
generally known as the defence of truth and public benefit. He therefore also
dismissed the appellant’s claim against the media respondents with costs. The
present appeal against that judgment is with the leave of the court a quo.

[10] On appeal the media respondents no longer disputed – in my view rightly
so – that the article included statements that were per se defamatory of the
appellant. That raised the presumption that these statements were both wrongful
and published with the intent to injure. The media respondents therefore
attracted the onus to establish a defence which excluded either wrongfulness or
intent. Though at some stage there was doubt as to the exact nature of that

onus, it has by now become settled law that the onus on the defendant to rebut
one or the other presumption, is not only a duty to adduce evidence, but a full
onus that must be discharged on a preponderance of probabilities (see Hardaker
v Phillips 2005 (4) SA 515 (SCA) para 14; Le Roux v Dey (Freedom of
Expression Institute and Restorative Justice Centre as amici curiae) 2011 (3) SA
274 (CC) para 85). In their pleadings the media defendants denied both intent to
defame and wrongfulness. But in the absence of any evidence on their behalf to
rebut the presumption of the former, it seems to me that intent to injure must be
regarded as being established. It therefore matters not that, because we are
dealing with media defendants, fault in the form of intent is not required and that
negligence would suffice (see eg National Media Ltd v Bogoshi 1998 (4) SA 1196
(SCA) at 1214C-E; Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329
(SCA) paras 44-46). By virtue of the media respondents’ failure to prove absence
of intent, the appellant has cleared a higher hurdle of fault than the required one.
The outcome of the appeal thus turns exclusively on the element of
wrongfulness. Hence the only question is whether the media respondents have
succeeded in establishing any one of the various grounds of justification that they
raised.

[11] In their plea the media respondents relied on a number of recognised
grounds of justification, including truth and public benefit, fair comment,
reasonable publication, and qualified privilege on the basis of a right or duty on
their part to publish the defamatory statements and a corresponding right on the
part of the readers of the Daily Sun to receive the same. Any one of these would,
if established, serve to exclude wrongfulness. The one that found favour with the
court a quo was that of truth and public benefit. If that finding were to be upheld,
it would be the end of the matter. I therefore turn to that enquiry. In this regard
the appellant’s contentions as to why the court a quo erred in upholding the
defence of truth and public benefit were essentially threefold. First, that the
media respondents did not lead any evidence in rebuttal of the presumption of
wrongfulness. Second, that the inaccuracies in the article precluded any reliance

on the defence under consideration. Third, that the media respondents could not
rely on the information of the appellant’s alleged criminal activities testified to by
the police witnesses, because it had not been demonstrated that the article was
based on that information.

[12] The appellant’s first contention seems to depart from a confusion of the
element of wrongfulness with that of intent. Though both the presumption of
intent and that of wrongfulness arise from a single event, that is, the publication
of a defamatory statement, the two presumptions are essentially different in
character. The presumption of intent to injure relates to the defendant’s
subjective state of mind. By contrast, the presumption of wrongfulness relates to
a combination of objective fact, on the one hand, and considerations of public
and legal policy, on the other (see eg Neethling v Du Preez; Neethling v The
Weekly Mail 1994 (1) SA 708 (A) at 768I-769A; Le Roux v Dey 2011 (3) SA 274
(CC) paras 121-125). Generally speaking, a rebuttal of the presumption relating
to the subjective state of mind of those who acted on behalf of the defendant will
therefore require some evidence to be led on the defendant’s behalf. By contrast,
the objective nature of the enquiry into wrongfulness signifies that the subjective
beliefs of the defendant are of no consequence. Thus understood, it becomes
apparent, with reference to the defence of truth and public benefit, for example,
that both elements of this defence can in principle be established on the basis of
facts not deriving from the defendant’s own witnesses. Hence the failure by the
media respondents in this case to call any witnesses did not automatically
preclude them from relying on this defence.

[13] As to the appellant’s second contention based on the admitted
inaccuracies in the impugned article, it is a matter of settled law that the
defendant is not required to prove that the defamatory statement was true in
every detail. What the defence requires is proof that the gravamen or the sting of
the statement was true. Inaccuracies in peripheral detail do not rule out the
defence (see eg Johnson v Rand Daily Mails 1928 AD 190 at 205-206;

Independent Newspapers Holdings Ltd v Suliman [2004] 3 All SA 137 (SCA)
paras 34-38). The underlying logic appears from the judgment of Wessels JA in
Johnson. The reason, he explained, why truth and public benefit is recognised as
a defence, is because a plaintiff is not entitled to recover damages in respect of
an injury to a reputation which he does not deserve. Consequently, the defendant
‘need not justify immaterial details or mere expressions of abuse which do not
add to its sting and would produce no different effect on the mind of the reader
than that produced by the substantial part justified’. The gist or sting of a
statement is determined with reference to the legal construct of a reasonable
reader. It is the meaning that the reasonable reader of ordinary intelligence would
attribute to the statement (see eg Basner v Trigger 1945 AD 22 at 32; Sindani v
Van der Merwe 2002 (2) SA 32 (SCA) para 11). The test is thus an objective one.
Evidence of how the plaintiff, or for that matter, any actual reader of the article
understood the statement is of no consequence.

[14] The appellant contended that on the application of the test thus
formulated, the reasonable reader would understand the article to convey that he
was guilty of serious criminal activities and that he used other people to do his
dirty work for him. I do not agree with this analysis. In my view a reasonable
reader would understand the article to mean that a police officer had told the
journalist that:
(a)
on the basis of information available to the police, they suspected the
appellant of being involved in serious criminal activities, including cash-in-transit
heists and car thefts;
(b)
the same police officer told the journalist that, although the police would
eventually apprehend the appellant, they were at that stage unable to do so
through lack of evidence, because he made use of others to do his dirty work;
and
(c)
the police officer therefore called upon the assistance of the Daily Sun
readers to provide that evidence.

[15] In Independent Newspaper Holdings Limited v Suliman [2004] 3 All SA
137 (SCA) para 24, this court declined to accept the proposition that the
reasonable reader is bound to equate a statement that a person is suspected by
the police of committing a crime with a statement that the person has actually
committed that crime. This is so because the legal construct of the reasonable
reader knows that, while many persons arrested and charged with criminal
offences are eventually convicted, guilt or innocence is determined by a court on
the basis of admissible evidence and that, not infrequently, the person charged is
acquitted in the end (see eg Mirror Newspapers v Harrison (1982) 42 ALR 487
(HC of A) at 492). Though, generally speaking, it is therefore per se defamatory
to say of a person that he or she is suspected of criminal conduct (see eg
Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W) at 565B-C; Suliman
para 31), it is not the same as to say that he or she is guilty of that crime. That
must be even more so in a case like the present where the published statement
made it clear that, despite their suspicions, the police were not even in a position
as yet to arrest the suspect because they lacked the necessary evidence to do
so.

[16] Understood in this way, I believe the court a quo rightly found that the gist
of the article was objectively true. The application by Gerber to embark on project
Vulindlela confirms all the essential elements of the impugned article; ie that the
appellant was suspected by the police of participating in serious crime and that
he made use of others to do his dirty work. The appellant’s counter-argument
rested on the fact that the application was prepared more than a year after the
publication of the article. But I believe there are two answers to this counter-
argument. In the first place it is clear from the contents of the application itself
and from Gerber’s testimony, that the application reflected information and
suspicions held by the police for a number of years. Secondly, the application
neatly dovetailed with the letter written by Wiese on 18 February 2002, which
corroborates that these suspicions about the appellant’s participation in serious

crimes, including vehicle theft and dealing in drugs, predated the publication of
the article.

[17] This brings me to those allegations in the article that proved to be untrue.
Of these, as I see it, there are only two. First, there is the allegation that Wiese
asked the readers of the Daily Sun in the area to assist in the apprehension of
the appellant. According to Wiese he never said that. But the question is whether
this untrue statement can ever be regarded as part of the sting of the article. I do
not think so. This, I believe, can be demonstrated by asking whether the
defamatory meaning of the article would have been less serious if these words
were omitted. As I see it the answer to this question is clearly ‘no’.

[18] The second untrue statement in the article was the one identifying Wiese
as the journalist’s main source of information regarding the appellant. Again,
however, I do not regard this untrue statement as part of the sting. I find support
for this view in the decision of this court in Times Media Ltd v Niselow [2005] 1 All
SA 567 (SCA). The defamation complained of in Niselow was contained in an
article published by Times Media. It was to the effect that Prof Boffard of the
Johannesburg General Hospital had said that the food prepared by Niselow for a
large group of children ‘smelled awful and looked appalling’. On appeal this court
accepted that Prof Boffard never uttered these words. Yet it held that this did not
matter, because the untrue statement was not part of the sting. The sting of the
article, so this court held (para 25) was that the food prepared by the respondent
smelled awful and looked appalling. What Times Media had to prove was the
truth of that statement, not that it was made by any particular person. The same
sentiment, I believe, finds application in this case.

[19] Closely linked to this point regarding the journalist’s source of information
is the appellant’s third contention that the media respondents could not rely on
information which emerged from the testimony of the police witnesses because it
had not been demonstrated that the article was based on this information. But, as

I see it, the contention raises the rhetorical question ‘why not?’. Once the media
respondents had established that the sting of the article was true, as in my view
they did, it matters not where the information relied upon by the journalist came
from.

[20] Turning to the further element of the defence, namely, that of public
interest, I must admit that I find this a difficult issue to decide. The difficulty arises
from the subtleness of the element itself. No exact definition of the concept is
readily available in textbooks or decided cases. On the facts of this case, the
issue appears to be further complicated by the following statements of Marais JA
on behalf of the majority in Independent Newspapers Holdings Limited v Suliman
[2006] 3 SA 137 (SCA) para 47:
‘That said, I think that the consequences of a premature disclosure of the identity of a
suspect can be so traumatic for and detrimental to the person concerned when he or she
may never be charged or appear in court and is, in fact, innocent, that greater weight
should be assigned to the protection of the constitutional right to dignity and privacy and
the common-law right of reputation, than to the right of the press to freely impart
information to the public. It is not as if the press will be permanently deprived of the right
to identify the suspect. Once he or she appears in court his or her identity may be
disclosed with impunity. . . . But, generally speaking, and subject to the considerations I
have mentioned in paragraphs 45 and 46, I do not believe it is in the public interest or for
the public benefit that the identity of a suspect be made known prematurely.’

[21] I appreciate that these statements may be understood to provide authority
for the proposition that, as a general rule and save for exceptional
circumstances, it will not be for the public benefit or in the public interest to
publish the identity of a person suspected of criminal conduct, unless and until
that person has actually been charged in open court. On the facts of the Suliman
case and read in the wider context of Marais JA’s judgment as a whole, I do not
believe, however, that he intended to lay down such an immutable rule. To do so
would, in my view, negate the role of public benefit as a constituent element of

the justification ground of truth and public benefit (see also eg Manyatshe v
M & G Media Ltd [2009] ZASCA 96 para 18).

[22] As explained by the Constitutional Court in Le Roux v Dey 2011 (3) SA
274 (CC) para 122, common law grounds of justification play a pivotal role within
the framework of our Constitution. The reason is that it is primarily in the province
of justification that the common law allows the courts to strike a proper balance
between the often conflicting fundamental rights of freedom of expression,
including freedom of the press, on the one hand, and the rights to freedom of
privacy and dignity, including reputation, on the other. Under the rubric of truth
and public benefit, the balancing act turns mainly on the element of public
interest or benefit. If a defamatory statement is found to be substantially untrue,
the law does not regard its publication as justified. Publication of defamatory
matter which is untrue or only partly true can never be in the public interest, end
of story. But, the converse does not necessarily hold true. Our law does not
regard publication of a defamatory statement as justified merely because it is
true, precisely because the court may, in its performance of the balancing act,
find that in the particular circumstances of the case, the freedom of expression is
outweighed by the victim’s right to privacy or dignity.

[23] In the case of mere suspicion held by the police the court may well come
to the conclusion, in a particular case that the right to dignity of the suspected
person outweighed the publisher’s right to freedom of expression. This may
happen in a case where, for example, it is found to be true that the police held
the suspicion, but that the suspicion was based on no more than unfounded
allegations by a meddlesome neighbour or antagonistic police informant. If in that
case publication of the unfounded suspicion then wrecked the reputation of the
suspected person or destroyed his or her career, the defence of truth and public
benefit is most likely to fail. On the other hand a blanket ban against publication
of police suspicion may very well impede the press in the performance of its vital
function ‘to ferret out corruption, dishonesty and graft whenever it may occur and

to expose the perpetrators’. (See Khumalo v Holomisa 2002 (5) SA 401 (CC)
para 23.)

[24] In performing its balancing act the court must therefore decide the public
benefit issue with specific reference to the facts of the case before it. Needless to
say that these factual situations may vary infinitely. From this, I think, two
consequences must follow. First, that the courts should refrain from restricting
themselves in the performance of their balancing act by departing from ‘starting
points’ or ‘general rules’ or ‘guidelines’. Though these may be of assistance to
other courts and practitioners, some degree of uncertainty is unavoidable,
precisely because we are concerned with a balancing act which has to be
performed on a case by case basis in circumstances that may vary widely. The
second consequence is that a decision as to whether or not publication of a
defamatory statement was for the public benefit in a particular case – whether in
Suliman or in this case – cannot constitute any binding authority in other cases
which are distinguishable on their facts.

[25] Reverting to the facts of this case, I believe that publication of the
suspicion held by the police was for the public benefit. This was not an instance
of suspicion derived from information by a nosy neighbour or based on flimsy
grounds. Nor was the police suspicion confined to a single, isolated incident.
According to the police evidence which stands uncontroverted, they had
information from those actually involved in the commission of crimes that the
appellant was their ringleader. Moreover, as a result of this information the
appellant had been in the sights of the police force and apparently also of the
NIA for more than ten years. Despite this convincing case against him, the police
were unable to apprehend the appellant, not because the evidence against him
appeared to be unreliable, but because the witnesses were unwilling to testify. As
a result the police were compelled to launch a special project, at substantial
expense, by the Organised Crime Unit to put an end to the community-

threatening criminal activities of the syndicate of which the appellant was the
suspected leader.

[26] If these strong suspicions proved to be true, the further possibility was that
the appellant would never appear in court on any charges for want of witnesses
willing to testify against him. Hence the opportunity to publish his identity as that
of a suspected criminal, as envisaged by Marais JA in Suliman, would never
arise. As I see it, the appellant could not insist on enjoying the reputation of an
honest businessman who is beyond any suspicion, which he did not or ought not
to possess. In addition, the publication of these suspicions could serve the
purpose of persuading members of the appellant’s community to come forward
with potential evidence against him which the police so eagerly sought. The fact
that the police did not actually ask the journalist to invite public assistance, plainly
did not detract from this possibility. In consequence I find that the defence of truth
and public benefit had been rightly upheld and that the defendant’s claim based
on defamation was therefore rightly dismissed by the court a quo.

[27] This brings me to the costs of the police respondents in the court a quo. In
this regard it will be remembered that the appellant was ordered to pay the costs
of all the defendants, including the police. As to why the court a quo had erred in
doing so, the appellant argued that his claim against the police was based
entirely on the statement in the impugned article that attributed the defamatory
matter to Superintendent Wiese. In addition, so the appellant argued, the media
respondents maintained, both in their plea and throughout the trial proceedings,
that the defamatory statements were in fact made by Wiese. But for this
persistence by the media respondents in a version which the court a quo
eventually found to be untrue, so the appellant’s argument concluded, he would
not have pursued his action against the police respondents.

[28] In my view the media respondents gave no persuasive answer to these
arguments. The fact that publication of the defamatory statements in the end

proved to be justified, provides no excuse for the media respondents’ reliance on
a factual version that their information derived from the police, which proved to
be untrue. Since it is that untrue version which led to the involvement of the
police respondents in the action and the costs resulting from that involvement, I
can see no reason why the media respondents should not be liable for these
costs, which were solely attributable to them. To this limited extent the appeal
must therefore succeed. But the fact that the appellant’s success on appeal is
limited does not mean that he was not substantially successful. It follows that in
my view, the media respondents should be held liable for the costs of appeal.

[29] What remains is the costs of the two condonation applications by the
appellant in this court. The first resulted from the late filing of his notice of appeal
and the second from his late filing of his heads of argument. Both applications
were opposed by the media respondents on the basis that the reasons advanced
by the appellant’s attorney for his failure to comply with the rules of this court,
were largely unsatisfactory. I agree with this argument. I also find some of the
explanations disturbingly inadequate. Yet, I do not believe that they were so
unacceptable that it would justify the refusal of condonation without regard to the
merits of the appeal. In the end, the outcome of the condonation applications
therefore turned on the appellant’s prospects of success. Since the appeal
should, in my view, be upheld in part, it follows that that condonation applications
should also succeed. However, because the media respondents were not
unreasonable to oppose these applications, in the light of the unacceptable
explanations, I believe they are entitled to their costs of opposition.

[30] In the result the following order is made:
a.
The two condonation applications by the appellant are granted, but the
appellant is ordered to pay the costs incurred by the third to sixth
respondents in opposing these applications.
b.
The appeal is partly upheld and the third to sixth respondents are ordered
to pay the appellant’s costs of appeal.

c.
The order of the court a quo is set aside and replaced by the following:

‘1.
The plaintiff’s claims against all six defendants are dismissed.
2.
The plaintiff is ordered to pay the costs incurred by the third to sixth
defendants.
3.
The third to sixth defendants are ordered to pay the costs incurred
by first and second defendants.’

………………………..
F D J BRAND
JUDGE OF APPEAL

Counsel for Appellants:

N W Phalatsi (Attorney)

BLOEMFONTEIN

Counsel for Respondent:

G Kairinos

C C Bester

Instructed by:

E G Cooper & Sons

BLOEMFONTEIN
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
26 September 2011
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

MODIRI v THE MINISTER OF SAFETY AND SECURITY

The Supreme Court of Appeal (SCA) today partly upheld an appeal by Mr Mogale Modiri
(the appellant) against an order of the Free State High Court dismissing his action for
defamation against the Minister of Safety and Security and Superintendent Adam Wiese
(the police respondents), and the editor, the owner, the publisher and the journalist of the
Daily Sun newspaper (the media respondents) with costs. It ordered the media respondents
to pay the costs of the appellant in the SCA and substituted the costs order of the high court
with an order that the media respondents should pay the costs of the police respondents in
the high court.

The appellant had instituted a defamation action against the police respondents in the high
court as a result of defamatory statements concerning him in an article which had appeared
in the Daily Sun. The statements were that the readers of the Daily Sun in the Bloemfontein
area were asked to help the police in catching the appellant who was allegedly involved in

drug dealing, cash-in-transit heists and car theft, and that the police’s problem in catching
him was that he used other people to do his dirty work for him. The article ascribed these
statements to Superintendent Wiese. Following upon the police respondents’ denial in their
plea that Wiese had ever made the statements ascribed to him in the article, the appellant
sought and obtained leave of the high court to join the media respondents as defendants in
the action. In their plea the media respondents relied on, amongst other things, truth and
public benefit as a defence against the action.

The evidence on behalf of the police respondents had established that prior to the
publication of the impugned article, there had for more than ten years been suspicion on the
part of the police, including the Scorpions and the National Intelligence Agency (NIA), that
the appellant was involved with armed robbery, vehicle theft and drugs and that he was a
leader of a syndicate involved in these crimes. The evidence further established that the
actual perpetrators identified the appellant as one of their leaders but were unwilling to
testify against him in court. As a result of this unwillingness to testify against him, charges
against the appellant had to be withdrawn. Wiese denied in evidence that he had ever
invited readers of the Daily Sun to assist in the apprehension of the appellant. He said that
the statement could only have come from the journalist who wrote the article. The media
respondents closed their case without presenting any evidence.

In dismissing the action, the high court found that no criticism could legitimately be
levelled against the witnesses who testified on behalf of the police respondents. It further
accepted that Wiese had never made the defamatory statements that were ascribed to him in
the impugned article. As to the media respondents, the high court upheld the ground of
justification of truth and public benefit that they raised.

Before the SCA the appellant accepted that the high court had correctly dismissed his
action against the police respondents but contended that it should have ordered the media
respondents to pay their costs. His contentions as to why the high court had erred in
upholding the media respondents’ defence of truth and public benefit were threefold. First,
that the media respondents had not led any evidence in rebuttal of the presumption of

wrongfulness. Second, that the inaccuracies in the article precluded any reliance on the
defence under consideration. And third, that the media respondents could not rely on the
information of the appellant’s alleged criminal activities testified to by the police witnesses,
because it had not been demonstrated that the article was based on that information.

The SCA held in respect of the first contention that the high court had erred in upholding
the media respondents’ defence, that the elements of the defence-(lack of) intention and
wrongfulness-could be established on the basis of facts not deriving from the defendant’s
own witnesses. The failure by the media respondents to call any witnesses, the SCA held,
did not automatically preclude them from relying on the defence of truth and public benefit.
In respect of the second contention the SCA held that the high court had rightly found that
the gist of the article was objectively true. It further held that those allegations that proved
to be untrue were not part of the sting of the article. The media respondents, the SCA
stated, were not required to prove that the defamatory statements were true in every detail.
The SCA held in respect of the third contention that once the media respondents had
established that the sting of the article was true, it mattered not where the information relied
upon by the journalist came from. It further held that publication of the suspicion held by
the police was for the public benefit and that the appellant could not insist on enjoying the
reputation of an honest businessman who is beyond any suspicion, which he did not or
ought not to possess. The SCA also held that, the publication of the suspicions against the
appellant could serve the purpose of persuading members of his community to come
forward with potential evidence against him which the police eagerly sought. The fact that
the police did not actually ask the journalist to invite public assistance did not detract from
this possibility. In substituting the costs order of the high court, the SCA held that it was the
untrue version of the media respondents, that ascribed the defamatory statements to the
police, which led to the involvement of the police respondents in the action and the costs
resulting from that involvement. The fact that publication of the defamatory statements in
the end proved to be justified, the SCA stated, provided no excuse for the media
respondents’ reliance on an untrue version. Finally, in ordering the media respondents to
pay the appellant’s costs of appeal the SCA held that the fact that the appellant’s success on
appeal was limited did not mean that he was not substantially successful which meant that

the appellant was entitled to his costs on appeal.