0 Bewertungen0% fanden dieses Dokument nützlich (0 Abstimmungen)
25 Ansichten13 Seiten
INGRID Peacock is a local business woman. She avers an article "fashion victim" which her business dealings otrler business entities be fmm the Respondents' website, Facebook and or other sir'"nilalsocial media websites as i:1lticle is defamatory in nature. The article questions Applicant's business ethics and practices which is a matter public interest.
INGRID Peacock is a local business woman. She avers an article "fashion victim" which her business dealings otrler business entities be fmm the Respondents' website, Facebook and or other sir'"nilalsocial media websites as i:1lticle is defamatory in nature. The article questions Applicant's business ethics and practices which is a matter public interest.
Copyright:
Attribution Non-Commercial (BY-NC)
Verfügbare Formate
Als PDF, TXT herunterladen oder online auf Scribd lesen
INGRID Peacock is a local business woman. She avers an article "fashion victim" which her business dealings otrler business entities be fmm the Respondents' website, Facebook and or other sir'"nilalsocial media websites as i:1lticle is defamatory in nature. The article questions Applicant's business ethics and practices which is a matter public interest.
Copyright:
Attribution Non-Commercial (BY-NC)
Verfügbare Formate
Als PDF, TXT herunterladen oder online auf Scribd lesen
CASE 3946/2012 matter" between: INGRID PEACOCK Appticant And NOSE\N'EEK (PTY) LTD CHAUCHER PUBLICATIONS Second Respondent 6 fliiARCH 12 [1] This tS an opposed application for interim relief. The Applicant, a local business woman/ an that an article "Fashion Victim" which her business dealings otrler business entities be I-ernovecl fmm the Respondents' website, Facebook and or other sir'"nilal- social media websites as i:1lticle is defamatory in nature. resisting the rT:!!ief sought, an investigative joumalist (Mark ThomeS); is employed by the Second Respondent a nd is news editor of Noseweek, and Third Respondent, the editor of r\loseweek r named iVlartin We!z, filed opposing affidavits. WELZ [3J The editor of Noseweek admits in his answering affidavit that the contents of the article are defamatory and will lower the Applicant in the esteem of the reasonable reader. The defences of truth and public benefit and that of reasonable journalism are however raised by the Respondents, According to them the article questions Applicant's busIness ethics and practices which is a matter public interest [ 4"\ , J The nub of the /\ppHcant's complaint essentially to statements in article, which the Applicant avers are defamatory, untruthful and incite consumers to refrain from doing business with ["Ier. The statements can 'In br'lef be summarized as foHows:-- "WhIle mc.!ior shIres bankroll PeaLl?ck:5 wealthy lif(:style l she c1700ses to settle /7er own accounts only when she pleases!l; "!\lose week has reliably learnt that attorneys at Cliffe been to recover nearly R2 mt/lion in rent 1i1/aterfront; /10lmeyr have to the Peacock did a bunk when vacating her Newlande; boutique - engaging a removal firm to piLd? up the dead of n(ght to remove her stodt; "She 1.5 also debt to a Canadian fabric supplief; Brian International; to the' tune of Rl1000 for some samples Peacock commissioned'; "Peacock was of a mind to counterclaim /:;:350 000 from R + R for loss business -- because Stuttafords had rejected some ol the samples (rejr .. '?ction of a percentage of samples is standard il7 the business"), [ According to the Applicant this is a misquotations of her response to Thomas as contained in her email dated 16 November 2011 which states that:] \\ Tamasa intende; instituting a counter daim against R-lR in the amount ol 000 for loss of profits due to the repudiation of the agreement between Tamasa and R+R, by R+R'; "NO/l!l that Stut.tafords know they are buying goode; from Peacock, /lJIho effectively makes use of slave labour - workers she chooses not to paV - I:) that Of(?" [5] The Applicant, as a business woman, Ii any other member of civil society, a legJtimate r'i9ht to protect her reputation anel Qood name unlawful defamatory statements that injures person and lowel's Iler in the estimation ordinary, intelligent or- hght-thinking rnem of society generally. does allow the untawful and unjustified savag'lng an 'Indiv'ldual's reputation. 1996 (1) 673 (A) at 703 ThE: complaint is essentiallv that certain statements in article are untrue, defamatorYr to cause her' harm incite consumers to refrain from doing with her, In her foundl the Appilcant records the following:- fI The a/ticle published by Noseweek is extremely degradlli9 and da.maging to my good name and rama. I have already been inundated with calis from people expresslhg their shock at the article and I humiliated by untruthful and unlawful content which has been pub/ished about me, The article has only reached the shelves and the internet ti7e last n:'W days and I am approaching this Honourable COUit a to prevent ti-te further ckcu/ation of the article during the month of Marr....1?J limiting tlJe [6J 4 publication and damage to my good no,me. I am the process of suffering irreparable reputational hann which 0 claim {or damages will only partly satisfy. The financial impact aSide l If I Jose my business and the name which I have built up over a period of approximaterv years it will have severe consequences lor my family file, standing in society and will potentialrv leave me isolated with no hope o{ recovering {rom the blow /ivhich th.is article is inflicting. With each and every passli7g hour that the c"ircu/ation o{ [c;sue no 149 o{ Noseweek is left unabated; as well as the internet publication o{ the article l my reputation and thus my person is suffering ever inaeasing injury. Whilst Welz contends in his email 29 Februarv ti7at 'the matter not urgent:; since publication has a/ready taken place.." that 'For same reason there is little pOint kl tlying retrieve those copies o{ March Noseweek that have not a/:;eady been sold; quite apart kom the (act that it would be /ogistlcally Impossibie to retrieve the copies rema/rin!] in retail outlets in the time you stipulate' it ma,V not be but it is' tT70St o2rtainrv not impo5 .. <,.'ible to remove the copit")s of lVoseweek edition 170 149 from outlets and vendors. There is no reason why the article cannot be from interne!:; including social rnedfa such as Facebook ff In opposing the relief sought the Appllcant r Thomas il:S opposing affidavit set in some detail the investigation done to obtain information the Applicant "]L In in articlE:' to illicit a his affIdavit the following t5 recorded:- course o{ inllestigation I a/so 8scertairu:::d that: 1 Applicant had absconded from her store in the Watedront; Applicant had absconded from her store in Claremont:;' Applicant was re{uslhg to pay' ai70ther partv Brian Intematicmal {or fabric .5 12. In the time available! I am attempting to obtain confirmation of the above. That substantiation which I have at the moment is the fa/lowing: 1 The /li/aterfrvnt store. 1.1 I have access to the summons in action 18662/09 in the above Honourable Court. Applicant has" annexed this as The sLIm mons emanates from Dekker HofineyT Inc a prominent and reputable firm of attomeys in this .1.3 I am adv/.')ed that the SIlnatory to partlcula!::; of claim vvhicli contain defamatory averment,; must have reasonable ground:; for s(gning the said (-all/ng which the signatory 1.4 and the of attorneys /::; expos'ed to a defamation action ( a) (b) particulars of ciaim proceed to allege: tfJe was bound lease which expired on 3.7 March 2012; On Apn! 2009; the defendant absconded from the leased removed the stock and dosed the store. ( c) At the time that she did 501 the defendant owed R34586535 and the still had another yean:; to go, At a bask.' month/V rental (ignoring eEicai.gtior!s/ contributions operating 12.2 123 (; costs and marketing costs) the outstanding rental (-or this period was in excess of RL5 million. IS J have now seen the notice of Hrithdn:7wal of the action something which Applicant could have told me i( she deigned to speak to me, J have attempted in the short time avat/able to investigate why the action vvas withdrawn. lvty attomey has made contact with Mr Melf7tjes (the signatory, who has moved firms) but he was reluctant to discuss the matter, I am advised that are any number of /egal technical reasons [/vhy action against surety for the may have been wlthdravvn, I am a/so advised tliat it is entire/v likely that.' The referred to in the particulars or claim and as set paragrap'fl 1.4 above are Respondents' - wit/-; the benefit of proper discovery and ol subpoena an - wi/I be able to demonstrate that this is so, regards' the Newlands 1 am attempting to obt:gil7 an affidavit from the landlorcl' k; regards Brian International: 1 have ascertained from Brian International that Applicant has indeed paid the sum of Pll OOO.OC!; but has refused to pay another invoice in regard to samples' in sum of U5D189. h'ad Applicant to speak to me; this issue could have been clarified. T 1 annex hereto marked "MT5"; a communication dated 8 !:.7eptember 2011 korn the Applicant to attorney, I respectfully draw attention to the second last paragt::Jph which '.[ have reFused to the (Jut5tanding sarnp/ing Invoice, based on the way the bulk order vvas dealt wIth and their subsequent address of attitude, ; Respondents respectfully aller that dJat Applicant does not pay debts jJj/hen they are due; but withholds payments it suits her. // In its decision publish the article, Welz in affidavit records the following> I have naturally been investigation into the business dealings since inception! of an the Applicant conducted by Mark Thomas (ThomasJr a trained investigative journalist and also the news editor of Noseweek He has regular/v reported to me on It5 progress and we have discussed the issues raised by it, I approved the final text for publication 6, We had initially planned to pub/ish the story in the December 2{)11 15sue of Noseweek (which appeared the last week of lVovember 20.11) , but J hesitated and decided to hold -"tory over the 8; eX[Jectation that /IIle would get a more detailed response from the Appliamt and/or her aitorney We a/'Yo stili awaited written confirrnation from Stuttafords that they had paid the Applicant for the of goods in question in the story Stuffafordc; did respond in the following month as i5 ,more fully dealt with in the affidavit of Thomas/ the Applicant did not 7 Regarding the decision to publish: 7.1 7 ') / I am satisfied that the artide is substantiallv true, is furthermore, in respectful vie1j sell-evidently a matter public more particularly to Nosevveek readers; IIlIho are genera/I)! members of' the business community interested in business transparency and straight deailhg, I aln also of the vim1jl that it is the function ol the general nc;'vvs media to speak for the powerless to relatively powe!lu/, In a business R -i' R and its' galment workers who battie to hang their jobs at reduced wages (again as is more fully dealt with in the alfidavit Thomas) fine! in a Darwli7ieJ!7 sense; at bottom the food chain wher,: t17ey are eX'ploited devoureo' by the likes of the doubtless as of her mv/? survival strategv The moral and ethic .. ]! is.s'ues raised by the situation submiL> obvious, I 8, In tf-;ese circumstances and the Second Respondent contend that the [Jub/lcation was an act ol reasonable journalisni t and are entitled to have recourse to the defence outlined in the case of NA 71Q/YAl Hff)J/Lb.J]') AND 1998 (4) SA 1196 sometimes referred to as the ''8ogoshl deft?l7ce 9.1 Is published a print edition, vvhich is distributed to subscribers l and to approximately 2000 retail outlet') natiol?lltlide. 9.2 /-las an onlirle edition; v.rhic/7 /5 open to approximately 1500 online 5ubscribe!:c;. Of approximatl::!/y half also subscdbe to the print edition. Acc()rdingly only approxlinately edition only. have acceS".5 to tile online 9.3 Has a moderate lacebook( in which the fact an upcoming publication is announced. That IlV.hich appears on IP9 is the content ai/ai/able on lacebook as regards and not advance a case content is objectionable. edition of lVosE!week in article IP8 appears' has been alludes to the paper already. While pubJicatkJl7; I respectlully draw the abOile Nonourable that the Notice Motion to onh'ne facebook presences otNosefiveek ,( leaal J in context of an seeking prevent alleged defamatory dre ord'inary rules fjoverning interim intei-cjicts. rnatter, tvvo constitutional freedom of expression and dignity are at odds and have to be balanced against each other, That balancing process to be undertaken in a constitutional context. Our' Courts have consistently held that, though cil"Cumstances may sometiriles dictate othel'wise) freedom of speech is a right not to be ovetTidden lightly and at trle pOint which the balance of convenience is determined consideration should be given to the fact that the allegedly defamecJ if the lnterd'ict is refused r nonetheless have a J 0 cause of action which may result in an award for damages. It is now well accepted that cases involving an attempt to restrain publication must be approached with the necessary caution. The approach to adopted by our Courts in matters of this nature has been at 402 (""F, where the fo1!owlng was "To sum cases involving' an attempt to restrain publication rnust be ap!:!f'oached with caUL/em. If section lS adds anvthJng to this proposition il: wouk:l merely be to undeliine though may sometimes' dictate otherwise; j"reedom of" speech is a right not to overridden The appropriate stage far this consideration (lvould in most cases be the point the balance LU!7ve!7ience is determined at that stage that c017s/de/(=Jtion should be given to the T..'1ct tl7at t0e pers'on alleyed!y defamed this case) if the interdict is refiJsed,_ nonetheles'S have a cause wil! result in an award damages, weighed against on the other a o( a right to UL.JUII,::JI is to be end of matter as lar as pres.') is concemed exercis'9 of its discretion in g(Zmti,rig or refusing an interim interdict regard should be had alia to the strength the applicants ca,c;e; the seriousness of ti7e difficulty a respondent has In proving, in the limited time afforded to it in cases of UlgencYI the defence which it wishes to raise and the that the order k7 substance though not in amount to a permanent interdict, N [10J The Applicant ts presently seeking I'eiief in respect of the online and facebooi< presences of I\!oseweek wherein the article appears in the same form as it in 1 1 print and distr"ibuted to the subscr-ibers. During ar'gument there vI/as some debate about the access of persons to online media.
L IJ Whatever the extent of the public's access to online media or facebook there can be no constitutional vaiue in deliberate statements of fact. In the matter of DLR (4th) 129 (SCC) COJ'Y f J held:- ''false and injurious cannot enhance self:dellelopmc?!7t. Nor can it ever be said that they lead to the healthy participation /n affairs ol community. Irrdeed they are detrimental to advancement these values and harmful to the interests of a free and democratic society..", False a/legations can 50 vcry quickly and completely destroy a good reputation A reputation tarnished libel can seldom its former [12 J AI! this may well be very tl'ue. But, in South Africa's new constitutional democracy freedom expression and of the press are potent abSOlute necessary tools in and maintenance of a cJernoc:ratic society. press has a vital role and function play and that is to make. available to the community information and criticrsm about every aspect of political, and economic activity and thus to contribute to formation of public opinion. this re;!ard see Prof ]C van der Walt in GegenkbllJLoel: HL. Swanepoel at 68. The press and the rest of the media provide tile means by which useful r and sometimes vitali information about the daiiy affairs of the nation is conveyed to its citizens - from the highest to the lowest (Strauss, Strydom and Van der Walt ed press therefore often becomes the voice of the people, who are sornetimes re'latively 12 power-less - their means to convey their concerns to their fellow citizens, to officialdom and to government (See l\I1!.tLor).fli BQLQ21:1l 1998 (4) SA 1196 SeA at 1209 H) [13] the pr'esent instance, the approach adopted by Thomas in investigating and gathering the information regarding Applicant's business dealings cannot be regarded as reckless and or negligent. In my view, the steps taken and the manner in which the publication was made cannot be regarded as inappropriate and or iflCOlls'lstent \Nith the demands of freedom expression as contemplated our constitution. [14J \Ne!ghing the balance of convenience, I take into account that the purp:Jse thE: limitation contended for print edition contalning the Applicant is to preserve her own article is already in circulation. It vI/as private distributed and to approximately f'etail outlets nationwide. Applicant has 3 remedy in damages which she can vindicate her reputation if it is latel" found to have been unlawfully breach. News on other hand, its very nature IS a commodity which has a diminishing vaiue. That which is relevant and newsworthy today will in ali probability be less so in months to corne. The Respondents are also relying on certain defences which are not entirely without substance. [15] the circumstances of this case! I aiTI of the view that the common good will be best serve by the free flow of information. I am therefore not persuaded to 13 unduly limit or interfere with one of the foundational values of our Constltution, namelv the freedom of the press. [1 It follows that th'ls application cannot succeed. [17J the r"esult the following order is made> The application is dtsrnissec! with costs.
Mitsubishi International Corporation, Plaintiff-Counterclaim-Defendant-Appellant v. Cardinal Textile Sales, Inc. United General Marketing, Inc., Classic Sales, Inc., Charles W. Jones and Robert E. Lee, Defendants-Crossclaim- General Sales & Leasing Co., Defendant-Counterclaim-Plaintiff-Crossclaim- Fibertex Textile Supplies, Inc., Defendant-Crossclaim-Defendant-Crossclaim-Plaintiff, Purvis-Sikkelee International, Ltd. And Skein Dyers of America, Inc., Defendants-Crossclaim-Defendants-Appellees, Raymond B. Lippincott, Iii, William J. Purvis, William L. Sikkelee and Consolidated Trading Co., Joseph Lee Smith, Defendants-Crossclaim-Defendants, Hershel Nunley, Defendants-Crossclaim-Plaintiffs, United States of America, Movants. Mitsubishi International Corporation, Plaintiff-Counterclaim-Defendant-Appellant v. Cardinal Textile Sales, Inc., Defendants-Crossclaim-Plaintiffs, General Sales & Leasing Co., Defendant-Counterclaim-Plaintiff-Crossclaim-Plaintiff, Fibertex Textile Supplies, Inc., De