Picture: iSTOCK
Picture: iSTOCK

On March 8, high court judge Lettie Malopa struck from the roll an urgent application in which Gold Leaf Tobacco sought to interdict and restrain activist Yusuf Abramjee from alleging that its Rudland & George cigarettes is an illegal brand; that it is evading taxes and, in turn, robbing the country; and from making any other defamatory remarks concerning Gold Leaf, pending the finalisation of an action instituted by Gold Leaf in which it claims damages of R50m from Abramjee.

However, perhaps a far more effective legal strategy would have been to dissuade Gold Leaf from proceeding with an urgent application. Even though the Fair-Trade Independent Tobacco Association is supporting the legal proceedings instituted by Gold Leaf, SA courts tend to approach attempts to restrain publication with caution. While there may be actionable defamation, it often proves counter-productive to proceed with litigation because such applications often whet the public’s appetite for the facts, giving the allegations a lot more airtime than otherwise would be the case.

When dealing with an application to suppress publication, the courts weigh up the right to freedom of expression entrenched in section 16 of the constitution (which includes freedom of the press and freedom to receive or impart information and ideas) with the rights of human dignity and privacy entrenched in sections 10 and 14. The cases of Mandela vs Falati, and Hix Networking Technologies vs Systems Publishers (Pty) Ltd and Another, illustrate that our courts generally steer a course “as close to the preservation of the freedom of expression” as much as possible.

It is also unlikely that a court will award Gold Leaf R50m in damages, even if the defamation action succeeds. I am not aware of any general damages claim being upheld by our courts for an amount in excess of R250,000

The caution with which a party should approach an application to interdict publication has also emerged from the Supreme Court of Appeal (SCA). In Midi Television (Pty) Ltd vs Directorate of Public Prosecutions, judge Nugent said: “[A] publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause … is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place.

“Mere conjecture or speculation that prejudice might occur will not be enough. Even then, a publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making that evaluation it is not only the interests of those who are associated with the publication that need to be brought to account but, more important, the interests of every person having access to the information.”

‘Award of damages’

In the Midi Television case, the court also highlighted: “Where it is alleged, for example, that a publication is defamatory, but it has yet to be established that the defamation is unlawful, an award of damages is usually capable of vindicating the right to reputation if it is later found to have been infringed, and an anticipatory ban on publication will seldom be necessary for that purpose. Where there is a risk to rights that are not capable of subsequent vindication, a narrow ban might be all that is required if any ban is called for at all.”

It should therefore not be assumed that once an infringement of rights is threatened, a ban will immediately follow, least of all a ban that goes beyond the minimum that is required to protect the threatened right.

Gold Leaf may not have been advised fully of the consequences of its defamation action. Abramjee is alleging that the publication of his statements is not unlawful because the allegations are true and in the public interest; the allegations amount to fair comment; and that publication of the allegations is reasonable in the circumstances.

Abramjee will likely, once again, rely on these defences in the damages action. In this event, Gold Leaf may be required, during the discovery phase of the damages action, to make available all of its trading records, including invoices issued to customers, to test whether Gold Leaf has sold cigarettes below R17.85, which has been alleged is the minimum amount of taxes due on every pack of cigarettes.

Any such trial will give the allegations against Gold Leaf a new lease of life and will result in Gold Leaf attracting further negative publicity

Even if Gold Leaf is prepared to make all of its trading records available during the discovery phase, the litigation will no doubt turn out to be time consuming and expensive.

It is also unlikely that a court will award Gold Leaf R50m in damages, even if the defamation action succeeds. I am not aware of any general damages claim being upheld by our courts for an amount in excess of R250,000.

Gold Leaf has not alleged any special damages and is only claiming general damages. It is anticipated that, even if the general damages claim is successful, the damages award will be low, but Gold Leaf’s legal costs may turn out to be substantial.

In addition, if the damages action proceeds in court, it is likely that that trial will only proceed, at the earliest, in about a year’s time. Any such trial will give the allegations against Gold Leaf a new lease of life and will result in Gold Leaf attracting further negative publicity.

Instead of spending thousands of rands in a costly legal battle that more often than not fails to achieve its purpose, perhaps Gold Leaf may have achieved a lot more if it utilised some of the funds it is spending on the court proceedings to instruct its lawyers to work with a reputable PR company to assist Gold Leaf’s contentions as to why it is not acting illegally getting published. By doing so, Gold Leaf’s side of the story would be published and resultant damage may be controlled.

• Moosajee is an executive in the dispute resolution department at ENSafrica. He writes in his personal capacity.