IN "nlE HIGH COURTOF= AFRICA

[\NESTERN CAPE HIGH COURT, CAPE TOWN]

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.