Defamation claim fails after Covid spat. Picture: File
On the first day of the National State of Emergency, on March 27, 2020, with the most stringent lockdown measures in effect, an exchange took place on a WhatsApp group of residents in a complex which resulted in legal action after one called the other “a racist”.
A resident was ratting on two fellow residents who did not adhere to the harsh lockdown rules in 2020 by taking a walk around the complex in a bid to exercise.
A somewhat heated exchange followed on the social media group of Ambiance Estate in Fourways, Johannesburg north.
Subsequently, the resident labelled a racist instituted a R500 000 defamation claim against the other in the Gauteng High Court, Johannesburg.
Hellen Phaleng-Podile, a board member of the trustees of the complex at the time, claimed that Noranne Dovey, a fellow resident, in a WhatsApp message, called her a racist.
Phaleng-Podile said she was a professional woman of high standing and being labelled a racist was not only insulting, but injured her reputation.
The trouble started when Phaleng-Podile, shortly after the government declared the lockdown, posted a message on the group in which she alerted residents that two people were not adhering to the lockdown rules by walking around in the complex.
She called on residents to adhere to the rules, in light of the seriousness of Covid-19. She reminded people that they should “stay in their own yards or around their own sections”.
This prompted Dovey to reply that Phaleng-Podile should find something better to do other than to monitor people out of her window.
Dovey stated that it was only those two men, and accused Phaleng-Podile of wasting her time monitoring people through her window. The engagement continued, with Phaleng-Podile making comments which cast a slur on the intelligence of Ms Dovey, while Dovey continued to react angrily and dismissively.
Other members of the group intervened, attempting to calm things down and supported Phaleng-Podile’s stance on the lockdown.
Dovey eventually responded to the messages by calling Phaleng-Podile a racist.
The discussion continued with other members of the WhatsApp group asking that the discussion calm down and that people refrain from personal attacks, and supporting the call to adhere to the lockdown conditions.
In turning to court, Phaleng-Podile said that calling her a racist means that she is disreputable and unfit for the various roles that she fulfils, and that it has the potential to cause her professional harm. She added that she is hurt, her self-worth and dignity have been harmed, and she feels belittled and humiliated.
Acting Judge C Todd earlier accepted the statement made by Dovey was meant to upset Phaleng-Podile. But, he said, the context in which this statement was made did not, in his view, lower the esteem of Phaleng-Podile in the eyes of the other residents.
The judge pointed out that some harsh words were said on both sides during the heated exchange.
Judge Todd said Phaleng-Podile may have been more successful if she claimed damages on the basis that she was insulted by Dovey’s words, but then he would have only awarded a nominal amount of damages if she had succeeded.
Unhappy with the verdict, Phaleng-Podile now returned to court to appeal against the matter before three judges.
But Judge Seena Yacaab, in a concurring judgment, turned down the appeal.
She said the intention to defame is something that could only be properly examined in oral evidence and not merely on court papers.
There was no evidence at all in the papers of the effects of the respondent’s statement “out there”, and in fact that evidence, as well as what the inclination of members of the WhatsApp group were, is something that ought to have been placed before the court in oral evidence so that it could have been properly scrutinised and evaluated, she said.
Judge Yacoob added that this was not an exceptional matter in which a “hybrid” procedure could be followed.
Pretoria News
zelda.venter@inl.co.za
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