IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

On the roll for hearing on 9, 10 June 2020

Case No.: 7595/2017

In the matter between:

MINERAL SANDS RESOURCES

PROPRIETARY LIMITED First Plaintiff

ZAMILE QUNYA Second Plaintiff

and

CHRISTINE REDDELL First Defendant

TRACEY DAVIES Second Defendant

DAVINE CLOETE Third Defendant

Case No: 14658/2016

In the matter between:

MINERAL COMMODOTIES LIMITED First Plaintiff

MARK VICTOR CARUSO Second Plaintiff

and

MZAMO DLAMINI First Defendant

CORMAC CULLINAN Second Defendant

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Case No: 12543/2016

In the matter between:

MINERAL COMMODOTIES LIMITED First Plaintiff

MARK VICTOR CARUSO Second Plaintiff

and

JOHN GERARD INGRAM CLARKE Defendant

PLAINTIFFS’ HEADS OF ARGUMENT

TABLE OF CONTENTS

A. INTRODUCTION ............................................................................................... 3

B. LEGAL PRINCIPLES ........................................................................................ 5

C. FIRST SPECIAL PLEA: ABUSE OF PROCESS AND STRATEGIC

LITIGATION AGAINST PUBLIC PARTICIPATION .......................................... 6

(i) The law as it stands at present .................................................................. 6

(ii) The common law as developed ............................................................... 14

D. SECOND SPECIAL PLEA: FAILURE TO PLEAD PATRIMONIAL LOSS AND

FALSITY .......................................................................................................... 23

(i) The law as it stands at present ................................................................ 24

(ii) The common law as developed ............................................................... 27

E. CONCLUSION ................................................................................................. 31
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A. INTRODUCTION

1. Before Court are exceptions to two special pleas raised in each of three

separate actions. The exceptions are set down for hearing together in terms of

an Order of His Lordship Judge President Hlophe, taken by agreement between

the parties in each of the actions.1 The exceptions are set down for hearing

together because they raise the same issues for determination. They relate to

special pleas that are identical in all material respects, and which were

excepted to accordingly.

2. In each of the three actions, the respective Plaintiffs are the excipients. The

Defendant or Defendants are the Respondent or Respondents. The parties are

referred to as in the actions. The legal representatives of the Plaintiffs are the

same in all three actions and so are the legal representatives of the Respondent

or Respondents.

3. The three actions are:

3.1 Mineral Sands Resources (Pty) Ltd and Zamile Qunya v Christine

Reddell, Tracey Davids and Davine Cloete (case number 7595/2017)

(the Reddell matter);

3.2 Mineral Commodities Limited and Mark Victor Caruso v Mzamo Dlamini

and Cormac Cullinan (case number 14658/2016 (the Dlamini matter);

and

1The Order of Hlophe JP is dated 31 January 2020. See the record in the Reddell matter at p 157 –
158.
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3.3 Mineral Commodities Limited and Mark Victor Caruso v John Gerard

Ingram Clarke (case number 12543/2016) (the Clarke matter).

4. The First Plaintiff2 in each of the actions is a “trading corporation”3 operating in

the mining sector.4 The Second Plaintiffs are natural persons and office

bearers of the relevant First Plaintiffs.5 The Defendants are natural persons.

5. In each of the actions, the Plaintiffs sue the Defendants for defamation. In their

respective particulars of claim, the Plaintiffs allege that each of the Defendants

made actionable defamatory statements that (at times very loosely) relate to

mining operations in which the Plaintiffs are involved. The Plaintiffs seek

damages, alternatively the publication of apologies.6 The Defendants deny

having defamed the Plaintiffs and, in the alternative, plead justification

defences.

6. Additionally, the Defendants raise two substantively identical special pleas in

each of the actions. The first special pleas are entitled: “Abuse of process and

strategic litigation against public participation”.7 The second special pleas are

entitled: “Failure to plead patrimonial loss and failure to plead falsity”.8 The

Plaintiffs took exception to both of the special pleas in each of the actions.9 The

Plaintiffs did so on the basis that both of the special pleas lack averments

2 The First Plaintiff in the Dlamini and Clarke matters, Mineral Commodities Ltd, is the “parent company”
of the First Plaintiff in the Reddell matter, Mineral Sands Resources. See the record in the Reddell
matter (“RR”) at p 21, para 4. (Hereafter the pleadings in the actions shall be referred to with reference
to those in the Reddell matter).
3 RR p. 23 para 8.
4 RR p. 6, para 3.1.
5 RR p. 6 para 2.
6 RR p. 14.
7 RR p. 20.
8 RR p. 23.
9 RR p. 52.
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necessary to sustain the defences they purport to raise. These are the

exceptions that require determination.

7. These heads of argument deal first with the legal principles applicable to

exceptions taken against pleadings for lacking the necessary averments to

sustain a cause of action. They then deal with each of the Defendants’ two

special pleas in turn. The three actions are dealt with collectively as they are

indistinguishable for present purposes.

B. LEGAL PRINCIPLES

8. An exception founded on the contention that a plea lacks averments necessary

to sustain a defence is designed to obtain a decision on a point of law which

disposes of a case in whole or in part, and, in the latter instance, avoids the

leading of ‘unnecessary’ evidence at trial.10 It enables the determination of

disputes in an expeditious and cost effective manner.11 As such, an exception

may be taken to a particular section or sections of a plea, provided that they

are self-contained and amount in themselves to a separate defence that can be

struck out without affecting the remainder of the plea.12

9. The analysis assumes in a defendant’s favour that the allegations in its plea,

with the plea standing alone,13 are true.14 In order to succeed, an excipient

must persuade the court that, upon every interpretation that the plea (or the

10 Alphina Investments Ltd v Blacher 2008 (5) SA 479 (C) at 483B.

11 Colonial Industries Ltd v Provincial Insurance Co Ltd 1920 CPD 627 at 630; Kahn v Stuart 1942 CPD
386 at 391; Barclays National Bank Ltd v Thomson 1989 (1) SA 547 (A) at 553 F-I.
12 Tobacco Exporters & Manufacturers Ltd v Bradbury Road Properties (Pty) Ltd 1990 (2) SA 420 (C)

at 424E; Barclays National Bank (ibid) at 553 F-I.

13 Baliso v FirstRand Bank Ltd t/a Wesbank 2017 (1) SA 292 (CC) at 303D-E.
14 Stewart v Botha 2008 (6) SA 310 (SCA) at 313F.
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relevant part of the plea) can reasonably bear, no defence is disclosed.15 The

plea must be taken as a whole16 and read benevolently.17

10. In order to disclose a cause of action, a plaintiff’s pleading must set out every

(material) fact which it is necessary for the plaintiff to prove, if traversed, in order

to support its right to judgment.18 This applies equally to a defendant’s

pleading.19 A plea must set out every (material) fact which it is necessary for

the defendant to prove in order to support its right to judgment.

11. Where an exception is successful, the proper course for the court is to uphold

the exception with costs,20 and to grant the unsuccessful party leave to amend

its pleading within a specified period, if so advised.21

C. FIRST SPECIAL PLEA: ABUSE OF PROCESS AND STRATEGIC

LITIGATION AGAINST PUBLIC PARTICIPATION

(i) The law as it stands at present

12. In the first instance, the Defendants allege that the actions are brought for the

ulterior purpose of stifling criticism of the Plaintiffs.22 The Defendants question

the Plaintiffs’ motive. They do so on three grounds. First, the Plaintiffs do not

plead the falsity of the defamatory statements. Secondly, the Plaintiffs do not

15 First National Bank of Southern Africa Ltd v Perry NO 2001 (3) SA 960 (SCA) at 965C-D.
16 Nel and Others NNO v McArthur 2003 (4) SA 142 (T) at 149F.
17 First National Bank (supra) at 972I.
18 South African National Parks v Ras 2002 (2) SA 537 (C) at 542 E-F.
19 Fundamentally defective pleadings of a plaintiff and defendant should be treated on an equal footing.

See Constantaras v BCE Foodservice Equipment (Pty) Ltd 2007 (6) SA 338 (SCA) at 349A-B.
20 AC Cilliers et al Herbstein & Van Winsen The Civil Practice of the High Courts of South Africa (5 ed)

Vol. 1 at 648.
21 DE van Loggerenberg Erasmus Superior Court Practice (2 ed) Vol. 2 at D1-296.
22 RR p. 20, para 3.
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claim patrimonial loss.23 Thirdly, the Plaintiffs do not honestly believe that they

have any prospect of recovering damages from the Defendants. 24 The

Defendants contend for a pattern of conduct evidenced by the actions.25

13. On the approach to exceptions dealt with above, the abovementioned grounds

and the factual conclusion they are pleaded to support – that the Plaintiffs are

acting with an ulterior purpose – must be accepted as correct.

14. In these circumstances, the Defendants plead, as a legal conclusion, that the

Plaintiffs’ conduct in bringing each of the actions (the numbering quoted below

is the same in all three actions):26

“5.1 is an abuse of process; and/ or

5.2 amounts to the use of court process to achieve an improper end

and to use litigation to cause the defendants financial and/or other
prejudice in order to silence them; and/or

5.3 violates the right to freedom of expression entrenched in

section 16 of the Constitution.”27

15. Essentially, the Defendants contend for an abuse of process.28 In doing so, the

Defendants rely entirely (and impermissibly) on the Plaintiffs’ motives for

23 As will be dealt with in the context of the Defendants’ second special plea, this criticism and that
relating to the Plaintiffs’ failure to plead falsity can only apply to the First Plaintiffs, as juristic persons,
and only if the Defendants’ second special pleas are upheld. In terms of the law as it stands at present,
a plaintiff claiming for defamation, whether a juristic or natural person, is obliged to allege and prove
neither falsity nor patrimonial loss.
24 RR p. 20, para 2.
25 RR p. 21, para 4.
26 RR p. 22.
27 Reference to section 15 of the Constitution in the Reddell matter is an obvious typographical error,

not repeated in the Dlamini and Clarke matters.

28 Paragraph 5.2 of the first special pleas is nothing more than a slightly different articulation of a well-

trodden, albeit not all-encompassing, definition of ‘abuse of process’. As such, it adds nothing to
paragraph 5.1 of the special pleas. See, for instance, Beinash v Wixley 1997 (3) SA 721 (SCA) at 734
F-G where it was held that “an abuse of process takes place where the procedures permitted by the
Rules of Court to facilitate the pursuit of the truth are used for a purpose extraneous to that objective”.
 8

bringing the actions. As will be dealt with in more detail hereunder, in relying

exclusively on the Plaintiffs’ motives, to the exclusion of the merits of the

Plaintiffs’ claims, the Defendants have failed to plead a basis on which a court

might find that the Plaintiffs abuse the court’s process. Moreover, the

Defendants ask the trial courts to take the extraordinary step of closing the

doors of court on the Plaintiffs, thereby denying them their rights in terms of

section 34 of the Constitution,29 without any regard to the merits of the Plaintiffs’

claims.

16. The protection South African law affords a defendant against an abuse of

process is limited to the Vexatious Proceedings Act 3 of 1956 (“VPA”) and the

common law.

17. The Defendants do not purport to rely on the VPA, nor could they.

Section 2(1)(b) of the VPA,30 being the only potentially applicable section of the

VPA, requires an application for protection against a vexatious litigant to be

brought by a defendant. Protection cannot be obtained by filing a plea in which

abuse is alleged. Also, and although not entirely clear, it seems that the only

29 See Beinash and Another v Ernst & Young and Others 1999 (2) SA 116 (CC) at para 17 where it was
held that the right of access to court protected by section 34 of the Constitution is of cardinal importance
for the adjudication of justiciable disputes which, by its nature, requires active protection.
30 Section 2(1)(b) of the VPA provides as follows:

“If, on an application made by any person against whom legal proceedings have been instituted
by any other person or who has reason to believe that the institution of legal proceedings
against him is contemplated by any other person, the court is satisfied that the said person has
persistently and without any reasonable ground instituted legal proceedings in any court or in
any inferior court, whether against the same person or against different persons, the court may,
after hearing that other person or giving him an opportunity of being heard, order that no legal
proceedings shall be instituted by him against any person in any court or any inferior court
without the leave of that court, or any judge thereof, or that inferior court, as the case may be,
and such leave shall not be granted unless the court or judge or the inferior court, as the case
may be, is satisfied that the proceedings are not an abuse of the process of the court and that
there is prima facie ground for the proceedings.”
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relief a defendant can obtain in terms of the section is protection against the

institution of future legal proceedings. The section does not seem to confer a

defence on a defendant in legal proceedings that already exist.31 In short, the

Defendants have not brought an application as section 2(1)(b) of the VPA

requires, nor have they asked for the type of relief that section 2(1)(b)

prescribes. This then constrains the Defendants to seek to make out a case

for the relief they seek under the common law.

18. It is well established that courts have the inherent common law power to strike

out claims that constitute an abuse of process.32 As was held in Bissett and

others v Boland Bank Ltd and others 1991 (4) SA 603 (D) at 608E-H, this is a

power:

“… which must be exercised with very great caution, and only in a clear
case. The reason is that the courts of law are open to all, and it is only in
very exceptional circumstances that the doors will be closed upon
anyone who desires to prosecute an action”.33

19. The test for establishing a defence of an abuse of process was recently

enunciated by the SCA in Member of the Executive Council for the Department

of Co-operative Governance and Traditional Affairs v Maphanga [2020] 1 All

31 ABSA Bank Limited v Dlamini 2008 (2) SA 262 (T) at para 24; Member of the Executive Council for
the Department of Co-operative Governance and Traditional Affairs v Maphanga [2020] 1 All SA 52
(SCA) at para 12.
32 Western Assurance Co v Caldwall’s Trustee 1918 AD 262 at 271; African Farms & Townships Ltd v

Cape Town Municipality 1963 (2) SA 555 (A) at 565D.

33 The Court in Bissett and others v Boland Bank Ltd and others relied on Western Assurance Co v

Caldwall’s Trustee 1918 AD 262 at 273 and Fisheries Development Corporation of SA Ltd v Jorgensen
and another; Fisheries Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd and others
1979 (3) SA 1331 (W) at 1338G.
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SA 52 (SCA) (“Maphanga”) at paragraph 25 as follows (underlining and

referencing added):

“It was firmly established in the South African common law, long before
the advent of the Constitution, that the Supreme Court had the inherent
power to regulate its own process and stop frivolous and vexatious
proceedings before it. This power related solely to proceedings in the
Supreme Court and not to proceedings in the inferior courts or other
courts or tribunals. The following principles crystallised over the ages. It
had to be shown that the respondent had ‘habitually and persistently
instituted vexatious legal proceedings without reasonable grounds.
Legal proceedings were vexatious and an abuse of the process of court
if they were obviously unsustainable as a certainty and not merely on a
preponderance of probability.34 I must point out at this juncture that this
definition applied to all litigation that amounted to an abuse of court
process. The attempt by the MEC’s counsel to distinguish the cases from
which the principle derives on their facts was, therefore, mistaken.”

20. The clear emphasis is on the merits of the impugned litigation. In fact, no

mention is made of motive. In order for legal proceedings to constitute an abuse

of process, those proceedings must have been instituted without reasonable

grounds and be obviously unsustainable on their merits as a certainty. By

ignoring the merits of the Plaintiffs’ claims in the actions, in favour of exclusive

reliance on the Plaintiffs’ motives, the Defendants fail to meet the requirements

of their defence.

21. The difficulties that confront the Defendants’ reliance on the Plaintiffs’ motives

run deeper. Not only is it incompetent for the Defendants to seek to divorce the

merits of the Plaintiffs’ claims from their motives for bringing the actions, but the

Plaintiffs’ motives are irrelevant to the abuse of process debate.

34The requirement that legal proceedings must be obviously unsustainable as a certainty and not on a
preponderance of probability appears from a number of judgments, including African Farms &
Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 565D-E.
 11

22. When dealing with a review of the decision of the National Director of Public

Prosecutions to indict former President Zuma inter alia on the basis that the

decision to indict was taken for an ulterior purpose, the SCA, in National

Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at

paragraph 37, found the motive for the decision to indict to be irrelevant in the

following terms:

“The motive behind the prosecution is irrelevant because, as Schreiner

JA said in connection with arrests, the best motive does not cure an
otherwise illegal arrest and the worst motive does not render an
otherwise legal arrest illegal. The same applies to prosecutions.”

23. In this connection, see too Zuma v Democratic Alliance and Others; Acting

National Director of Public Prosecutions and Another v Democratic Alliance and

Another 2018 (1) SA 200 (SCA) where Navsa ADP held as follows at

paragraph 88:

“Moreover, Mr Mpshe ignored the dictum in the Zuma judgment by

Harms DP that a bad motive does not destroy a good case. A
prosecution brought for an improper purpose, so said this Court in that
case, is only wrongful if, in addition, reasonable and probable grounds
for prosecuting are absent. In the present case, on the NPA’s own
version, the case against Mr Zuma is a strong one. Once it is accepted
that the motive for a prosecution is irrelevant where the merits of the case
against an accused are good, the motive for the timing of an indictment
to begin the prosecution must equally be so. Mr Mpshe and Mr Hofmeyr
appear to have overlooked the effect of this judgment and uncritically
adopted the ‘ulterior purpose’ justification first mentioned by Mr Hofmeyr
in the meeting referred to in para 78 above.”

24. To the extent that motive is relevant at all (which the Plaintiffs deny), the dictum

of Harms DP in National Director of Public Prosecutions v Zuma,

notwithstanding its context, should apply equally to actions for defamation. In

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terms of that dictum, the assessment of whether such actions are unlawful,

cannot take place without considering the merits of the claim. A party who

claims that it has been defamed (on a basis that is not obviously unsustainable)

should not be precluded from pursuing such action merely because it has a

secondary purpose.

25. Indeed it appears from the quoted passage of National Director of Public

Prosecutions v Zuma itself, that the SCA’s dictum is of wider application. Harms

DP relied on two judgments of Schreiner JA in support of his conclusion

regarding the irrelevance of motive: Tsose v Minister of Justice 1951 (3) SA 10

(A) and Beckenstrater v Rotther and Theunissen 1955 (1) SA 129 (A).

25.1 Tsose v Minister of Justice was an unlawful arrest case. At page 17G-

H, Schreiner JA held: “For just as the best motive will not cure an

otherwise illegal arrest so the worst motive will not render an otherwise

lawful arrest illegal.”

25.2 Beckenstrater v Rotther and Theunissen concerned an allegedly

malicious prosecution. Schreiner JA held, at 135D-E, that persons who

have reasonable and probable cause for prosecution should not be

deterred from setting the criminal law in motion against those whom

they believe have committed offences, even if in doing so they are

actuated by indirect and improper motives.

26. A further illustration of the wider application of the irrelevance of motive is to be

found in Estate Logie v Priest 1926 AD 312 at 320 – 321, a case that concerned

the alleged wrongful obtaining of a sequestration order on the basis that the
 13

underlying proceedings were brought for an ulterior purpose. In finding that

there was nothing improper in using sequestration proceedings to secure the

payment of a debt, the Appellate Division relied on English authority, Ex parte

Wilbram (5 Madd. 1), where it was held that the motive for asserting a legal

right is irrelevant.

27. Returning to the legal principles applicable to exceptions, it cannot be disputed

seriously that the Defendants’ first special pleas are self-contained and amount

to separate defences that may be struck out without affecting the remainder of

the Defendants’ pleas. This is inherent in a special plea. Nor can it be disputed

seriously that the Plaintiffs’ exceptions, if upheld, will avoid the hearing of

unnecessary evidence, and promote the expeditious and cost-effective

determination of the actions. To take but two examples, it will be unnecessary

to lead evidence in any one of the actions about either of the others and the

enquiry into the Plaintiffs’ motives will fall away.

28. To conclude on this aspect, the Defendants are constrained to make out a case

for a common law abuse of process. By relying on the Plaintiffs’ motives, to the

exclusion of the merits of the Plaintiffs’ claims, the Defendants’ first special

pleas lack averments necessary to sustain the defence on which they seek to

rely. In the premises, and subject to the development of the common law the

Defendants contend for in the alternative, the Plaintiffs’ exceptions stand to be

upheld.

29. A further difficulty that confronts the Defendants’ first special plea, on the law

as it stands at present, arises from the relationship between their first and
 14

second special pleas. As pleaded, the success of the former is entirely

dependent on the success of the latter. As will be dealt with in relation to the

second special plea, the Plaintiffs plead neither falsity nor patrimonial loss in

the actions because, on authority binding on this Court, their cause of action

does not oblige them to do so. If this line of authority is upheld, as the doctrine

of precedent requires, two of the grounds on which the Defendants seek to

establish the Plaintiffs’ motives are destroyed.35 Indeed, as the law stands, it

cannot be inferred that the Plaintiffs failed to plead falsity and patrimonial loss

for the nefarious reasons that the Defendants allege. It must be accepted that

they did not do so because falsity and patrimonial loss are not required to

establish their causes of action. A third ground, i.e. that the Plaintiffs have

brought three defamation cases against three different sets of Defendants on

the basis of three different sets of defamatory statements, can also have no

bearing on their motive. Nor can the fourth ground, i.e. doubtful prospects of

recovering damages, have a bearing on motive, let alone because the Plaintiffs

seek apologies in the alternative to damages. In the premises, should the

Defendants’ second special plea fail, so too must their first special pleas, and

for reasons independent of the common law requirements of abuse of process.

(ii) The common law as developed

30. In the alternative, and in the event that the common law does not permit the

dismissal of the Plaintiffs’ claims as an abuse of process as the Defendants

plead in the first five paragraphs of their first special pleas (as it does not), the

35 RR p. 20, para 2; RR p 21, para 4.

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Defendants plead that the common law is inconsistent with sections 16(1)36 and

3437 of the Constitution, and falls to be developed in terms of sections 8(3)38

and 39(2)39 thereof.40

31. A ready answer to the Defendants’ reliance on the development of the common

law in order to create the defence on which they rely is the doctrine of

precedent. The doctrine of precedent is an intrinsic feature of the rule of law.41

The doctrine decrees that the ratio decidendi of a judgment (rationale or basis

of deciding), and not obiter dicta, have binding effect.42 If a statement of law

was part of the ratio decidendi of a decision, the question whether or not it was

wrong does not arise insofar as courts lower in the hierarchy are concerned.

Right or wrong, lower courts are bound.43

36 16. Freedom of expression

(1) Everyone has the right to freedom of expression, which includes - (a) freedom of the press
and other media; (b) freedom to receive or impart information or ideas; (c) freedom of
artistic creativity; and (d) academic freedom and freedom of scientific research
37 34. Access to courts
Everyone has the right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court or, where appropriate, another independent and
impartial tribunal or forum.
38 8. Application
…
(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of
subsection (2), a court - (a) in order to give effect to a right in the Bill, must apply, or if necessary
develop, the common law to the extent that legislation does not give effect to that right; and (b)
may develop rules of the common law to limit the right, provided that the limitation is in
accordance with section 36(1).
39 39. Interpretation of Bill of Rights
…
(2) When interpreting any legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
40 RR p. 23, para 7. As it is understood, the heading to the second special plea in the Reddell matter
is out of place. It is above para 7, but should be below it.
41 True Motives 84 (Pty) Ltd v Mahdi and Another 2009 (4) SA 153 (SCA) para 100.
42 Turnbull-Jackson v Hibiscus Court Municipality and Others 2014 (6) SA 592 (CC) para 56.
43 Turnbull-Jackson (supra) para 57.
 16

32. In this regard, in Ex parte Minister of Safety and Security, In re Walters 2002

(4) SA 613 (CC), Kriegler J held as follows at paragraph 61 (unanimous

judgment of the Constitutional Court):

“The [trial] judge was obliged to approach the case before it on the basis
that [the Supreme Court of Appeal’s] interpretation was correct, however
much he may personally have had misgivings about it. High Courts are
obliged to follow legal interpretations of the Supreme Court of Appeal,
whether they relate to constitutional issues or to other issues, and remain
so obliged unless and until the Supreme Court of Appeal itself decides
otherwise or [the Constitutional Court] does so in respect of a
constitutional issue”.44

33. A nuance may arise regarding the application of the doctrine in the context of

pre-constitutional decisions in light of section 39(2) of the Constitution.45 This

nuance does not arise in this matter because, as indicated above, the authority

of the SCA which binds this Court, Maphanga, is not a pre-constitutional

decision. Certainly, section 39(2) of the Constitution does not dilute the doctrine

of precedent insofar as it applies to post-constitutional decisions.46

34. In the event that a court should believe that there exist good reasons why a

binding decision should be changed, the Court is bound by that decision,

nevertheless. The Court’s recourse is to formulate its reasons and urge the

court of higher authority to effect the change.47

44 In terms of section 167(3)(a) of the Constitution, the Constitutional Court is now the highest court on
all matters and not only constitutional matters
45 See F du Bois (ed) Wille’s Principles of South African Law (9 ed) page 91.
46 Camps Bay Ratepayers’ and Residents’ Association and Another v Harrison and Another 2011 (4)

SA 42 (CC) para 29.

47 Camps Bay Ratepayers (supra) para 30.
 17

35. In Maphanga, the appellant sought inter alia to preclude the respondent from

instituting certain further legal proceedings against, essentially, the appellant’s

department, unless the respondent first satisfied a court that the contemplated

proceedings are not an abuse of process.48 The appellant sought this relief

under the VPA alternatively, and what was described as the appellant’s

mainstay argument,49 the common law.50 As such, directly in issue was the

prevention of litigation on the basis that it is an abuse of process.

36. It was in this context that the SCA held, at paragraph 25, that legal proceedings

are vexatious and an abuse (only) if obviously unsustainable as a certainty and

not merely on a preponderance of probability. In doing so, the SCA adopted,

with approval, the pre-constitutional dictum of the Appellate Division in African

Farms and Townships Ltd v Cape Town Municipality supra at 565D-E. The

SCA went on to find against the appellant, on the common law leg of his case,

on the basis that it had not been shown as a certainty that any of the

respondent’s claims were obviously unsustainable.51 In the circumstances, the

principles enunciated in paragraph 25 of Maphanga, what the SCA described

as “principles crystallised over the ages”, were an aspect of its ratio decidendi

and are binding on this Court.

37. Maphanga articulates the general test to be applied in circumstances where

legal proceedings, contemplated or pending, are attacked as being an abuse

of process. This appears from paragraph 25 of Maphanga itself where the SCA

48 Maphanga (supra) para 6.

49 Maphanga (supra) para 24.
50 Maphanga (supra) para 1.
51 Maphanga (supra) para 29.
 18

dealt with an attempt by the appellant’s counsel to distinguish the facts of

Maphanga from those of the cases from which the relevant principles are

derived. The SCA did so in the following terms: “I must point out at this juncture

that this definition applied to all litigation that amounted to an abuse of court

process.”

38. In the circumstances, it is not open to this Court to entertain developing the

common law so as to re-formulate the test for an abuse of process by shifting

the focus to motive, let alone to regard ulterior purpose on its own as

constituting an abuse of process.

39. In any event, there is no basis for the development of the common law for which

the Defendants contend. The Defendants must establish that the common law

principles applicable to abuse of process are formulated in terms that are

inconsistent with a particular constitutional right or otherwise inconsistent with

the constitutional value system, thereby triggering the duty to develop the

common law.52 To this end, the Defendants rely on sections 16(1) and 34 of

the Constitution.

40. What must follow is a five-stage enquiry as set out by the Constitutional Court

in Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd and

Another 2016 (1) SA 621 (CC) where the approach is set out from paragraph 34

onwards. This test is in turn conveniently summarised by this Court in MEC for

52 S v Thebus and another 2003 (6) SA 505 (CC) para 28.

 19

Health & Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC)

where the following is stated:

“[31] The general approach to development of the common law under

s 39(2) is that a court must: (1) determine what the existing common-
law position is; (2) consider its underlying rationale; (3) enquire whether
the rule offends s 39(2) of the Constitution [i.e. whether it offends the
spirit, purport and object of the Bill of Rights]; (4) if it does so offend,
consider how development in accordance with s 39(2) ought to take
place; and (5) consider the wider consequences of the proposed change
on the relevant area of the law.”

41. We have dealt with stages one and two above. Regarding stage three, the

immediate difficulty that confronts the Defendants’ reliance on section 16 of the

Constitution is the exhaustive analysis of the Constitutional Court in Khumalo

and other v Holomisa 2002 (5) SA 401771 (CC) regarding the justification for

placing an onus on the defendant in defamation actions to establish the defence

of truth and public benefit. If anything, the Defendants should be contending for

the defence of reasonable publication of false defamatory allegations,

established in National Media Ltd and Others v Bogoshi 1998 (4) SA 1196

(SCA), to be extended to non-media defendants. As pleaded, and in light of

Khumalo, it is difficult to conceive the basis on which the Defendants might

contend that the principles of abuse of process, as currently articulated, offend

section 16 of the Constitution or the constitutional value system more generally.

 20

42. The Defendants’ reliance on section 34 of the Constitution is perplexing.

Section 34 protects the right to have a justiciable dispute53 resolved by the

application of law decided in a fair public hearing before a court. This is what

the Plaintiffs seek to do, notwithstanding any ulterior motive – as asserted by

the Defendants – and the Defendants do not suggest otherwise. In fact, the

Defendants, in effect, seek to circumscribe the Plaintiffs’ right to access to court

by seeking to non-suit the Plaintiffs without regard to the merits of the actions.

Section 34 is about access to court and the fairness of a hearing before a court,

and not the fairness of the law to be applied by the court.54

43. In the premises, if the Defendants’ defence premised on the development of

the common law is to be entertained notwithstanding the doctrine of precedent,

it must fail at the first hurdle. The principles of abuse of process are not

inconsistent with sections 16 or 34 of the Constitution nor the constitutional

value system.

44. As to stages four and five of the Mighty Solutions enquiry, the common law

principle the Defendants attack is of broad application. The Defendants, in

truth, contend for an exception to that principle which will be applicable in

defamation proceedings or litigation that implicates the freedom of expression

only. Not all litigation that is or may be an abuse of process will implicate

freedom of expression. It is not clear why an exception should be carved out

for defamation cases only.

53 Bernstein v Bester NO 1996 (2) SA 751 (CC) at para 105.

54 Mankayi v Anglogold Ashanti Ltd 2010 (5) SA 137 (SCA) para 45.
 21

45. A further difficulty, regarding stages four and five, is the line of authority that

includes National Director of Public Prosecutions v Zuma dealt with above. This

line of authority, binding on this Court, questions the relevance of motive per

se, let alone as an overriding consideration.

46. But most relevant to stages four and five, and as appears from the heading of

the Defendants’ first special pleas, is that they contend for the common law to

be developed so as to protect against what is colloquially referred to as

‘strategic litigation against public participation’ or by its acronym, ‘SLAPP’.

47. SLAPP, as a term, was coined by American academics in the 1980’s.55 ‘SLAPP

suits’ are legal proceedings that are intended to silence critics by burdening

them with the cost of litigation in the hope that the criticism or opposition will be

abandoned. In a typical SLAPP suit the plaintiff does not necessarily expect to

win its case. The plaintiff’s goals are accomplished if the defendant succumbs

to intimidation, mounting legal costs or exhaustion and abandons its criticism.

SLAPP suits are regulated in some foreign jurisdictions,56 principally on the

ground that they impede freedom of expression. Actions for defamation are a

common form of SLAPP suit.

48. An analysis of the manner in which foreign jurisdictions have sought to regulate

SLAPP suits presents a difficulty for the Defendants. Internationally, the

manner and extent to which SLAPP suits are regulated varies vastly. It has

55 B Sheldrick Blocking Public Participation: The Use of Strategic Litigation to Silence Political
Expression Wilfrid Laurier University Press (2014) p. 50.
56 In the Australian Capital Territory, SLAPP suits are regulated by the Public Participation Act, 2008.

In British Columbia, Canada, SLAPP suits are regulated by the Protection of Public Participation Act,
2019. In Ontario, Canada, of application is the Protection of Public Participation Act, 2015.
 22

proved to be a complex exercise that is almost invariably driven by the

legislature rather than the judiciary. This implicates the constitutional status of

the South African legislature as the major engine for law reform57 and the need

for judicial restraint in this regard. Courts are largely constrained to the

incremental development58 of the common law as, opposed to wholesale

reforms.

49. The United States of America serves as a good illustration of the complexity

involved in regulating SLAPP suits. In the United States, SLAPP suits are

regulated at the state, rather than federal, level. Of the 50 states that comprise

the United States, it would appear that 34 afford some level of protection from

SLAPP suits. Barring West Virginia,59 all states that have implemented some

form of protection have done so by enacting legislation.

50. Generally speaking, and at the upper level of protection, ‘anti-SLAPP’

legislation makes provision for a defendant faced with an alleged SLAPP suit

to bring a quick and inexpensive application at an early stage of a SLAPP suit

for it to be struck out. The onus is on the defendant to establish that the

plaintiff’s claim lacks genuine substance, evidence or prospects of success (the

role of the merits of the claim is noteworthy). If established, the burden shifts

to the plaintiff to establish a reasonable prospect of success.60

57 Carmichelle v Minister of Safety and Security 2001 (4) SA 938 (CC) at para 36.
58 Du Plessis v Road Accident Fund (443/2002) [2003] ZASCA 86 (19 September 2003) para 36.
59 Harris v Adkins 432 S.E.2d 549 (W.Va. 1993).
60 See Flatley v Mauro, a judgment handed down by the Supreme Court of California on 27 July 2006

and available at http://www.casp.net/california-anti-slapp-first-amendment-law-

resources/caselaw/california-supreme-court/flatley-v-mauro/.
 23

51. Within these general parameters, the legislation varies vastly. Certain states,

such as California61 and Connecticut,62 protect speech published in any forum

regarding any issue, while others, such as Missouri,63 protect only speech

related to an issue of public importance published in certain forums. Certain

states require a defendant to establish bad faith on the part of the plaintiff or the

absence of a reckless disregard for falsity,64 while others do not.65 Certain

states allow an unsuccessful plaintiff to amend its pleadings,66 while in others

success for the plaintiff is the end of the matter.

52. What appears clearly from the manner in which SLAPP suits are regulated in

the United States is the complexity involved in drafting the legislation and the

policy-laden nature of its underpinnings. The regulation of SLAPP suits

requires far more than the incremental development of the common law

traditionally associated with our courts. The legislature should be left with the

choice of whether this defence should be introduced into South African law,

and, if so, how this should be done.

D. SECOND SPECIAL PLEA: FAILURE TO PLEAD PATRIMONIAL LOSS AND

FALSITY

53. The Defendants contend that, because the First Plaintiffs are trading

corporations,67 the First Plaintiffs (not the Second Plaintiffs, who are natural

persons) were required to plead (i) that the defamatory statements on which

61 California Civ. Proc. Code 425.16.

62 Public Act No. 17-71.
63 Missouri. Rev. Stat. section 537.528 (2004).
64 Arkansas Code. Ann. 16-63-501-8 (2010).
65 California Civ. Proc. Code 425.16.
66 Delaware Code. Ann. tit. 10 section 8136 (2011).
67 RR p. 23, para 8.
 24

they sue were false; (ii) were wilfully made;68 and (iii) caused the First Plaintiffs

to suffer patrimonial loss, and that the First Plaintiffs’ failure to do so renders

their claims bad in law.69

54. In the alternative, and in the event that the common law is inconsistent with the

position as paraphrased above, the Defendants contend that it is inconsistent

with section 16(1) of the Constitution and falls to be developed, resulting in the

dismissal of the First Plaintiffs’ claims.70

55. In the further alternative, and in the event that a trading corporation has

remedies available to it without alleging and proving falsity, wilfulness, and

patrimonial loss, the Defendants contend that, on the basis of the law as it

stands at present, these remedies exclude a claim for general damages. To

the extent that this is not the common law position (it is not), the Defendants

contend that the common law is inconsistent with section 16(1) of the

Constitution and falls to be developed. In the result, the Defendants seek the

dismissal of the First Plaintiffs’ claims for general damages.71

(i) The law as it stands at present

56. It cannot be disputed seriously that as the law stands a trading corporation,

when suing for defamation, is not required to plead and prove falsity, wilfulness

68 The First Plaintiffs plead that the defamatory statements were wilfully made. See, for instance, the
particulars of claim in the Reddell matter at RR p. 9, para 13 where the First Plaintiff pleads that the
statements concerned “are wrongful and defamatory of the first plaintiff in that they were intended, and
understood by the participants of the lecture, to mean that the first plaintiff goes about its operations in
an unlawful and deceitful manner that causes great environmental damage” (underlining supplied).
69 RR p. 23, para 10.
70 RR p. 24, para 11 – 13.
71 RR p. 24, para 14.
 25

or patrimonial loss and that its remedy is, or includes, a claim for general

damages.

57. The general elements of defamation, albeit in the context of a plaintiff who is

natural person, were set out by the Constitutional Court in Le Roux v Dey 2011

(3) SA 274 (CC) at paragraphs 84 – 86 as being: the (1) wrongful and (2)

intentional (3) publication of a (4) defamatory statement (5) concerning the

plaintiff. These are the requirements of the actio iniuriarum as applied in actions

for defamation. A plaintiff must prove publication of a defamatory statement

concerning the plaintiff. If this achieved, it is presumed that the statement was

both wrongful and intentional. It is then for the defendant to raise a defence

that excludes wrongfulness or intent.

58. For more than a hundred years our courts have applied the abovementioned

principles to both natural and jurisdic persons. In this regard, see Media 24 Ltd

and Others v SA Taxi Securitisation (Pty) Ltd 2011 (5) SA 329 (SCA)

(“Media 24”) at paragraphs 17 – 30. See also Financial Mail (Pty) Ltd v Sage

Holdings Ltd 1993 (2) SA 451 (A) (“Financial Mail”) at 460G-461H where

Corbett CJ held:

“These developments in the law of defamation are not directly pertinent

to the issues in the present case, but I refer to them to indicate that, as
a matter of general policy, the Courts have, in the sphere of personality
rights, tended to equate the respective positions of natural and artificial
(or legal) persons where it is possible and appropriate for this to be done.
In the sphere of defamation this can be done.”

59. To the extent that the line of authority that does not distinguish between natural

and juristic persons that claim for defamation that started with G A Fichardt Ltd
 26

v The Friend Newspapers Ltd 1916 AS 1 at 5 – 6 was obiter, it was adopted as

part of the rationes decidendi of the Appellate Division in Dhlomo NO v Natal

Newspapers (Pty) Ltd 1989 (1) SA 945 (A) (“Dhlomo”) and by the SCA in

Media 24.

60. In Media 24 at paragraph 40.3, Brand JA, writing for the majority, held that it

would discriminate unjustifiably against trading corporations to treat them

differently to natural persons for purposes of actions for defamation. Brand JA

did so with reference to the elements of and approach to defamation he

articulated on behalf of the majority of the Constitutional Court in Le Roux v

Dey. On the specific issue before the SCA, Brand JA held that a corporation

has a claim for general damages for defamation.

61. It is anticipated that the Defendants will place heavy reliance on the minority

judgment of Nugent JA in Media 24. But it is important to note that the minority

judgment only parted ways with the majority on the remedies for defamation

and not on its substantive elements. At paragraph 65, Nugent JA held as

follows, with reference to the majority judgment: “We agree that a trading

corporation has a protectable interest in its reputation, and we agree that it is

entitled to redress once the elements of unlawful defamation have been

established in the ordinary way”. In order to explain what he meant when

referring to the ‘ordinary way’, Nugent JA cited Khumalo at paragraph 18 (as

did Brand AJ in Le Roux v Dey, as referred to above). The minority judgment

is accordingly no authority for the proposition that a corporation should plead

and prove the falsity of a defamatory statement in a defamation action.

 27

62. In the circumstances, by seeking to impose additional obligations on the First

Plaintiff and seeking to limit their remedies in the manner in which they do (in a

manner akin to the lex Aquilia or the delict of injurious falsehood), the

Defendants have pleaded a defence that is inconsistent with the law and,

therefore, excipiable.

63. As with the first special pleas, it cannot be disputed seriously that the

Defendants’ second special pleas are self-contained and amount to separate

defences that may be struck out without affecting the remainder of the

Defendants’ pleas. Nor can it be disputed seriously that the Plaintiffs’

exceptions, if upheld, will promote the expeditious and cost-effective

determination of the actions. To begin with, it will be unnecessary to re-hash

debates that have been heard at length by a number of other courts. Also, the

incidence of onus, i.e. who needs to plead and provide falsity, will fundamentally

affect the manner in which the parties will present evidence at trial and

accordingly needs to be resolved before the commencement of the hearings.

64. In the premises, the Plaintiffs’ exceptions to the Defendants’ second special

pleas stand to be upheld on the law as it stands at present.

(ii) The common law as developed

65. As with the first special pleas, the doctrine of precedent is a ready answer to

the developments to the common law the Defendants seek in the alternative in

their second special pleas.

 28

66. Judgments of the Appellate Division and SCA, such as those in Dhlomo, Caxton

Ltd and Others v Reeva Forman (Pty) Ltd and Another 1990 (3) SA 547 (A) and

Media 24,72 are direct authority, binding on this Court, for the general

proposition that a juristic person, suing for defamation, stands to be treated no

differently to a natural person and that the elements of and approach to

defamation do not require a plaintiff which is a juristic person to allege and prove

falsity, wilfulness or patrimonial loss, or exclude a claim for general damages.

As to this general proposition of non-discrimination:

66.1 In Dhlomo, one of the issues the Appellate Division decided was

whether a trading corporation can in our law claim damages for

defamation.73 What Rabie ACJ set out to answer, it is submitted, is the

question whether a trading corporation can in our law claim damages

for defamation in the same way – on the basis of the same elements

and approach – as a natural person. At 952E-J, the Appellate Division

answered this question in the affirmative, thereby declining to draw a

distinction between natural persons and trading corporations who claim

damages for defamation.

66.2 In Caxton Ltd and Others v Reeva Forman (Pty) Ltd and Another,

Corbett CJ, essentially, followed Dhlomo.74

66.3 Media 24, in addition to the general comments made by both the

majority and minority judgments regarding the absence of a distinction

72 Relevant too are Financial Mail (supra) at 460G-461G/H and Argus Printing and Publishing Co Ltd v
Inkatha Freedom Party 1992 (3) SA 579 (A).
73 Dhlomo NO (supra) at 948G.
74 Caxton Ltd (supra) at 560H-561A.
 29

between natural and juristic person plaintiffs in actions for defamation

set out above, cites with approval both Dhlomo and Caxton in the face

of arguments critical of those judgments.

67. Dhlomo, Caxton and Media 24 thus deal with the general approach to actions

for defamation and establish that there should be no distinction in approach

between natural and juristic persons. However, in addition to this, at least two,

and potentially three, of the developments that the Defendants contend for have

been rejected in terms by courts whose judgments are binding on this Court.

67.1 In Media 24, the SCA gave specific consideration to whether a trading

corporation enjoys a claim for general damages for defamation under

the actio iniuriarum and, if so, whether the common law should be

developed to exclude general damages as a remedy available to

trading corporations (in effect, obliging juristic persons to claim for

patrimonial loss). On the basis of the doctrine of precedent, and what

Brand JA described as “powerful authority”75 – Dhlomo, Caxton and

Financial Mail – the SCA found that trading corporations may indeed

claim general damages for defamation.76 Following a careful analysis,

the SCA went on to find that the common law in this regard was not

unconstitutional.77 As such, the constitutionality debate which the

Defendants seek, at least in so far as it pertains to remedy, was,

effectively, decided against them by the SCA as recently as in 2011.

75 Media 24 (supra) para 31.

76 Media 24 (supra) para 41.
77 Media 24 (supra) paras 42 – 55.
 30

67.2 It bears mention that, given the doctrine of precedent, in Media 24 the

SCA was only permitted to entertain arguments relating the

development of the common law because under consideration were the

judgments of that Court and its predecessor. The SCA would not, it is

submitted, have entertained the debate were judgments of the

Constitutional Court in issue.

67.3 In Khumalo and Others v Holomisa, the applicants argued that, to the

extent that the common law of defamation does not require a plaintiff to

prove the falsity78 of a defamatory statement, it is inconsistent with the

Constitution,79 and section 16 in particular.80 The plaintiff in the matter

was a natural person. The Constitutional Court found against the

applicants.81

68. To the extent that argument on the development of the common law may be

entertained in these circumstances, it may be dealt with in short order. The

age-old approach to actions for defamation in our law, at least in the context of

a plaintiff who is natural person, strikes an appropriate balance between the

competing rights at play, including section 16 of the Constitution. This is well-

established. As such, the Defendants must establish a material distinction

between the rights that a natural person who sues for defamation may call in

aid and those of a juristic person.

78 This argument appears to overlook that a statement need not be false in order to be defamatory.
Hence the well-known defence in defamation proceedings known as truth and public benefit.
79 Khumalo and Others v Holomisa (supra) para 35.
80 Khumalo and Others v Holomisa (supra) para 33.
81 Khumalo and Others v Holomisa (supra) para 46.
 31

69. Albeit in the context of remedy, this debate served before the SCA in Media 24.

These were not novel arguments.82 The SCA was unable to draw a distinction

between natural and juristic persons so as to preclude a juristic person from

claiming general damages. The Court’s reasoning is equally applicable to the

existence of a distinction that justifies a juristic person being put to the proof of

the falsity and wilfulness of a defamatory statement (and patrimonial loss to the

extent that this leg of the development the Defendants seeks is distinguishable

from that pertaining to remedy).

E. CONCLUSION

70. In the circumstances, the Plaintiffs in each of the actions seek an order in the

following terms:

70.1 upholding their exceptions with costs, including the costs of three

counsel; and

70.2 setting aside each of the Defendants’ special pleas.

PB HODES SC
HJ DE WAAL SC
CJ QUINN
Plaintiffs’ counsel
18 May 2020
CAPE TOWN

82 Khumalo and Other v Holomisa (supra) paras 21 – 28.

 32

PLAINTIFFS’ LIST OF AUTHORITIES

Publications

1. AC Cilliers et al Herbstein & Van Winsen The Civil Practice of the High Courts
of South Africa (5 ed) Vol. 1

2. DE van Loggerenberg Erasmus Superior Court Practice (2 ed) Vol. 2

3. F du Bois (ed) Wille’s Principles of South African Law (9 ed)

4. B Sheldrick Blocking Public Participation: The Use of Strategic Litigation to

Silence Political Expression Wilfrid Laurier University Press (2014)

Case law

5. Alphina Investments Ltd v Blacher 2008 (5) SA 479 (C)

6. Colonial Industries Ltd v Provincial Insurance Co Ltd 1920 CPD 627

7. Kahn v Stuart 1942 CPD 386

8. Barclays National Bank Ltd v Thomson 1989 (1) SA 547 (A)

9. Tobacco Exporters & Manufacturers Ltd v Bradbury Road Properties (Pty) Ltd
1990 (2) SA 420 (C)

10. Baliso v FirstRand Bank Ltd t/a Wesbank 2017 (1) SA 292 (CC)

11. Stewart v Botha 2008 (6) SA 310 (SCA)

12. First National Bank of Southern Africa Ltd v Perry NO 2001 (3) SA 960 (SCA)

13. Nel and Others NNO v McArthur 2003 (4) SA 142 (T)

14. South African National Parks v Ras 2002 (2) SA 537 (C)
 33

15. Constantaras v BCE Foodservice Equipment (Pty) Ltd 2007 (6) SA 338 (SCA)

16. Beinash v Wixley 1997 (3) SA 721 (SCA)

17. Beinash and Another v Ernst & Young and Others 1999 (2) SA 116 (CC)

18. Bissett and others v Boland Bank Ltd and others 1991 (4) SA 603 (D)

19. ABSA Bank Limited v Dlamini 2008 (2) SA 262 (T)

20. Member of the Executive Council for the Department of Co-operative

Governance and Traditional Affairs v Maphanga [2020] 1 All SA 52 (SCA)

21. Western Assurance Co v Caldwall’s Trustee 1918 AD 262

22. African Farms & Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A)

23. Fisheries Development Corporation of SA Ltd v Jorgensen and another;

Fisheries Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd and
others 1979 (3) SA 1331 (W)

24. National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA)

25. Zuma v Democratic Alliance and Others; Acting National Director of Public
Prosecutions and Another v Democratic Alliance and Another 2018 (1) SA 200
(SCA)

26. Tsose v Minister of Justice 1951 (3) SA 10 (A)

27. Beckenstrater v Rotther and Theunissen 1955 (1) SA 129 (A)

28. Estate Logie v Priest 1926 AD 312

29. Ex parte Minister of Safety and Security, In re Walters 2002 (4) SA 613 (CC)

30. True Motives 84 (Pty) Ltd v Mahdi and Another 2009 (4) SA 153 (SCA)
 34

31. Turnbull-Jackson v Hibiscus Court Municipality and Others 2014 (6) SA 592
(CC)

32. Camps Bay Ratepayers’ and Residents’ Association and Another v Harrison
and Another 2011 (4) SA 42 (CC)

33. Carmichelle v Minister of Safety and Security 2001 (4) SA 938 (CC)

34. Khumalo and other v Holomisa 2002 (8) BCLR 771 (CC)

35. National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA)

36. S v Thebus and another 2003 (6) SA 505 (CC)

37. Mankayi v Anglogold Ashanti Ltd 2010 (5) SA 137 (SCA)

38. Bernstein v Bester NO 1996 (2) SA 751 (CC)

39. Du Plessis v Road Accident Fund (443/2002) [2003] ZASCA 86

40. Harris v Adkins 432 S.E.2d 549 (W.Va. 1993)

41. Flatley v Mauro, a judgment handed down by the Supreme Court of California
on 27 July 2006

42. Le Roux v Dey 2011 (3) SA 274 (CC)

43. Media 24 Ltd and Others v SA Taxi Securitisation (Pty) Ltd 2011 (5) SA 329
(SCA)

44. Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A)

45. G A Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1

46. Dhlomo NO v Natal Newspapers (Pty) Ltd 1989 (1) SA 945 (A)
 35

47. Caxton Ltd and Others v Reeva Forman (Pty) Ltd and Another 1990 (3) SA 547
(A)

48. Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579
(A)