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Twitter has become a melting pot of ideas, expression of views and opinions with serious overlapping consequences, writes advocates Michael Matlapeng & Katlego Malatji.
On 1 July 2021, Ashley Raphala commonly known as DJ Shimza, (“Shimza”) issued summons against Nhlamulo Baloyi commonly known as Nota Baloyi (“Nota”).
The issues giving rise to the summons, may be neatly summarised as follows:
Shimza alleges that Nota defamed him by publishing several statements in the form of tweets on the social media platform twitter.
It was Shimza’s case that, Nota had intentional and unlawfully defamed Shimza, by amongst others alleging that Shimza has been benefitting from political connections for years, and that Shimza is corrupt.
It was also Nota’s contention that, the Shimza’s of this world must learn that corruption doesn’t pay and that they must set a better example for the youth of South Africa.
Nota also contending that the township of Tembisa, where Shimza is from, is a “shit-hole” and that there is a lack of service delivery on the part of local government as a direct result of Shimza’s connections within the local government sphere.
Finally, it was Nota’s contention that Shimza must stay away from the local government elections campaigns and that the township of Tembisa, want a new local government administration that will ensure that the dignity of the people of Tembisa is restored.
It was on this basis, that Shimza sought the following from Nota: payment in the amount of R500 000.00, interest and the costs of litigation.
Who is DJ Shimza and Nota Baloyi?
Shimza is a disc jockey and entrepreneur who has won numerous awards since 2006. He is also the founder of Shimza’s One-Man Show which was established in his hometown of Tembisa on Christmas of every year. The aim of the One-Man Show is to raise funds for the underprivileged children of Tembisa where it has hosted international mega superstars DJs such as DJ Black Coffee, Black Motion, AKA, and Kwesta to name a few.
DJ Shimza has also praised international shows around the world including here and around Africa, North America and Europe. He is also a restaurateur and a brand ambassador for Ballantine whiskey and clothing brand Diesel. He is also a volunteer for the African National Congress. Shimza has a Twitter following of 1.6 million.
Nota is a former music executive turned blogger of recent. Nota has a Twitter following of 40.6k.
The defences raised by Nota
Nota rightly conceded that he was the author of the tweets and raised the following defences against Shimza: (a) that his statements were not intended to humiliate Shimza and damage his reputation; (b) that he intended to add his opinion to the outrage regarding the ministerial cook-off with Somizi; (c) that his tweets were only meant to give brotherly advice to Shimza; (d); that he had no intention of defaming Shimza as he held him in high regard and also admired him; (e) he regrets tweeting the above-mentioned tweets; and (f) that the statements were truthful, constitute fair comment and made in the public interest and therefore clothed with media privilege.
A discussion
It is apposite to mention that, the moment Nota admitted publication, it was presumed that the statements were wrongful and intended to harm the reputation of Shimza.
Once that was established, the onus shifted to Nota to establish (a) truthfulness; (b) that it is in the public interest to tweet the above-mentioned tweets; and (c) fair comment. This is done on a balance of probabilities having regard to the pleaded facts with the support of evidence in support of those facts.
Shimza contended that the statements were defamatory and pleaded innuendo in the alternative. In order to be successful in a claim for defamation, the court will go into a two-stage enquiry. First, the court will establish the ordinary meaning of the statements and second, will determine whether the meaning of the statements are defamatory.
The ordinary meaning, is determined with reference to a meaning a reasonable reader would ascribe the words used, having regard to the contexts and to what is expressly stated or implied in the publication.
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The court rejected all of Nota’s defences to the action against him. In rejecting Nota’s defences, the court analysed the jurisdictional facts giving rise to the action and the evidence in support of the facts and found: (a) the words used are indefensible, (b) Nota failed to produce any evidence in support of his contentions in relation to the above-mentioned tweets; (c) the views and opinions of Nota are irrelevant in the determination whether Shimza has been defamed but the reference to the reasonable reader, which is derived from a judicial exercise with reference to the meaning imputed to the reasonable reader is made.
The publication of a defamatory statement which is true (provided that the statement and its publication is in the public interest) is not wrongful.
Nota’s reliance on the defence of truthfulness, must firstly be pleaded and he had to provide evidence to that effect of the truthfulness of the publication and that the publication was as substantially true and published in the public interest.
Regarding the defence of fair comment, (which protects criticism of opinion on facts which are true and relates to situations of public interests), Nota was required to meet the following threshold in order to succeed: (a) the defamatory statements are comment or opinion; (b) the defamatory statements are fair; (c) the factual allegations being commented on are true; and (d) the defamatory statements relate to a matter of public interests. The court rejected that defence on the basis that, Nota failed to establish any truthfulness of the facts relating to the statements.
On public privilege, the court rejected Nota’s contention and found that the law does not recognise a defence of public media privilege and that it is not a defence in law, to say one believed that a statement is true, because it raises issues that are in the media. More pointed, that defence is only available to members of the media, to which the court found Nota was not a member of.
Conclusion
The court found that Nota published the statements without due regard to the consequences. The court also found that Nota said whatever came to his head during evidence and contradicted himself in his evidence.
His recklessness, was shown by his evidence and that he failed to show respect to the court and used the court to continuously attack Shimza without any proof.
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In awarding damages, the court took into consideration all the facts and circumstances in determining the award of R 200 000.00 to Shimza and found the following factors to be most relevant: (a) the nature of the defamatory statements; (b) the nature and extent of the publication; (c) the reputation, character and conduct of the plaintiff; and (d) the motives and conduct of the defendant.
It is difficult to put rands and cents to a person’s reputation. As much as we may dislike each other, the Constitution and human decency at least, requires a certain amount of mutual respect. Twitter has become a melting pot of ideas, expression of views and opinions with serious overlapping consequences.
- Adv Michael Matlapeng is a practicing advocate at Tshwane Society of Advocates, Menlyn Maine.
- Adv Katlego Malatji is the Head of Legal and Business in Africa at Sony Music.
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