Naylor v Jansen and Another; Jansen v Naylor and Others

Pieter Jansen, a South African resident, brought a defamation action against Michael Naylor, an Australian citizen and CEO of the Atomaer group, and Atomaer (RSA) (Pty) Ltd. Jansen had been suspended and later dismissed from his employment after an investigation revealed breaches of his employment obligations, including an undisclosed interest in a contractor company. At a meeting on 2 October 2002 between Atomaer representatives and Iscor Ltd, Naylor stated that Jansen had been suspended because he had "misappropriated Atomaer funds to a company of which he holds a directorship". This statement was minuted and understood by those present to mean that Jansen had stolen money. Jansen alleged that the statement was defamatory. Prior to the defamation trial, Jansen also obtained an ex parte order for Naylor’s arrest ad confirmandam jurisdictionem, the costs of which were later disputed.

The appeal on liability for defamation was dismissed, but the appeal succeeded in part on quantum, resulting in a reduction of the damages awarded. The trial court’s failure to consider mitigating evidence was corrected. In the costs appeal, the Supreme Court of Appeal confirmed that Jansen was liable for the costs of the unnecessary ex parte arrest application.

The case is significant for its clarification of animus injuriandi in defamation, the limits of qualified privilege, and the role of malice in defeating that defence. It also affirms that evidence of related dishonest conduct, even if insufficient to justify a defamatory statement, may be admissible in mitigation of damages. Additionally, it provides guidance on costs consequences of arrest ad confirmandam jurisdictionem where less invasive alternatives were available.