Pieter Johann 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. The dispute arose from statements made by Naylor at a business meeting with Iscor representatives on 2 October 2002, where Naylor stated that Jansen had been suspended because he had misappropriated Atomaer funds to a company of which he was a director. Jansen had in fact breached his employment duties by failing to disclose his interest in a contractor (JFP Chemical Corporation CC) but had not stolen funds. Prior to instituting the action, Jansen obtained an ex parte order for Naylor’s arrest ad fundandam jurisdictionem. The trial court found for Jansen in the defamation action and awarded damages, subject to an option to apologise. Separate appeals followed on the merits of defamation and on the costs of the arrest application.
The appeal on liability for defamation was dismissed, but the appeal succeeded in part on quantum, resulting in a reduction of damages. The appeal relating to costs of the ex parte arrest application was dismissed, confirming that Jansen was liable for those costs.
The case is significant for clarifying South African defamation law on animus injuriandi, qualified privilege, and malice. It confirms that qualified privilege is defeated where defamatory statements are made with knowledge of their falsity, and it develops the law on the admissibility of evidence of related misconduct in mitigation of damages.