Media 24 (Pty) Ltd v Nhleko & Another

On 27 November 2016, Media 24 published an article in City Press Newspaper with the headline 'Nhleko's R30 m blessing', alleging that Mr Nkosinathi Nhleko (then Minister of Police) had signed off millions of rands for work done by his love interest, Dr Nomcebo Mthembu. The article stated that Dr Mthembu's non-profit organisation, Indoni, received R30.8 million for services the police ministry claimed could have been obtained for free. Mr Nhleko and Dr Mthembu sued Media 24 for defamation, claiming R15 million each in damages. Media 24 admitted publication but denied the defamatory meaning and pleaded defences of truth in the public interest, protected comment, and reasonable publication. After the plaintiffs filed a Rule 30A objection to the plea claiming it was a bare denial and evasive, Media 24 sought to amend its plea to address objections. The plaintiffs objected to the proposed amendments, claiming they were an 'elaborate lie' to mislead the court. Media 24 brought an application for leave to amend, which was opposed and dismissed by the Western Cape High Court.

• Whether a defendant in a defamation action is required to plead more than a bare denial to allegations of defamation
• Whether the proposed amendments to the plea were permissible under the principles governing amendments to pleadings
• What degree of particularity is required in a plea to a defamation claim involving a media defendant
• Whether Media 24 was required to justify all allegations in the published article or only those pleaded as defamatory
• Whether the refusal to grant leave to amend was appealable and final in effect
• Whether punitive costs were justified against the respondents for intemperate allegations in their objection

The appeal was upheld. The order of the high court was set aside and replaced with an order: (1) Granting Media 24 leave to amend its plea within ten days; (2) Ordering the respondents to pay costs on an attorney-client scale. No costs order was made in respect of the appeal itself as the respondents did not oppose the appeal.

The binding legal principles established are: (1) In defamation actions, a defendant is required to plead only to the statements alleged to be defamatory in the particulars of claim, not to justify all allegations in the published article; (2) A bare denial of defamation is permissible unless a special meaning or sting is alleged; (3) Where defences such as justification are raised, the defendant must plead the material facts on which the defence rests, but need not prove the case in the pleadings; (4) Courts must be guided by the pleadings alone in determining the issues for adjudication, not by their own interpretation of the underlying events; (5) Leave to amend pleadings should be granted unless the amendment is mala fides or will cause prejudice that cannot be remedied by a costs order; (6) Prejudice in the context of amendments means the opponent is placed in a worse position than before, not merely that the amendment may lead to their defeat; (7) Pleadings must state facta probanda (material facts to be proved), not facta probantia (the evidence by which they will be proved); (8) Parties have the right to litigate on issues as they define them within the bounds of pleading principles, not as the court believes they should be defined.

The Court made several important obiter observations: (1) It acknowledged the importance of the media's role in a democratic society and concerns about fake news and misinformation, but emphasized these considerations cannot override fundamental procedural principles in determining pleading matters; (2) The Court noted that courts have allowed amendments even where they led to re-opening of cases, particularly where the reason was the state of pleading rather than deliberate misconduct; (3) The judgment contains a reminder to trial courts about adherence to fundamental principles of pleadings and allowing parties to ventilate their cases as they determine, within established bounds; (4) The Court commented on the appealability of the order, noting it was predicated on incorrect principles of law, was not clearly enforceable, and would deprive Media 24 of the opportunity to advance its defence, making it final in effect; (5) The Court criticized the 'intemperate and ill-founded remarks' in the notice of objection, which included allegations that the amendment was meant to mislead the court, that Media 24 had lied, was using a 'dirty tricks campaign', and was attempting to 'bully the plaintiffs', noting these warranted censure despite receiving 'some unwarranted endorsement from the high court'.

This case is significant for clarifying fundamental principles of pleading in defamation actions in South Africa. It reinforces that: (1) Defendants need only plead to the defamatory allegations as formulated in the particulars of claim, not justify every statement in a published article; (2) Courts must focus on the pleaded case, not their own interpretation of underlying events or broader policy concerns; (3) The traditional principles governing amendments to pleadings remain applicable - amendments should be allowed unless they are mala fides or cause irremediable prejudice; (4) A bare denial remains a permissible form of pleading where appropriate; (5) Courts should not impose their views as to the 'true nature' of a case - the pleadings define the issues for adjudication; (6) Material facts (facta probanda) must be pleaded, not evidence (facta probantia); (7) Intemperate and unfounded allegations in pleadings or objections may attract punitive costs orders. The judgment serves as an important reminder to trial courts to adhere to well-established pleading principles and not allow extraneous considerations, however well-intentioned, to override procedural fundamentals that ensure fair adjudication.