The Cost of Defamation to Newsrooms
Righting the societal Wrongs
- “Bullies are the easiest to lick”
- We regularly teach our young ones to identify the right thing to believe and fight for.
- While nobody wants to be sued, when bullies bring up frivolous defamation lawsuit, no matter the amount of spaghetti they flung onto the walls, as long as your facts are solid, you will remain victorious.
- We learnt this from the cancer-curing fraudster from Australia with his global law firm. Why should some beauty pageant entrepreneur and a Township law firm from Free State cost as sleepless nights?
- Such bullies soon get to recon with the reality that there is nothing like ‘alternative facts.
- When caught with their hands in the cookie jars, they rush to deploy the ‘fake news’ defence that is soon followed by ‘total financial destruction.’ The latter may be true.
- As several people have told us over the previous fortnight, “a win is a win…” But we won because we had reasons to fight. We take our work seriously without bull feathering about.
- For our professional colleagues out there, as long as we maintain professionalism and the facts on our corner, don’t be intimidated by loose threats of lawsuits.
- With this, Joani Johnson & Co. must now stop running around the country spreading rumours of how they won their case against us.
‘Subira yavuta heri’ is a well-known Swahili proverb with numerous iterations. The closest English translation is ‘Patience is a virtue’ but perhaps the more apt wording would be ‘Patience pays off’. It has been an agonising wait since we got sued for defamation eighteen months ago by the individuals behind the Beauty Pageant for supposedly happily-married women, aka Mrs Scam Afrika. Soon after we were served with court papers, we undertook internally not to litigate the matter on these pages. But now that this demon is finally off our backs, we can take you behind the scenes to the shenanigans that led us here.
Defamation suits are quite rare in South Africa and inexperienced young attorneys often don’t know how to tackle them. In our opposing papers, we informed the court that there were internal governance issues we needed to address before our attorneys could go on record for us. Without going into details, let’s just say it had to do with the funding for the legal bill. But before we could activate this policy, our in-house counsel cautioned us: “Guys, the Application is fatally defective. No attorneys, regardless of their calibre, could resurrect it from the morgue. Besides remember how we handled a similar suit filed by the cancer-curing fraudster from Australia with his global law firm, why should a beauty pageantry entrepreneur and her Free State provincial attorneys frighten us?" The comment and the reminder stuck with us. We saw that we had two options: a) spend the limited editorial budget bringing in outside counsel; b) kick butts ourselves. Well, we opted for the latter. With the backing of our in-house counsel, we decided to utilise our street-fighting credentials and facts to fight it out and the township lawyers from Free State, and instead donned our titanium helmets and prayed.
When this gory tale initially crossed our radar in March 2021, we failed to understand how people could fall for a scheme that appeared so suspect. Even more perplexing was why and how this scandalous operation had remained so well-hidden from the public. The bothersome question was how the operators of the scheme had been able to keep their victims silent for as long as they had. In fact, during our preliminary investigations, we had encountered several former contestants/victims who, despite being embarrassed for having been duped, did not want to go on record. An exception was one very brave lady, Chandre Goosen-Joubert, who spoke openly to us. She was the fighter we needed to tell the story.
We can now reveal just how this scandal was kept under wraps.
But first, imagine this fictional scenario. It is December 2019: You’re a freelance journalist and everything is relatively fine with your freelance gigs. Then, the management of this boutique media company, uSpiked, advertises an opportunity to work for them. But there is a catch: to join the small pool of independent contractors (freelancers), you must pay uSpiked some money upfront, misleadingly presented as an 'application fee'. Of course, most experienced journalists would look at uSpiked’s proposed arrangement and simply pass, seeing through the grift. Unfortunately, testimony to the 19th-century showman Phineas Taylor Barnum's jibe that there is a sucker born every minute, the company does receive some applications.
Once you agree to sign up, uSpiked’s management sends you pages and pages of poorly drafted contracts in turgid legalese that are surely not meant to be read. [After all, how many of us read through all those T&Cs that come with new Apps for our smartphones? Or how many of us read through every sentence presented to us when opening a new bank account? If you don't click ‘Accept’, the App doesn't download, or you don't get that bank account you badly need. So, we often 'Accept' everything—including that sentence allowing the App developer to track your activities through your smartphone and trade with your personal information, but that is another story…] Should you succeed in your application for the year-long engagement with the company (uSpiked), you are assigned various cases to investigate and report on. Then, once your piece is ready to be published, the onus is on you to source a sponsoring advertiser. It turns out that uSpiked would in fact pay you nothing—not even a commission on the advertisements you have secured. At the end of the year-long tenure, you merely get a byline and a ‘certificate of merit’ affirming that you once contributed to uSpiked … That's all.
That was the sordid scheme we revealed in the Mrs Scam Afrika: the article for which we faced a defamation suit at the Western Cape High Court. And, justifying the other contestants’ fear of breaking silence, Mrs Chandre Goosen-Joubert was sued alongside us in the defamation suit. As mentioned, we internally undertook not to litigate the matter on these pages and for eighteen months we remained bound by that self-imposed undertaking. We promptly filed our intention to defend, followed by our opposing papers against the suit.
The Applicants and their attorneys may have expected us to fold. Instead of replying to our comprehensive opposing papers, they came up with yet another scheme: they approached the same Western Cape High Court with an Urgent Interdict Application seeking the same reliefs they had sought with the defamation suit. They wanted the high court to declare our report unlawful and defamatory, and to gag us from ever publishing anything further about them. Although this application was laughable to our legal team, it revealed why and how the improprieties we had exposed had been kept from the public for so long. Contestants were deeply afraid of being sued.
The Urgent Interdict Application
The founding affidavit in the Urgent Interdict Application by Mrs SA Beauty Pageant (Pty) Ltd. was deposed by a Bloemfontein attorney, Casper du Plessis. Du Plessis was admitted as an attorney in 2006. He joined Honey Attorneys Inc. in 2012 and was appointed a director at the same firm of attorneys a year later. The year 2012 is also when Joani Johnson, the Second Applicant in our defamation suit, registered Mrs SA Beauty Pageant (Pty) Ltd. Until the Urgent Interdict Application was filed, we weren't sure who was pulling the strings that had kept every victim silent.
In his sworn deposition, Attorney Du Plessis wrote, ‘Honey are the attorneys of record for the applicants, and I am the attorney at Honey dealing with this matter on behalf of the applicants.’ It emerged that Du Plessis was the attorney who had been sending what amounted to cease and desist letters to whoever dared to question the operations of Joani Johnson and Co. In fact, Du Plessis unconsciously disclosed to the court that he was the attorney responsible for those tens of pages of contracts victims were compelled to sign to participate in the pageantry. and was responsible for both cases, or how could we explain his affidavit bearing the Case No. of the earlier matter? While the preparation of contracts and their enforcements are the services offered by most attorneys, there is surely something fundamentally wrong when an attorney prepares what are effectively enslavement contracts and then turns around to threaten the enslaved contractors into silence, barring them from even talking about them.
[This is close to a scheme perfected by the disbarred New York attorney, Michael Cohen. In his New York Times best-selling memoir, Disloyal, Cohen revealed how he perfected the art of making his clients' problems go away. Not just legal problems, but all sorts of scandals. Cohen wasn’t just an attorney, he was a ‘Fixer’ for some of America's wealthy and powerful].
Du Plessis and his law firm, Honey Attorneys Inc. prepared contracts for all one hundred contestants accepted to participate in the year-long beauty pageantry, plus multiple other mini-contracts during the year. Preparations of these contracts must have generated massive revenues for the Bloemfontein outfit. Overseeing the tens of pages of identical contracts for at least 100 contractors would be lucrative enough for an attorney with less than two decades of practice experience. That seemed to have been one of Du Plessis' accounts for the Bloemfontein-based law firm.
Du Plessis was the ‘Fixer’ who ensured all contestants remained silent. During the period of the pageantry, he would prepare additional mini-contracts for nearly every stage of the contest: Top 75, Top 50, Top 25, Semi-finalists, Finalists, and even Post-finale contracts. On closer examination of these contracts, we found them to be in contravention of various provisions of the National Consumer Protection Act of 2008, including Section 36 of the legislation. While Du Plessis could count on the various contracts silencing individual contestants, he never considered the possibility that some journalists might come knocking on his clients’ doors seeking explanations.
Before proceeding with any assignments, we often undertake casual appraisals of the characters involved in the issues to be investigated. That initial appraisal revealed to us that the subjects of the investigation appeared to have their attorneys on speed dial. That prompted us to bring our in-house counsel into the investigations much earlier than usual. Despite the unnecessary cost, our in-house counsel advised us to not only go by the book in this investigation but to work it as if we expected a ‘pre-publication’ interdict. And so, we did.
[Such pre-publication injunctions, though often defendable, are often a waste of time and money for publishers. They can hold publications for an indefinite period. Had Cohen's 2020 Memoirs been published earlier, the Second Chapter of Disloyal would have surely informed Du Plessis on how to make an effective Fixer. Therein, Cohen outlines how he made his clients’ scandals go away.]
Having sent an earlier email inquiry to Mrs SA Beauty Pageants (Pty) Ltd. (the First Applicant), we expected to be interrupted by communication from a lawyer at some point. Yet, this never happened. With our lawyers busy with our response to the defamation suit, our in-house counsel advised us that no court would allow our citation on the secondary urgent application to stand. So, we filed our submission, asking for our citation to be struck out.
Soon after, as the country braced itself for the third wave of COVID-19, we heard that the hearing for the Urgent Interdict Application had been moved from the ‘Urgent Court’ to the 'Semi-Urgent Court'. Not sure of what that meant, this author and uSpiked’s Content Editor took the drive to the courts on the ‘set down’ date of June 12, 2021. When we arrived there that morning, we proceeded to one of the two courtrooms set for Urgent Applications.
Picture this scene: June 12, 2021. uSpiked Content Editor and this author sit in Courtroom 16 waiting for their matter, scheduled for 10:00 am, to be called. Several minutes after 10:00 am, they decide to check with somebody where their matter is being heard. The Editor respectfully walks out of the courtroom and meets a gentleman who looked suspiciously like an attorney; He approached him, thinking, 'He must surely know something...’
Editor: Good morning, Sir.
The man: Good morning.
Editor: Do you have any idea where the Semi-Urgent court is?
The man: Sorry, I’m a tourist here. I have just arrived from Bloem.
Editor: Are you Casper?
The man: Yes! (The tourist responds excitedly.)
Editor: Ah, well I’m the Second Respondent in your Application. Where is your case being heard?
The man (brightening up like a kid in a toyshop): Our matter is being heard there (pointing at Courtroom 17).
Editor: Mr Du Plessis, why the hell have you included us in this suit?
The man: Well, all you have to do is give me an undertaking that you will pull the article from your blog and I'll instruct my client to remove your names from this suit right now. [Almost scream that it’s not a blog! he gets distracted by the latter statement, We thought attorneys got instructions from their clients, not the other way round!]
Editor: Are you f**ing with me? Why should I give you such an undertaking?
The man (now Casper): Because that’s all my client wants.
Editor: You can’t be serious!
The man: I am.
Editor: Casper…, Casper…, suppose for a minute I was your client. Would you advise me to give such an undertaking? (The man remains quiet for a few seconds, so the Editor continues.) “Exactly my thoughts... You have no idea what you’ve gotten yourself into. You are trying to hold my feet in the fire until I dance to your tune. Not happening! Please add more coal to that fire because I may need it to roast your sorry **s. I may not be represented by attorneys here, but we are going to crash you and that’s a promise. Just watch.
As his pale face drained of blood, a rescuer arrived in the form of an individual he introduced as Advocate Steyn from Johannesburg, who was to argue the matter for his clients. Why fly in an advocate from Johannesburg? And who cared from which Province he came? One word sprung to mind: ‘intimidation’. The advocate dashed back into Courtroom 17 and returned in under a minute with a copy of a draft court order they planned to persuade the court to grant. You take the copy, then return to Courtroom 16 to fetch your Content Editor.
Inside Courtroom 17, the Editor his Content Editor sit patiently and read through the draft order, a pathetic attempt to bully those deemed weak into submission. Then the matter is called, and the legal tourist from Johannesburg starts prosecuting his case by introducing himself: ‘As your Lordship pleases, my name is Steyn from the Johannesburg bar. My Lord, I appear for the First and Second Applicants. I just want to tell your Lordship that there is no dispute about postponing the matter to 18 October.’
We silently wondered what postponement Steyn was talking about. The judge, Hon Robert Henney, interrupted him. ‘It is unconscionable ... to give a judge a file of 400 pages less than 24 hours before the hearing and expect them to do justice to it among other cases...’, or something close to that. Adv Steyn nonetheless pleaded, "Can I give your Lordship a five-minute address?" The honourable judge allowed him, and Steyn continued with his argument. The subsequent argument was as convoluted as the Notice of Motion. The arguments were made and the advocate failed to justify our citation in the suit. He glossed over the First & Second Respondents, hoping nobody would notice, but we did.
Appreciating that we are not lawyers when it was our turn to present our opposition to the Application, all we did was try to tell our story while querying our citation. We informed the honourable judge what the ‘Fixer’ had been trying to do. First, the aforesaid article had been online for 1,485 hours by that morning, hence the claimed urgency should not be entertained. The same issues were meant to be litigated in another matter, featuring the same parties at the same court through a defamation suit scheduled for whenever... The belated urgent application was aimed at short-circuiting the outcome of the defamation suit: it was an attempt to recruit the honourable court into their grift. The Applicants wanted the court to provide them with an order that they could flash about threateningly at other journalists questioning their unethical activities. But when they attempted to use the earlier-filed Notice of Motion to frighten other journalists from reporting on their improprieties, they hadn’t counted on Citizen journalist Ina Opperman (who had been a journalist for as long as the Second Applicant had been living on this earth), seeing the Notice of Motion for the sham it was.
At the end of the hearing, Casper ‘The Fixer’ Du Plessis was handed a lesson to carry back to Bloemfontein. The Application was dismissed with costs. The Hon Robert Henney declared that, had we been represented by an attorney, he would have awarded us the cost on a punitive scale. The honourable judge agreed that our citation was unwarranted.
There is something in law called lis pendens, which addresses replication of matters: what the supposedly learned fella from Bloemfontein elected to ignore. Maybe that's how matters are handled north of Cape Town, but at least in the Western Cape High Court, you cannot bring two identical matters simultaneously. This left us wondering how Du Plessis performed in law school during Civil Procedures studies. In South Africa, all third-year law students are taught this. We can therefore authoritatively query his competency as an attorney. We have learned from some sources that the Applicants in our matter never in fact wanted to file this second suit. Should this be true, we won't be surprised if the Applicants demand that Du Plessis pays the awarded costs from his own pocket.
Appearing for Mrs Chandre Goosen-Joubert were Adv Liddell and Adv Webb, who argued that the Application is riddled with deficiencies. "It shouldn't even be before you," Adv Liddell submitted, "It should be, with respect, I say with the greatest respect, struck from the roll. It is deficient because, first of all, there is no urgency. There is an Application already set down for 5 October 2022 and they have merely gone and attached those papers to these."
Adv Liddell then went further to cite the various Uniform Rules of the High Court that the Applicants have failed to comply with. Adv Liddell delivered a knock-out punch by pointing out how the Applicants had tried to merge the two cases through the back door. We knew that, from there on, the proceedings will be a mere formality. We could see the resignation on the legal tourists’ faces. They must have known what awaited. Du Plessis walked up and down between his seat and Adv Steyn’s, holding stacks of papers. Evidently, they had figured that their house of cards has tumbled.
In a last-minute attempt to salvage their sinking ship, Steyn attempted to zero in on the sentence, ‘I will not be silenced, posted on Mrs Goosen-Joubert’s Instagram page after being served with the defamation suit papers. He claimed that these words were further offensive, defamatory and scandalous to the court. The Hon Henney wasn’t shopping, and if he were, he wasn’t buying: ‘No, no. You cannot scandalise the court if you say “You will not be silenced” after being served.
Steyn desperately continued with his pleas. Sitting back there, we wondered when the spectacle would end, so that we could start filing our report. Then suddenly, it became clear that the judge had had enough: ‘If somebody says, especially in matters like this, of defamation, “You can go ahead with your Application, but I will not be silenced”, that can never, by any stretch of the imagination, be scandalising the court. That would be a normal reaction. I understand what scandalising the court means. In terms of the legal definition, I’d say you are scandalising the court.’ With these words from the bench, Hon Robert Henney halted the arguments.
It is interesting to note that when Adv Steyn, sensing that he had been dealt a bad hand in that low-stakes poker game, in a hail Mary bid attempted to negotiate with the court, he tried to play the same whack-a-mole game his instructing attorney had attempted with us: ‘Well, if necessary, my Lord, they'll raise the point of lis pendens, and we will withdraw the defamation application…’, to which The Hon Henney retorted; "No, you cannot withdraw that application because you’ve brought this application now!"
Two flights into Cape Town from Bloem and Joburg respectively proved futile.
After the hearing, we felt somewhat sorry for Joani Johnson of Mrs SA Beauty Pageants (Pty) Ltd. If, (as it seemed), Du Plessis was the attorney who had guided her into setting up her operations, it was explainable how they traded within the margins of the law. The attorney she had trusted had driven her into a costly legal battle with zero chances of success, which would leave her either broke and broken or behind bars.
Meanwhile, as we had expected, the defamation suit seemed to be going nowhere fast. But we couldn't risk sitting back. When an opponent comes at you strongly and forcefully, you can't take their sudden silence as a break.
On 15 February 2022, without any updates on the status of the suit, we received a seemingly normal email from the Applicant’s corresponding attorneys in Cape Town, Johan Victor Attorneys. Embedded in the email communication was malware that would have penetrated and infected our network. Fortunately, our strong firewall guarded us against this malicious attempt at corrupting our system. We immediately informed Johan Victor Attorneys of the attempt and one Chelsea Wolffs replied, confirming knowledge of the situation. In her response, she made it appear as if several other people on their mailing list were equally affected. Coincidence? Maybe. But considering that the malware came with the subject of our matter, we believe that it was specifically targeted at our system.
Then, on 17 October 2022, we were notified that Du Plessis had withdrawn his firm as the Applicant's attorney on record. The Notice didn't make sense; it is strange for attorneys to withdraw from a matter they had initiated on behalf of their clients before a replacement attorney is found and placed on record.
With this confusion in the Applicants’ camp, Attorney Roux Potgieter for Joubert-Goosen, eager to have his client's name cleared, approached the Judge President of the Western Cape High Court for immediate placement of the matter on the roll. Normally, it is usually the Applicants who make this request. A set-down date of 2 November 2022 was granted. We refreshed our system and were ready to fight it out.
This set-down date caught the Applicants off-guard. A new name popped up on 31 October 2022: Ulrich Roux & Associates became the new Applicants’ attorneys on record. Soon after being appointed, Ulrich attempted to negotiate some form of an out-of-court settlement for their client. The offer was laughable. His client was willing to withdraw the matter on condition that we undertook not to look into their affairs. This was nonsense—not different from the reliefs they had been seeking through the courts. Though this offer was not directly communicated to the first two Respondents, Joubert-Goosen, to whom it was addressed, rebuffed it. And of course, it was a non-starter to us. We were ready to prove not only that our report was not in any way defamatory but that it was in fact quite lawful. We undertook to meet them in court. They however withdrew a day before the Set-Down date.
The question is, how does one quantify wasted time? The impact of such frivolous lawsuits on the administration of justice and on members of the general public should not be ignored. The Hon Mark Sher, the judge who would have heard the matter on November 2, would have spent his time attending to more deserving cases waiting at the Western Cape High Court. Non-represented parties like ourselves would have no claim from such errant parties.
Besides, winning with cost is always never a solace, it took nearly eighteen months for the cost awarded for Mrs Goosen-Jobert to work itself through the taxation process and the adjudicated R104,234.49 is yet to be paid.
But all is not lost, using Eliot Higgins of Bellingcat’s playbook, uSpiked is currently in talks with its attorneys to bring a legal claim against Casper du Plessis and his law firm, Honey Attorneys Inc. for the malicious application they brought against us. We are also taking this matter to the Legal Practice Council of South Africa.
There are two corrections and some additional comments we would like to make.
In our earlier published report, we stated that Mrs SA Beauty Pageant (Pty) Ltd. was not a registered VAT vendor. We have since established that this was incorrect. We can also explain how we ended up with that assumption. When we initially ran a VAT vendors' search, we entered ‘Mrs South African Beauty Pageant (Pty) Ltd.’ instead of the company’s registered Mrs SA Beauty Pageant (Pty) Ltd. In the report, we also stated that Chandre Goosen-Joubert spent R1.4m of her own money on the contest. This was a ballpark figure we had at the time but, after recalculations and auditing, the more likely figure seemed to have been around R1.8m.
This saga is far from over. And fresh data that we have received since being served with court papers are quite juicy to be ignored. For instance, why would the company claim to have a Board of Directors, when the CIPC records indicate Joani J johnson as the sole director?
Of further interest to us are the circumstances under which the listed sponsors of the Pageant were involved. We contacted some of them to establish whether the funds they spent were donations or part of their marketing budget. Only two of the sponsors responded. Brentoni Distributors confirmed that their sponsorship was part of their marketing budget and was duly accounted for in their books. As we were producing this piece, Nikki Evans, Group Marketing Operations Manager for Peermont Hotels, Casino and Resorts, responded to our query by explaining that, ‘Emperors Palace has been a sponsor of the Mrs South Africa pageant for a number of years and we have usually held the finale of the pageant in our convention facilities, obviously the pandemic has seen a number of changes to the format. … Currently, we are an accommodation partner and provide hotel rooms for various events to an agreed value. We do also discount the venue hire facilities for the conference rooms and facilities that the pageant uses and in return are a named sponsor of the event.’
Well, the sponsorship was part of the Group's marketing budget and would therefore not have been tax exempted. However, this still does not explain why contestants had to pay for their own accommodation at the resort. It is therefore reasonable to assume that all other listed sponsors to Mrs SA Beauty Pageant (Pty) Ltd. used their marketing budgets. Besides, since the sponsors had no direct dealings with the associated non-profit entity, Women4Women, they would not have had any reason to claim tax exemptions for their expenditure in relation to the sponsorship.
Meanwhile, Mrs SA Beauty Pageant (Pty) Ltd in what appears to be social image laundering have listed two well-known cancer organisations as Charities associated with the pageantry. We are going to crack how these organisations got linked to this outfit. Watch this space.