5 days ago
Blogger Mann will not be silenced on Two Oceans Marathon matter, court rules
Freedom of speech has won the day in a matter in which Two Oceans Marathon chair Antoinette Cavanagh and her board tried to silence marathon runner and blogger Stuart Mann.
Cavanagh wanted the court to rule certain of his articles on his blog The Running Mann are defamatory, to order they be removed and that he apologise publicly for them.
But Mann, in opposing the application, said his allegations — that she had embellished her CV, lied about her running credentials and was responsible for 'the worst organised marathon' in the event's 54-year history — were true and in the public interest.
In a ruling handed down on Thursday, Johannesburg high court judge Seena Yacoob said Cavanagh's case was lacking in many respects and she had not established Mann's publications were defamatory.
'In this case neither of the applicants (Cavanagh and the board) have made out a case that the esteem in which they are held is of a particular type.
'Cavanagh does not favour the court with her own full history nor does she demonstrate she is viewed with any particular esteem or she has a reputation for integrity and good leadership.
'Two Oceans does not contend it has run its events in a manner reasonably beyond criticism and above board. It does not even contend, let alone attempt to demonstrate, it has conducted its events lawfully and in a manner compliant with its permits from the City of Cape Town. There is no attempt to demonstrate any of the factual claims made in the publications is untrue, though there are bald allegations that they are all false,' Judge Yacoob said.
The judge criticised the 'chaotic and vague manner' in which the urgent application was pleaded.
'The founding papers are vague, voluminous and lacking particularity. They contain more argument than fact. To require a judge to trawl through papers to try to make sense of them is unacceptable in an urgent court.'
She said Cavanagh and the board had failed to set out a 'clear factual background' and the founding affidavit consisted almost entirely of argumentative matter.
It did not contain dates of the publications, nor the specific problematic statements or utterances.
They had also not dealt with why they alleged each publication, in its entirety, was defamatory, instead pleading defamation in a 'broad and sweeping manner'.
Yacoob said while it was possible an entire publication may, on the face of it, be defamatory, in this case the publications complained of were not.
For example, it was not clear how a photograph of Cavanagh, with a caption she had recently completed a running event, could be defamatory.
'There are reams of examples of patently non-defamatory and even complimentary statements in the publications. A cursory glance demonstrates that the publications consist as much of opinion as fact, and that at least some of the factual matter has a proper basis,' the judge said.
'It is not the function of the court to attempt to sift out what may be defamatory and how.'
Yacoob said the applicants had wrongly approached the matter on the understanding that all they had to do was show publication of uncomplimentary statements about themselves.
However, in discharging their onus to establish that the publications were defamatory, they were required to establish both what their status or esteem was and that the publications tended to lower these in the eyes of the community.
This had not been established, she said.
Yacoob dismissed the application, and ordered the applicants to pay the costs. She said she had considered 'showing her displeasure in which the application had been run with a punitive costs order but on reflection, I consider the failure of the application is sufficient indication of the court's displeasure'.
