The Gupta family is suing the Mail & Guardian for R500-million for defamation – which could be the biggest defamation suit in South Africa's history.
The case relates to an article published in the M&G in March this year, which ran in print with the headline "R10bn contract behind the dogfight at national carrier."
The story made reference to a Sunday Times exposé​, which alleged that Rajesh "Tony" Gupta tried to "bribe" a senior official at South African Airways (SAA).
The Guptas are also suing the Sunday Times for the same amount.
In the complaint against the M&G, lodged on behalf of Rajesh Gupta, also acting on behalf of his family, the Guptas allege that the M&G story was defamatory "in general".
The complaint alleges that the M&G’s story was "intended and understood by the readers to mean that [Rajesh Gupta] and the Guptas are dishonest, corrupt and deceitful".
It points out specific paragraphs, including:
"And questions have been raised about how an extraordinary meeting held in Johannesburg at the Saxonwold compound of the Gupta family – involving the airline’s acting chief executive as well as the special adviser to Minister of Public Enterprises Malusi Gigaba – fed into that battle [over the R10-billion contract]".
Nine other paragraphs are mentioned as being "defamatory".
Record amount
Experts say this could be the biggest amount sought in a media defamation suit, although this is difficult to determine because cases with "unrealistic" amounts such as this one hardly ever reach court. And when they do, the amount sought in damages is usually reduced drastically.
An expert in media law, who asked not to be named as he is involved in a similar case at the moment, said the highest defamation suit he has dealt with asked for R200-million. He said this case has also not reached court.
He said examples of defamation cases that compared to this one in terms of numbers – reaching into the millions – were few and far between. As an example, he cited President Jacob Zuma's 14 lawsuits against the media, which eventually totalled R60-million.
Zuma dropped those cases in May this year. At the time, his spokesperson, Mac Maharaj said: "The president feels that, measured against the broader nation[al] interest and challenges that the country is faced with, his personal sentiments, however aggrieved he may feel, must give way."
In his experience, South African courts generally do not award damages outside the range of R100 000 to R250 000.
"Generally, such a large amount is a tactic to intimidate. The number is changed to something more reasonable before the case comes before a judge."
He explained that in South Africa one could sue for general or special defamation.
General damages relate to cases "where the complainant merely wants the court to find that he was wronged; that his reputation was damaged, unjustifiably so." Justification usually involves publishing the information in the public interest.
Special defamation
In "special" defamation cases, the test was much higher: one had to prove that the publication had malice of intent when publishing the untrue fact, and that this caused loss of income, for example.
Lucien Pierce, a partner at Phukubje Pierce Masithela Attorneys, said expecting a court to grant damages in the amount of R500-million was "unrealistic".
Pierce said the essence of South African defamation law is to remedy any damage made to the reputation of the complainant, "not to make someone rich."
It is for this reason that, in some instances, courts will just order an apology and make no order as to damages awarded, he added.
Pierce said R500-million is also probably an unprecedented amount to ask for.
"I’ve never put a claim in that high or asked to defend a claim that high," he said.
McBride vs 'The Citizen'
In his experience, the highest damages claim awarded by a court was in the case of Robert McBride versus the Citizen newspaper.
McBride became a candidate for the head of the Ekhurhuleni Metro Police in 2003.
The paper ran a series of articles questioning his candidacy for the post: under the apartheid regime, McBride carried out a car bombing in Durban which killed three people and injured 69 others.
He was convicted of murder, but applied for amnesty to at the Truth and Reconcilation Commission (TRC), which was granted in 2001.
By the time the Citizen carried the articles, which called him a "criminal" and a "murderer", McBride believed the TRC finding should have sufficiently cleared him of this title, and sued for defamation.
The high court in Johannesburg found in McBride’s favour, and ordered the publication to pay him R200 000 in damages.
The ruling was largely upheld on appeal, but the Supreme court of Appeal reduced the amount to R150 000, because it said McBride failed to prove that the Citizen defamed him when it said he had a "dubious flirtation with gun dealers" in Mozambique.
Reduction
But a majority judgment of the Constitutional Court, authored by Justice Edwin Cameron, found that while the Citizen’s coverage was "distasteful", the TRC’s ruling did not make the fact that McBride was a "murderer" untrue.
But it reduced the damages claim to R50 000, because the Citizen also accused McBride of having no remorse for his actions, which was not true.
Pierce said that asking a court to award damages of an "unrealistic" amount is also a risky approach.
"If you haven’t proven the bulk of your claim, you run the risk of being liable for the other party’s costs.
The court might say you knew the claim was unrealistic and that you’ve wasted everybody’s time, and order you to pay costs," he said.
In some cases, complainants have been known to sue for high amounts, with the intention of settling out-of-court and succeeding in being an award somewhere between what a court might order and what was initially asked for.
According to Pierce, in this case "the odds are almost zero".
"And even if the parties settle, it will be for an amount far, far lower [than R500-million]," he said.