/ 31 May 2004

General Motors loses in defamation case

Port Elizabeth-based General Motors (GM) on Monday conceded defeat in a long-running defamation case against Jaco van der Merwe regarding his labelling his Isuzu KB280 bakkie the ”worst 4x4xfar”.

The Supreme Court of Appeal in Bloemfontein ruled on Monday that the slogan, liberally pasted by Van der Merwe on the outside of his vehicle after a dispute with GM, Isuzu’s owner in South Africa, was not defamatory.

GM, then Delta, launched an appeal after the Pretoria High Court refused in November 2002 to confirm an earlier interim interdict against Van der Merwe.

The dispute started in April 2001, when the chassis of Van der Merwe’s bakkie bent while he was on holiday in Namibia. The car was a year and a day old at the time, and had about 29 000km on the clock.

Van der Merwe claimed the damage had been caused by an inherent defect, and said GM refused to repair or replace it.

For its part, GM said the damage was the result of driver abuse.

The disgruntled client launched a chain e-mail campaign denouncing the company, and stuck logos to his bakkie reading: ”The worst 4X4Xfar”, and ”Gravel road breaks chassis”. He took to displaying the bakkie in public places such as motoring shows.

Delta took the matter to court and was granted an interim interdict in June 2002 preventing Van der Merwe from exhibiting his bakkie or spreading or publishing defamatory statements about the company’s products until a final court ruling.

When the matter came before court again in November, acting Judge Roger Claassen refused to confirm the interim order and held that the slogans and e-mails were not defamatory.

The High Court subsequently denied Delta leave to appeal the ruling, and the company then approached the Supreme Court of Appeal directly.

GM maintained that Van der Merwe’s conduct was defamatory and amounted to the dissemination of injurious falsehoods.

It disputed Van der Merwe’s contention that his actions were protected by the constitutionally entrenched right to freedom of speech.

The feud has attracted wide media attention with each side keen to put its case.

Wally Lofty-Eaton, a GM salesperson who saw the bakkie when it arrived at their Windhoek showroom, immediately afterwards told journalists the vehicle appeared to him grossly overloaded.

”Firstly, there was a two-ton all-terrain trailer hooked on to the bakkie. This was loaded like you couldn’t believe. Then the bakkie itself was so overloaded that it literally hung on the axles. There was a roof carrier on the bakkie, which was loaded as well. And then there were passengers in the bakkie,” he said.

Lofty-Eaton said chassis damage is not uncommon and that double-cabs are susceptible to bending because of the weight distribution.

GM said its in-house test indicated the damage could only have been caused by ”a vertical loading of in excess of 1 650kg on tow ball”. The permissible maximum vertical load is 90kg.

As a result it believed the vehicle was damaged either as a result of an accident, overloading or abuse.

On Monday Doug Harrison, GM’s after-sales director, said the case was not about the quality of Isuzu’s products.

”The issue has involved defamation and Mr Jaco van der Merwe’s right to freedom of expression,” Harrison said.

”We undertook legal action in order to protect our extensive base of loyal, satisfied Isuzu customers all of whom have invested in the brand,” he said.

”Since the start of the process we have remained confident that this matter would be resolved in our favour and that we would be vindicated by the judgement. We are disappointed by the outcome but accept the finding of the court with regard to the issue of the rights of an individual to freedom of speech,” Harrison said in a statement.

Van der Merwe could not be immediately contacted for comment.

But a quick internet search showed Van der Merwe was not the only disgruntled customer complaining about his 4×4 and that other makes also came in for a beating. — Sapa