De Klerk v Union Government

• Jurisdiction: South Africa
• Judge: Cillié J
• Judgment Date: 30 September 1958
• Court: Transvaal Provincial Division
• Citation: 1958 (4) SA 496 (T)

E Cillié, J.:

The plaintiff sues the defendant for £1,500 damages which, so she alleges, she suffered as the result of a defamation contained in an article published by the defendant. In the plea the defendant denied that it published the article, that the article was defamatory, that it F referred to the plaintiff and that, consequently, any damages were suffered by the plaintiff. Some days before the trial, when the plaintiff threatened to ask for attorney and client costs if the defendant persisted in the first denial, it was admitted that the defendant had published the article.

G When the trial began the issues before the Court were, firstly, whether the article was defamatory; secondly, whether it referred to the plaintiff; and, lastly, if the first two issues were decided in her favour, what amount of damages should be awarded. During the trial an amendment to the plea was allowed. This aspect of the case will be dealt with later.

H The plaintiff was, at the time when the defendant published the article, a trustee and a member of the executive council of the Transvaal Leather and Allied Trades Industrial Union. In terms of the constitution of this trade union its management and control is vested in the members of the executive council.

The article complained of was published by the defendant in London

Cillié J

on 31st July, 1954, in a periodical pamphlet called South African Survey. This periodical, the publication of which has ceased some time ago, was sent to a selected and limited number of persons and A institutions mainly in the United Kingdom. It appears from a list supplied by the defendant that it was also sent to a small number of people resident in the Union of South Africa. According to the evidence some copies were available to readers in at least three public libraries in this country.

The object of the article, which appears under the heading 'Communists B in South African Trade Unions', was to demonstrate to its readers that the enforcement of the Suppression of Communism Act, 1950, was not a threat to the trade union movement in South Africa but only meant that Communists and the Communist influence was being removed from the trade unions. The first paragraph of the article reads as follows:

'Reports from overseas indicate that the government's attitude towards C trade unions and the naming of prominent trade unionists as Communists have again been strongly criticised from various quarters.'

The writer then deals with information supplied by Police authorities about the exact manner in which the provisions of the Act are applied. D The number of people against whom steps have been taken is given and it is indicated how many of these people were trade unionists and how many trade unions were affected. In this regard two statements are of importance. They are:

'No steps have been taken against trade unions as such. and Government action has been confined to ferreting out Communists who have got into key posts in a minority of the white unions.'

and

'The Government's sole aim is to ensure that Communists are not appointed to the key posts in the movement.'

After further general remarks there appears a sub-heading, 'Other Evidence' and the words: 'Other information, supplied by non-Police sources, indicates the following position:'. Then follows the passage complained of and repeated in the declaration. It reads as follows:

'The overwhelming majority of White workers in South Africa are anti-Communists, although - as has happened in many other countries - Communists managed to get control of a disproportionately large number of trade unions. In addition to those unions where named Communists have been ordered to resign from their posts, there are a considerable number of suspected Communists or fellow travellers in leading positions in certain other unions.

The rank and file of union members are, however, in some cases taking steps themselves to rid their unions of Communist or neo-Communist control.

G The Leatherworkers Union provides a typical example. Although the former secretary was revealed as a Communist and ordered to resign from his post, the control of the union still remained in the hands of men sympathetic to this former secretary. Accordingly an anti-Communist group was set up within the union, and to overcome the difficulties of overthrowing the present executive. the anti-Communist group applied to the authorities for the registration of a second trade union to provide for leatherworkers. The new union was set up recently and it is expected H that it will eventually attract the great majority of leatherworkers into its ranks, leaving the original union to die a natural death.'

In investigating whether the article is defamatory of the plaintiff it is necessary to deal with the question whether it refers to the plaintiff at all. The only reference to the plaintiff could be that contained in the words: 'the control of the (Leatherworkers) union still remained in the hands of men sympathetic to this former secretary.' Some assistance in coming to a conclusion whether or not a plaintiff is

Cillié J

identified by an article, is to be found in the case of Knupffer v London Express Newspaper, Ltd., 1944 A.E.R. 495, which has been quoted with approval in Vermaas v Pelser and Others, 1951 (1) SA 752 (T), and other cases. At p. 497 of the English case LORD ATKIN says:

'I venture to think that it is a mistake to lay down a rule as to libel A on a class, and then qualify it with exceptions. The only relevant rule is that in order to be actionable the defamatory words must be understood to be published of and concerning the plaintiff. It is irrelevant that the words are published of two or more persons if they are proved to be published of him: and it is irrelevant that the two or more persons are called by some generic or class name.'

B The other passage is by VISCOUNT SIMON, L.C., and is on the same page of the report.

'There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law - can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact, namely, does the article in fact lead reasonable people, who know the appellant, to the conclusion that it does refer to him. Unless C the first...