Neethling v Du Preez and Others; Neethling v the Weekly Mail and Others

• Jurisdiction: South Africa
• Judge: Corbett CJ, Hoexter JA, Nestadt JA, Nienaber JA and Nicholas JA
• Judgment Date: 02 December 1993
• Citation: 1994 (1) SA 708 (A)
• Docket Number: 184/91 and 401/91
• Court: Appellate Division

F Hoexter JA:

(A) Introduction

In two separate actions instituted in the Witwatersrand Local Division during December 1989 the plaintiff, now the appellant, claimed damages G totalling R1,5m in respect of certain matter defamatory of him which had been published in two weekly newspapers published and circulating within the Republic of South Africa. The newspapers in question were Vrye Weekblad ('VWB'), which is published in Afrikaans, and The Weekly Mail ('WM'), which is published in English.

H In what follows I shall, in the main, refer to the action against VWB as 'the VWB case', and to the action against WM as 'the WM case'. The VWB case related to articles in two separate editions of the newspaper, the earlier article ('article VWB (1)') appearing on 17 November 1989 and the later one ('article VWB (2)') on 1 December 1989. The author of both these articles was Mr Jacques Pauw ('Pauw'). The WM case related to an article I ('the WM article') which appeared in the edition of WM dated 24-30 November 1989, the author of which was Mr Gavin Evans ('Evans').

As the first, second and third defendants in the VWB case there were respectively cited that newspaper's editor, printer and publisher; the J fourth defendant being Pauw. In respect of each of articles VWB (1) and

Hoexter JA

VWB (2) the appellant claimed damages in the sum of R500 000. As the first, second and third defendants in the WM case there were respectively cited that newspaper's editor, printer ('Seculo Printers') and publisher; the fourth defendant being Evans. In respect of the WM article the appellant claimed damages in the sum of R500 000. A

B Both actions were defended. In each action all four defendants filed a single joint plea. In both actions the same team of senior and junior counsel drew the pleadings on behalf of the appellant on the one hand and on behalf of the defendants on the other. In terms of a Court order granted on 14 August 1990 the hearings of the two actions were consolidated.

The trial came before Mr Justice Kriegler. In the course thereof a C settlement was concluded between the appellant and Seculo Printers, the second defendant in the WM case. Against the remaining defendants the appellant's actions proceeded to their conclusion. At the end of the trial Kriegler J gave judgment with costs, including the costs of two counsel, in favour of the four defendants in the VWB case and the remaining three defendants in the WM case. The aforesaid seven defendants are the D respondents in this appeal.

Against the judgment of the trial Court the appellant sought leave to appeal. Kriegler J granted the appellant leave to appeal to this Court in the WM case but refused him leave to appeal in the VWB case. In the latter case, however, this Court subsequently granted the appellant leave to E appeal to it. At the trial leading counsel for the appellant was Mr Oshry, with Mr Witz as his junior. Both in the Court below and before us the respondents were represented by Mr Levin and Mr Rautenbach. In this Court the case for the appellant was argued by Mr Cilliers, with whom

Mr Witz appeared.

F (B) The chief characters

There are two chief characters in this unusual case. They were the main witnesses at the trial. The one is the appellant himself. He is a Lieutenant-General in the South African Police ('the SAP'). The other is a retired SAP officer: Captain Dirk Johannes Coetzee ('Coetzee'). The G ultimate resolution of the issues in the appeal involves, inter alia, a careful appraisal of their respective characters, dispositions and proclivities. To provide some background to the case it is convenient at this juncture to mention a few personal details concerning these two men, and to give a thumbnail sketch of their respective careers.

H The appellant, who was born in East Prussia in 1935, came from Germany to South Africa as a war orphan in 1948. Having matriculated in this country he enrolled as a science student at the University of Pretoria where in the years 1955 and 1958 he successively gained the degrees of BSc and MSc, the latter cum laude. Next the appellant was awarded a bursary by the Atomic Energy Board which enabled him to undertake research in chemistry I in the United States of America where he gained a PhD in 1962 at the University of California.

In 1965 the appellant was appointed head of the biological radiation unit at the Onderstepoort Veterinary Research Station. Thereafter part-time study earned him a DSc in physiological organic chemistry from the J University of Pretoria in 1970. In that year the SAP required the services

Hoexter JA

A of a scientist equipped to undertake research into hair analysis. There were 26 applicants for the post. The appellant was the successful candidate, and in January 1971 he was appointed to the position with the rank of a full colonel. The task of creating a forensic laboratory for the SAP was entrusted to him. Initially the laboratory was housed in a B building in Church Street, Pretoria. During 1971 it moved to premises at 171 Jacob Mare Street. There it remained until February 1987 when it moved to the L P Neethling Building, named after the appellant, in Silverton, Pretoria. From small beginnings the forensic laboratory rapidly expanded. In its first year of operation it dealt with some 150 analyses. By 1989 the figure had grown to 26 000. On 1 September 1979 the appellant was made C a Major-General in the SAP. Further promotion to his present rank of Lieutenant-General followed on 1 June 1985. When his actions were instituted the appellant was the Chief Deputy Commissioner, Scientific Technical Services, in the SAP. The appellant has been the recipient of D various local and foreign police decorations. He is a member of the SA Chemical Institute and of the Akademie vir Wetenskap en Kuns. The appellant is a member of the Society for Forensic Science in England and the International Society of Toxicologists. In 1989 he received the Armscor Award for exceptional contribution to the development of explosives detection techniques. In his official capacity he has attended many conferences in his field of study in the United States of America, in E England, Switzerland and Western Germany. The appellant has frequently testified as an expert forensic witness in criminal trials in this country and in neighbouring states. In short, the appellant is an eminent forensic scientist whose skills have gained international recognition.

Coetzee was born in the Northern Cape in 1945. After matriculating he F worked for a while in the Post Office before joining the SAP in March 1970. At the end of that year he passed out of the Police College as the best student on the training course. His further advancement in the SAP was rapid. Having become a sergeant he attended a course for dog-handlers. Thereafter, and as a warrant officer, he served for a while north of the G country's borders with the Rhodesian security forces. While so seconded he became acquainted with counter-insurgency techniques such as the use of poison against the foe, and the incineration of the slain enemy to prevent subsequent identification of corpses. Having been stationed for a while at Sibasa, Coetzee became a commissioned officer in the SAP in 1975. As a lieutenant he did a brief stint first at the Police College and then at H Volksrust.

In January 1976 Coetzee was appointed commander of the SAP border post at Oshoek on the frontier between South Africa and Swaziland. His duties there involved close co-operation with the Security Branch of the SAP. In addition they afforded Coetzee very ready access to Swaziland, in which I kingdom he soon acquired a wide circle of friends and agents. At Oshoek he became involved in certain irregular activities, the nature of which will be detailed later, in consequence whereof Coetzee was transferred to Sunnyside, Pretoria. Through the intervention of senior officers well-disposed to him the transfer was countermanded and instead he was moved to the Security Branch at Middelburg. Shortly thereafter Coetzee was J promoted to the rank of captain.

Hoexter JA

A In August 1980 Coetzee was transferred to the head office of the Security Branch in Pretoria. He was posted to Section C1 under the command of Brigadier Viktor; and he worked from a secret station situate south-west of Voortrekkerhoogte called Vlakplaas. Vlakplaas was used as a base to accommodate a number of men who had defected from the African National Congress ('the ANC') and who assisted the Security Branch in tracking down B members of that organisation.

Coetzee remained at Vlakplaas from August 1980 until the end of 1981. From Coetzee's own evidence it appears that this period of his police career was one of sustained participation in wide-ranging illegal acts, including a number of murders. At the end of 1981 Coetzee was transferred to the C Security Branch office at Krugersdorp. For personal reasons this move was unacceptable to him. Once again senior officers interceded on his behalf and in the result he was transferred instead to the Pretoria office of the South African Narcotics Bureau where he remained, until July 1982, as the head of the section dealing with offences involving liquor, immorality and D gambling. Next Coetzee served as staff officer to the Divisional Command for the Northern Transvaal. In August 1984 he was moved to radio control.

At about this time Coetzee seems again to have incurred the displeasure of his seniors in the SAP. He did so by meddling with a police inquiry into the affairs of a friend of his, one Whelpton. This and other behaviour on E Coetzee's part resulted in a departmental disciplinary inquiry against him at the instance of the then Commissioner of the SAP, General Johan Coetzee. He faced seven charges of misconduct. At the conclusion of the hearing he was found guilty on...