Argus Printing and Publishing Co Ltd and Others v Esselen's Estate

• Jurisdiction: South Africa
• Judge: Corbett CJ, Botha JA, Nestadt JA, Goldstone JA and Howie AJA
• Judgment Date: 07 December 1993
• Docket Number: 447/92
• Court: Appellate Division
• Hearing Date: 01 November 1993
• Citation: 1994 (2) SA 1 (A)

Corbett CJ:

On 27 March 1990 there was published in The Star newspaper an article under the heading 'A Tale of Two Tree Murders'. In conjunction with the article there was evidently a picture of the author (the third J appellant) and the caption next to this picture read:

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A 'Was justice colourblind in passing sentences? Brian Currin (right) of Lawyers for Human Rights writes on the sensitive issue of Equality before the Law.'

The body of the article read as follows (for convenience of reference I have numbered the paragraphs):

'(1) The chairman of the Pretoria Bar Council, Advocate William de B Villiers SC, recently took issue with me for suggesting our Courts discriminate on racial grounds when convicting and/or sentencing.

(2) My comments which attracted the wrath of Mr De Villiers were in relation to the so-called "Witbank tree murder". I think it would be both interesting and telling to compare this case, which involved black on white violence, with the infamous Louis Trichardt tree murder case which involved white on black violence. C

(3) In the Witbank case, two black men picked up a white woman, had sexual intercourse with her, tied her to a tree and then stole her motor vehicle which they drove to Swaziland. Bar the two thieves who were later arrested and charged with robbery, rape and murder, the woman's domestic employee was the last person to see her alive.

D (4) The deceased had bought a bottle of vodka and according to the testimony of the domestic employee, she appeared to be unhappy and drunk. Nine days later, she was found dead and tied to a tree. The probabilities are that she had been "picked up" by the two accused four days after having disappeared.

(5) The two accused were subsequently arrested and charged with robbery, E rape and murder. They were both sentenced to 10 years' imprisonment for robbery. With regard to the alleged rape, the only evidence against them were confessions by each of the accused that they had intercourse with the deceased. According to them, she had consented to the act.

(6) In spite of the circumstances in which she disappeared the trial Judge found beyond reasonable doubt that she had been raped. It must also be emphasised that there was no medical evidence to support such F a conclusion. They were both given 15 years' imprisonment for rape.

(7) They were also found guilty of murder and sentenced to death. This sentence was passed in spite of the Court's finding that there was no direct intention to kill her. The Court found indirect intention, that the accused must have foreseen the deceased may not be found timeously, in which event she would die and in spite of this, left her tied to a tree, regardless of the consequences.

G (8) It is relevant to mention that the tree was 50 m from a gravel road, about 30 m from a plantation used as a dumping ground, 20 m from a number of bee hives and a few hundred metres from seven houses.

(9) The accused testified they thought she would be found soon after having been left and they had no intention of killing her.

(10) The fact that they did not kill her also has a bearing on the charge H of rape, considering that rape can also attract the death penalty. Fortunately, both the rape and murder convictions were set aside by the Appellate Division in November last year.

(11) It should be noted that the Supreme Court Judge who initially sentenced the accused refused leave to appeal. Had the accused not been represented by lawyers, which is the norm, there would have been I no petition to the Chief Justice and they would have been executed.

(12) In the Louis Trichardt tree murder case, evidence was led how two white farmers tied a black man to a tree. Unlike the Witbank woman, his destiny was not left to nature or to chance. He was brutally assaulted until he died.

(13) Both accused admitted tying the deceased to a tree and assaulting him. However, they denied they intended to kill him or that they J foresaw he would die as a result of the assault.

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A (14) The first State witness, a medical practitioner, handed in a post-mortem examination report containing a list of the most horrendous injuries found on the body of the deceased.

(15) He described the incident as a "massive assault". The doctor testified that these injuries could not have been caused by slaps, but that blunt weapons must have been used.

B (16) The second State witness, a co-employee of the deceased, testified that both the accused had kicked the deceased with booted feet. During the course of this evidence-in-chief, the Court suddenly adjourned.

(17) On reconvening, prior to any cross-examination of the second State witness, the prosecutor indicated he had reached agreement with the defence concerning the acceptance of pleas tendered by the defence, C namely culpable homicide by the first accused and common assault by the second accused.

(18) The next morning, the State and the defence presented to the Court an agreed statement of facts described as "evidence upon which the Court must make a finding".

(19) This set of facts, described as common cause, bears hardly any D resemblance to the evidence testified by the second State witness and appears to constitute a complete capitulation by the State. Both accused were given nominal fines.

(20) The question is why did the Judge accept this state of affairs when he was not obliged to? I believe he had a duty to query the preposterous statement by counsel for the defence that the facts on which the Court was to find were those contained in the agreement and not as the witness had testified. E

(21) I venture to speculate that had two black men tied a white man to a tree, inflicted a massive assault causing his death, we may once again have been faced with application of the common purpose doctrine and death sentences.

(22) Lawyers for Human Rights runs a project which monitors racial discrimination by our judiciary. These are certainly not the only two cases which lead us to believe our Courts do sometimes discriminate F on the basis of race when convicting and passing sentence.

(23) Fortunately, there are many Judges who do not allow the colour of either the accused or the complainant or deceased in murder charges to influence their decisions.

(24) However, as long as there is even one Judge who shows tendencies of racial discrimination and he is tolerated by fellow Judges and the G Minister of Justice, the entire judiciary will be tarnished.'

As a result of the publication of this article the late Mr Justice L L Esselen, of the Transvaal Provincial Division, instituted in that Division an action for damages for defamation, citing as defendants the printer and publisher of The Star newspaper (first appellant), the editor of the H newspaper (second appellant) and the author of the article (third appellant). In the plaintiff's particulars of claim it was alleged that the plaintiff was the Judge who presided in the case referred to in the article as the 'Witbank tree murder' and that he had been identified as such by The Star to its readers in prior editions of the newspaper and also by other newspapers circulating in the Transvaal. It was further I alleged that portions of the article were defamatory of the plaintiff and damages in the sum of R120 000 were claimed.

The defendants noted an exception to the plaintiff's particulars of claim as disclosing no cause of action upon the following grounds:

'1.

The passages relied on by the plaintiff in para 10 of the particulars of claim read in the context of the article as a whole J are not

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A reasonably capable of conveying a defamatory meaning.

Alternatively

2.1

The article read as a whole concerned the conduct of the plaintiff only in his official capacity as a Judge of the Supreme Court.

2.2

Any scandalous, improper or defamatory imputation on a Judge B arising out of the exercise of his judicial function is an imputation on the administration of justice and is punishable by the law of contempt.

2.3

It is contrary to public policy to permit a Judge of the Supreme Court to recover damages in an action for defamation based upon criticism of a judgment delivered by him in his official capacity C in judicial proceedings.'

The exception was argued before Hattingh J in the Transvaal Provincial Division on 24 September 1991 and on 28 February 1992 he delivered judgment, dismissing the exception with costs. Unhappily Mr Justice D Esselen had in the meanwhile passed away on 3 February 1992. Subsequently his estate was substituted as plaintiff and it is, of course, the respondent on appeal. With leave from this Court, the appellants appeal against the order of the Court a quo. For convenience I shall continue to refer to the late Judge as 'the plaintiff'.

The judgment of the Court a quo has been reported (sub nom Esselen v Argus E Printing and Publishing Co Ltd and Others 1992 (3) SA 764 (T)). From this it appears that Hattingh J adopted, as the basic criterion for adjudicating the merits of the first ground of exception, the test as to whether a reasonable person of ordinary intelligence might reasonably understand the words of the article to convey a meaning defamatory of the F plaintiff (see at 767E-F). This is unquestionably the correct approach and, as this formulation indicates, the test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the Court must take account not only of what the words expressly say, but also G of what they imply. As it was put by Lord Reid in Lewis and Another v Daily Telegraph Ltd; Same v Associated Newspapers...