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

• Jurisdiction: South Africa
• Citation: 1994 (2) SA 1 (A)

Argus Printing and Publishing Co Ltd and Others v Esselen's Estate
1994 (2) SA 1 (A)

1994 (2) SA p1

Citation	1994 (2) SA 1 (A)
Case No	447/92
Court	Appellate Division
Judge	Corbett CJ, Botha JA, Nestadt JA, Goldstone JA and Howie AJA
Heard	November 1, 1993
Judgment	December 7, 1993

Flynote : Sleutelwoorde B

Defamation — What is and what is not actionable — Whether words complained of defamatory — Test in exception to claim is whether reasonable person of ordinary intelligence might reasonably understand words to convey meaning C defamatory of plaintiff — Such reasonable person taken to understand words in their natural and ordinary meaning — Account to be taken not only of what words expressly say, but also of what they imply — Implied meaning to be distinguished from innuendo.

Defamation — What is and what is not actionable — Whether words complained D of defamatory — Newspaper article charging each of two Judges who heard two cases having similar features with racial bias in favour of whites and to detriment of blacks in convicting and sentencing accused — Article also imputing that Judges improperly influenced by race of victims involved — Such imputations defamatory.

E Defamation — Who may sue or be sued — Judge of Supreme Court — Judge who has been defamed by way of criticism of a judgment delivered by him in judicial proceedings entitled to sue defamer — Success of action dependent, inter alia, upon whether defendant can invoke one of various defences available, including fair comment, and truth and for public F benefit — Judge not prevented by public policy from suing for defamation in respect of criticism of judgment delivered by him in his official capacity in judicial proceedings.

Headnote : Kopnota

The basic criterion for adjudicating, in an exception to the particulars G of claim in an action

1994 (2) SA p2

A for damages for defamation, whether the words complained of are reasonably capable of conveying a defamatory meaning is whether a reasonable person of ordinary intelligence might reasonably understand the words of the article to convey a meaning defamatory of the plaintiff. The test is an objective one. In the absence of 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 B natural and ordinary meaning the Court must take account not only of what the words expressly say, but also of what they imply. (At 20E-G and 21A/B-B.) It must be emphasised that such an implied meaning has nothing to do with innuendo, which relates to a secondary or unusual defamatory meaning which can be attributed to the words used only by the hearer having knowledge of special circumstances. (At 21B.)

In the present case the Court, in dismissing an appeal from the dismissal C by a Provincial Division of an exception to the particulars of claim on the ground that the newspaper article complained of was not reasonably capable of conveying a defamatory meaning, held that the article, which dealt with the question whether the courts of South Africa discriminated on racial grounds when convicting and/or sentencing persons and in which two cases having similar features (the one in which the accused were blacks and the victim white and the other in which the accused were white and the victim black), plainly charged the Judges in both cases with D racial bias in favour of whites and to the detriment of blacks in convicting and sentencing the accused who appeared respectively before them. The Court held further that there was also to be read into the article the imputation that the Judges concerned (one of whom was the plaintiff in the present case) were improperly influenced not only by the race of the accused, but also by the race of the victims involved. As it had been conceded by counsel for the appellants that such imputations were defamatory, the appeal against the decision that the article was defamatory had to be dismissed. (At 22I-23A/B.)

E A Judge of the Supreme Court who has been defamed by way of criticism of a judgment delivered by him in his official capacity in judicial proceedings is entitled to sue his defamer. The success of his action will depend, inter alia, upon whether the defendant can effectively invoke one of the various defences available, including those of fair comment and truth and for the public benefit. (At 33G/H-H/I.)

The Court accordingly rejected the appellants' contention that by reason of public policy and certain other factors a Judge should not be permitted F to sue for damages for defamation in respect of criticism of a judgment delivered by him in his official capacity in judicial proceedings. (At 33H-I read with 23B.)

The decision in the Transvaal Provincial Division in Esselen v Argus Printing and Publishing Co Ltd and Others 1992 (3) SA 764 confirmed.

Case Information

Appeal from a decision in the Transvaal Provincial Division (Hattingh J), G dismissing an exception to the respondent's particulars of claim, the decision having been reported at 1992 (3) SA 764. The nature of the pleadings appears from the judgment of Corbett CJ.

G J Marcus for the appellant: On exception the test in a defamation action is whether a reasonable person of ordinary intelligence, having heard the H defendant's words, might reasonably understand those words as conveying a meaning defamatory of the plaintiff. Basner v Trigger 1945 AD 22 at 32; Conroy v Stewart Printing Co Ltd 1946 AD 1015 at 1018. The yardstick by which defamatory matter is assessed is that of the fictitious, normal, balanced, right-thinking and reasonable person who is neither hypercritical nor oversensitive. Suid-Afrikaanse Uitsaaikorporasie v I O'Malley 1977 (3) SA 394 (A) at 408B-E; Coulson v Rapport Uitgewers (Edms) Bpk 1979 (3) SA 286 (A) at 294H-295A. The reasonable person 'is a person who gives a reasonable meaning to the words used within the context of the document as a whole and excludes a person who is prepared to give a meaning to those words which cannot reasonably be attributed thereto'. J Demmers v Wyllie and Others 1980 (1) SA 835 (A) at 842H. To the

1994 (2) SA p3

A ordinary reader cannot be imputed 'the training or the habits of mind of a lawyer'. Channing v South African Financial Gazette and Others 1966 (3) SA 470 (W) at 474C. Regard must also be had to the manner in which the ordinary reader assesses the material in question. In this regard, see Dorfman v Afrikaanse Pers Publikasies (Edms) Bpk en Andere 1966 (1) PH J9 (A) at 45.

B The central thesis of the article is that racial prejudice is a factor in the administration of justice in South Africa. The article deals with two cases which have in common the fact that the victims of two separate killings met their fate while tied to a tree, hence the title of the article. In the one case, described as the 'Witbank tree murder case', the presiding Judge was Mr Justice Esselen. The appeal referred to in the C article is reported as S v Mamba 1990 (1) SACR 227 (A). The second case referred to is described as the 'Louis Trichardt tree murder case' and was presided over by Strydom J (although this fact does not emerge from the article itself). In the Witbank tree murder case the accused, who were D both black, were sentenced to death for the murder of a white woman. In the Louis Trichardt tree murder case the accused were two whites charged with the murder of a black man, who, after pleading guilty to culpable homicide and assault respectively, were given 'nominal fines'. The two cases are contrasted and compared: (1) The Louis Trichardt case is, at the outset of the discussion, referred to as 'the infamous Louis Trichardt E tree murder case'. (In this regard, the Court below erred in stating that counsel labelled the Louis Trichardt murder trial as 'infamous' whereas in fact the trial was so described in the article itself.) The ordinary reader knows immediately that the Louis Trichardt case is branded with a pejorative label - 'infamous'. (2) The manner in which the victims of the killings died is also compared. Referring to the black deceased, the F author states: 'Unlike the Witbank woman, his destiny was not left to nature or to chance. He was brutally assaulted until he died.' (3) The death in Louis Trichardt was, according to the author, due to a 'massive assault'. The post mortem examination report was said to contain 'a list of the most horrendous injuries found on the body of the deceased'. (4) G The manner in which the black deceased died is also referred to. Mention is made of the testimony of a doctor, who stated that the injuries 'could not have been caused by slaps but that blunt weapons must have been used'. Moreover, another witness testified 'that both the accused had kicked the deceased with booted feet'. (5) The conduct of the presiding Judge in the H Louis Trichardt tree murder case is directly criticised because of his acceptance of an agreed statement of facts in the middle of the trial, which appears to have been at odds with the evidence. (6) The terms of the indictment of the Louis Trichardt tree murder case are specifically attributed to the race of the victim and the accused:

I '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.'

The main thrust of the article is that the 'infamous' Louis Trichardt murder trial, which resulted in 'nominal fines', notwithstanding 'the most J horrendous injuries found on the body of the deceased', was the product

1994 (2) SA p4

A of racial discrimination on the part of the Court. This is the 'outline or overall impression' (Dorfman v Afrikaanse Pers...