Aymac CC and Another v Widgerow

• Jurisdiction: South Africa

Aymac CC and Another v Widgerow
2009 (6) SA 433 (W)

2009 (6) SA p433

Citation	2009 (6) SA 433 (W)
Case No	2000/18587
Court	Witwatersrand Local Division
Judge	Boruchowitz J, Mbha J And Gautschi AJ
Heard	February 5, 2008; February 6, 2008
Judgment	March 27, 2008
Counsel	J Botha SC (with P Sieberhagen) for the appellants.; PR Jammy for the respondent.

Flynote : Sleutelwoorde B

Appeal — Prosecution — Proper prosecution — Failure to comply with rules — Negligence of attorney in prosecution of appeal may scupper application for re-enrolment of appeal after striking-off — Appellants' attorney late or remiss in regard to almost every step of appeal — Demonstrating gross ignorance of rules governing appeal, and leading appellants through C unnecessary steps, suggestive of obstinacy and lack of judgment — Application for re-enrolment of appeal dismissed — Uniform Rules of Court, rule 49(6)(b).

Appeal — Prosecution — Proper prosecution — Application for date of hearing — Appellants' attorney simultaneously to file power of attorney — Failure to D file power of attorney leading to appeal being struck from roll rather than postponed — Uniform Rules of Court, rules 7(2) and 49(6)(a).

Defamation — Elements — Reference to plaintiff — Whether sufficient — Plaintiff not named — Court to adopt two-stage enquiry: (1) whether words capable of referring to plaintiff; and if so, (2) whether words would lead reasonable E people who know plaintiff to conclude that they refer to him — First question a question of law to be answered from defamatory words themselves without regard to evidence — Second question a question of fact on which evidence admissible.

Headnote : Kopnota

The respondent was a plastic surgeon. He and another plastic surgeon controlled F a company that distributed skin-treatment creams. One of them was a cream known as Alpha Centella which had proved successful in scar management. The key ingredient of the cream was an extract from the leaf of the plant known as Centella asiatica. The first appellant caused a competitive scar-treatment cream to be manufactured, known as Regim-A, also using the Centella asiatica leaf extract. The second appellant was an G employee of the first appellant. The respondent caused an article to be published on the website of the Association of Plastic Surgeons of South Africa, of which he was a member, dealing with scar management generally and the role of the extract from the leaf of the Centella asiatica plant in scar management. The comment in the article that was the subject of the H appellants' defamation action was: 'Of course, it didn't take long for others to try and copy — if you are approached with a Centella preparation which is not Alpha Centella, they are using cheap leaf extracts which have no effect on collagen at these dilute concentrations and, as such, are extremely overpriced. The whole process has been patented and these people are illegally using our research they have obtained through the back door.' I When the article was published there were only two scar treatments being marketed in South Africa using the Centella asiatica leaf extract, namely Alpha Centella in the beige box and Regim-A in the blue box. In his plea the respondent denied that the article contained 'any reference whether direct or indirect to the (appellant)', and that there was therefore an issue in the trial. At the close of the appellants' case the respondent applied for J

2009 (6) SA p434

A absolution from the instance on the ground that there was no evidence from which a reasonable reader of the article could or might have understood it to be referring to either the first or second appellant. The High Court applied the two-stage enquiry set out in Knupffer v London Express Newspaper Ltd [1944] 1 All ER 495 (HL), enquiring first whether, having regard to the language of the article, it was capable of referring to either appellant; B and, if so, whether the article in fact led reasonable people who knew the appellants to conclude that it referred to them. The High Court found that the first question fell to be answered in the negative, and accordingly found it unnecessary to answer the second. In the result the High Court upheld the respondent's contention and absolved them from the instance. The C appellants appealed against that decision to the full court of the same division of the High Court. After the appellants' appeal had lapsed, the appellants applied for reinstatement of the appeal in terms of rule 49(6)(b) of the Uniform Rules of Court.

Held, that the first question posed in Knupffer was a question of law. It therefore had to be answered from the article itself, without regard to evidence. D Indeed, evidence was inadmissible. The second question was a question of fact, on which evidence was admissible. (Paragraphs [22] - [23] at 445J and 446F - G.)

Held, further, having regard to the language of the offending passage, it was indeed capable of referring to the appellants. The passage suggested that there were people who were associated with a Centella preparation in a blue E box which was not Alpha Centella. Any person in that class, of necessity a limited number of persons, would have been able to claim that, as a matter of law, the offending passage was capable of referring to him, her or it. It was pleaded by the appellants that their product was sold in a blue box. The appellants therefore passed the first test. (Paragraph [26] at 447H.)

Held, further, that it was therefore necessary to have regard to the second F (factual) question. There were at the time only two Centella products on the market, the respondent's beige box and appellants' blue box. It was, at least prima facie, established from the evidence that many plastic surgeons in the country knew the second appellant and the fact that she sold a Centella preparation in a blue box. There was no question that reasonable people (in G context, plastic surgeons) who knew the second appellant would have come to the conclusion that the article referred to her as being a person who used cheap leaf extracts, sold a product which was overpriced, and illegally used the respondent's research obtained through the back door. (Paragraph [29] at 448D - F.)

Held, accordingly, that the court a quo had erred in granting absolution from the H instance. (Paragraph [32] at 449F/G.)

Held, further, that it followed that the appellants' prospects of success in the appeal were good. That, in most cases, would be sufficient to tip the scales in favour of the reinstatement of the appeal. However, there were cases in which the remissness of an attorney went so far that, despite the fact that the appeal might otherwise succeed on the merits, a reinstatement would be I denied. Apart from filing the notice of appeal timeously, the appellants' attorney was late or remiss in regard to every other step of the appeal. He also demonstrated a gross ignorance of the rules governing the appeal and led his clients, the appellants, through a number of other steps which appeared to have been quite unnecessary and smacked of an obstinacy and lack of judgment. (Paragraphs [33] - [36] at 449G - I and 450D - F.) Application J for reinstatement dismissed.

2009 (6) SA p435

Cases Considered

Annotations: A

Reported cases

Southern Africa

A Neumann CC v Beauty Without Cruelty International 1986 (4) SA 675 (C): referred to B

Afrikaanse Handelaars en Agente (Eiend) Bpk v Van Niekerk 1944 TPD 62: referred to

Bane v Colvin 1959 (1) SA 863 (C): referred to

Blumenthal and Another v Thomson NO and Another 1994 (2) SA 118 (A): dictum at 121C - 122C applied

Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A): distinguished C

Corlett Drive Estate Ltd v Boland Bank Ltd and Another 1978 (4) SA 420 (C): dictum at 425D - F applied

De Klerk v Union Government 1958 (4) SA 496 (T): referred to

De Sousa v Cappy's Stall 1975 (4) SA 959 (T): referred to

Dollar v New Eersteling Gold Mining Co Ltd 1927 TPD 472: referred to

Federated Employers Fire & General Insurance Co Ltd and Another v McKenzie D 1969 (3) SA 360 (A): dictum at 363A applied

Ferreira v Ntshingila 1990 (4) SA 271 (A): dictum at 281G - 282A applied

Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein, and Others 1985 (4) SA 773 (A): referred to

Gascoyne v Paul and Hunter 1917 TPD 170: referred to

Geyser en 'n Ander v Pont 1968 (4) SA 67 (W): referred to E

Golding v Torch Printing and Publishing Co (Pty) Ltd and Others 1949 (4) SA 150 (C): referred to

HB Farming Estate (Pty) Ltd and Another v Legal and General Assurance Society Ltd 1981 (3) SA 129 (T): referred to

Karp and Gewer v McNevin 1951 (4) SA 118 (T): referred to

Kgobane and Another v Minister of Justice and Another 1969 (3) SA 365 (A): F referred to

Lipschitz NO v Saambou-Nasionale Bouvereniging 1979 (1) SA 527 (T): referred to

Mbutuma v Xhoza Development Corporation Ltd 1978 (1) SA 681 (A): referred to

Meyer v Dowson & Dobson Ltd 1967 (4) SA 628 (T): referred to G

Minister of Land Affairs and Agriculture and Others v D&F Wevell Trust and Others 2008 (2) SA 184 (SCA): referred to

Moaki v Reckitt & Colman (Africa) Ltd and Another 1968 (3) SA 98 (A): referred to

Motsamai v Read and Another 1961 (1) SA 173 (O): referred to

PE Bosman Transport Works Committee and Others v Piet Bosman Transport H (Pty) Ltd 1980 (4) SA 794 (A): dictum at 799B - H

Raw v Botha and Another 1965 (3) SA 630 (D): referred to

Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A): dictum at 131I - J applied

Rodrigues v Bailen 1931 CPD 190: referred to

Sachs v Werkerspers Uitgewersmaatskappy (Edms) Bpk 1952 (2) SA 261 (W): I referred to

Saley v Julay 1945 TPD 221: referred to

Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A): dictum at 141C - E...