Carbonel v Robinson & Co (Pty) Ltd and Another

• Jurisdiction: South Africa
• Judge: Henning J
• Judgment Date: 02 October 1964
• Citation: 1965 (1) SA 134 (D)
• Court: Durban and Coast Local Division

G Henning, J.:

In this action the plaintiff, an owner and trainer of race horses, sues the two defendants for R5,000 damages for alleged defamation. The first defendant, a limited liability company, is the proprietor and printer of The Natal Mercury, a daily newspaper with an extensive circulation in Durban and elsewhere throughout the Republic of H South Africa. The second defendant is and has at all material times been the publisher of the newspaper.

In the issue of The Natal Mercury of the 15th October, 1963, under the caption 'Our Readers' Opinions' and under the heading 'The poor punter', there appeared a letter which purported to have been written to the sports editor by one R. G. Williams. The letter read:

'Sir,

I heartily agree with Mr. S. Conradie in his protest against the Natal Turf Clubs in the Natal Mercury but I would go further even than that.

I consider that the race clubs should insist on the name of the jockey being

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given for the horses running, when final acceptances are given to, or accepted by the racing clubs, so that all off-course punters are given a fair run for their money.

The incident Mr. Conradie mentions was a glaring case which should have been investigated, and here surely was an instance where the coupling of this stable's horses would at least have satisfied the punters who were deliberately misled on the course, by the stables connections.

This incident thoroughly disgusted me, and I have not put a single cent A on a horse since, and fortunately I have the will power to do it.

I feel that unless the racing clubs introduce the coupling of horses in the doubles and jackpots as they do up-country, without any further delay, the result will be that off-course betting will begin to dwindle away. The only remedy to bring this about is for the public to boycott all Natal racing, off and on course, until the punter is considered in a B more favourable light, for without him, as everyone knows, there would be no racing at all.

The introduction of a State lottery is very much in the limelight, and I for one will turn to this and other suitable forms of gambling in preference to racing as long as it is run as it is at present.

R. G. Williams.'

In his declaration the plaintiff avers that two horses owned and trained by him namely, 'Out to Dine' and 'Honest Gold', were entered by him for C participation in the fourth race, that is, the second leg of the first double, at a race meeting held by the Clairwood Turf Club on Monday, 2nd September, 1963. The two horses were coupled on the totalisator for a win only. The names of the jockeys whom the plaintiff had engaged to ride the two horses were not announced until the day of the meeting. D 'Out to Dine' was ridden in the race by a jockey named Barends, and won the race. The plaintiff avers that the 'incident' and the 'stable connections' mentioned in the letter complained of, were intended and were understood by many readers of The Natal Mercury to refer respectively to the running of the fourth race at the meeting held on E 2nd September, 1963, and to the plaintiff. There are then set out the facts and circumstances relied upon by the plaintiff for these allegations. I need not for the present deal with those facts and circumstances, for although the defendants in their plea deny that the 'incident' and the 'stable connections' mentioned in the letter were intended and were understood to refer to the said race and to the F plaintiff, Mr. Hardman, who appeared for the defendants, stated, during the hearing of the case and in his address at the conclusion of the evidence, that the defendants accepted that the references were as pleaded by the plaintiff. He made it clear, however, that this admission G by the defendants was limited to those members of the public who were close followers of horse racing.

The plaintiff alleges that the letter complained of was per se defamatory of him. In the alternative, he pleads an innuendo, alleging that the letter was defamatory in a secondary sense, in that the words in the third and fourth paragraphs of the letter were intended and were understood by many readers of The Natal Mercury to mean that he had H deliberately deceived the punters who had attended the race meeting and the running of the fourth race, that his conduct in and about the running of the race was disgusting and/or dishonourable, and/or dishonest, and that his conduct merited investigation as to whether or not it was a breach of the rules of the Jockey Club of South Africa and/or the Clairwood Turf Club. In support of the innuendo he relies upon the contents and tenour of the letter, the fact that in respect of his horse racing activities he has at all material

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times been licensed by the Jockey Club of South Africa and bound by the rules of that Club and of the Clairwood Turf Club, the fact that if his alleged conduct constituted a breach of the rules of either of these A Clubs such conduct would be liable to investigation in an enquiry held by the stipendiary stewards of the Jockey Club, the fact that if the stipendiary stewards found him guilty of the breach of the rules, he would be liable to certain penalties, and finally, the fact that all these circumstances were at all material times known to the author of B the letter, to the defendants, and to many readers of The Natal Mercury. The plaintiff avers that, in publishing the letter, the defendants acted animo injuriandi. He claims that by reason of the defamation his reputation and good name have been injured, and that the defendants are liable, jointly and severally, to compensate him in the sum of R5,000, being the damages which he has suffered.

C In their plea the defendants deny that the letter was per se defamatory of the plaintiff, and that it was defamatory of him in a secondary sense. They also deny the facts and circumstances relied upon by the plaintiff for the innuendo. They plead, in the first instance, that the letter was published under such circumstances as to make it a privileged communication. In support of this plea they aver that the D letter related to the question of the publicity which should be given to facts relevant for purposes of betting on horse races, that the subject of such betting and the making available of information in regard thereto was a matter of special interest to the readers of The Natal Mercury, and one on which they had a legitimate interest in E receiving comment and information, that as proprietors and publishers of the newspaper they had a corresponding duty to publish information and comment on the subject, that the letter consisted entirely of such information and comment and that it was published by them without malice and in the bona fide belief that the allegations contained therein were true. In the alternative, the defendants allege that, in so far as the F letter expressed statements of fact, it was true in substance and in fact and, in so far as it expressed matters of opinion, was fair and honest comment on a matter of public interest, and that it was published without malice. The defendants set out in their plea the matters of public interest namely, the placing of bets on horse races, the G publication of information in regard to jockeys who would ride the various horses competing in races, the coupling of horses for betting purposes, a letter written by one, S. Conradie, (which appears below), and the circumstances attending the running and betting on the fourth race at the meeting of 2nd September, 1963.

H Horse racing in this country is controlled by the Jockey Club of South Africa, whose rules have to be obeyed by Turf Clubs which organise race meetings and by those who participate, such as owners, trainers, and jockeys. Rules made by individual racing clubs require the approval of the Jockey Club. Disciplinary proceedings are conducted by stewards of the Jockey Club, which publishes a racing calendar containing factual information about matters pertaining to horse racing. The three turf clubs in Natal, including the Clairwood Turf Club, have a joint committee called the 'policy committee', which deals

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with matters of common interest. Members of the public are free to make representations to that committee and, according to the evidence, many letters containing suggestions are received and are considered by the committee.

A It is necessary in this judgment to set out the procedure for the nomination of horses to run in organised events, and the announcement of riding engagements, and also to deal with some of the forms of betting. I shall confine myself to race meetings which are held on Saturdays.

B The practice is for a club, which intends to hold a meeting on a particular day, to post nomination forms to all trainers in advance. A trainer considers the programme for the meeting and decides what horses, if any, to enter. Nominations have to be in the hands of the club not later than 4 p.m. on Tuesday, that is, the Tuesday of the week immediately preceding the week in which the meeting is to be held. On C the Saturday or the Sunday following the Tuesday, the club assesses the weights to be carried by the horses nominated, and also determines the barrier draw. This information is then announced and the trainers and owners of nominated horses have until noon on the following Tuesday to decide whether to run the horses nominated by them. That is termed 'the D time for final acceptances'. The details of the final acceptances are freely published in newspapers and appear in the official race-card of the club concerned, which is usually published on the following day. Owners and trainers are not obliged to make known in advance the names of the jockeys engaged by them to ride their horses at a particular E meeting. They are, however, obliged to announce the names of the jockeys on the day of the meeting...