Chesterton v Gill and Others

• Jurisdiction: South Africa
• Citation: 1970 (2) SA 242 (T)

Chesterton v Gill and Others
1970 (2) SA 242 (T)

1970 (2) SA p242

Citation	1970 (2) SA 242 (T)
Court	Transvaal Provincial Division
Judge	Bliss AJ
Heard	November 11, 1969; November 12, 1969
Judgment	January 28, 1970

Flynote : Sleutelwoorde A

Defamation — What constitutes — Labelling a person a Nazi.

Headnote : Kopnota

To say of a person that he is a Nazi is something much stronger than to say of him that he belongs to an extreme right-wing political movement or party, and conceivably members of such right-wing political party might strongly resent being called Nazis. To label a person a Nazi might B very well lower that person in the estimation of right-thinking members of society, and there is a distinct possibility of exposing such person to the hatred and contempt of his fellow-men.

Case Information

Exception to plaintiff's main and alternative claims, and in the alternative for the striking out of certain portions of the claims. The C nature of the pleadings appears from the reasons for judgment.

F. C. Kirk-Cohen, for the excipient and on application to strike out: To ascribe political leanings or adherence to a political party is not per se defamatory, Fichardt v The Friend Newspaper, 1916 AD at pp. 6, 9, D 12, 13; Richter v Mack, 1917 AD at p. 206; Wallachs Ltd v Marsh, 1928 T.P.D. 531; Unie Volkspers Bpk v Rossouw, 1943 AD at p. 523; Visse v Wallachs Ltd., 1946 T.P.D. 441; Golding v Torch Printing & Publishing Co. Ltd., 1949 (4) SA 150; Sachs v Werkerspers Bpk., 1952 (2) SA 261; S.A.A.N v Schoeman, 1962 (2) SA 613; Gayre v S.A.A.N., 1963 (3) SA 376; Haacke v Deutsche Presse, 1934 T.P.D. 191 E (but in regard hereto see de Klerk v Union Govt., 1958 (4) SA 496); Pienaar v Argus Printing Co. Ltd., 1956 (4) SA 310; Conroy v Nicol, 1951 (1) SA 653. In regard to the test to be applied, see Wallach v Marsh, supra at p. 545; Sutter v Brown, 1926 AD 155; Johnson v Rand Daily Mail, 1928 AD 204; S.A.A.N v Schoeman, supra at p. 616; Stewart Printing Co. Ltd v Conroy, 1948 (2) SA 707. On the striking F out, see Visse's case, at p. 447; Rogaly v General Imports, 1948 (1) SA 1216; New Age Press v O'Keefe, 1947 (1) SA 317.

I. W. B. de Villiers for the respondent: The test of what is defamatory is whether the words tend to lower the person of whom they are spoken in G the estimation of right thinking members of society generally, Conroy v Stewart Printing Co. Ltd., 1946 AD at p. 1018. The Court's function, at the exception stage, is to determine whether the words complained of are reasonably capable of being understood in a defamatory sense, i.e. to determine not whether a person of ordinary intelligence would understand the words to convey the meaning alleged, but whether he H might reasonably so understand them. Basner v Trigger, 1945 AD at p. 32; Conroy v Stewart Printing Co. Ltd., supra at pp. 1018, 1022; Conroy v Nicol, 1949 (3) SA at pp. 1139, 1142, 1143; S.A. Associated Newspapers Ltd v Schoeman, 1962 (2) SA at p. 616E; Borkum v Cline and Another, 1959 (2) SA 670. It is not the Court's function at this stage to determine whether the words are in fact defamatory or not. This can only be decided at the trial after evidence of a general nature has been placed before the Court. Sutter v Brown, 1926 AD 155; Conroy v Nicol, supra at p. 1138. The headline

1970 (2) SA p243

and article must be read together: the whole context must be looked at. Black v Joseph, 1931 AD at pp. 143 et seq.; Conroy v Nicol, supra at p. 1140, para. (4). Even in the case of words which are prima facie defamatory, it is usual, though not necessary, for the plaintiff to A plead an innuendo. In such a case the object of the innuendo is merely to bring out the full defamatory significance of the words - to point out the sting in the imputation. Sachs v Werkerspers, 1952 (2) SA at p. 263A; McKerron, Law of Delict, 6th ed., pp. 164-5; Gayre v SA Assoc. Newspapers, 1963 (3) SA at p. 378F. The headline and article might reasonably tend to lower plaintiff in the estimation of reasonable B persons or persons of ordinary intelligence. It is reasonably possible that a Court may at trial find that it is per se defamatory. At the trial the Court may determine the meaning of the words not only by evidence of relevant surrounding circumstances but also by its own knowledge and experience of local conditions. Sutter v Brown, supra at C p. 169; cf. also National Union of Distributive Workers v Cleghorn and Harris Ltd., 1946 AD at pp. 989, 996; Sachs v Werkerspers, supra at p. 263. Statements are defamatory which reflect on a person's political character. It does reflect on a person's political character to refer to him or the party which he leads as Nazis. Similarly, words which tend to D arouse hatred or contempt against a plaintiff have been regarded as defamatory. Amersinghe, Defamation and other aspects of the actio iniuriarum in Roman-Dutch Law, pp. 15-16, 40-42. The word 'National Scout' was recognised in one case as being defamatory, Lyon v Steyn, 1931 T.P.D. 247. To call a person a Communist is defamatory, de Klerk v Union Govt., 1958 (4) SA at p. 501H. As to the exception to the E alternative claim: the test is whether, in the circumstances alleged in the declaration, the words are capable of bearing the meaning attributed to them in the innuendo. National Union of Distributive Workers case, supra at p. 997; Borkum v Cline, supra at p. 671D.

Kirk-Cohen, in reply.

Cur. adv. vult.

Postea (January 28th). F

Judgment

Bliss, A.J.:

In this matter the defendants except to the plaintiff's G main and alternative claims on the grounds that they are bad in law and disclose no cause of action. In the alternative defendants apply for the striking out of certain portions of the main and alternative claims.

Plaintiff's action against the defendants arose from a headline and article which were published on 8th April, 1969 in The Pretoria News, a daily newspaper edited by first defendant, owned by second defendant and published by third defendant.

H The headline and article which gave rise to plaintiff's cause of action are annexed to the combined summons and are as follows:

''Nazis' hope for R1.72m.

From The Pretoria News Bureau

London, Tuesday.

After a complex legal battle in Chile, the extreme Right Wing British political party, the National Front, is hoping to inherit a fortune reputed to exceed £1m. (R1.72m.). The front, whose leadership includes an Anglican clergyman, a lorry driver who once maintained a shrine to Hitler, and a devout Roman Catholic

1970 (2) SA p244

Bliss AJ

head teacher, is the group blamed for the attack on Mr. Arthur Bottomley, former Commonwealth Secretary, at a by-election meeting recently.

The Chilean fortune would free the party from the chronic financial problems which affect its more established opponents. The fortune in Chile was left by Mr. Robert K. Jeffery, a man who invariably dined on porridge and walnuts and lived to be 91.

A In 1959 he made a will appointing Mr. A. K. Chesterton, leader of the League of Empire Loyalists, his sole heir. Over the years, Jeffery supported the league with gifts totalling R70,000 though he never met Chesterton.

In 1961, Jeffery 'signed' another will with a thumb print recognising Dona Elba Smith de Zencovic as his natural daughter and appointing her heir to his fortune. He died 18 hours later.

In the last eight years Chesterton has pressed his claim to the fortune B through the Chilean Courts. Meanwhile, the League of Empire Loyalists, which Jeffery so much admired, has ceased to exist.

Just over two years ago it threw in its lot with the British National Party. The more extreme Greater Britain Movement, which was derived from Colin Jordan's National Socialist Group, and large parts of the racial Preservation Society, also joined up to form the National Front.

The new party tried to infiltrate the ranks of the Anglo-Rhodesian Society in the tense days after the Tiger talks. Under the undisputed C leadership of Chesterton...