Demmers v Wyllie and Others

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Jansen JA, Muller JA, Corbett JA, Diemont JA and Botha AJA
• Judgment Date: 29 November 1979
• Citation: 1980 (1) SA 835 (A)
• Hearing Date: 18 September 1979

Jansen, JA.:

I respectfully agree with my Brother DIEMONT that the appeal should succeed.

Muller JA

In interpreting a newspaper article, and determining its implications, the standard to be applied, I suggest, is that of the average ordinary reader A of that newspaper: how, on the probabilities, would he have understood the article? In my view abstract and ideal qualities of being balanced ('ewewigtig'), right-thinking ("regdenkend") and reasonable ("redelik") - if 'reasonable' be understood in the sense of 'sound of judgment' - should only be ascribed to the reader and should only come into play (if at all) B when the subsequent question is to be answered, viz whether the meaning attached to the article by the average ordinary reader (including the implications seen by him) is to be considered to be defamatory and therefore actionable. (Cf the views expressed by me in agreeing with the minority judgment of my Brother VILJOEN in SA Associated Newspapers Ltd en 'n Ander v Samuels 1979 AD, 29 September.) [*]

C I agree that the ordinary reader would understand the article in question as found by my Brother DIEMONT. I also agree that so understood the article is defamatory. D

Judgment

Muller, JA.:

The appellant, a director of companies of Westville, Natal (hereinafter referred to as the plaintiff), sued the respondents, who are, respectively, the editor, the printers and the publishers of a weekly newspaper, the Sunday Tribune (hereinafter referred to as the defendants), in the Durban and Coast Local Division for payment of a sum of R10 000 as damages for alleged defamation. The said action arose as a E result of an article which appeared in the Sunday Tribune of 19 December 1976 in which article reference was made, inter alia, to certain purchases of land by plaintiff or by companies in which plaintiff had a financial interest from the Department of Community Development.

DIDCOTT J, at the end of the case, granted judgment for the defendants F with costs. His written judgment is reported under the heading Demmers v Wyllie and Others in 1978 (4) SA 619.

The plaintiff is now before this Court on appeal.

Because the trial Court's reported judgment contains a complete statement of the facts of the case and the reasoning of the Court in coming to the conclusion to which it did come, it is necessary, for the purposes of this G judgment, to restate only certain facts and the findings of the trial Judge on certain aspects of the case. Unless otherwise stated all references in this judgment are to the trial Court's reported judgment.

The portions of the article in question on which the plaintiff based his case were the following:

(a)

H The headline on the first page of the newspaper reading 'Nat scoops huge land deal' and

(b)

the following statements in the article:

'(i)

After gaining his South African citizenship, Mr Demmers became well known as a keen and energetic supporter of the National Party. Last month he presented R10 000 to the John Vorster Fund for the national Party's forthcoming electioneering campaign.

Mr and Mrs Demmers sat at the Prime Minister's table when Mr Vorster was handed a cheque for R50000 at a banquet in Durban to mark the launching of the fund.

Muller JA

(ii)

Mr Demmers, through Ilco Homes and Demmal Properties, has obtained other bargains in the Community Development expropriated land in Queensburgh. In 1972 Ilco bought 15 lots for R28000. The current municipal valuation of R83 000 is regarded by a A number of real estate agencies (to be) less than the land's market value. In 1973, Demmal Properties bought two industrial lots for R35 700. The present price for equivalent land in the area is about R100 000.'

Referring, in his particulars of claim, to the said headline and statements, the plaintiff averred (in para 8):

'The said words, in the context of the aforesaid article, were wrongful, malicious and defamatory of the plaintiff, in that they were intended and were understood by readers of the aforesaid newspaper to mean that the plaintiff's conduct in and/or surrounding the acquisition of land from the Department of Community Development was dishonest and/or improper in one or more or all of the following respects:

(a)

he obtained, for R36 000, land with a market value of about R700 000; and/or

(b)

he used, and had in the past used, his party political D affiliations to obtain unduly favourable treatment from a Government Department; and/or

(c)

he used his party political affiliations to obtain favourable treatment from a Government Department, to the exclusion of other competitors; and/or

(d)

E he donated R10 000 to a National Party fund in consequence of undue favour received from a Government Department.'

It should be mentioned here that, at a conference in terms of Rule 37, the plaintiff admitted that the

'facts set out in part 8 (a) of the particulars of claim are not, by themselves, defamatory'.

F The learned trial Judge dealt with this admission (at 622A - B of his reported judgment) and remarked that 'para 8 (a) has fallen away for all practical purposes...'. On appeal counsel for the plaintiff said that the learned Judge's remark was not entirely correct. Counsel explained that what had been admitted at the pre-trial conference was that the facts mentioned in para 8 (a) of the particulars of claim did not in themselves G constitute a defamatory statement. Those facts, however, still stood and had to be considered when dealing with the allegations in sub-paras (b), (c) and (d) of para 8 of the particulars of claim. In any event, as the learned trial Judge saw the matter, the issues to be decided at the trial were the following:

'(1) Did the headline to the article and the extracts from it which I have H reproduced (also quoted above) bear the meanings attributed to them in paras 8 (b), 8 (c) and 8 (d) of the particulars of claim, or any of them?

(2) If so, did such meanings or meaning defame the plaintiff?

(3) If so, what damages would fairly compensate the plaintiff for the harm thereby done to him?'

(Reported judgment at 623H.) Before I come to deal with the findings of the Court a quo relative to the above issues and the grounds upon which the said findings were attacked on appeal, it is, I think, advisable to deal first with a few questions of law on which argument was addressed to

Muller JA

us on appeal. These questions concerned the correct approach to be adopted in determining whether the words in question conveyed to the ordinary A newspaper reader one or more or all of the defamatory imputations attributed to those words in paras 8 (b), 8 (c) and 8 (d) of the particulars of claim.

In the first place counsel for the plaintiff contended on appeal that the test is an objective one. There can, I think, be no doubt on this point. In Botha en 'n Ander v Marais 1974 (1) SA 44 (A) OGILVIE THOMPSON CJ B stated specifically, at 48E, 'Die toets is objektief...'. That view is, in my opinion, correct and was not in any way questioned before us.

Another matter which arose in discussion before us was the use, in some decisions, of the words 'reasonable person' or 'reasonable man' in connection with the determination whether the ordinary reader would understand an article to have a particular meaning. In his judgment the C learned trial Judge dealt with this matter at 624F - 625A. He said, inter alia:

'The standard is that of the ordinary reader instead, who has no legal training or other special discipline. He is taken to be a reasonable person of average intelligence and education.'

D For other decisions in which the words 'reasonable person' or 'reasonable man' are referred to see Young v Kemsley and Others 1940 AD 258 at 282; SA Associated Newspapers Ltd v Schoeman 1962 (2) SA 613 (A) at 616G; South African Associated Newspapers Ltd and Another v Estate Pelser 1975 (4) SA 797 (A) at 811A; Suid-Afrikaanse Uitsaaikorporasie v O'Malley 1977 (3) SA 394 (A) at 408D; Coulson v Rapport Uitgewers (Edms) Bpk 1979 (3) SA 286 (A) at 294F.

E The question which arises is who is the 'reasonable person' or 'reasonable man' which these decisions had in mind. In Young v Kemsley and Others (supra at 282) TINDALL JA said:

'A member of the audience cannot be said to be a reasonable person of ordinary intelligence if he seizes on certain words and ignores others.'

F And in SA Associated Newspapers Ltd v Schoeman (supra) STEYN CJ said, at 616G:

"Die maatstaf vir die aanwesigheid van laster is naamlik die oordeel van die redelike leser met normale verstand en ontwikkeling."

In the case Suid-Afrikaanse Uitsaaikorporasie v O'Malley (supra) the present CHIEF JUSTICE said, at 408D:

G "By die vraag of wat die aanhoorder van die nuusberigte sou kon gedink het, is die maatstaf die fiktiewe, normale, ewewigtige, regsinnige en redelike mens."

The word "regsinnige" in the passage just quoted should read "regdenkende" (see Coulson v Rapport Uitgewers (Edms) Bpk (supra at 295A)).

H From the above it is clear, I think, that the words 'reasonable person' or 'reasonable man' referred to in the decisions cited 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.

Then there was some discussion before us as to the approach which should be adopted where an article is capable of more than one meaning. In this regard our attention was drawn to the following passage in the judgment of COLMAN J in Channing v South African Financial Gazette Ltd and Others 1966 (3) SA 470 (W) at 473E:

Muller JA

'The enquiry relates to the manner in which the article would have been understood by those readers of it whose reactions are relevant to the action and who are sometimes referred to as the 'ordinary...