Demmers v Wyllie and Others

• Jurisdiction: South Africa
• Judge: Didcott J
• Judgment Date: 27 July 1978
• Citation: 1978 (4) SA 619 (D)
• Court: Durban and Coast Local Division

Didcott J:

The Sunday Tribune is a weekly newspaper with a national circulation which is produced in Durban. Its editor is the first H defendant, its proprietor and printer the second defendant, and its publisher the third defendant.

The plaintiff is a property developer and builder. He operates through the channel of various companies with which he is associated. These include Ilco Homes (Pty) Ltd and Demmal Properties (Pty) Ltd.

On 19 December 1976 the Sunday Tribune reported the plaintiff's activities in terms which are said to have defamed him. He has consequently sued the defendants for damages. Having tried his action, I must now decide its result.

Didcott J

The article containing the report in question was long and conspicuous. It began on the front page of the newspaper, continued on the third page, and ended there. The columns of newsprint which it filled ran altogether for 110 centimetres.

A The Department of Community Development and its recent transactions in expropriated land near Durban were strongly criticised. That was the article's main thrust. Its opening paragraphs and by far the majority of those which followed were devoted explicitly and exclusively to this topic.

B The article charged the Department with having sold "vast parcels of prime building land" in Queensburgh for much less than its municipal value and for a mere fraction of its true worth. Fortunes were predicted for the entrepreneurs who had bought it. Figures and other details were furnished C in apparent support of the accusation. So were the comments of a Natal Provincial Councillor, described as a "spokesman on town planning and township development", whom the reporter had interviewed. These were somewhat pungent. The sales were said to have been "a disaster for the taxpayer". Their volume and timing had been "ruinously wrong". A "huge D release of land" had occurred suddenly. It has "not just flooded but completely drowned a weak market". Then the Department had let the land go for "pathetic prices", instead of fixing "realistic" minima. This had been "an abuse of public assets". The Department's "competence to handle transactions in public land" called for investigation by a commission of enquiry. That it was "the biggest estate agency in the country" had been "a bitter joke for years". It would find itself "out of business in a E week" if it had to meet "the efficiency standards of the private sector". The Department's regional representative in Durban had also been interviewed. He had been reticent about its sales, but not about certain journalists. These, he had complained, were "only interested in making F political capital" from its transactions, which they habitually attacked, whether low or high prices were obtained. He had pointed out that the plots in question had fetched enough to cover the costs of their expropriation. Many municipalities, according to him, overrated land.

The plaintiff was linked with all this in the following way.

Going into detail about the transactions under fire, the article took as one instance an auction held by the Department on 25 October 1976. It named the plaintiff as "the most successful buyer" there.

G The article then digressed for the time being from that occasion and, concentrating on the plaintiff instead, it continued thus. An immigrant from Holland, he had established an "outstandingly successful career in the highly competitive construction industry" in South Africa. In those H circles his "hard-driving efficiency" was "famous". With a penchant for "cost-cutting methods", he had specialised in "low-cost housing construction". Ilco Homes, of which he was the managing director, had grown under his leadership into a

"spectacularly successful company with current public housing contracts totalling more than R70 000 000".

This came next in the article:

"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 Natal National Party's forthcoming electioneering campaign. Mr and Mrs Demmers sat at the Prime Minister's table when Mr Vorster

Didcott J

was handed a cheque for R50 000 at a banquet in Durban to mark the launching of the fund."

The article then returned to the topic of the auction on 25 October 1976 and resumed the narrative. The "plum parcel" presented for sale had been A five plots in Queensburgh amounting to 19,3 hectares. Their municipal appraisement was R209 000. But property experts, viewing them as "ideal for development as a conventional township or, if zoning permission was acquired, for low or medium density cluster housing", had assessed their market value at between R700 000 as "raw land" and R3 000 000 "if the B buyer carried through his own cluster housing development". The plaintiff's bid for them, the highest, had been R15 000. The Department had not, however, confirmed their sale for that price. Afterwards an offer of R36 000 for them had been submitted by him and accepted.

All these references to the plaintiff were to be found quite early in the C article. There were no more until much later. In the meantime transactions not involving him were canvassed, and the interviews with the Provincial Councillor and the Department's regional representative were reported. Then, as the article drew to a close, the following appeared in it:

"Mr Demmers, through Ilco Homes and Demmal Properties, has obtained other bargains in Community Development expropriated land in Queensburgh. In D 1972 Ilco bought fifteen lots for R28 300. The current municipal valuation of R83 000 is regarded by a number of real estate agencies as 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."

An important feature of the article remains to be mentioned. It had a prominent headline, the main one on the front page. A banner 27 E centimetres wide and 9 centimetres deep which stretched across two-thirds of the page, this proclaimed in bold capitals "Nat Scoops Huge Land Deal". The message was repeated when the article moved to the third page. Its heading there, spread over two columns, was "Nat Scoops Huge Land Deal in F Queensburgh". It is common cause that the plaintiff was the "Nat" so labelled, and that this meant he was a Nationalist.

The defamatory matter, according to para 7 of the plaintiff's particulars of claim, consisted of the headline on the front page and the two extracts from the article which I have quoted in full. Para 8 alleged that, in their context in the article as a whole, these meant that:

G "... the plaintiff's conduct in and/or surrounding the acquisition of land from the Department of Community Development was dishonest and/or dishonourable 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)

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

(c)

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

(d)

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

Didcott J

This was somewhat qualified when, at a Conference under Rule 37 which was held shortly before the trial, it was recorded that:

"The plaintiff admits that the facts" (sic) "set out in para 8 (a) of the particulars of claim are not by themselves defamatory."

A Sub-para 8 (a) was curious for an additional reason. It related to the plaintiff's purchase of the "plum parcel" after the auction on 25 October 1976. Yet the actual passages in the article dealing with that transaction were not included among those which para 7 singled out as targets and B branded as defamatory. Nothing, however, turns on this any longer. Since para 8 (a) has fallen away for all practical purposes, so has the anomaly.

Two points emerge at once from the particulars of claim.

The first is that the complaint thereby lodged against the language in C question was directed at its "primary" meaning alone. No "secondary" meaning was allocated to it as well or in the alternative. I use these expressions in the special sense assigned to them for purposes like the present in National Union of Distributive Workers v Cleghorn and Harris Ltd 1946 AD 984 at 992, 997 so as to distinguish the so-called "innuendo to point the sting" from the true innuendo. The former is merely a D semantic exercise, purporting to be a paraphrase or elaboration of the words to which objection is taken. It does not profess to stray beyond their normal connotation, but draws from them and...