Esselen v Argus Printing and Publishing Co Ltd and Others

• Jurisdiction: South Africa
• Judge: Hattingh J
• Judgment Date: 28 February 1992
• Court: Transvaal Provincial Division
• Hearing Date: 28 February 1992
• Citation: 1992 (3) SA 764 (T)

D Hattingh J:

The plaintiff is a Judge of the Transvaal Provincial Division of the Supreme Court of South Africa. Plaintiff instituted action for defamation against the three defendants arising out of the publication of an article written by the third defendant entitled 'A tale of two tree murderers' which was published in The Star newspaper on 27 March 1990 E ('the offending article'). I quote the relevant paragraphs of the particulars of claim in full:

'10.

The following passages in the offending article, read in the context of the whole article, are defamatory of the plaintiff:

"The chairman of the Pretoria Bar Council, Advocate William de Villiers SC, recently took issue with me for suggesting that our F Courts discriminate on racial grounds when convicting and/or sentencing.

My comments which attracted the wrath of Mr De Villiers were in relation to the so-called 'Witbank tree murder'. I think it would be both interesting and telling to compare this case, which involved black on white violence, with the infamous Louis G Trichardt tree murder case, which involved white on black violence.

In the Witbank case, two black men 'picked up' a white woman, had sexual intercourse with her, tied her to a tree and then stole her motor vehicle which they drove to Swaziland. Bar the two H thieves who were later arrested and charged with robbery, rape and murder, the woman's domestic employee was the last person to see her alive.

The deceased had bought a bottle of vodka and, according to the testimony of the domestic employee, she appeared to be unhappy and I drunk. Nine days later, she was found dead and tied to a tree. The probabilities are that she had been 'picked up' by the two accused four days after having disappeared.

The two accused were subsequently arrested and charged with robbery, rape and murder. They were both sentenced to ten years' J imprisonment for robbery. With regard to the alleged

Hattingh J

A rape, the only evidence against them were confessions by each of the accused that they had had intercourse with the deceased. According to them, she had consented to the act.

In spite of the circumstances in which she disappeared, the trial Judge found beyond reasonable doubt that she had been raped. B It must also be emphasised that there was no medical evidence to support such conclusion. They were both given 15 years' imprisonment for rape.

They were also found guilty of murder and sentenced to death. This sentence was passed in spite of the Court's finding that C there was no direct intention to kill her. The Court found indirect intention, ie that the accused must have foreseen that the deceased may not be found timeously, in which event she would die; but in spite of this, left her tied to the tree, regardless of the consequences.

It is relevant to mention that the tree was 15 metres from a D gravel road, about 30 metres from a plantation used as a dumping ground, 20 metres from a number of beehives and a few hundred metres from seven houses.

The accused testified that they thought she would be found soon after having been left and they had no intention of killing her.

E The fact that they did kill her also has a bearing on the charge of rape, considering that rape can also attract the death penalty. Fortunately, both the rape and murder convictions were set aside by the Appellate Division in November last year.

It should be noted that the Supreme Court Judge who initially F sentenced the accused refused leave to appeal. Had the accused not been represented by lawyers, which is the norm, there would have been no petition to the Chief Justice and they would have been executed.

. . .

G Lawyers for Human Rights runs a project which monitors racial discrimination by our Judiciary. These are certainly not the only two cases which lead us to believe our Courts do sometimes discriminate on the basis of race when convicting and passing sentence.

H Fortunately there are many Judges who do not allow the colour of either the accused or the complainant or deceased in murder charges to influence their decisions.

However, as long as there is even one Judge who shows tendencies of racial discrimination and he is tolerated by fellow Judges and the Minister of Justice, the entire Judiciary will be tarnished." I

11.

The offending article was written and published wrongfully and intentionally and damaged the plaintiff in his good name and reputation as a result of which the plaintiff suffered damages in the amount of R120 000.'

J Plaintiff does not rely on any secondary meaning or on an innuendo.

Hattingh J

A Defendants noted an exception to the plaintiff's particulars of claim as disclosing no cause of action, on the following grounds:

'1.

The passages relied on by plaintiff in para 10 of the particulars of claim, read in the context of the article as a whole, are not reasonably capable of conveying a defamatory meaning.

2.

Alternatively B

2.1

The article, read as a whole, concerned the conduct of the plaintiff only in his official capacity as a Judge of the Supreme Court.

2.2

Any scandalous, improper or defamatory imputation on a Judge arising out of the exercise of his judicial function is an C imputation on the administration of justice and is punishable by the law of contempt.

2.3

It is contrary to public policy to permit a Judge of the Supreme Court to recover damages in an action for defamation based upon criticism of a judgment delivered by him in his official capacity in judicial proceedings.' D

The applicable legal principles and the basis of the two exceptions will be considered separately.

A. The first exception

Where exception is taken in an action based on defamation, the test in E regard to what constitutes defamatory matter differs at the exception stage from that at the trial stage. At this, the exception stage, the Court is called upon to decide whether a reasonable person of ordinary intelligence, having read the offending article, might reasonably understand the printed words as conveying a meaning defamatory of the F plaintiff. (Basner v Trigger 1945 AD 22 at 32.)

If the words are so capable the exception cannot be upheld.

The criterion for determining what constitutes defamatory matter is whether the plaintiff has been injured in his reputation or, to use the phraseology of the traditional test, whether the imputation tends to lower the plaintiff in the estimation of right thinking members of society G generally. (Conroy v Stewart Printing Co Ltd 1946 AD 1015 at 1018.) It is also trite law that the words must be construed to have the meaning which a reasonable person, reading them in their context, would be likely to give them. (Channing v South African Financial Gazette Ltd and Others 1966 (3) SA 470 (W) at 474.)

H The 'reasonable person'...