GA Fichardt Ltd v The Friend Newspapers Ltd

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, CG Maasdorp JA, De Villiers AJA and Juta AJA
• Judgment Date: 13 January 1916
• Citation: 1916 AD 1
• Hearing Date: 23 November 1915
• Court: Appellate Division

Innes, C.J.:

The feeling roused by the sinking of the "Lusitania" in May last was followed in Bloemfontein, as in certain other centres of the Union, by a deplorable outbreak of lawlessness. On the evening of the 12th of that month a number of premises, believed to belong to German owners or to be under German management, were attacked by a mob which the police for the moment could not control, and considerable damage was done both to the buildings and their contents. Among the business places thus dealt with was the store of Fichardt Ltd. a joint stock company registered in Bloemfontein, and whose shares are all held by British subjects resident in the Free State. In the issue of the Friend newspaper, published on the morning of the 14th, appeared a detailed report of the occurrences referred to, preceded by the following headlines: -

Bloemfontein Riots.

German business places attacked.

Extensive damage.

Huge bonfires outside several stores.

German Club ransacked.

Fichardts and Dalldorfs the chief sufferers.

To these headlines strong exception was taken on behalf of the plaintiff company as conveying the impression that Fichardt Ltd.

Innes, C.J.

was a German concern. This view having been communicated to the defendants' manager, he undertook to correct any such impression. And in the Friend of the 15th May a sub-leader appeared disclaiming any idea of suggesting that the company was a German one and regretting any annoyance that might have been caused by a reading of the heading in that sense. Not content with that very frank declaration, Fichardt Ltd. commenced an action for libel, the damages being laid at £20,000. The Free State Provincial Division gave judgment for the defendants, and the matter is now before us on appeal from that decision.

No objection is taken to the body of the report, - the headlines alone are complained of. The innuendo in the declaration suggests as the meaning they were intended to convey, the following: "That plaintiffs, or the members of the plaintiffs' firm, are Germans and enemy subjects and bear the character of a business ruled and influenced by German subjects and interests." That is not very fortunately expressed, for it confuses Fichardt Ltd. with its shareholders. This is an action brought by the company; not by the individuals who compose it; so that all reference to the "members of the plaintiffs' firm" (especially as there is no partnership in question) may be eliminated. The gist of the complaint, however, seems fairly clear, it is that Fichardt Ltd., is in effect described as a German company, and that under present circumstances the application of such a designation is libelous. I That being the position two questions arise - is the term German as applied under present circumstances to a business corporation defamatory? - and can the plaintiff company be said to be so de scribed by these headlines? If either enquiry is answered in the negative, then the present action must fail.

Now I shall assume in favour of the plaintiffs that the headlines read in connection with the report do imply that Fichardt's was a German place of business. That matter is by no means free from doubt; but I incline to that view and shall proceed to consider the case on that assumption. The point to be determined is whether the allegation is defamatory. That the remedy by way of action for libel is open to a trading company admits of no doubt. Such a body is a juridical persona, a distinct and separate legal entity duly constituted for trading purposes. It has a business status and reputation to maintain. And if defamatory statements are made

Innes, C.J.

reflecting upon that status or reputation, an action for the injuria will lie. (See de Villiers' Law of Injuries, p.59.) In the present case no special damages were proved; but that circumstance does not really affect the position. Where words are defamatory of the business status and reputation of a trading company, I am not aware of any principle of our law which would make the right of action depend on proof of special damage. So that we come back to the enquiry whether the word German applied to a trading company is in law defamatory. Now the term connotes nothing which is a reflection upon the solvency, the management, the conduct or the business position of the company referred to. Nor does it imply any breach of the law, for a German corporation may quite properly trade in British territory during hostilities if duly licensed by the Crown. It is difficult under these circumstances and in the absence of any special innuendo to see how the expression complained of can be defamatory. It would certainly not be so in the case of an individual. Even in the present state of feeling there is nothing to show that the word is used to indicate moral obliquity or dishonourable conduct on the part of the particular individual to whom it is applied. If it did bear such a meaning, then to call a man a German even if it were true, would be to slander him. And on the same principle it would be defamatory when feeling ran high to call a citizen a Nationalist in one constituency or a Unionist in another. The truth is that a mere allegation of German nationality, though it may under present circumstances cause real prejudice, is not in law defamatory. It would be damaging not because it reflected upon the character or reputation of the person concerned, but owing to circumstances wholly...