Hertzog v Ward

• Jurisdiction: South Africa
• Judge: Coram Lord De Villiers CJ, Innes J, Solomon J, CG Maasdorp JP and J De Villiers JP
• Judgment Date: 29 February 1912
• Citation: 1912 AD 62
• Hearing Date: 26 February 1912
• Court: Appellate Division

Lord De Villiers, C.J.:

The plaintiff in this case is a medical practitioner at Bloemfontein, and the defendant is the Minister of Justice. The action is for damages for defamatory words alleged to have been uttered by the defendant. The declaration quotes the following passages of a speech made by the defendant at Smithfield: "You have probably heard about the unworthy attitude of the Medical Council against two young doctors born in South Africa who have Studied in Germany. The attitude of that council is another instance of the way the Jingoes are trying to keep down Afrikanders. One more instance of the great love of truth of our Unionists." The declaration further quotes from another speech subsequently made by the defendant at Fauresmith in which, after describing himself as performing surgical operations upon the members of the Council as his patients, he practically repeats the charges previously made and adds some general words of strong reprobation of the conduct of the Council. The declaration does not state that the plaintiff was present at the meetings of the Council which assumed the unworthy attitude, but it distinctly alleges that the words were spoken and published of and concerning the plaintiff, who was the President of the Council. The defendant excepted to the declaration as being bad in law and disclosing no cause of action, and the grounds relied upon

Lord De Villiers, C.J.

in the Court below and in this Court are (1) that there is nothing in the words complained of which show that they refer to the plaintiff, and (2) that the words themselves are not defamatory. A full Court of the Orange Free State Provincial Division unanimously disallowed the exception with costs, and against that judgment the defendant now appeals.

As to the first ground relied upon by the defendant, it appears to me to be untenable. It will be a matter of proof at the trial whether the words complained of referred to the plaintiff, and such proof cannot be excluded merely because the plaintiff was not mentioned by name in either of the speeches made by the defendant. If the, words are defamatory, as to which I shall have something to say when I come to the second ground of exception, it is competent for the plaintiff to prove that, under the circumstances under which the words were uttered, they were intended by the speaker to apply, and must have been understood by those who heard...