International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (1)

• Jurisdiction: South Africa
• Judge: Clayden J
• Judgment Date: 20 May 1954
• Citation: 1955 (2) SA 1 (W)
• Court: Witwatersrand Local Division

Clayden, J.:

General: the Cigarette Named Max Has Been Manufactured in B This Country since 1936 by the International Tobacco Company of South Africa Ltd. (Referred to as the I.T.C.). Max Cigarettes Now Cost 1s. 2d. for 20, and There are Many Other Cigarettes in the Same Price Class. the Largest Cigarette Manufacturer in This Country Is the United Tobacco Companies (South) Ltd. (Referred to as the U.T.C.). the U.T.C. C Manufactures a Number of Different Brands in the 1s. 2d. Class; in the Years 1947 to 1952 Its Main Brands in that Class Were C to C, Commando Round, Flag, Springbok and Springbok Medium.

In the Transvaal from 1947 to 1949 the chief rival of these cigarettes of the U.T.C. was Max. In 1947 Max sales were 869 million, and in 1949 D the sales had risen to 987 million. The U.T.C. sales of cigarettes in the 1s. 2d. class in 1949 were 4,376 million.

Towards the end of 1946 the U.T.C. decided to employ native propagandists to advance the sale of its brands in the Transvaal. Two natives, Tutu and Moss, were selected as suitable for this work. Moss soon left; and Anderson Mehlomakulu was engaged in his place in June, E 1947. The other propagandists who were employed were Zwakala from October, 1948, Walaza from November, 1948, Tsotsobe (also referred to as Ruthven or Beam) from February, 1949, Ginger Molefe From June, 1950, Mtante and Mdingi from February, 1951, and Pheku from March, 1951. F Except for Zwakala these natives are still in the employ of the U.T.C., though some of them are now salesmen and not propagandists.

The originator of the idea of employing native propagandists was Mr. van der Spuy, an employee of the U.T.C., and he was primarily in charge of them until May, 1951, assisted by Mr. Mulder. Until about June, 1948, G Tutu and Anderson were not openly acknowledged as employees of the U.T.C. They were engaged in the name of Mr. van der Spuy, who paid them personally and was reimbursed by the U.T.C.; they were told to pretend to be sports organisers unconnected with the U.T.C. if anyone asked who employed them; they were not to talk in the presence of Europeans; in the words of Tutu they were carrying out a 'whispering campaign'; and they were interviewed daily, and given cigarettes and instructions, by H Mr. van der Spuy from his car at meeting places away from the U.T.C. offices until August, 1947.

The one reason for the engagement of these natives in the name of Mr. van der Spuy was that the U.T.C. had undertaken to abide by a Wage Determination which made no provision for such employees, who would have to have been paid at the rate for European travellers,

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and it was felt that this would cause dissatisfaction amongst other non-European employees. But chiefly the reason for pretence in regard to these propagandists was that the U.T.C. did not wish rival firms to learn of this essay in advertising. There is not I think foundation for the suggestion that it was because disparagement of other cigarettes was A to be made that these employees were not to be acknowledged; quite apart from the denial of this suggestion by those in control of the U.T.C., it appears, for reasons later to be discussed, that the officials of the U.T.C. paid little regard to the activities of their native propagandists, and could not have designed what was done.

B The instructions which were given to Tutu were not complicated. He was told that he was to give away the cigarettes which were provided, and to tell the persons to whom he spoke of the assistance which the U.T.C. gave to native sport, and to ask natives to support the firm which so supported them. He was told not to run down other manufacturers or their cigarettes. At the time when Tutu started to work the U.T.C. C had given two trophies, each costing about six guineas and some £25 worth of cigarettes as prizes to native sporting organizations. It was largely because the emphasis was to be on assistance to sport that the instruction to pose as the sporting organizer was given. Tutu then went off and worked on his own. As other propagandists were engaged they were D trained by the existing ones. At no time was there any supervision of the work as it was done, but daily written reports of the work done were handed in at a conference which was held daily by Mr. van der Spuy with the propagandists. At these conferences the work of the preceding day, reflected in the reports, was discussed if there was anything which needed discussion, instructions as to the area or places of work were E given, suggestions and ideas were put forward, and each propagandist was given 250 cigarettes, and such other free gifts as were from time to time being distributed.

Apart from the very early period the propagandists were told to go where large bodies of natives would be met, to places such as beerhalls and F sports meetings, and to use natives in positions of authority, such as indunas at firms, as contact men to pass on their advertising talk and cigarettes and gifts to those under them. The propagandists were allotted areas for work on the Witwatersrand, with Tsotsobe in Pretoria, but they also worked together, especially in beerhalls. This work has been carried out by the propagandists continuously from 1947. The propagandists refer to the talk which they used as the 'mission'.

G The basis of the present action is that the U.T.C., mainly through these propagandists, has since about August, 1949, carried out a campaign of maliciously discouraging and preventing natives from buying Max cigarettes. Particulars of the statements complained of are set out in paras. 7 and 10 of the declaration. Para. 7, as amended, consists of H allegations in regard to 74 different statements by named employees of the U.T.C. In 70 of these the publisher of the statement is alleged to be one or other of the propagandists. Para. 10 sets out certain alleged statements by unknown European employees of the U.T.C.

Para. 12 of the declaration is a matter of dispute in argument. It reads:

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'The plaintiff says that the defendant acting through its said employees or agents carried out the aforesaid campaign or course of conduct by committing similar acts of conduct on occasions other than those set out in paras. 7 and 10 hereof. The plaintiff has no proof at present of such other occasions, but says that it is to be inferred from the facts that will be adduced in evidence at the trial of the action (being the facts set out in the declaration) that the said conduct took place on other occasions.'

A For the defendant it is argued that the only facts from which the Court can be asked to infer other similar facts are those set out in paras. 7 and 10, and the only approach of the Court should be to investigate the allegations of paras. 7 and 10 and to judge of proof of the campaign by the success of the plaintiff in that regard. The answer of the plaintiff is that among the 'facts set out in the declaration' is B the fact that there was a campaign, and facts, other than those proved under paras. 7 and 10, can be used to show the campaign if they do go to show it. This must I think be correct. If for example one of the propagandists had admitted the persistent making of a statement similar to one enumerated in paras. 7 and 10 it would be artificial to exclude C that from consideration. It seems that under either method of approach if no one statement alleged in paras. 7 and 10 is proved it would be difficult for the plaintiff to succeed. But if there is proof of statement under those paragraphs the probability of other similar statements and of the real matter to be proved, the campaign of disparagement, must I consider be judged in the light of other facts in D the case, such for example as the manner of working of the propagandists and not merely from the degree of proof under paras. 7 and 10.

In regard to the incidents alleged - in paras. 7 and 10 the first problem is how to approach the evidence. With one exception the allegations of each incident are denied by the propagandists concerned. E In argument the plaintiff has presented its case by submitting that from the evidence and reports of the propagandists there is a probability that they would have made the statements alleged, by submitting that the propagandists are untruthful witnesses, and by asking the Court to consider each incident against that background.

F After an endeavour to consider the incidents first, before considering the evidence of the propagandists as a whole, I have come to the conclusion that the latter is the only practicable way to approach the case, although it involves the unusual approach of reviewing the evidence for the defendant before that of the plaintiff. In considering G the evidence on the incidents pleaded in the order in which they were argued the problem of the credibility of several of the propagandists is quickly met, in the incidents deposed to by Adnewmah (3). (The numbers in brackets are the numbers of the witnesses in the order in which they were called.) The nature of the evidence given by the propagandists is such that in many respects it has to be considered as a whole. And it seems to me not to affect my approach to the case that I consider the H evidence of the propagandists before I actually reach the evidence of one publishee, when it would have to be considered at that stage in any event.

Before I come to deal with the evidence of the propagandists there are other general matters to be considered. It is a main part of the defence in the action that many of the plaintiff's witnesses have either

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been encouraged to give favourable evidence by payments to them, or have had the vital portions of their evidence suggested to them by Mr. Plumley. There is criticism of the plaintiff's case in the late pleading of incidents, in the late addition of other names in pleaded...