Kidson and Others v SA Associated Newspapers Ltd

• Jurisdiction: South Africa
• Judge: Kuper J
• Judgment Date: 05 May 1957
• Citation: 1957 (3) SA 461 (W)
• Court: Witwatersrand Local Division

H Kuper, J.:

This is an action for damages for defamation and injuria arising out of the publication in the Sunday newspaper called the Sunday Express of the following article in its issue of 11th November, 1956.

'97 Lonely Nurses Want Boy Friends.

If you are a bachelor, if you have transport and if you are lonely, you will be more than welcome at the Far East Rand Hospital after seven o'clock at

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night to entertain 97 'exiled' nurses, three of whom - Johanna Bruwer, Marie Kidson and Lettie Joubert - are pictured above.

The 97 nurses are students at the hospital. They have no boy-friends and no opportunities of meeting any. They spend their nights and off duties in the hospital grounds - because the Far East Rand Hospital is half way between Brakpan and Springs and they have no transport to the two towns.

Buses run from the towns to the hospital at odd hours in the morning, A afternoon and the last at 7.30 at night. The nurses come off duty at seven in the evening. They can go to one or other town, but can't get back to the hospital.

The recreation facilities are a swimming-bath - which is empty at present - and two tennis courts. They can't play tennis at night or swim during winter.

What to do? Sit in their rooms reading or writing or talking night after night?

No 'dates'. The only men they see are patients.

B The nurses appealed to the Hospital Board for help. Someone suggested that they be invited to dances in Brakpan and Springs. Dr. S. J. Jurgens (a member of the board) shook his head. 'They can't go to dances without partners.'

Dr. J. J. Swanevelder, medical superintendent of the hospital, told me that the problem would have to be solved. It would have to because it was also jeopardising the hospital's chances for recruiting staff. There are 97 student nurses at the Far East Rand Hospital. There should be C 213. Four wards stand empty.

Dr. Swanevelder and the matron firmly believe that a recreation hall will go far to improve the position. The recreation hall would be used for dances and other recreation, it could have a hairdressing salon, a cafeteria, a small library. But this dream - without the trimmings - is estimated to cost £12,000.'

Above the article there appears a photograph of the three nurses named D in the article under the caption 'Off duty: lonely and nowhere to go'. The photograph shows one nurse writing a letter, another reading a letter, and the third doing some needlework. These three nurses felt aggrieved at the publication of the article and photograph. Two of them (Kidson and Bruwer) joined as plaintiffs and each claimed from the defendant as the publisher of the Sunday Express £500 damages for E defamation and £500 damages for injuria. The third nurse (Joubert) is married in community of property and her husband, as the administrator of the joint estate, instituted a similar action in which similar amount of damages were claimed. The two actions were consolidated for the purpose of the trial. It will be convenient to refer to the wife as one of the plaintiffs.

F In the summonses that were issued the claims for damages for injuria were based upon the publication by the Sunday Express of the photograph without the consent and authority of the nurses but in the declarations this basis was varied so as to include the publication of the article without the consent and authority of the nurses, and it was said that G the publication of the article and photograph constituted an intentional infringement of the right of the nurses to personal privacy and was an unjustified aggression upon their dignity. No objection was taken by the defendant to this variation and the trial proceeded as though the summonses had been amended so as to conform with the declarations. In any event, Mr. Gordon, who appeared for the plaintiffs, did not contend H that the plaintiffs were entitled, if they succeeded, to damages under both heads, and he said that the claims should be regarded as alternative claims.

The plaintiffs did not allege that any secondary meaning should be attached to the article, and the meaning of the article as alleged in the declaration was that the nurses named in the article and appearing on the photograph would more than welcome any men for entertainment

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on social occasions in the evenings, even a complete stranger, provided only he was a bachelor and had transport. This, Mr. Gordon contended, was the primary meaning to be given to the portions of the article of which the plaintiffs complained.

It was common cause on the pleadings that the Sunday Express circulates within the Union of South Africa, South West Africa and Rhodesia. The A defence raised was a denial that the article was malicious or defamatory and a denial that the plaintiffs suffered any injuria.

From the evidence of Dr. Swanevelder, who was called as a witness by the plaintiffs, it appeared that for some little time prior to the B publication of the article, the Hospital Board of the Far East Rand Hospital had been appealing to the public for the necessary funds to build a recreational hall for both the student nurses and ordinary nurses attached to the hospital, and because of the geographical position of the hospital and the irregular nature of the available public transport the nurses were isolated when off duty. It was felt that the provision of a recreational hall would make a valuable C contribution towards providing means for the occupation of nurses when not on duty and would enable the nurses to arrange not only additional recreational facilities but also occasions for the holding of social functions. A certain amount of publicity was given to this appeal and, only a few days prior to the appearance of the article complained of, an D article had appeared in a newspaper circulating on the East Rand which described the loneliness of the nurses at the hospital.

As the result of the appearance of this article, the Sunday Express sent a reporter named Gibbs and a Press photographer named Forrest to the hospital in order to obtain an interview with the available authorities E on the subject of the loneliness of the nurses. Gibbs and Forrest met the matron of the hospital and the position of the nurses was discussed together with the desirability of building the recreational hall. Dr. Swanevelder entered the office of the matron during the course of this interview and participated in the discussion. There is some conflict between the persons present at the interview, all of whom were called as F witnesses, but for reasons which will later appear it is unnecessary to deal with this conflict. At the conclusion of the interview Gibbs suggested that a photograph be taken showing the occupation of the nurses when off duty so that the article to be written would more readily attract the eye. It was also suggested and agreed that after the article had been written...