National Union of Distributive Workers v Cleghorn and Harris Ltd

• Jurisdiction: South Africa
• Judge: Tindall JA, Greenberg JA and Schreiner JA
• Judgment Date: 10 December 1946
• Citation: 1946 AD 984
• Hearing Date: 25 October 1946
• Court: Appellate Division

Tindall, J.A.:

This appeal is brought against a judgment given in the Witwatersrand Local Division on an exception taken by the plaintiff company to the defendant's plea to a claim for damages for defamation. The defamatory matter complained of is contained in a handbill, copies of which were published by the defendant admittedly to employees of the plaintiff company and, according to the plaintiff's declaration, to other persons whose names are alleged to be unknown to it. The latter publication is

Tindall, J.A.

denied in the plea. The plaintiff company carries on the business of drapers and outfitters in Johannesburg and elsewhere in the Union. The declaration, which attaches a copy of the handbill, alleges that it is defamatory of the plaintiff in that it imputes, was intended by the defendant to impute and was understood by the persons to whom it was published to impute, that the plaintiff failed to pay its employees a living wage. It is not disputed that the plaintiff company relies on the primary meaning of the handbill for the innuendo alleged.

The defendant in its main plea (with which alone we are concerned at present) admitted the alleged publication to the plaintiff company's employees and pleaded further as follows: "3. The defendant denies that the said handbill is false or defamatory of the plaintiff, and further denies that it imputes or was intended to impute or was understood by any person to impute to the plaintiff any of the imputations or meanings alleged in paragraph 5."

To this plea the plaintiff filed an exception based on the ground that the plea was bad in law and disclosed no defence. MURRAY, J., upheld the exception, being of opinion that, taking the handbill in its primary sense, without evidence of any extrinsic facts, the only possible construction that reasonable persons of ordinary intelligence could possibly put on it was that it conveyed the imputation that the plaintiff, though financially able to do so, was in fact not paying a living wage to its employees, which imputation was in the learned Judge's view defamatory. The defendant appeals against the order upholding the exception.

If the learned Judge's view as to what was the only possible construction of the handbill was correct, then it would follow, as was admitted by Mr. Rosenberg on behalf of the defendant in this appeal, that the exception was rightly upheld. But Mr. Rosenberg argued that the learned Judge erred in holding that the handbill in its primary meaning was incapable of a non-defamatory meaning.

Mr. Stratford, on behalf of the plaintiff, argued that this Court should hold that the handbill, on the meaning it bears on the face of it, is defamatory of the plaintiff and that if the defendant relies on a non-defamatory meaning he should allege this and any special facts relied on to support it. Mr. Stratford admitted that if it could be proved that there was in operation at the time of the

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alleged libel a statutory wage determination regulating the wage of employees of the class of the plaintiff's employees and that the existence of such a determination was known to the persons to whom the handbill was published, evidence to this effect would be material to the question of the interpretation which would be put on the handbill by reasonable persons with such knowledge. He contended strongly, however, that the plea ought to have alleged facts of the kind mentioned and that, in the absence of an allegation in the plea of facts of that kind, the plea is bad.

On the threshold of this argument lies the question whether the handbill in its ordinary meaning is incapable of a non-defamatory interpretation. In my opinion the answer is in the negative. As we are not deciding, as on a trial of the case, what the handbill must have actually conveyed to the persons to whom it was published, but are only dealing with the question at the exception stage, it is not desirable to discuss in these reasons the pro's and con's respectively for and against the two interpretations that were submitted to us in the respective arguments of counsel. At the present stage it would be out of place to say more than that the contents of the handbill in their ordinary meaning are capable of a nondefamatory construction.

On this view of the interpretation of the handbill the basis on which the exception was upheld in the Court below falls to the ground. Is there, then, any other ground on which the plea is open to exception? I can find none. A plea denying that the handbill is defamatory or bears the imputation alleged is neither bad in law nor does it disclose no defence. Rule 29 of the Transvaal Rules of Court provides that the defendant shall in his plea either admit or deny, or confess and avoid all the material facts alleged in the declaration and shall clearly and concisely state all the material facts on which he relies. Whether the words complained of are capable of the defamatory meaning alleged is a question of law. But if, as in the present case, the words are also capable of a nondefamatory meaning, the meaning which they actually conveyed is a question of fact. See Stubbs Ltd. v Russell (1913, A.C. 386 at p. 393). It was, therefore, proper for the defendant in the plea to deny the defamatory meaning alleged. And it was not necessary for the defendant to specify the interpretation it places on the handbill. The absence of an allegation in the plea of extrinsic facts does not make it a bad plea.

Tindall, J.A.

If the case goes to trial and evidence of extrinsic facts is tendered on behalf of the defendant (without previous amplification of the plea), the question of the admissibility of such evidence may arise. During the arguments of counsel the case of Sutter v Brown (1926 AD 155) was referred to. There the words complained of were, on the face of them, defamatory, alleging as they did the commission of a criminal offence, namely illicit liquor selling; but they were ambiguous in the sense that the imputation they conveyed embraced contraventions of the Liquor Law, some more serious than others, the one assigned in the innuendo, namely that of selling liquor to coloured, persons, being the most serious of all. The trial Judge had admitted evidence, tendered on behalf of the plaintiff, of surrounding circumstances, namely evidence showing the overwhelming preponderance of the last mentioned crime in the Transvaal over all other contraventions of that law, and newspaper reports Showing that prosecutions for that crime were reported from time to time under the heading of "illicit liquor selling". The trial Court had held, however, that a witness who heard the words uttered could not be asked what he understood by them. On appeal this Court approved of those rulings. The original record shows that the surrounding circumstances there relied on had not been alleged in the plaintiffs declaration, but...