Sauls and Others v Hendrickse

• Jurisdiction: South Africa

Sauls and Others v Hendrickse
1992 (3) SA 912 (A)

1992 (3) SA p912

Citation	1992 (3) SA 912 (A)
Court	Appellate Division
Judge	Hoexter JA, Smalberger JA and Van den Heever JA
Heard	May 11, 1992
Judgment	May 19, 1992

Flynote : Sleutelwoorde

Defamation — Who may sue or be sued — Defamation of a class or group of persons — Plaintiffs must prove that defamation was published of and concerning them — Words complained of must lead ordinary reasonable I person acquainted with plaintiffs to believe that words referred to plaintiffs personally — Test objective and actual intention of defendant irrelevant — Defendant (a politician) stating in press conference during time of unrest in schools in certain area that 'it had been shown that office-bearers of (certain trade union) were involved behind the scenes in the unrest and that certain teachers had also incited the students' — J Plaintiffs, office-

1992 (3) SA p913

A bearers of specified trade union, suing for defamation — Statement not expressly or by necessary implication referring to all office-bearers of union — Words in context referring only to some office-bearers — Reasonable person reading statement having no grounds for connecting it with plaintiffs personally — Plaintiffs not having discharged onus of B proving that statement referred to them personally and action thus failing.

Headnote : Kopnota

During a time of unrest at certain so-called 'coloured schools' in the Port Elizabeth and Uitenhage areas, the respondent (the defendant in the Court a quo), who was the leader of a political party in the House of Representatives and the chairman of the Ministers' Council, made a statement at a press conference in which he said, inter alia, that 'it had C been shown that office-bearers of the National Automobile and Allied Workers Union (NAAWU) were involved behind the scenes in the unrest and that certain teachers had also incited the students'. The appellant (plaintiffs in the Court a quo), all office-bearers of NAAWU, thereupon instituted action in a Local Division against, inter alia, the respondent for damages, claiming that the statement was defamatory of them. The action was dismissed by the Local Division on the ground that the onus of D proof that the statement 'relates to the plaintiff or any of them and/or would be understood as so doing has not been discharged'. In an appeal,

Held, that in order to succeed the appellants had to prove (the onus being on them) that the statement was defamatory, and that it was published of and concerning them.

Held, further, that the statement made no specific reference to the appellants: what it did was to refer to persons belonging to a class or group (office-bearers of NAAWU); and to succeed the appellants had to E establish that the words complained of would lead an ordinary reasonable person acquainted with them to believe, on reading the statement, that such words referred to them personally.

Held, further, that the test was, therefore, an objective one and the actual intention of the respondent was irrelevant.

Dicta in Knupffer v London Express Newspaper Ltd [1944] 1 All ER 495 (HL) at 497F-G, 498A and 498C applied. F

Held, further, that the present was not a case where reference was made to all the members of a group: the statement referred simply to 'office-bearers of NAAWU'; it did not in terms refer to all the office-bearers, nor could such a reference necessarily be implied.

Held, further, that, seen in their proper context, the words 'office-bearers of NAAWU' only referred to some office-bearers - 'some' in that sense denoted an unspecified yet relatively limited number. G

Held, further, that a reasonable person reading the statement would have no grounds for connecting it with the appellants personally, nor were there any background facts or surrounding circumstances from which a person acquainted with the appellants could reasonably have inferred that they were the office-bearers to whom the statement referred.

Held, accordingly, that the trial Judge had correctly held that the H appellants had failed to discharge the onus of proving that the statement referred to them personally. Appeal dismissed.

The decision in the South-Eastern Cape Local Division in Sauls and Others v Hendrickse confirmed.

Case Information

Appeal from a decision in the South Eastern Cape Local Division (Jennett J). The facts appear from the judgment of Smalberger JA. I

H J Liebenberg SC for the appellants: The trial Court erred in finding that plaintiffs failed to discharge the onus on them of proving that the relevant statement referred to the plaintiffs or any of them. This decision was based on the following findings by the trial Court: (1) the attack by defendant was not directed at all the office-bearers of NAAWU; (2) there was no evidence before it of any circumstances singling out the J plaintiffs

1992 (3) SA p914

A or any of them as being the office-bearers who were attacked; (3) there was no evidence before it as to how many office-bearers there are in NAAWU.

As to finding (1) above: This finding appears to have been based by the trial Court on the following: (1) Although not stated in the judgment in so many words, because defendant in the press statement referred to B 'office-bearers' of NAAWU and not 'all' the office-bearers of NAAWU. (2) The evidence of defendant that he deliberately did not refer to 'all' the office-bearers of NAAWU although when he spoke of 'office-bearers' he had in mind first and fifth plaintiffs. (3) Although not specifically referred to in the judgment, defendant in his evidence also stated in this regard that he never intended to defame office-bearers of NAAWU. The following C principles are applicable: It is no defence that defendant did not want to defame plaintiffs if reasonable people would think that the words referred to them. The true question is not who was meant, but who was hit. Holton and Co v Jones [1910] AC 20, quoted with apparent approval in Le Roux v Cape Times Ltd 1931 CPD 316 at 327. The real question is whether the D language used in reference to the office-bearers of NAAWU may reasonably be understood to refer to every member of that selected group, in which case every member may have a cause of action. Per Viscount Simon in Knupffer v London Express Newspapers Ltd [1944] 1 All ER 495 (HL) at 496. See also Visse v Wallach's Printing and Publishing Co Ltd; Visse v E Pretoria News and Printing Works Ltd 1946 TPD 441 at 448. The intention of the defendant cannot be allowed either to expand or contract the ordinary meaning of the words and they must be construed in the sense in which, under the circumstances in which they were published, reasonable men hearing them would be likely to understand them. Gray and Others v Young F 1940 EDL 83 at 90; Bane v Colvin 1959 (1) SA 863 (C) at 867A; A Neumann CC v Beauty Without Cruelty International 1986 (4) SA 675 (C) at 681E-F. The words must not be considered alone but must be considered in their context. Johnson v Rand Daily Mails 1928 AD 190 at 204. The following circumstances must further be taken into account: (1) The purpose of the press conference, namely to show that the unrest was politically motivated G rather than related to educational matters. (2) Defendant's belief that the political philosophy of NAAWU was in sympathy with the objects of the unrest. (3) Although having first and fifth plaintiffs in mind, defendant did not qualify his statement to refer to them only but widened the scope H of his attack. (4) Although defendant states that he deliberately did not refer to all the office-bearers, he also deliberately did not restrict his...