Sher v Vermaak

• Jurisdiction: South Africa
• Judge: Ploos van Amstel J, K Pillay J and Poyo-Dlwati AJ
• Judgment Date: 25 February 2014
• Docket Number: AR 197/13
• Hearing Date: 05 February 2014
• Court: KwaZulu-Natal High Court, Pietermaritzburg

Ploos van Amstel J

[1]

The respondent instituted an action against the appellants in which he claimed payment of a sum of R150 000 on the basis that the appellants had defamed him. Mokgohloa J found in his favour and ordered the appellants, jointly and severally, to pay him a sum of R 50 000 together with the costs of the action. The appeal before

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us is against the order relating to liability and the quantum of the award. There is also a cross appeal in which the respondent seeks interest on the judgment.

[2]

The respondent's claim arose out of a letter which was written by the first appellant and distributed by the second appellant, at his request, to members of the athletics section of the Stella Sports Club in Durban, of which all three parties were then members. It was the respondent's case on the pleadings that the letter as a whole was per se defamatory of and concerning him, and that certain passages thereof were intended to convey a distinctive defamatory sting, and were so understood by the recipients of it.

[3]

The background to the letter is that the respondent had been expelled from the club after a disciplinary hearing which was chaired by the first appellant. It read as follows:

'From the pen of Cecil Sher:

In my opinion…

There are many stories and rumors (sic) circulating about the saga with William Vermaak. As it involves me I feel I need to inform club members of my take on this episode. Over time, a number of incidents were brought to my attention and, in the interest of the club and its members, I had to act. Some complaints were verbal; others were written; some from members; and some from the public and an athletic club. The situation was very serious and a disciplinary (sic) was held. It was found that William's behaviour was unbecoming of a gentleman and that he had brought our club into disrepute.

William showed no remorse. He said he was blameless and is not in control of how other people react to his actions.

In terms of the disciplinary findings, he was asked to resign and failing resignation was expelled.

To my knowledge, William Vermaak is the first person to have been expelled from Stella Athletic Club.

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William never accepted the disciplinary nor did he accept those hearing it. He was arrogant to the point in telling us that our Constitution is old, invalid and superceded by the National Constitution.

He did the correct thing by forming a new club, namely KZN Striders. My reason is that I do not think that any Durban club would have welcomed him to their club.

Consequently he has poached and canvassed a number of our members to join him. They obviously enjoy his training and joined him. They are entitled to choose a club of their choice.

Members need to ask themselves "what they can do for their club" as opposed to using the club for their own ego and end; and especially without due regard to the club, other members and the public.

We welcome another running club in the area. It can only benefit road running in Durban.

Finally, after the shake out, I believe that William's behaviour will manifest itself in the future with other road users.'

[4]

The averments in the particulars of claim regarding the 'distinctive defamatory sting' were the following:

a.

the words 'to my knowledge, William Vermaak is the first person to have been expelled by Stella Athletic Club' were intended to isolate the plaintiff as the only person in the long history of the club to have been adjudged so unworthy as to warrant expulsion;

b.

the words 'he was arrogant to the point in telling us that our constitution is old, invalid and superceded by the National Constitution' were intended to connote that during his disciplinary hearing the plaintiff conducted himself in an overbearing, presumptuous and aggressively haughty manner;

c.

the words 'I do not think that any Durban club would have welcomed him to their club' were intended to suggest that such an odious reputation attaches to the plaintiff that not a single club in the greater Durban area would be prepared to admit him to membership;

d.

the words 'consequently he has poached and canvassed a number of our members to join him' were intended to convey the impression that the plaintiff solicited persons to join his new club by unfair means and illicit unsportsmanlike methods;

e.

the words 'members need to ask themselves "what can they do for their club" as opposed to using the club for their own ego and end; and especially without due regard to the club, other members and the public'

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were intended to connote that the plaintiff exploited the Stella Sports Club purely to nourish his own ego and advance his own objectives and in the process have (sic) no regard for the interests of the club or its members or the public;

f.

the words 'finally, after the shake out, I believe that William's behaviour will manifest itself in the future with other road users' were intended to connote that:

i.

the Stella Sports Club had finally purged itself of an unworthy member;

ii.

it is inevitable that the plaintiff will engage in future socially unacceptable behaviour to the detriment of runners, motorists and pedestrians.

[5]

In their plea the appellants denied that the statement was made wrongfully or with the intention to injure the respondent's reputation as:

a.

the statement was in essence true;

b.

the publication of the statement to the members of the athletics section of the club was in their interest;

c.

the statement was not a statement of fact but a comment concerning a matter of interest to the members of the athletics section of the club with regard to the alleged behaviour of the respondent at the disciplinary hearing;

d.

the comment was fair in the circumstances;

e.

the facts upon which the comment was based were true.

[6]

The basis on which the learned Judge a quo held the appellants liable was stated as follows in para 15 of the judgment:

'It may be true that the plaintiff was the first person to be expelled from the Club. It may also be fair for the members of the Club to be informed of this. However, the evidence of the defendants failed to show that the plaintiff has failed to show (sic) that the plaintiff was arrogant. Indeed, all that the plaintiff insisted on in the disciplinary hearing was to protect his legal right. It cannot be said that he was arrogant. Furthermore, the defendants did not deny that the plaintiff had achieved success with the training of his elite squad and that his manner of training benefited the group. Therefore, it is understandable that when he decides to start his own Club, most

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runners would join him and most existing clubs would certainly welcome him in their club. It can therefore not be said that he poached members to join his club. In my view, the letter written by the defendants carried words and phrases that were intended to injure the plaintiff's reputation among the members of the Stella Club.'

[7]

There is no specific finding in the judgment to the effect that any particular statement in the letter was defamatory. It was not argued before us that the whole of the letter was defamatory. It was accepted that some of the statements in it were positive, for example the statement that some members of the club enjoyed the respondent's training and joined him, and that the respondent's new club would benefit road running in Durban. In the paragraph to which I have referred the learned Judge held that the appellants failed to show that the respondent had been arrogant, and that...