Sindani v Van der Merwe and Others

• Jurisdiction: South Africa
• Judge: Hefer ACJ, Cameron JA, Cloete AJA, Brand AJA and Froneman AJA
• Judgment Date: 27 November 2001
• Citation: 2002 (2) SA 32 (SCA)
• Docket Number: 212/2000
• Hearing Date: 19 November 2001
• Counsel: R Meyer SC for the appellant. F G Barrie for the respondents.
• Court: Supreme Court of Appeal

Brand AJA:

[1] Is it defamatory of a black man to impute to him that he abused a white man by calling him 'white trash'? That is the question raised by this appeal. J

Brand AJA

[2] The appellant is the chief executive officer of Athletics South Africa, the body that controls and administers the sport of A athletics in this country. He brought an action for damages for defamation in the Witwatersrand Local Division against the three respondents.

[3] The first respondent is a teacher and the coach of a prominent athlete, Mr Hezekiel Sepeng (Sepeng), who won a silver medal at the 1996 Olympic Games. The second respondent is the editor of B the Rapport newspaper, while the third respondent is employed by that newspaper as a journalist.

[4] The action arose from an article ('the article') written by the third respondent and published in the Rapport of Sunday 28 September 1997 in Afrikaans under the headline 'Sepeng C se breier glo as rassis uitgekryt' or, freely translated, 'Sepeng's coach said to be reviled as a racist'.

[5] According to the article, the first respondent had criticised Athletics South Africa in a letter to the press for not providing sufficient financial support to prominent athletes like Sepeng. After this letter was published in a daily newspaper the D appellant telephoned the first respondent. During the ensuing conversation, so the article informed its readers, the appellant proceeded to vilify the first respondent as a racist and to abuse him as 'white trash' who 'should rather have left the country with his white pals' (wit maatjies). E

[6] In the appellant's particulars of claim it was alleged that the article was defamatory of the appellant in that it would be understood by its readers to mean, in essence, that the appellant was a racist who conducted himself in a reprehensible manner. The respondents denied that the article was defamatory. In the alternative they pleaded a number of defences that would apply only if F it were found that the article was in fact defamatory. One of the defences raised was that the imputations made in the article were true and that they were published in the public interest.

[7] At the commencement of the trial, the Court a quo (Boruchowitz J) of his own accord ordered, as he was entitled under G Rule 33(4) of the Uniform Rules of Court, that the question whether the article was defamatory of the appellant be decided before and separately from any other issue or question. The appellant proceeded to call one witness with reference to this issue. The respondents called no witnesses but relied on the contents of certain documents and H newspaper publications that were admitted by agreement. In its judgment the Court a quo found that very little if any of the evidence presented was admissible and that, in any event, such evidence did not assist in the determination of the separated issue. Since I agree with the latter view I find it unnecessary to dwell on the admissibility of the evidence. I

[8] In the event the Court a quo held that the article was not defamatory of the appellant. Consequently, his claim for damages was dismissed with costs; whereupon the appellant sought and obtained the leave of the Court a quo for the present appeal to this Court. J

Brand AJA

[9] The appellant does not rely on any innuendo or secondary defamatory meaning which would be attributed to...