South Africa Associated Newspapers Ltd and Another v Estate Pelser

• Jurisdiction: South Africa
• Judge: Van Blerk ACJ, Wessels JA, Jansen JA, Rabie JA and Hofmeyr JA
• Judgment Date: 19 September 1975
• Citation: 1975 (4) SA 797 (A)
• Hearing Date: 15 August 1975
• Court: Appellate Division

Wessels, J.A.:

This is an appeal, with leave, from a judgment of HILL, A.J., in the Natal Provincial Division, dismissing with costs exceptions taken by appellants to the particulars of claim filed by the late Mr. Pelser in a defamation action instituted by him against them. His death occurred after the delivery of the above-mentioned judgment. This Court A was informed by counsel for the appellants that his executors had been substituted in his place in terms of a notice, dated 14 May 1975, given under Rule 15 (3) of the Uniform Rules of Court.

The action arose out of an article published by the first appellant in the Sunday Times (a weekly newspaper) of 15 April 1973. A copy of the article is annexed to the particulars of claim, and it reads as follows:

B "ANTI-HANGING MAN LASHES GOVERNMENT FOR LETTING MAKINITHA DIE

Sunday Times Reporter

Professor Barend van Niekerk, director of the Society for the Abolition of Capital Punishment, has criticised the Government for not stopping C the execution of a Black man this week - after reprieving his White partner in crime.

He was commenting on the fate of the two condemned murderers, Kenneth George Wilson and Zacharia Makinitha. Wilson was reprieved last month. Makinitha was executed on Thursday.

Both were sentenced to death last May for the murder of Mr. George Marinacos. Wilson appealed, but the appeal failed. The families of both men petitioned for clemency.

Professor van Niekerk, professor of law at the University of Natal, told me:

D 'The execution of Makinitha must fill all South Africans with shame.

Two persons of different races commit the same crime and are sentenced to the same punishment by a court of law; yet they are treated differently by the Executive on the plea of mercy.

One would have expected the Government to save the life of Makinitha, to avoid the obvious inference of discrimination; that they did not do so E speaks volumes for their lack of concern for justice and the reputation of our law.'

Professor van Niekerk said that if extenuating circumstances meriting reprieve were present in Wilson's case, they were also present in Makinitha's case.

*There was an indication that the Black man was under the influence of the White man.

*The Black man, 21, was three years younger than the White man.

*The Black man did not have the benefit of an appeal. 'Why an appeal was not lodged - especially after leave to appeal had been granted to the White man - leaves me aghast. The General Bar Council recently asked for an automatic appeal in cases where capital punishment was imposed.'

*Wilson was obviously better educated than Makinitha." F

It appears from the particulars of claim that since 1960, and at all material times thereafter, the late Mr. Pelser was the Minister of G Justice of the Republic of South Africa, responsible in terms of sec. 95 of Act 32 of 1961 for the exercise and performance of all the administrative powers, functions and duties affecting the administration of justice in the Republic and, as such, a member of the Executive Council thereof. It is averred, further, that first respondent is, and H has since earlier than 1973 been, the proprietor and the printer of the newspaper in question, and that second respondent is, and since 1971 has been, a professor of law and the director of the Society for the Abolition of the Death Penalty in South Africa. I shall hereafter refer to the appellants as the defendants and to the respondent as the plaintiff.

In so far as second defendant is concerned, it is averred, inter alia, in the particulars of claim that the article in question was based on a statement concerning the execution of Makinitha and the reprieve of Wilson which he had supplied to the editorial staff of the Sunday Times, intending that it, or

Wessels JA

excerpts from it, or a summary or paraphrase of it should be published therein and read throughout the Republic by many members of the public.

For present purposes it is sufficient to set out the following further averments in the particulars of claim (as amended) to wit:

"25.

A The said report contained remarks, being all those attributed in it to the second defendant, which comprised, reflected and were confined to:

(a)

a correct, accurate and complete version of the said statement;

(b)

alternatively, correct and accurate excerpts from the said statement;

(c)

alternatively, a correct and accurate summary or paraphrase of the said statement.

26.

When the said report was printed and published in the said B newspaper, many members of the public throughout the said Republic knew that:

(a)

the said State President was bound to and always did accept and follow the advice of the said Executive Council with regard to the grant and refusal of reprieves;

(b)

the members of the said Executive Council had therefore been the persons responsible for the decision that the said Wilson was to have been reprieved but that the said Makinitha was not to have been;

(c)

C the plaintiff was, and for a number of years he had been, the Minister of Justice of the said Executive Council;

(d)

the plaintiff had therefore been one of the persons responsible for the decision that the said Wilson was to have been reprieved but that the said Makinitha was not to have been.

27.

The said remarks meant that, when deciding that the said Wilson D was to have been reprieved but that the said Makinitha was not to have been, the persons responsible for the said decision, including the plaintiff, had:

(a)

not behaved honestly, impartially, fairly and justly;

(b)

behaved shamefully;

(c)

been actuated or influenced by improper considerations and impulses, including racial bias in favour of the said Wilson and against the said Makinitha.

(d)

E displayed a gross lack of concern for justice.

28.

To the extent of their said meanings, the said remarks were:

(a)

calculated, and intended by the second defendant, by the first defendant and by its said employee or employees who wrote the said report, to injure and to impair the dignity, reputation and prestige of the persons responsible for the said decision, including the plaintiff;

(b)

F defamatory of the persons responsible for the said decision, including the plaintiff;

29.

As the result of the publication in the said newspaper of the said remarks:

(a)

the plaintiff's dignity, reputation and prestige were injured and impaired;

(b)

the plaintiff suffered damage in the sum of R30 000."

In the result, plaintiff claimed judgment against the defendants, G jointly and severally, for payment of damages in the sum of R30 000 and costs.

After further particulars (not relevant hereto) had been furnished by plaintiff, a separate notice of exception to the particulars of claim was filed on behalf of each of the defendants. In so far as it is material hereto, first defendant's exception to plaintiff's particulars H of claim was based on the ground that they are bad in law and disclose no cause of action and/or lack averments necessary to sustain a cause of action, more particularly in that

"(a)

The report complained of is not reasonably capable of a defamatory meaning.

(b)

The report is not reasonably capable of any of the meanings assigned in para. 27 of the plaintiff's particulars of claim to the remarks allegedly contained therein.

(c)

The remarks complained of are not reasonably capable of being understood as being defamatory of the plaintiff as alleged in para. 28

Wessels JA

of the plaintiff's particulars of claim, and are not reasonably capable of being understood to refer to the plaintiff, more particularly in that the remarks refer only to the Government of the Republic of South Africa and not to any individual."

In so far as second defendant is concerned, two exceptions were taken, A the second of which is substantially the same as that taken by first defendant. In second defendant's heads of argument it is stated that he associates himself with the argument to be presented on first defendant's behalf and adopts it as if his own. The issues raised in his first exception do not arise for determination by this Court.

The argument addressed to this Court by counsel on defendants' behalf B was based on the following three propositions, namely:

1.

The article cannot reasonably be read as referring to any member of the Executive Council in his individual capacity.

2.

C The article cannot reasonably be read as conveying a meaning defamatory of any individual Cabinet Minister, including the plaintiff.

3.

The article would be read and understood by the reasonable reader as a legitimate exercise of the subject's right to criticise the Executive and its policies, and that to read and understand it otherwise would be to allow the Government to vex D the subject with defamation actions in an attempt to vindicate its executive decisions and policies.

In so far as the last-mentioned proposition is concerned, it was submitted by counsel appearing for plaintiff, firstly, that it was not raised as a separate and distinct issue in either of the notices of exception and, secondly, that, in any event, as formulated it cannot E constitute a separate and distinct legal issue triable by the Court at the exception stage.

In my opinion, however, the third proposition raises, albeit in a somewhat different form, the very same issue raised in the second proposition. To say that the reasonable reader would read and understand the article in a certain way, is merely another way of saying that it is not reasonably capable of bearing any other meaning.

F At the outset, it is necessary to make some reference to the legal nature and functions of the Executive. The reference in the article in question to "the Government" is clearly intended to be...