De Waal v Ziervogel

• Jurisdiction: South Africa
• Judge: Curlewis CJ Stratford JA, Beyers JA, De Wet JA and Watermeyer AJA
• Judgment Date: 08 November 1937
• Citation: 1938 AD 112
• Court: Appellate Division

Watermeyer, A.J.A.:

The plaintiff in this case was the minister of the Zeerust Congregation of the Nederduits Hervormde of Gereformeerde Kerk van Suid Afrika.

He sued the defendant, the head master of the secondary school at

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Zeerust, for damages suffered by reason of the publication by defendant of certain defamatory statements concerning the plaintiff on seven different occasions; and judgment was given in his favour for £50 damages in respect of five separate publications, being an award of £10 in respect of each publication. Against that judgment defendant now appeals.

It is not now disputed that publication took place and it is not disputed that the defamatory matter which was published was an allegation that the plaintiff had misconducted himself with the defendant's wife. No plea of justification was set up but defendant relied upon a plea of privilege.

The trial Court held that in respect of five of the publications complained of, no privilege had been established and the argument on appeal was mainly an attack on that finding.

The facts leading up to the publication of the defamatory statements are stated in the judgment of the Trial Court as follows: "Plaintiff has been the predikant of the congregation for over 20 years and defendant has been in Zeerust and occupied his present post since 1920. Apart from the social contact which was to be expected from the posts they held and their relationship as predikant and member of the church, they have been neighbours for years and were both on more than one committee or board relating to school matters. Both have families and were on friendly visiting terms. Defendant says that during about the year 1930 he received an anonymous post-card reading "pas op vir Ziervogel ons kerkhingst en U vrou." Until that time he had not the slightest suspicion of any irregularity in the relationship between his wife and plaintiff and, in his trust in his wife, this anonymous message produced no effect. He tore up the post-card and mentioned it to no one, but was disillusioned about two years later. He says that for some time before about June, 1932, his wife had been looking unhappy and one day in June or thereabouts when he asked her the reason she burst into tears, and later in the day said she had been unfaithful and had had sexual intercourse with the plaintiff. Defendant did not immediately tax plaintiff with his misconduct; he says, and one can understand his perplexity, that the situation was a difficult one and he needed time to think it over. He says that he never cohabited with his wife after this date, but they went away together to Warm baths for the mid-winter school holidays and that early in August shortly after their return, plaintiff

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visited them and his wife handed plaintiff a letter written by her but which spoke on behalf of husband and wife and informed plaintiff inter alia that his presence was not welcome in their house; a copy of this letter was kept by defendant but he says be destroyed it when he went overseas on long leave about March, 1933; he has handed in a document (Exhibit B.), which he says he and his wife reconstructed from memory after his return from overseas in July or August, 1933; although he is not prepare to say that this is a verbatim copy of the letter handed to plaintiff he is satisfied that the differences if any are matters of wording and nothing more. After receipt of this letter he says plaintiff came to see him at the school; he told plaintiff he wanted a confession from him, and plaintiff gave him to understand that a confession was possible and suggested that they go to defendant's home which was done and there plaintiff confessed, but, as I understand the evidence, first imposed two conditions as precedent to an actual confession viz: (1) that defendant and his wife should continue to live together (2) that an outward show of friendship between plaintiff and defendant and his, wife should be maintained. This was agreed to by defendant. Over a long course of discussion between defendant and his wife, defendant gathered that the first sexual intercourse took place at the Victoria Hotel, Johannesburg, in December, 1927, in circumstances that amounted to rape on plaintiff's part and that between that time and her first confession there had been intercourse on a number of occasions in different parts of defendant's house."

Reference is then made in the judgment to two incidents which seemed, to indicate that the relationship between plaintiff and defendant was more friendly than was required by the condition that there should be an outward show of friendship between them.

The judgment then continues: "It is unnecessary to refer to the relationship or the events during the period from defendant's return from overseas until his wife's death, which took place on 4th August, 1936. She died in Johannesburg but it appears that statements made by her shortly before her death to defendant but more particularly to a consulting physician who attended on her in Johannesburg which was communicated to defendant, made a profound impression on him notwithstanding his previous knowledge of her infidelity."

It is not clear what happened from August to November, 1936, but on November 19th defendant addressed a letter to plaintiff in

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the following terms: "My vrou is gelukkig deur die dood verlos uit die hel waarin sy nege jaar lank verkeer het as gevolg van jou gewetenloosheid. Sy het die dokter op Johannesburg gesmeek om haar 'n oor-dosis verdowingsmiddel te gee omdat sy 'n 'mess' van haar lewe gemaak het. G'n wonder dat sy daarop gestaan het om veras te word en dat die as verstrooi moes word.

Ten alle koste moes jy van die begrafenis geweer word. Na dit my bittere lot was om die uitwerking van jou verwoestingswerk op 'n mensesiel tot die ontsettende einde te aanskou, is ek dit minstens aan haar lyding sowel as teendor die gemeente van Zeerust verskuldig om 'n eind aan jou misdadige loopbaan te maak. Jy het al baie kans gehad om jou te bedink.

Binne 'n week moet jou bedanking in die hande van die Kerkraad wees."

The reply was dated 26th November, and it was in the following terms: "U brief van 19 deser het ek ontvang. Weens die motorkar ongeluk antwoord ek non eers. Oor die inhoud verbaas ek my, en dit nogal op hierdie tydstip.

Ek ontken die aantygings daarin gemaak. Natuurlik sal ek nie nou op U dreigement my bedanking by die Kerkraad indien nie."

The defendant thereupon on 3rd December wrote a letter to van Niekerk an ouderling of the Zeerust Church in which he made a formal charge against the plaintiff which he desired to be placed before the Kerkraad. The letter was as follows: "As ouderling van my wyk stuur ek hierby 'n klagte teen ons diensdoende predikant, Ds. H. W. Ziervogel. Soos U sal sien is ook kopieë aangeheg van sekere briewe waarna verwys word.

Ek sal bly wees as U die klagte by die eerskomende vergadering van ons Kerkraad op Saterdag 5 Desember, wil indien vir behandeling. Ek hoop teenwoordig te wees om beskikbaar te weeks as klaer en getuie.

'n Afskrif van klagte en aanhangsels sal ook deur my aan die Voorsitter (Beskuldigde) oorhandig word."

In the meanwhile between the 18th November and the beginning of December the defamatory statements with which this appeal is concerned had been published.

It is important to know how they came to be published. It is clear that before the letter of the 19th November was, written the defendant was troubled, he thought that it was undesirable that

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plaintiff should continue in his office as minister at Zeerust but he did not know what to do so he consulted two attorneys Hummelen and van der Spuy. The evidence of these two witnesses was accepted by the court below and they give an explanation which I shall quote:

Hummelen says that defendant consulted him on a date which as I read the evidence must have been on 17th November or just before. Defendant wanted Ziervogel away from Zeerust. Hummelen's words are: "He (defendant) said he (plaintiff) was a danger to the congregation and he must go. He said it was a duty. His chief difficulty was his duty to the congregation."

Hummelen then said: "Look here you have gone through hell all these years, drop the matter."

Defendant then said: "I think it is a duty to the Congregation."

Hummelen then said it was a matter for the Church and could only be done through an ouderling. As a result of this consultation Hummelen sent van Niekerk an ouderling to interview defendant on 18th November and defendant told van Niekerk of the relationship between plaintiff and defendant's wife.

The purpose of the interview is clearly stated by van Niekerk. Defendant told van Niekerk that he was going to ask plaintiff to resign. Van Niekerk said plaintiff would not resign. Defendant then suggested that van Niekerk should resign by pressure of public opinion. Van Niekerk said he could not resign for certain reasons and defendant then said in that case he would have to lay a formal complaint. Van Niekerk understood from his conversation with defendant that if only the plaintiff would resign nothing further would be heard of the matter. Defendant regarded it as his duty towards the congregation to see "dat daar reinheid in die Kerk moet wees."

This communication was held to be privileged by the trial Court because defendant sought advice from van Niekerk as to how he should act. Hummelen's and van Niekerk's evidence may however he of importance because it indicates the defendant's state of mind.

Hummelen also gives evidence which shows how publication came to be made to Vlok. Vlok was the magistrate of Zeerust. It e attended the Zeerust Church and was a member of the Church but not a member of the Zeerust congregation of the Church. He took a deep interest in Church matters. He heard rumours about the

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misconduct...