Young v Kemsley and Others

• Jurisdiction: South Africa
• Judge: De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA
• Judgment Date: 30 April 1940
• Citation: 1940 AD 258
• Court: Appellate Division

Tindall, J.A.:

The appellant (whom I shall refer to as the defendant) appeals against a judgment of the Eastern Districts Local Division awarding damages against him in three defamation actions (which were consolidated for purposes of trial) brought against him by the respondents Kemsley, Gray and Rabie, all three of whom are members of the Liquor Licensing Board for Port Elizabeth The words complained of were used by the defendant at a meeting of the Town Council of Port Elizabeth on 28th June, 1939 It appears that the Council, which had been active for the past two years in carrying out a scheme for the elimination of slums and for providing better housing conditions for the poor,

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had become greatly concerned about the prevalence of drunkenness among the coloured population within the Municipality On the 26th May, 1939, representatives sent by the Council to Cape Town for the purpose, and three members of the House of Assembly for Port Elizabeth, were received by the Ministers of Justice and of Public Health, with whom the deputation discussed the need for imposing restrictions on the sale of liquor to coloured persons in the Municipality and the appointment of persons interested in social welfare as members of the Licensing Board At this meeting one of the councillors mentioned that in Cape Town a coloured person could only buy two bottles of wine at a time and that the Council desired the same restriction to be imposed in Port Elizabeth The representatives of the Council had on the previous day discussed the same questions with the Secretary for Justice who recommended that the Council should approach the magistrate of Port Elizabeth and place the full facts before him as Chairman of the Board The result was that on 20th June the Housing and Slum Elimination Committee of the Council passed a resolution recommending "that the Council approve of the imposition of restrictions of the amount of liquor to be sold to a coloured person to two quart bottles, as was the case in Cape Town and other cities and that representations be made to the Liquor Licensing Board accordingly." At the meeting of the Council on 28th June, included in the agenda was the said recommendation, which was submitted in the following form: "That the Council should make representations to the Liquor Licensing Board through the magistrate for the enforcement of certain restrictions as to the amount of liquor to be sold to certain persons in Port Elizabeth similar to those in operation elsewhere." It is common cause that by "enforcement" was meant, not the enforcement of existing restrictions, but the imposition of new restrictions, and that the "certain persons" referred to were the coloured persons in the Municipality At the time of the recommendation the only restriction as to quantity, in the case of off-consumption sales, was that imposed by sec 76 (4) of Act 30 of 1928, which limits the maximum quantity of liquor to be sold by a, bottle liquor licensee to any one customer at any one time to 12 quarts, a restriction which applied to Europeans as well as coloured persons In regard to hours of sale coloured persons were not subject to any restrictions which did not

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apply to Europeans, except that from 1935 the hours for on-consumption have been from 10 a.m to 10 p.m for non-Europeans whereas the closing hour in respect of Europeans has been 11.30 p.m.

It was during the discussion on the said proposed resolution that the defendant made use of the words complained of Two of the members of the Town Council were also members of the Liquor Licensing Board, namely the Mayor (McLean) and the plaintiff Kemsley, both having been appointed as from 1st January, 1939, by the Governor-General under sec 13 of the Act The other three members were the magistrate, who had stepped into the shoes of the previous magistrate about a month before the Council meeting in question, and the plaintiffs Gray (a member of the Divisional Council) and Rabie (a medical practitioner) who had been members from 1933 onwards Upon the sub-committee's said recommendation coming before the meeting of the Council the Mayor informed the meeting that he had been advised that, if the Council adopted the resolution to make representations to the Licensing Board, he himself and Councillor Kemsley would be rendered ineligible to sit on the Licensing Board when that board sat to consider the representations made It was at this stage of the meeting that the defendant, who had been a member of the Council for nearly 30 years, rose and in the course of an impromptu speech made use of the language which gave rise to the present actions.

"We have certain duties, and while it would be a great pity that members of the Council will not be able to sit, I don't think that it will make any difference I think, after all, it is fit that some public expression should take place, because the general opinion is that the Licensing Court is a 'scream' Everyone wonders who elects them The way that the Licensing Court has been constituted is a standing disgrace to Port Elizabeth - it is a standing disgrace to Port Elizabeth Coming to the liquor restriction we have a very intimate interest in seeing that the licensing laws are so conducted in this town that a section of the people, who can't look after themselves, are protected They are not protected to-day There is an attempt to overwhelm a section of the people by strong drink It is debauching the people by drink It is the way which poor people are

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attacked by the Licensing Board The court is the puppet of the publicans."

The words alleged are a transcript of the notes made by a stenographer present at the meeting; the defendant in his evidence was not prepared to deny the accuracy of the stenographer's record of what he said, and the trial court found that the defendant had used the said words The innuendos put on these words in the declarations of Gray and Rabie are the following:

". . . . that even if members of the said Council, to wit the said Mayor and the said John Joseph Kemsley, were to be allowed to sit at the meeting of the said Board to which the said recommendation should be submitted, this would have no effect in preventing the rejection of the said recommendation by all the members of the said Board (including plaintiff): that the said Board (including plaintiff) was an object of public ridicule: that the personnel of the said Board (including plaintiff) was a shame and a dishonour to Port Elizabeth: that the said Board (including plaintiff) had not protected the poor people of Port Elizabeth (who were unable to safeguard themselves) by imposing restrictions on the supply of intoxicating liquor to them, but that on the contrary by failing to impose such restrictions, it was attempting to demoralise and injuriously affecting their interests by overpowering them with intoxicating liquor: that the members of the said Board (including plaintiff) were not independent, impartial or unbiased, but that each and all of them were in fact the tools and instruments of the licensed victuallers, and were wholly subject to the suggestion and! control of the said licensed victuallers: and that the members of the said Board (including plaintiff) had been wholly governed in their conduct as aforesaid in failing to impose the said restrictions, and that in their dealings with the said recommendation, when it should come before them they would continue to be governed wholly, by their compulsion as aforesaid, to serve the interests of the said licensed victuallers to the prostitution of their public duty as members of the said Board."

In Kemsley's declaration the innuendoes are the same except that they contain no reference to conduct in the past, the reason for the difference being, presumably, that Kemsley, having been appointed to the Licensing Board for the first time in January, 1939, and

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having therefore not taken part in the business of an annual meeting of the Board, did not interpret the defendant's words as suggesting that he was in any way responsible for the past acts or omissions of the Board.

In his pleas to the innuendoes the defendant admitted only that he meant, and was understood to mean, that the presence of the Mayor and the said Kemsley would make no difference, that the said Board, as a Board, was the subject of unfavourable comment by the public, that the manner in which the Board was appointed was wrong though no allegation was made against the character or reputation of the individual members; and that the Board, as a Board, had not exercised the powers it possessed of restricting the supply of liquor to coloured persons who could not resist the temptation to obtain intoxicating liquor and so the said persons were enabled to get that liquor in excessive quantities The defendant denied the remaining allegations in the innuendoes The plea in each case denied that the words in question were spoken of the plaintiff or were defamatory of him, and alleged that they were spoken on a privileged occasion and without malice.

An alternative plea of fair comment on a matter of public interest was not argued on appeal, presumably owing to the difficulty of showing that the objectionable words amounted to no more than comment Though it is not necessary to discuss this defence, there can be no doubt on the evidence that drunkenness among the coloured population in the Municipality was not only a matter of great concern to the Town Council but had become a question of public interest in Port Elizabeth For years the police and others had tried unsuccessfully to induce the Licensing Board to impose restrictions At the meetings of the Licensing Board held in December, 1933, and December, 1934, the District Commandant of Police had requested the Board to impose restrictions on the quantity of liquor to be supplied to...