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[2012] ZAGPJHC 164
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Buthelezi v BDFM Publishers (Pty) Ltd and Others (26184/2011) [2012] ZAGPJHC 164 (18 September 2012)
REPORTABLE
IN THE SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NO : 26184/2011
DATE:18/09/2012
In
the matter between:
PRINCE
MANGOSUTHU
BUTHELEZI
.....................................................
Plaintiff
and
BDFM
PUBLISHERS (PTY)
LIMITED
......................................................
First
Defendant
PETER
BRUCE
..........................................................................................
Second
Defendant
PROTAS
MADLALA
..................................................................................
Third
Defendant
JUDGMENT
WILLIS
J:
[1]
The plaintiff is H.R.H. Prince Mangosuthu Buthelezi. He has
instituted a defamation action against three defendants. He has
claimed damages in an amount of R200 000- together with interest and
costs as well as the publication of an apology and a ‘retraction’.
Counsel referred, throughout their submissions, to the plaintiff as
‘the Prince’. I shall do likewise. The alleged
defamation arises from an article published on 30 June 2010 by
Business Day, a daily newspaper of which the first defendant is
the
owner and publisher and the second defendant, Peter Bruce, the
editor. In that article it was reported that the third defendant,
‘an
independent political analyst’ had said that the Prince ‘has
always been a violent man’. I shall refer
to the first
defendant as ‘the newspaper” and the second defendant as
the ‘editor’.
[2]
The newspaper and its editor, but not the third defendant, have
excepted to the plaintiff’s particulars of claim on the
basis
that ‘when the article is read as a whole it sets out, in a
balanced fashion, competing viewpoints in relation to the
plaintiff
and his attitude to violence in the past and the future’. The
newspaper and its editor further contend, in their
exception, that
‘the author and publishers of the article do not, in the
article, endorse any one of those viewpoints’.
In the
circumstances, the newspaper and its editor allege that the Prince’s
particulars of claim lack averments necessary
to sustain a cause of
action and that, accordingly, the Prince’s claim should be
dismissed, with costs.
[
3] The article in question reads as follows:
Buthelezi
sounds that familiar warning
BY SIBONGAKONKE SHOBA,
JUNE 30 2010
“
IF
YOU warn a person when you cross the street that there is a snake,
that there is a mamba there, that does not mean that you put
it
there."
This
is how Inkatha Freedom Party (IFP) leader Mangosuthu Buthelezi
responded to suggestions that his warning - that violence would
erupt
should the African National Congress (ANC)-led tripartite alliance
march to Ulundi before the first democratic elections
- was an
attempt to threaten his opponents.
Mr
Buthelezi warned the ANC and its allies that, if they marched to
Ulundi, the Bhisho massacre would look like a school picnic.
About 28
people were killed by Brig Oupa Gqozo-led soldiers in Bhisho in 1992.
After this warning, the planned march to Ulundi
was called off. But
that was then.
Now,
with just weeks before he faces near certain challenge, Mr Buthelezi
is again warning of violence. But this time not against
his
traditional political foes, but those within the IFP.
Writing
in his online newsletter, Mr Buthelezi warned of a threat of violence
at the party's planned elective conference next month
if differences
within the organisation were not resolved.
"As
the IFP approaches its annual general conference, the leadership of
the party is apprehensive over the threat of violence,"
he
wrote. He called for an urgent leadership meeting to iron out
differences before the conference.
Mr
Buthelezi is facing a revolt within the IFP , which he formed 35
years ago. A faction within the party, led by the IFP Youth
Brigade,
wants Mr Buthelezi to be succeeded by party chairwoman Zanele
Magwaza-Msibi next month. Supporters of both Mr Buthelezi
and Ms
Magwaza-Msibi, who call themselves the friends of VZ (Ms
Magwaza-Msibi's first name is Veronica), have clashed in recent
months .
Youth-wing
leaders who have publicly supported Ms Magwaza-Msibi have been
expelled for sowing division in the party.
Mr
Buthelezi says this is a result of a "disappearance" of
respect, which has been replaced by "rudeness and vulgarity".
"The
corrosion of a culture of respect can only end in bloodshed. We need
to arrest this development," said Mr Buthelezi.
Political
analysts differ on the motive behind these statements.
Political
analyst Aubrey Matshiqi says he agrees with Mr Buthelezi that the
emerging feature of violence in "our black politics"
must
be eradicated. But Mr Matshiqi cautioned against predicting unrest at
the planned congress. "He himself is feeding in
to this culture
of violence."
Mr
Matshiqi says it is self-serving for Mr Buthelezi to blame the lack
of respect for the chaos in his party. "He is saying
show
respect for me because I'm older, instead of saying I'm a credible
leader." He says Mr Buthelezi has a history of threatening
opponents with a possibility of violence "when he did not get
what he wanted" in the '80s and '90s. "He would say
there
would be violence and violence will follow," says Mr Matshiqi.
Independent
political analyst Protas Mgadlala agreed, saying Mr Buthelezi "has
always been a violent man".
The
Rev Musa Zondi, IFP secretary and Mr Buthelezi's right-hand man, says
comments linking his party leader to violence "do
not deserve a
decent comment". "That argument is not sustainable. (Mr
Buthelezi) is talking about the reality within
the IFP . Violence has
been used in all our conferences."
Siphamadla
Zondi, a political analyst with the Institute for Global Dialogue,
concurred with the Rev Zondi, saying Mr Buthelezi's
warning was out
of genuine concern.
"I
don't think he is saying this as a threat to his opponent. It is not
in his interest to do that because it would make him
look bad,"
says Mr Zondi. He blames the tension within the IFP on the
leadership's actions to silence the youth.
"Mr
Buthelezi should have allowed a smooth transition... The IFP tried to
silence the youth instead of harnessing it to deepen
democracy."
Analysts
say it does not matter who put the snake on the street, the IFP must
kill it before contesting next year's elections.
[4]
The Prince alleges that the following passages in the article:
(i)
Now, with just weeks before he faces near certain challenge, Mr
Buthelezi is again warning of violence. But this time not against
his
traditional political foes, but those within the IFP…
(ii)
Mr Buthelezi has a history of threatening opponents with a
possibility of violence "when he did not get what he wanted"
in the '80s and '90s… and
(iii)
Independent political analyst Protas Mgadlala agreed, saying Mr
Buthelezi "has always been a violent man". taken
in context
would have been understood by the ordinary reader as stating that the
Prince is a violent man and is willing to or was
intending to use the
threat of violence against his political opponents within the Inkatha
Freedom Party (IFP). Accordingly, so
it is alleged, the article was
defamatory of him.
[5]
Separate allegations were made in the Prince’s particulars of
claim of defamation by Protas Madlala, the third defendant,
in making
the allegations which appear in this article. The Prince’s
claim against the third defendant is thus not necessarily
joint and
several with the newspaper and its editor but may stand alone.
[6]
As Davis J (as he then was) said in Glaser v Heller
1
and repeated in Kahn v Stuart,
2
‘The true object of an exception is either, if possible to
settle the case, or at least part of it, in a cheap and easy
fashion’. This was approved by Steyn J and Broeksma AJ in
Suburban Real Estate Limited v Whall and Bocking
3
and it seems by necessary implication to have been approved in this
division of the High Court by Botha AJ (as he then was) in
Marais v
Steyn en ’n Ander.
4
In Dharumpal Transport (Pty) Limited v Dharumpal
5
it was said that the main purpose of an exception was ‘to avoid
the leading of unnecessary evidence’.
6
This dictum has been followed in numerous cases.
7
[7]
In general, the rule is that an exception has to be decided by the
court on the pleadings themselves without the leading of
evidence.
8
Again, in general, pleadings tend to be skeletal but flesh may
sometimes be discerned on the bones without the bones being dressed
by the giving of viva voce evidence. A court may, in appropriate
circumstances, stray a little outside the pleadings to have regard
to
the surrounding circumstances: as was said by Harms JA (as he then
was) when he delivered the unanimous judgment of the Supreme
Court of
Appeal (SCA) in Telematrix (Pty) Limited t/a Matrix Vehicle Tracking
v Advertising Standards Authority SA:
9
Exceptions
should be dealt with sensibly. They provide a useful mechanism to
weed out cases without legal merit. An over-technical
approach
destroys their utility.
10
[8]
Relying on the case of R v Tager
11
in which what was then known as the Appellate Division of the Supreme
Court of South Africa (‘the AD’) distinguished
between
knowledge which the judge has as a result of being an individual
observer and knowledge which is ‘notorious’,
12
I may fairly have regard to the fact that political violence in the
province of Kwazulu/Natal since the mid-1980’s has become
a
notorious fact. The report of the Truth and Reconciliation
Commission
13
records that it is widely accepted that as many as 20 000 lives may
have been lost as a result of this violence.
14
In the three month run-up to the first democratic elections in 1994
approximately 2000 people were killed as a result of political
violence in Kwazulu/Natal.
15
It is also notorious that the dramatis personae in this violence have
been the supporters of the IFP and the African National Congress
(ANC) respectively.
16
For the purposes of this judgment, the factual detail is
unimportant. What matters is that, like the daubs of an impressionist
painting, a picture of the situation has been created that is both
vivid and embellished in our collective memory. This picture
of
violence is not only tragic but inimical to our progress as a nation.
Even if I am wrong in having regard to these notorious
facts, my
ultimate decision would be no different. The notorious facts merely
strengthen the conviction with which I have reached
my conclusion.
[9]
Our law protects the right of the Prince to fama or reputation.
17
In his particulars of claim the Prince describes himself merely as
the head of the IFP, a duly registered political party. The
Prince
may have been guilty of undue modesty. It is an understatement to
describe the Prince as the head of a political party.
He is much more
than that. He has served as Acting President of our country. The
Prince rivals H.M. Queen Elizabeth II as a public
figure who has been
around and reported upon for as long as almost anyone can remember.
In his a long career in public life, the
Prince has attracted both
admirers and detractors. In public affairs and, in particular,
political contestation in South Africa,
the Prince has a fama that is
so well established that it is impervious to a newspaper article
reporting on the contumeliae (insults)
of the kind in question which
were allegedly made by the third defendant. As the Afrikaans proverb
goes, ‘Die hoogste bome
kry die meeste wind’. This may be
somewhat inelegantly translated into English as “The taller the
tree, the more it
is buffeted by the wind’.
[10]
The case also has to be decided against a constitutional right to
freedom of expression, which expressly includes the freedom
of the
press,
18
as well as a common law reluctance to regard political utterances as
defamatory. As was said by Grosskopf JA, delivering the unanimous
judgment of the court in Argus Printing and Publishing Company
Limited v Inkatha Freedom Party,
19
this reluctance stems from the fact that it is recognized that
‘right-thinking people are not likely to be greatly influenced
in their esteem of a politician by derogatory statements made about
him by other politicians or political commentators’.
20
Accordingly, in a political context, the traditional test of
determining whether the words of which there is a complaint tend to
lower the plaintiff ‘in the estimation of right-thinking
people’ is not easily straddled.
21
[11]
In the Argus Printing and Publishing v Inkatha case Grosskopf JA went
on to say that ‘(w)hen one is dealing with political
matters, a
great deal of latitude is traditionally allowed for comment’.
22
The learned judge also referred to the celebrated words of Ludorf J,
in Pienaar and Another v Argus Printing and Publishing Company
Limited,
23
known to every student learning about the law of defamation in the
university for the first time:
(T)he
courts must not avoid the reality that in South Africa political
matters are usually discussed in forthright terms. Strong
epithets
are used and accusations come readily to the tongue. I think, too,
that the public and readers of newspapers that debate
political
matters, are aware of this. How soon the audiences of political
speakers would dwindle if speakers were to use the tones,
terms and
expressions that one could expect from a lecturer at a meeting of the
ladies agricultural union on the subject of pruning
roses.
24
In
The Citizen 1978 (Pty) Limited v McBride (Johnstone and Others, amici
curiae),
25
the majority of the Constitutional Court endorsed the general thrust
of ratio for the decision in the Argus Printing and Publishing
v
Inkatha case.
26
[12]
It has long been recognized in our law that the words in respect of
which there is a complaint by the plaintiff must not only
be
insulting from a subjective point of view but must also be insulting
when viewed objectively.
27
The objective test is measured against a criterion of reasonableness
(an ‘algemene redelikheidsmaatstaf’).
28
[13]
The opening sentences of the article in question, viz.
“
IF
YOU warn a person when you cross the street that there is a snake,
that there is a mamba there, that does not mean that you put
it
there."
This
is how Inkatha Freedom Party (IFP) leader Mangosuthu Buthelezi
responded to suggestions that his warning - that violence would
erupt
should the African National Congress (ANC)-led tripartite alliance
march to Ulundi before the first democratic elections
- was an
attempt to threaten his opponents.
together
with the closing sentence, viz.
Analysts
say it does not matter who put the snake on the street, the IFP must
kill it before contesting next year's elections.
provide
parameters or matrices to the article which give it context. As Lord
Steyn said in R v Secretary for the Home Department,
ex parte Daly,
29
“In law, context is everything”. This was approved by
the Supreme Court of Appeal in Aktiebolaget Hässle and
Another v
Triomed (Pty) Ltd.
30
The importance of context in defamation actions has pertinently been
affirmed by the Constitutional Court in the case of Le Roux
v Dey.
31
[14]
Mr du Plessis, who together with Ms Pudifin-Jones appeared for the
Prince, submitted that it is not only the context of the
offending
statements in the article itself which is relevant to the question of
whether the article is defamatory but also the
context and
circumstances in which the article was published. In other words, so
he submitted, the court needs first to obtain
a bigger picture of
what the reasonable reader would understand when reading the article.
This, so the argument went, was a matter
for evidence.
[15]
Mr du Plessis also placed especial reliance on the case of Sutter v
Brown
32
in which Innes CJ, delivering the unanimous judgment of the AD, held
that where the words in question were not per se et propria
significatione contumelium inferent (i.e. not defamatory in their
ordinary and natural signification) but had a secondary meaning
the
significance of which would be appreciated by the hearers and which
secondary meaning would be defamatory, then evidence would
be
necessary.
33
Innes CJ was here referring to an innuendo.
34
No innuendo or secondary meaning to the words in question has been
pleaded by the Prince. The audience of this publication is the
general reading public (although it may fairly be recognized that, in
general terms, that reading public of this newspaper is drawn
mainly
from the better educated classes in the country). The audience is not
a group of ‘insiders’ or ‘those
in the know’
who may understand there to be some kind of innuendo. The case of
Sutter v Brown does not assist the Prince.
[16]
Mr Du Plessis further submitted that, the correct test to be applied
at exception stage is whether a reasonable person of ordinary
intelligence might reasonably understand the words of the article to
convey a meaning defamatory of the plaintiff. In this regard
he
relied on the following cases: Basner v Trigger;
35
Conroy v Stewart Printing Company Limited;
36
Argus Printing and Publishing Company v Esselen’s Estate;
37
;
Mthembi-Mahanyele v Mail & Guardian Ltd and Another.
38
In his submission the word ‘might’ is central to the
analysis, as it indicated a mere possibility, not a probability.
Relying on National Union of Distributive Workers v Cleghorn &
Harris Limited
39
and Mangope v Asmal ,
40
he submitted that the test on exception is not whether the statement
is defamatory on a balance of probabilities, but rather whether
it is
‘reasonably capable’ of conveying a defamatory meaning
and, if so, that the exception must fail.
[17]
In response to Mr du Plessis’ submissions that the matter could
not be decided without the hearing of evidence, Mr Budlender,
who
appeared for the newspaper and its editor, retorted there was an
authoritative answer: in Le Roux v Dey (supra), Brand AJ,
delivering
the judgment of the majority of the Constitutional court, said:
Because
the test is objective, a court may not hear evidence of the sense in
which the statement was understood by the actual reader
or observer
of the statement or publication in question.
41
Mr
Budlender’s reliance on Le Roux v Dey has provided the complete
answer to the point of Mr du Plessis about the need to
hear evidence
before deciding this matter.
[18]The
context in which the article is read gives it the following overall
import:
(i)
that, although not everyone will agree that the Prince is entirely
innocent of the political violence, the Prince could be understood
to
have merely warning about the real possibility of violence over the
issue of the leadership of the IFP rather than fomenting
it himself;
and
(ii)
that political violence was metaphorically analogous to a dangerous
snake which the IFP had a duty to kill.
[19]
In the absence of an unequivocal call to his followers within the IFP
to bring about an end to on-going political violence
in the province
of Kwazulu/Natal,the Prince, as its head, cannot escape being tainted
with the suspicion that he may bear some
responsibility, at least in
part, for it. This does not mean that he is indeed in favour of the
use of political violence or that
he himself resorts to it or
promotes it. The article in question does not suggest that this is
indeed the case. It merely raises
the possibility that it is true
because certain commentators believe it to be so. If the Prince’s
alleged complicity in the
violence is true, it is for the public
benefit and in the public interest that it be known.
42
[20]
The article in question cannot be defamatory for a reason that is
mathematical in both its simplicity and its lucid beauty:
it leaves
open the possibility that the Prince is not complicit in
Kwazulu/Natal’s political violence (in which case there
is no
defamation) but, on the other hand, recognizes that there are those
who believe that he is. If the Prince’s complicity
in the
violence is true, the fact that it would be for the public benefit
that this be known would quash the action.
43
[21]
The order of the court is the following:
(i)
The first and second defendants’ exception is upheld;
(ii)
The plaintiff’s claim against the first and second defendants
is dismissed with costs.
DATED
AT JOHANNESBURG THIS 18th DAY OF SEPTEMBER, 2012
______________________
N.
P. WILLIS
JUDGE
OF THE HIGH COURT
Counsel
for the Plaintiff: Adv. M. du Plessis (with him, Adv. S.
Pudifin-Jones)
Counsel
for the First and Second Defendants: Adv. S. Budlender
Attorney
for the Plaintiff: Lourens De Klerk
Attorney
for the First and Second Defendants: Rosin Wright Rosengarten
No
appearance for the Third Defendant (who did not take exception to the
Plaintiff’s Particulars of Claim)
Dates
of hearing: 4th September, 2012
Date
of judgment: 18th September, 2012
1
1940 (2) PH F119 (C)
2
1942 CPD 386
at 391
3
1951 (3) SA 409
(C) at 415C-D
4
1975 (3) SA 479
(T) at 487E-F
5
1956 (1) SA 702
(A)
6
At 706D-E
7
See, for example,
Barclays
National Bank Limited v Thompson
1989 (1) SA 547
(A) at 553G;
Inzalo
Communications & Event Management (Pty) Limited v Economic Value
Accelerators (Pty) Limited
2008 (6) SA 87
(W) at paragraph [45].
8
Dendy v University of the
Witwatersrand and Others
2007 (5) SA 382
(SCA) at paragraph [16]
9
2006 (1) SA 461
(SCA)
10
At paragraph [3]
11
1944 AD 399
12
At 343-4
13
1999; Chapter 3, Volume 3, Juta’s: Cape Town.
14
Ibid
.
15
See South Africa Survey for the Institute of Race Relations
2000/2001; SAIIR: Johannesburg
16
See The Report of the Institute of Race Relations (
supra
);
South Africa Survey for the Institute of Race Relations 2000/2001
(
supra
)
and Rupert Taylor’s
Justice
Denied: Political Violence in Kwazulu-Natal After 1994
,
Volume 6; Centre for the Study of Violence and Reconciliation:
Johannesburg, 2002 at p3.
17
See, for example,
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002
(5) SA 401
(CC) at paragraphs [17], [18] and [19].
18
See section16 of our Constitution.
19
[1992] ZASCA 63
;
1992 (3) SA 579
(A)
20
At 588F
21
Argus Printing and
Publishing Company Limited v Inkatha Freedom Party
(
supra
)
at 587H
22
At 589E
23
1956 (4) SA 310
(W) at 318C-E
24
Argus Printing and
Publishing Company Limited v Inkatha Freedom Party
(
supra
)
at 587J-588A where Ludorf J’s words in
Pienaar and Another v Argus Printing and Publishing Company Limited
(
supra
)
at a 318C-E were referred to. Of course, today no judge would be so
politically incorrect to refer to the pruning of roses in
the
context of an association of ‘ladies’ but it is
difficult to repress a smile at imagery that so exquisitely makes
a
good point. Since Ludorf J wrote his judgment, women have done such
a superlative job as monarchs, presidents, prime ministers,
bishops,
judges, lawyers, doctors, professional persons generally,
entrepreneurs, business and trade union leaders, scientists,
astronauts, athletes and sporting stars that they have, with
trumpets blaring, defeated the arguments of the ‘male
chauvinists’.
And many of the finest cultivators of roses are
now men. Ludorf J’s point about the need to avoid prissiness
in the evaluation
of political discourses is surely well understood
by even those most grimly determined to eradicate any idea that
women may prefer
more delicately phrased utterances than men.
25
2011 (4) SA 191
(CC)
26
See paragraphs [99] to [100]
27
See
Whittaker v Roos and
Bateman; Morant v Roos and Bateman
1912 AD 92
at 130-1;
R v
Chipo and Others
1953 (4)
SA 573
(A) at 576A;
Marais
v Richard en ‘n Ander
1981 (1) SA 1157
(A) at 1168C;
Delange
v Costa
1989 92) SA 857
(A) at 862E;
Dendy v
University of the Witwatersrand and Others
2007 (5) SA 382
(SCA) at paragraph [16]. This line of cases traces
authority back to Melius De Villiers’ (1899),
The
Roman and Roman-Dutch Law of Injuries: A Translation of Book 47,
Title 10, of Voet’s Commentary on the Pandects
;
Juta’s: Cape Town
at
p27.
Johannes
Voet, in turn, drew deeply from the well of Roman Law.
See also
Le Roux v Dey
2011 (3) SA
274
(CC) at paragraph [89].
28
The ‘algemene redelikheidsmaatstaf’ was set out in the
Marais v Richard
case
(supra
)
and approved in
Delange v
Costa
(
supra
)
and
Dendy v University of
the Witwatersrand
(
supra
).
29
[2001] UKHL 26
;
[2001] 3 All ER 433
(HL) at 447 a
30
2003 (1) SA 155
(SCA) at paragraph [1]
31
2011 (3) SA 274
(CC) at paragraphs [40] to [43] and [99]
32
1926 AD 155
33
At p162-5
34
At p162
35
1945 AD 22
at p32
36
1946 AD 1015
at p1018
37
1994 (2) SA 1
(A) at p20
38
2004 (6) SA 329
(SCA)
39
1946 AD 984
40
National Union of Distributive Workers v Cleghorn & Harris
Ltd
1946 AD 984
;
Mangope v Asmal
1997 (4) SA 277
(T) at
284B-I.
41
At paragraph [90].
42
The truth of the words of which there is complaint in an action, in
together with the fact that their publication is for the
public
benefit or in the public interest constitutes, in law, a ground of
justification or defence. See for example,
South
African Associated Newspapers Limited v Yutar
1969
(2) SA 442
(A) at 452A (read with 450D-E and 453D);
Neethling
v Du Preez and Others
[1993] ZASCA 203
;
1994
(1) SA 708
(A) at 770A-B.
43
Ibid
.