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[2021] ZAGPJHC 402
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ABM College SA (Pty) Ltd and Another v Media 24 Holdings (Pty) Ltd (4215/2020) [2021] ZAGPJHC 402 (26 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNEBSURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
DATE:
26 August 2021
CASE
NO: 4215/2020
In
the matter between:
ABM
COLLEGE SA (PTY) LTD
First Plaintiff / Respondent
COLLEGE
ON HILLS (PTY) LTD
Previously
SHEPARD ACADEMY
Second Plaintiff / Respondent
and
MEDIA
24 HOLDINGS (PTY) LTD
Defendant / Applicant
JUDGMENT
Delivered
:
The order below was granted on 13 August 2021 at 9h30. This judgment
was handed down electronically by
circulation to the parties’
legal representatives by email. The date and time for hand-down is
deemed to be 10h00 on 26 August
2021.
PRETORIUS
AJ:
[1]
The plaintiffs (respondents in this application) claim that the
defendant
(applicant in this application) published an article on 4
February 2019 in the Daily Sun newspaper and its website (“
the
article
”).
[2]
The article reads as follows:
“
STAY AWAY FROM
BOGUS COLLEGES
(1)
Fong Kong colleges stop students being able to progress to a better
future.
(2)
The Department of higher education has shut down three colleges.
(3)
ABM College SA, Shepherd Academy and Witbank College in Polokwane
were all closed for operating
without accreditation.
(4)
Umalusi spokesman Sphiwe Mtshali said they would wait for the
colleges to submit proof of
registration and accreditation.
(5)
Mokgehle Mokgehle, the colleges’ principal, said the
institutions advertised non-accredited
courses to check whether they
are in demand.
(6)
He said the colleges would get the courses accredited if there was a
high demand.
(7)
Higher education official Shaheed Essacks advised prospective
students not to enrol at ABM
College SA.
(8)
“We are investigating Shepherd Academy as well.
(9)
“Our investigation will be concluded within a week.
(10)
“We want students to know about the colleges that are operating
illegally,” she said.”
[numbering added for
convenience of reference]
[3]
The plaintiffs launched an action against the defendant in which they
claim damages resulting from alleged defamatory material published in
the article by the defendant.
[4]
The defendant raised four complaints in respect of the plaintiffs’
particulars of claim in a notice in terms of rules 18(12), 23(1) and
30(2)(b). Complaints 1 and 2 are similar and are distinguished
by the
fact that they pertain to the first and second plaintiffs
respectively. Complaints 1 and 2 involve that the plaintiffs have
failed to plead sufficient facts in relation to innuendos relied upon
in claims 1 and 2 of the particulars of claim, particularly
paragraphs 8, 9, 10, 13, 15 and 16 thereof. As a third and fourth
complaint the defendant contends that the plaintiffs have failed,
in
contravention of rule 18(10), to plead their alleged special damages
in such a manner as to enable the defendant to reasonably
assess the
quantum thereof and plead thereto.
[5]
In its application in terms of rule 30(1), the defendant seeks an
order
setting aside, as an irregular step, the plaintiffs’
particulars of claim together with ancillary relief.
[6]
It is not required of me to deal with the merits of complaints 3 and
4
as the plaintiffs have conceded, in their heads of argument and
during argument, that the said complaints have merit and indicated
that they will amend their particulars of claim accordingly. The
defendant has however insisted that an order be granted in respect
of
complaints 3 and 4 despite the concession.
[7]
In complaint 1 the defendant complains that the first plaintiff has
failed
to plead sufficient facts in relation to the innuendos relied
upon in claim 1 of the particulars of claim. The defendant’s
complaint pertains to, according to its notice and founding
affidavit, paragraphs 8, 9 and 10 of the particulars of claim.
[8]
Complaint 2 is similar to complaint 1 but here the defendant
complains
that the second plaintiff has failed to plead sufficient
facts in relation to the innuendos relied upon in claim 2 of the
particulars
of claim. Paragraphs 13, 15 and 16 of the particulars of
claim are implicated in this regard.
[9]
Because of the similarities in complaints 1 and 2, I will deal with
them
simultaneously. In paragraphs 8 and 13 of the particulars of
claim the plaintiffs plead what they allege to be the contents of the
article. In paragraphs 10 and 16 of the particulars of claim the
plaintiffs plead that the alleged contents of the article (pleaded
in
paragraphs 8 and 13) are wrongful, unlawful and defamatory of the
plaintiffs and that “
they were intended and were understood
by readers of the newspaper and its website to mean
” what
is pleaded in paragraphs 10 and 16 of the particulars of claim.
[10]
The defendant contends that when the contents of the article is
compared with the pleaded
averments in paragraphs 8 and 13 it is
clear that the plaintiffs rely on the innuendos pleaded in paragraphs
10.2, 10.3 and 10.4
(in respect of the first plaintiff) and 16.2,
16.3, 16.4 and 16.6 (in respect of the second plaintiff) for purposes
of attributing
a secondary meaning to the allegations pleaded in
paragraphs 8 and 13. The defendant complains:
(10.1)
that the plaintiffs have failed to plead any facts or circumstances
to justify the innuendos pleaded paragraphs 10.2, 10.3 and 10.4 (in
respect of the first plaintiff) and 16.2, 16.3, 16.4 and 16.6
(in
respect of the second plaintiff) and, more particularly, that the
plaintiffs failed to plead facts or circumstances to demonstrate
that
the material allegations in the article complained of actually convey
the secondary meaning pleaded in the relevant paragraphs;
(10.2)
that the material allegations pleaded in paragraphs 8 and 13 do not
attribute the meanings pleaded in paragraphs 10.2, 10.3 and 10.4 (in
respect of the first plaintiff) and 16.2, 16.3, 16.4 and 16.6
(in
respect of the second plaintiff);
(10.3)
that the allegations pleaded in paragraphs 10.2, 10.3 and 10.4 (in
respect of the first plaintiff) and 16.2, 16.3, 16.4 and 16.6 (in
respect of the second plaintiff) are not found anywhere in the
article and are subjective allegations inserted by the plaintiffs who
believe that the allegations were intended by the defendant
to mean
what they pleaded in paragraphs 10.2, 10.3 and 10.4 (in respect of
the first plaintiff) and 16.2, 16.3, 16.4 and 16.6 (in
respect of the
second plaintiff); and
(10.4)
that what is pleaded in paragraphs 10.2, 10.3 and 10.4 (in respect of
the first plaintiff) and 16.2, 16.3, 16.4 and 16.6 (in respect of the
second plaintiff) therefore constitute innuendos and no further
facts
are pleaded by the plaintiffs to substantiate the allegations pleaded
for the purposes of attributing another meaning to
the material
allegations pleaded in paragraph 8 and 13 or as set out in the
article.
[11]
As such, so the defendant contends, the plaintiffs’ claims are
incapable of sustaining
a cause of action in that insufficient facts
and circumstances are alleged to show that the statements contained
in the article
were capable of bearing the secondary meanings
attributed to them. In the alternative the defendant contends that
the failure to
plead sufficient facts and circumstances to justify
the innuendos relied upon constitutes non-compliance with rule 18(4)
resulting
therein that the plaintiffs’ particulars of claim
constitutes an irregular step within the meaning of rule 18(12). As a
further
alternative the defendant contends that the particulars of
claim are vague and embarrassing in that it cannot be established
from
the pleaded allegations on what basis readers understood the
statements to bear the secondary meanings pleaded.
[12]
In response, the plaintiffs deny that they rely on any innuendos or
that they attribute
any secondary meanings to the material
allegations pleaded in paragraphs 8 and 13 of the particulars of
claim. The plaintiffs contend
that paragraphs 10 and 16 reference the
additional sting that the article carries and that no mention is made
of an innuendo. As
such, so the plaintiffs contend, the implied
meaning of the words used is part of the primary or ordinary meaning
of the words
and must not be confused with an innuendo.
[13]
The test in
a defamation action is whether a reasonable person of ordinary
intelligence, having heard or read the defendant’s
words, might
reasonably understand those words as conveying a meaning defamatory
of the plaintiff.
[1]
The
reasonable person in this context “
is
a person who gives a reasonable meaning to the words used within the
context of the document as a whole and excludes a person
who is
prepared to give a meaning to those words which cannot reasonably be
attributed thereto
”.
[2]
[14]
Can it be said that a reasonable person of ordinary intelligence
might reasonably understand
the words of the article to mean or to
convey a meaning of what is pleaded in paragraphs 10.2, 10.3 and 10.4
(in respect of the
first plaintiff) and 16.2, 16.3, 16.4 and 16.6 (in
respect of the second plaintiff)?
[15]
The disputed paragraphs in the particulars of claim read as follows:
“
10.
The said words, in the context of the article, are wrongful and
defamatory of first plaintiff in that they were
intended and were
understood by readers of the newspaper and its website to mean that
first plaintiff is:
10.1 …
10.2 Not
provisionally or at all registered with the Department of Higher
Education and Training as a Private College in terms
of Section 31(3)
of the Continuing Education and Training Act, 2006 (Act No. 16 of
2006); and/or
10.3 Nnot (sic)
provisionally or at all registered to provide continuing education
and training in respect of any of their
advertised courses or at all;
and/or
10.4 Operating
illegally;”
and
“
16.
The said word (sic), in the context of the article, are wrongful and
defamatory of second plaintiff in that they
were intended and were
understood by readers of the newspaper and its website to mean that
second plaintiff is:
16.2. Not provisionally
or at all registered with the Department of Higher Education and
Training as a Private College in terms
of Section 31 (3) of the
Continuing Education and Training Act, 2006 (Act No. 16 of 2006);
and/or
16.3. not provisionally
or at all registered to provide continuing education and training in
respect of any of their advertised
courses or at all; and/or
16.4. operating
illegally;
16.6. Students should not
enrol at the second plaintiff at all;”
[16]
The plaintiffs conceded that the allegations pleaded in paragraphs
10.2 and 10.3 (in respect
of the first plaintiff) and 16.2 and 16.3
(in respect of the second plaintiff) were not directly stated in the
article but argues
that it can be implied by a reasonable person of
ordinary intelligence from numbered paragraph (4) of the quoted
article, being:
“
Umalusi spokesman
Sphiwe Mtshali said they would wait for the colleges to submit proof
of registration and accreditation.”
[17]
In support
for this contention, the plaintiffs rely on
Argus
Printing
[3]
where it was held:
“…
in
determining the natural and ordinary meaning of the words in issue
the Court must take into account not only of what is expressly
said,
but also of what is implied.”
[18]
On that basis can it be said that a reasonable person of ordinary
intelligence might reasonably
understand the words of the article to
imply
the meaning of what is pleaded in paragraphs 10.2 and
10.3 (in respect of the first plaintiff) and 16.2 and 16.3 (in
respect of
the second plaintiff)?
[19]
It may be implied (even understood) from the article that the
plaintiffs were not accredited
for all the courses they advertised.
In fact, the article reports that the plaintiffs’ principle
acknowledged this. However,
the allegation that the plaintiffs were
not
provisionally or at all registered
with the Department of
Higher Education in terms of
section 31(3) of the Continuing
Education and Training Act, 2006
and/or that the plaintiffs are
not provisionally or at all registered
to provide
continuing education and training in respect of any of their
advertised courses or at all
is a bridge too far.
[20]
I am not convinced that a reasonable person of ordinary intelligence
will reasonably understand
or
imply from the said words in
paragraph (4) of the article to mean what is pleaded in paragraphs
10.2 and 10.3 (in respect of the
first plaintiff) and 16.2 and 16.3
(in respect of the second plaintiff). To attribute the meaning the
plaintiffs contend for will
require the support of extrinsic facts
passing beyond general knowledge.
[21]
As such, the paragraphs 10.2, 10.3, 16.2 and 16.3 contains a possible
secondary meaning
and constitute an inuendo. The plaintiffs are
therefore required to plead additional facts or circumstances to
justify the innuendos
pleaded. In the absence thereof, those
paragraphs of the particulars of claim are incapable of sustaining a
cause of action in
that insufficient facts and circumstances are
alleged to show that the statements contained in the article were
capable of bearing
the secondary meanings attributed to them. I am
also persuaded that the failure to plead sufficient facts and
circumstances constitutes
non-compliance with rule 18(4) and moreover
render the relevant paragraphs vague and embarrassing in that it
cannot be established
from the pleaded allegations in support of the
plaintiffs’ claims on what basis readers of the newspaper
understood the statements
to bear the secondary meanings pleaded.
[22]
Turning to paragraphs 10.4 and 16.4 of the particulars of claim, it
is not stated pertinently
in the article that the first or second
plaintiff operates illegally. The plaintiffs ostensibly rely on the
words in numbered paragraph
(10) of the quoted article, being a
direct quote of the official Shaheed Essacks. Those words are
therefore not attributable to
the defendant. Moreover, I am not
convinced that a reasonable person of ordinary intelligence will
reasonably understand or imply
from the said words in paragraph (10)
of the article, read in context, that the plaintiffs are operating
illegally. These words
were published in the context of pending
investigations into colleges and to inform students of legally
operating colleges.
[23]
What remains is paragraph 16.6 of the particulars of claim. In
numbered paragraph (7) of
the article it was reported that “
Higher
education official Shaheed Essacks advised prospective students not
to enrol at ABM College SA
”, ostensibly a reference to the
first plaintiff. I could find no words in the article from which it
can be understood or
implied that “
students should not enrol
at the second plaintiff at all
”. Paragraph 16.6 of the
particulars of claim pertains to the second plaintiff, not the first
plaintiff.
[24]
In
conclusion I make reference to the oft quoted words in
Imprefed
:
[4]
“
At the outset it
need hardly be stressed that:
‘
The whole purpose
of pleadings is to bring clearly to the notice of the Court and the
parties to an action the issues upon which
reliance is to be placed.’
(Durbach v Fairway Hotel
Ltd
1949 (3) SA 1081
(SR) at 1082.)
This fundamental
principle is similarly stressed in Odgers’ Principles of
Pleading and Practice in Civil Actions in the High
Court of Justice
22nd ed at 113:
‘
The object of
pleading is to ascertain definitely what is the question at issue
between the parties; and this object can only be
attained when each
party states his case with precision.’”
[25]
For the aforesaid reasons and in accordance with the wide powers
afforded in terms of rule
30(3), which reads:
“
If at the hearing
of such application the Court is of opinion that the proceeding or
step is irregular or improper, it may set it
aside in whole or in
part, either as against all the parties or as against some of them,
and grant leave to amend or make any such
order as to it seems meet”
I propose striking out
the paragraphs in the particulars of claim complained of and
affording the plaintiffs an opportunity to amend
their particulars of
claim.
[26]
So far as costs are concerned, the defendant has been substantially
successful in its application
and there is no reason to deviate from
the normal principle that the costs follow the result.
The
following order is granted:
1.
Paragraphs 10.2, 10.3, 10.4, 12, 16.2, 16.3, 16.4, 16.6 and
18 of the
plaintiffs’ particulars of claim are struck out;
2.
The plaintiffs are ordered to amend their particulars of claim
within
10 (ten) days from date of this order;
3.
Leave is granted to the defendant to approach this Court on
the same
papers, duly supplemented, for an order to dismiss the plaintiffs’
claims in the action should the plaintiffs fail
to amend their
particulars of claim within 10 (ten) days from date of this order;
4.
The plaintiffs are ordered to pay the costs of the application.
JF
PRETORIUS
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
DATE
OF HEARING: 11
AUGUST 2021
13
AUGUST 2021
DATE
OF JUDGMENT: 26 AUGUST 2021
COUNSEL
FOR THE APPLICANT: B D STEVENS
INSTRUCTED
BY: MAHODI ATTORNEYS
COUNSEL
FOR THE RESPONDENT: F J MOOLMAN
INSTRUCTED
BY: JURGENS BEKKER ATTORNEYS
[1]
Basner
v Trigger
1945
AD 22
32;
Conroy
v Stewart Printing Co Ltd
1946
AD 1015 1018.
[2]
Demmers
v Wyllie and Others
1980 (1) SA 835
(A) 842H.
[3]
Argus
Printing & Publishing Co Ltd v Esselen’s Estate
1994 (2) SA 1 (A).
[4]
Imprefed
(Pty) Ltd v National Transport Commission
1993
(3) SA 94
(A).