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[2015] ZAGPPHC 577
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Mazibuko v Marais (87880/14) [2015] ZAGPPHC 577 (6 August 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER 87880/14
DATE:
06 AUGUST 2015
In
the matter between:
MZILIKAZI
ENOS
MAZIBUKO
.....................................................................................
EXCIPIENT
AND
EBENEZER
MARAIS
...................................................................................................
RESPONDENT
JUDGMENT
TOKOTA
AJ
[1]
In this matter the plaintiff, Mr Marais,
issued summons out of this court claiming damages from the defendant,
Mr Mazibuko, for
defamation in the amount of R1 million.
[2]
The defendant has taken an exception to
the plaintiff’s particulars of claim on the grounds thereof
that the plaintiff’s
particulars of claim do not disclose a
cause of action in that they lack averments to sustain a cause of
action.
[3]
There are two claims. The first claim
relates to defamation. The second claim relates to injuria and
reputation. Both claims are
based on a letter written by the
defendant addressed to van der Wal Slade Ramabulana Inc. The passages
complained of are the following:
Paragraph
4.1 of the letter reads:
"One is
tempted to believe that this conduct on the part of your client is
being formed by racist tendencies which client neither
has time nor
stamina to live with.”
Paragraph
5 reads:
“
Your
client’s instructions that ‘Mr Marais was contacted by a
gentleman, purportedly the attorney of record for the
Applicant’
cannot be allowed to go unchallenged. Writer wishes to draw your
client’s attention that the aforegoing
is the continued display
of your client’s belligerent and racist attitude where, in his
world, a black man cannot progress
professionally beyond the level of
being a petrol attendant. ’’
[4]
Mr Minnaar who appeared for the
plaintiff, argued that the plaintiff has pleaded all the elements of
the delict in question and
therefore it cannot be said that the
particulars of claim do not disclose a cause of action. The
exception, so it was argued, should
be dismissed.
[5]
On the other hand, Mr Rip, on behalf of
the defendant, excipient, argued that one of the elements of
defamation is that the statement
must refer to plaintiff and in this
case the words complained of are not capable, in the eyes of a
reasonable reader, of referring
to the plaintiff.
[6]
I agree with Mr Minnaar that the
elements of defamation have been pleaded. However, the only question
to be determined is whether
the defamatory matter complained of can
be reasonably read as referring to the plaintiff. In doing so I must
apply the test on
exception as to whether the words are reasonably
capable of conveying to the reasonable reader, having average
intelligence and
knowledge , (which must include knowledge of facts
relating to the case to which a plea was referring to in the letter),
that criticism
in question refers to the plaintiff.
[7]
During oral argument I debated with both
Counsel my concern that to me it appeared as if the real cause of
complaint is that the
reference to a person allegedly defamed is
vague and embarrassing. I was of this opinion for the following
reasons:
(a)
It appears from the letter which
contained the alleged defamatory matter that attorneys were
exchanging correspondence in respect
of a claim between one G Julius
Nkosi (plaintiff in that matter) and Eastern Blue Investments 178 CC
(the defendant in that matter).
(b)
The writer of the letter was the
plaintiff’s attorney writing the letter in his capacity as
such;
(c)
The letter was addressed to an attorney
for the defendant, Eastern Blue Investments 178 CC;
(d)
The letter was apparently discussing the
contents of the defendant’s plea.
(e)
It is not clear in the letter what Mr
Marais had to do with matter.
[8]
The
paragraph which says
“Your client’s instructions
that “Mr Marais was contacted by gentleman
,
purportedly the attorney of record for the Applicant”
cannot be allowed to go un-challenged
is
more confusing especially if it is read in conjunction with paragraph
6 of the letter.
[9]
For convenience I deem it expedient to
quote paragraph 6 of the letter hereunder.
“
AD
PARAGRAPHS 34 AND 35 THEREOF:
Writer
rejects this assertion with the contempt that it deserves.
After
the initial call, writer made three successive calls and on each
occasion, Mr Maris slammed the phone down.
6.1
With regard to him having lost the cellular phone signal,
writer once again rejects this with the contempt it deserves.
6.2
On each occasion the writer called him, his
cellphone number remained on his phone screen.
If he was anxious
to follow up with the telephone contact until we managed to find one
another, he would have returned the call.
6.3. Over and
above the aforegoing, he was already in receipt of the letter to
“Eben Marais” with all the details of
the gentleman who
purported to be the Attorney of record for the Applicant. ”
[10]Obviously
the reference to the defendant as
[1]
‘
him”
in paragraph 4.1 of the letter cannot be reconciled with the fact
that the defendant was a juristic person. Therefore if the letter
is
read as a whole, as it should be, the reference to the plaintiff
becomes more obscure and vague. One can speculate that Mr Marais
must
have been the client referred to in the letter giving instructions on
behalf of the close corporation.
[11]
Mr
Rip was constrained to somewhat faintly persist that the particulars
of claim did not disclose a cause of action especially when
I raised
with him whether he should not have given notice in terms of Rule
23(1) of the Uniform Rules of Court. Mr Minnaar for
the plaintiff was
adamant that all the elements of defamation have been pleaded.
[12]The
elements of defamation are trite. They are (a) the wrongful and (b)
intentional (c) publication of (d) a defamatory statement
(e)
concerning the plaintiff.
1
[13]The
above elements have been pleaded by the plaintiff. It is only the
last element that we are concerned with in this exception.
The
plaintiff must allege and prove that the statement complained of
refers to him. The test whether the statement refers to the
plaintiff
is objective: would the ordinary reasonable man to whom the statement
was published be likely to understand the statement
in its context to
refer to the plaintiff?
[14]The
statement complained of may refer directly to the plaintiff by name,
or in such a way that the plaintiff is readily identifiable.
Where it
does not, the plaintiff must allege and prove, as in the case of an
innuendo, that there are special circumstances which
make the
statement applicable to him.
[2]
[15]
Where
the defamatory mater is capable of referring to a class, such as, in
the present case, the Eastern Blue Investments and the
plaintiff,
there are no special rules applicable to the defamation of that kind.
Where an individual member of a class institutes
an action for
defamation grounded on such defamatory statement the member must
allege and prove that the words concerned him personally.
The mere
fact that the person belongs to the class referred to is not enough.
Similarly, where a statement is capable of referring
in terms to a
person other than the plaintiff, the plaintiff will only succeed if
he can establish that it refers also to him.
[16]
Bearing
in mind that the case that was under discussion between the lawyers
in the letter involved close corporation, one would
expect that
particulars of claim would be pleaded in such a manner as to
establish special circumstances which make the statement
applicable
to the plaintiff.
[17]I
agree with Mr Rip that the question whether a statement is reasonably
capable of referring to the plaintiff either in its
terms or by
reason of the special circumstances alleged, may be determined on
exception.
[18]Regard
being had to the publication as a whole and the particulars of claim
it is not clear to me whether the statement complained
of refers to
the plaintiff. It may be that he is the sole member of the defendant
in the case referred to in the letter or that
there are special
circumstances which justify the inference that the person defamed
therein is him.
[19]
In
my opinion the plaintiffs particulars of claim with reference to
whether the statement concerned him are vague and embarrassing.
It
follows therefore, in my view, that the plaintiff should have been
given a notice in terms of Rule 23(1) of the Uniform Rules
of court.
This has an impact on costs.
[20]
I
am therefore of the view that the exception should succeed but in the
exercise of my discretion, costs should not follow the event.
In the
result I make the following order.
1.
The exception is upheld;
2.
The plaintiff is afforded twenty days
from the date of this order within which to amend his particulars of
claim;
3.
Each party is to pay its own costs.
TOKOTA
B R
ACTING
JUDGE OF THE HIGH COURT,
GAUTENG
DIVISION, PRETORIA
For
the Excipient Adv C M Rip Instructed by Loubservan derWalt Inc.
For
the plaintiff/Respondent Adv J R Minnaar
Instructed
by van der Wal Slade Ramabulana Inc.
[1]
See eg Khumalo v Holomisa
[2002] ZACC 12
;
2002 8 BCLR 771
(CC);
2002 (5) SA 401
(CC)
para 18
[2]
Pike v Wesson
1938 EDL 373
377; Argus Printing & Publishing Co
Ltd v Weichardt
1940 CPD 453
459; Visse v
Wallachs'
Printing & Publishing Co Ltd, Visse v Pretoria News &
Printing Works Ltd
1946 TPD 441446.