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[2014] ZAGPPHC 16
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Tshivhase v Nel (38617/2011) [2014] ZAGPPHC 16 (11 February 2014)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 38617/2011
Date: 11 February 2014
In the matter between:
NA TSHIVHASE
…………………………………………………………….
Applicant
And
JA NEL
……………………………………………………………………
.
Respondent
JUDGMENT
PRETORIUS J.
[1]
This
is an exception against averments in the plaintiff’s
particulars of claim. The plaintiff instituted action a
gainst
the defendant for payment
of
damages in the amount of R300,000.00 plus costs based on an alleged
defamatory remark.
[2]
This
remark was contained in a replying affidavit which the defendant
deposed to in pending litigation. The pending litigation is
proceedings instituted by Ivubu Investments (Pty) Ltd and Siyaya
Mining (Pty) Ltd (in liquidation). Mr Theo van der Heever is one
of
the appointed liquidators of Siyaya. The applicant is the managing
director of Ivubu.
[3]
The
defendant averred in the particulars of claim:
“
The second respondent (Mr Theo van den Heever) and Mr Tony
Tshivhase, the attorney of record for the respondents (previously
IDC’s
executive vice-president) have a reputation for
hi-jacking liquidations."
[4]
The
plaintiff alleges that the statement by the defendant is wrongful and
defamatory. If the plaintiff wants to rely on innuendo
in this
application the plaintiff has to set out the defamatory sense
attributed to the words and allege that the plaintiff intended
to
attach a certain meaning to the words in such a way that a person who
reads the pleadings will so understand it. This is not
the case in
the present matter as innuendo was not pleaded.
[5]
The
test to be applied is an objective one, namely what meaning the
reasonable reader of ordinary intelligence would attribute to
the
words read in the context of the pleading. The court has to conduct a
two stage enquiry to decide whether the words used in
the pleading
are defamatory. The first is that the natural or ordinary meaning of
the words should be established. According to
The New Shorter Oxford
Dictionary the word “hijack” means:
“
Steal (goods, formerly spec, contraband etc.) in transit;
seize control of (a mean of transport, as, a lorry with goods, an
aircraft
in flight, etc.) by force; reroute (an aircraft etc.) to a
new destination in this way. ”
[6]
The
objective question at exception stage is whether the word complained
of in pleadings are reasonably capable of conveying to
the reasonable
reader, with average intelligence and knowledge, that the applicant
is defamed.
[7]
The
plaintiff’s case is that the statement is per se defamatory.
According to the plaintiff it was understood by the plaintiff
and all
parties having sight of the affidavit that it was intended to mean
that the plaintiff, as a senior attorney and businessman
of standing,
was dishonest, that he acted contra bones mores, that he would
unlawfully interfere in the administration of justice
in regards to
insolvent estates and that the plaintiff is not a fit and proper
person to act as an attorney.
[8]
In Argus Printing and Publishing Co Ltd v Esselen’s
Estate 1994
(2)
SA 1 AD
the
test was confirmed by Corbett CJ at p 20 E - G:
“
...the test as to whether a reasonable person of ordinary
intelligence might reasonably understand the words of the article to
convey
a meaning defamatory of the plaintiff (see at 767E-F). This is
unquestionably the correct approach and, as this formulation
indicates,
the test is an objective one. In the absence of an
innuendo, the reasonable person of ordinary intelligence is taken to
understand
the words alleged to be defamatory in their natural and
ordinary meaning. In determining this natural and ordinary meaning
the
Court must take account not only of what the words expressly say,
but also of what they imply. ”
[9]
The
court has to take into consideration as to what the words imply.
However it was emphasized by Corbett CJ:
“
that such an implied meaning has nothing to do with
innuendo, which relates to a secondary or unusual defamatory meaning
which can
be attributed to the words used only by the hearer having
knowledge of special circumstances. ”
[10]
The
ordinary meaning of the words, according to the plaintiff, would be
that the liquidation process instituted under auspices of
the
Insolvency Act has been unlawfully and illegally seized by the
plaintiff
for his
own purposes. It is quite clear that “hijack” is a
metaphor in this instance and cannot be understood literally.
[11]
The
plaintiff alleges that the word “hijack” in this context
implies an element of dishonesty, underhandedness, unprofessional
conduct or unlawful interference.
[12]
The
court was referred to Sachs v Werkerspers Uitgewers maatskappy Bpk
1952 (2) 26 WLD, but it is distinguishable from the present
matter,
as in the Sachs case the court had to deal with the question of
innuendo as well, which is not applicable in this application.
[13]
The
court must take cognisance of the fact that a liquidation entails a
series of actions taken, with numerous checks and balances,
which is
performed under the direct supervision of the Master, which is
eventually sanctioned by a court of law. It is not possible
to obtain
liquidation by force. The only manner which a liquidation can be
awarded to a liquidator is through appointment. This,
in turn, means
that a liquidator will be appointed
if he
works hard and diligently.
[14]
This
court cannot find that the implied meanings, as set out by the
plaintiff, can be implied from the words used and the plaintiff
therefor has to fail.
[15]
Due
to the fact that the plaintiff does not rely on innuendo, the court
does not have to deal with it.
[16]
I
have considered all the arguments, pleadings and case law referred
to. The court finds that a reasonable person of ordinary intelligence
who reads the word complained of will not find that it conveys a
meaning defamatory of the plaintiff.
[17]
The
following order is made:
1.
The
exception is upheld with costs;
2.
The
plaintiff is ordered to remove the cause of complaint by amending his
particulars of claim within 10 days of this order;
Judge
C
Pretorius
Case number : 38617/2011
Heard on : 3 February 2013
For the Applicant / Plaintiff :
Adv Smit
Instructed
by: Cliffe Dekker Hofmeyer INC.
For
the Respondent : Adv Rossouw SC
Instructed
by: Jaco Roos
Date
of Judgment : 11 February 20
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