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[2014] ZAFSHC 40
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Kgothule v Dlamini and Others (380/2012) [2014] ZAFSHC 40 (27 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. : 380/2012
In
the matter between:-
DAN
ANDREW MOKHUWE
KGOTHULE
............................................................
Plaintiff
and
JABULANI
DLAMINI
.....................................................................................
First
Defendant
DARLINGTON
MAJONGA
........................................................................
Second
Defendant
FREE
STATE TIMES (PTY)
LTD
.................................................................
Third
Defendant
ENROLLED:
24 MARCH 2014
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
27 MARCH 2014
[1]
This is an application for absolution from the instance. The
application was set down for hearing on Tuesday, 20 March 2013.
I
heard the testimonies of two witnesses, namely the plaintiff and his
witness, the Honourable Premier Mr E.S. Magashule. The plaintiff’s
case was then closed.
[2]
On Friday, 20 March 2013, being the date on which the plaintiff
closed his case, the defendants immediately applied for absolution
from the instance.
[3]
I did not instantly hear the argument. Instead I asked the two
counsels to file written heads of argument. However, I did not
determine specific timelines for that purpose. Worse still, I
postponed the matter
sine die
.
I am indebted to the two counsels for the initiative they took. They
reached a gentlemen’s agreement. The heads were filed
on 28
August 2013 and 20 September 2013 by the defendants and the plaintiff
respectively.
[4]
By administrative mistake the court file was never brought or
forwarded to my chambers after the filing of the written heads
of
argument, but inadvertently filed away in the general office.
As a result of the error I was unaware that the parties
had complied
with my direction to file heads. The matter was recently
brought to my attention by the attorneys. I apologise
for all
this delay. The delay was due to a combination of the aforesaid
errors.
[5]
Now I turn to the application. In his particulars of claim the
plaintiff averred that he was defamed by an article written by
the
first defendant, edited by the second defendant and published by the
third defendant. The article complained of appeared in
the provincial
newspaper, the Free State Times, on July 15, 2011 –
vide
plaintiff’s annexure “a”.
[6]
The article featured prominently as a front-page headline. It
was written in very bold letters. Its main heading read:
“
Magashule
faces revolt.
”
Its
subheading read:
“
MECs
threaten to resign.”
[7]
Immediately before the subheading the colour photographs of the three
members of the executive council in the Free State Province
were
displayed. The plaintiff’s photograph was one of them.
He was identified by his names.
[8]
The plaintiff averred that the article contained the following words:
“
The
three MEC’S have been fingered in allegations of corruption
involving lucrative government tenders, a source with (sic)
the
National Intelligence Agency told the Free State Times.”
[9]
The plaintiff’s pleaded case was firstly that the aforesaid
statement was
per se
defamatory. This was the plaintiff’s main cause of
action. Secondly or alternatively the plaintiff alleged that
the article as a whole and the statement in particular insinuated to
a reasonable reader that the plaintiff was forced to resign
in order
to avoid dismissal on account of his corrupt activities. That
innuendo or stigma was the plaintiff’s alternative
cause of
action.
[10]
In their joint plea the defendants pleaded that the statement or
article complained of was neither
per se
defamatory nor was the article amenable to having any defamatory
innuendo, in other words, any secondary meaning, drawn from it.
[11]
Paragraph 4 of the defendants’ plea reads as follows:
“
4.
AD
PARAGRAPHS 7 THEREOF:
4.1
The defendants deny each and every allegation contained in this
paragraph.
4.2
The defendants specifically plead that it is bad in law to consider
the meaning of the quoted statement in isolation, but nevertheless
deny that the quoted statement (even in isolation) is defamatory
per
se
or that it is reasonably capable of the defamatory meaning
alleged.
4.3
The defendants go on to plead that, in the context of the article as
a whole, the reasonable reader would:
(a)
Have correctly understood the statement to be nothing more than a
report of allegations;
(b)
Have appreciated that accusations, allegations and suspicion do not
equate to guilt;
(c)
Have known that every person is innocent until proven guilty; and
(d)
Not have unjustly prejudged the matter by interpreting the quoted
statement to mean that the plaintiff was corrupt and/or lacking
moral
standards and/or involved in any illegal activities to enrich
himself.”
[12]
Paragraph 5 of the defendants’ plea reads as follows:
“
5.
AD
PARAGRAPHS 8 AND 9 THEREOF:
5.1
The defendants deny each and every allegation contained in these
paragraphs, and specifically plead that:
5.1.1
The article, in its ordinary sense, is neither defamatory
per se
nor reasonably capable of the defamatory meaning alleged in paragraph
8 of the Particulars of Claim;
5.1.2
The article is not reasonably capable of bearing the meaning
attributed to it in the alleged innuendo pleaded in paragraph
9 of
the Particulars of Claim.
5.2
The defendants go on to plead that the reasonable reader of the
article would:
5.2.1
Have understood that the article was intended to describe the
difficulties and political tribulations being faced by the Free
State
Premier and was not intended as an attack on the Mec’s;
5.2.2
Have understood the statement quoted in paragraph 6 of the
Particulars of Claim as pleaded above;
5.2.3
Have correctly read the article to mean that any threats of
resignation (even though these have been denied) were the result
of
dissatisfaction flowing from the possibility of being dropped from
the cabinet in favour of the Premier’s ‘blue-eyed
boys’
and not related to the allegations of suspicion;
5.2.4
Have appreciated that the allegations of resignation were denied by
the Premier’s office as well as the other two MEC’s.”
[13]
In brief the defendants pleaded that the article published by the
third defendant on 15 July 2011 was neither defamatory
per
se
nor could the innuendo as sought to
be drawn successfully withstand legal scrutiny
[14]
The plaintiff testified that the article as a whole adversely and
publicly portrayed him as a corrupt person. Such portrayal
was false,
malicious and defamatory. This was the first leg of his case -
the ordinary meaning of the words in the article.
[15]
The plaintiff also testified that the defendants publicly portrayed
him as a member of a rebellious faction of the ANC, which
was
engendering rebellious sentiments and mobilising political dissent
and revolt against the premier. This was the second leg
of the
plaintiff’s case - the innuendo to be drawn from the article.
[16]
I was asked to absolve the defendants from the instance. In
Claude Neon Lights SA Ltd v Daniel
1976 (4) SA 403
(A) at 409G – H Miller AJA had this to say
about the applicable test:
“
'.
. . (W)hen absolution from the instance is sought at the close of
plaintiff's case, the test to be applied is not whether the
evidence
led by plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which
a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff.’”
[17]
In
Gordon Lloyd Page & Associates v Rivera and Another
2001 (1) SA 88
(SCA) at para [2] Harms JA re-affirmed the correctness
of the test and added that:
“
This
implies that a plaintiff has to make out a
prima
facie
case - in the sense that there is
evidence relating to all the elements of the claim - to survive
absolution because without such
evidence no court could find for the
plaintiff.”
[18]
The first elementary question to ascertain, assuming that an article
is
per se
defamatory, is whether the ordinary reasonable person reading such an
article attributed to the defendant, would be likely to believe
that
it refers to the plaintiff –
Sauls
and Others v Hendrickse
[1992] ZASCA 68
;
1992 (3) SA
912
(A).
[19]
The rule is that evidence tendered to prove how a particular witness
understood a statement said to be
per se
defamatory in the primary sense of the
word or to show whether it indeed disparaged the claimant in the
witness’ eyes –
is inadmissible. In a defamation
case the test is objective and not subjective.
“
It
does not matter what effect or different effects the statement
happened to have on some or other assortment of its readers or
hearers. What counts is the effect it was calculated to have on its
general body of readers or hearers. The best evidence of that,
and
consequently all that may be considered, is the actual language used
at the time. The statement's interpretation, and its appraisal
as
defamatory or not once it has been construed, are therefore issues
which the Court must decide with reference to such language
alone.”
Demmers
v Wyllie and Others
1978
(4) SA 619
(D) at 624A – C.
[20]
The objective standard was articulated in
Demmers
,
supra
, at
624E – 625A per Didcott J:
“
The
first question thus involves the linguistic interpretation of the
article's selected portions, read together with one another
and in
their setting as a whole.
One
must try not to approach this task like a lawyer poring over a
contract, a will, or a statute. A ‘coldly logical cast
of
mind’, according to COLMAN J in
Hassen v Post Newspapers
(Pty) Ltd and Others
(
supra
at 564E - G), would not be a
recommended tool, even if one had it. The standard is that of the
ordinary reader instead, who has
no legal training or other special
discipline. He is taken to be a reasonable person of average
intelligence and education. How
such a figure is likely to have
understood the article is the enquiry that faces me. His usual
reading habits, in relation to the
sort of newspaper which concerns
one, must be postulated. The Sunday Tribune, I think it fair to say,
belongs to the popular press,
not among highbrow journals or those
with intellectual appeal. The ordinary reader of an organ like that
does not study its contents
critically, analyse them astutely,
dissect them minutely, or search them for nuances and subtle
implications. He tends rather to
take them at their face value,
without much discernment. While sufficiently inquisitive about what
he reads to go to the trouble
of doing so, he is inclined, moreover,
to browse through it once only, and then to pass to whatever catches
his eye elsewhere in
the newspaper. By and large, it follows, its
impact on his mind is immediate and the impression gained from it an
overall one.
He seldom notices ambiguities or contradictions which
are not blatant.
When
they are present, the most obvious meaning is all that strikes him as
a rule. This, I believe, is an adequate précis
of the various
authorities on the topic.”
[21]
There is an important connection between the ordinary meaning of the
words alleged to be defamatory and the reasonable reader.
In
Sindani v Van der Merwe & Others
2002 (2) SA 32
(SCA) at para [11] Brand AJA commented about the way a
reasonable reader would ordinarily figure out the ordinary meaning of
the
statement or words said to be libellous:
“
The
ordinary meaning of the words under consideration does not
necessarily correspond with their dictionary meaning. 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 article as a whole. In applying this test it must
be accepted that the reasonable reader will not take
account only of
what the words expressly say but also what they imply (see, for
example,
Argus Printing and Publishing
Co Ltd and Others v Esselen's Estate
1994 (2) SA 1
(A) at 20F - G). It must also be borne in mind that the
ordinary reader has no legal training or other special discipline and
that
'if
he read the article at all would be likely to skim through it
casually and not to give it concentrated attention or a second
reading. It is no part of his work to read this article, nor
does he have to base any practical decision on what he reads
there'
(per
Lord Pearson in
Morgan v Odhams Press
Ltd and Another
[1971] 2 All ER 1156
(HL) at 1184). Consequently, a court that has of necessity subjected
a newspaper article under consideration to a close analysis
must
guard against the danger of considering itself to be 'the ordinary
reader' of that article (see also
Ngcobo
v Shembe and Others
1983 (4) SA 66
(D)
at 71C - D).”
[22]
The parties agreed that it is a question of law whether the words
complained of are reasonably capable of conveying to the
reasonable
reader the meaning which defames the plaintiff.
[23]
In casu
it
was undisputable that the newspaper article referred to three members
of the executive council in the Free State Province and
that the
plaintiff was one of them.
[24]
The plaintiff identified the particular passages in the article
which, he contended, constituted defamatory matter. He also
stated
the respects in which the article was allegedly defamatory of him.
[25]
The thrust of the alleged defamatory material was encapsulated in the
following extracts from the article:
“
The
three MECs have been fingered in allegations of corruption involving
lucrative government tenders, a source with the National
Intelligence
Agency told the
Free State Times
.”
[26]
Whether the particular article is
ex
facie
the article defamatory of the
plaintiff is a question to be determined objectively using, as a
yardstick, the hypothetical reasonable
reader of normal intelligence
and judgment. Allegations of corruption, involving lucrative
government tenders, were serious allegations.
An ordinary reader
fleetingly reading the article as a whole, without astutely,
critically and analytically dissecting it as a
seasoned defamation
lawyer would have done – would have understood that the premier
had taken such a dim view of the plaintiff’s
alleged conduct
that he had signalled his intention to drop him from the Provincial
Council.
[27]
According to the article the plaintiff revolted against the premier
and threatened to resign in order to avoid his looming
axing.
The ordinary reader, browsing through the whole of the article, would
have gained the immediate impression that the
looming axing of the
plaintiff was primarily and dominantly informed by the premier’s
determination to eradicate corruption
rather than to create
opportunities for his alleged cronies. That in brief, was the
ordinary meaning a reasonable reader would
have attributed to the
article.
[28]
It was the plaintiff’s evidence that he declined to have
advertisements of his department placed in the Free State Times.
He believed that what he regarded as the libellous article published
on July 15, 2011 was actuated by his steadfast refusal to
officially
do business with the third defendant.
[29]
In these circumstances and without prejudging the ultimate outcome of
the complete hearing, it does appear to me that certain
passages in
the article referred to, are
prima facie
defamatory of the plaintiff. The
prima
facie
defamatory features of the
article cannot, in my view, be trivialized or disregarded, because
the defendants labelled them as mere
untested allegations by a third.
It follows, therefore, that the defendants have a case to
answer. In the ordinary
course of events, absolution at the end
of a plaintiff’s case, should be sparingly granted –
Gordon
,
supra
.
In my view dictates of fairness require nothing less in the instant
matter. Accordingly I am not inclined to absolve
the defendants
from the instance.
[30]
There will be the following order:
30.1
The defendants’ application for absolution from the instance is
dismissed.
30.2
The defendants are directed to pay the costs of the application,
jointly and severally, the one paying the others to be absolved.
M.
H.
RAMPAI,
J
On
behalf of plaintiff: Adv P du P Greyling
Instructed
by:
Bokwa
Attorneys
BLOEMFONTEIN
On
behalf of defendants: Adv S Tsangarakis
Instructed
by:
Webber
Attorneys
BLOEMFONTEIN