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[2011] ZAECELLC 7
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Bouwer and Others v Tea and Coffee Distributors EP CC and Another (1225/2002) [2011] ZAECELLC 7 (1 August 2011)
1
IN THE HIGH COURT OF SOUTH AFRICA
(SOUTH EASTERN CAPE LOCAL DIVISION)
CASE NO: 1225/2002
In the matter between
NEWTON GLEN BOUWER
….......................................................................
1
st
Plaintiff
NEWTON GLEN BOUWER N.O.
…..............................................................
2
nd
Plaintiff
DENISE BOUWER N.O.
…............................................................................
3
rd
Plaintiff
MORRIS DU PLESSIS N.O.
…......................................................................
4
th
Plaintiff
LEE-ANNE STEPHENSON
….......................................................................
5
th
Plaintiff
vs
TEA & COFFEE DISTRIBUTORS EP CC
REG NO: CK 1988/32853/23
….................................................................
1
st
Defendant
GREG MILES
…........................................................................................
2
nd
Defendant
JUDGMENT
PICKERING J
:
There are, in this action, two claims. In respect of claim one the
second, third and fourth plaintiffs, namely Mr. Newton Glen
Bouwer,
Mrs. Denise Bouwer and Mr. Morris Du Plessis, in their respective
capacities as trustees of the Basie Bouwer Family Trust
(“the
Trust”), seek a final interdict restraining the two defendants
from,
inter alia
, unlawfully competing with the Trust by
publishing defamatory statements of and concerning the Trust, in
particular, to suppliers
of products in which both the Trust and the
first defendant traded. It is common cause that the Trust trades as
G&B Enterprises.
First defendant is Tea and Coffee Distributors EP CC, a duly
registered close corporation. Second defendant is Mr. Greg Miles,
the
sole member of the first defendant.
In the second claim the first plaintiff, Mr. Newton Glen Bouwer, and
fifth plaintiff, Mrs. Lee-Anne Stephenson, claim, in their
personal
capacities, damages from both defendants in the sum of R75 000,00
each, arising out of the publication of allegedly defamatory
statements of and concerning them by the two defendants.
Before setting out the allegedly defamatory statements which gave
rise to these proceedings it will be convenient to deal with
the
evidence relating to the events which led up to the publication
thereof, such publication having occurred on 20 May 2002.
In this regard the second defendant, Greg Miles, testified that the
first defendant, which has been operating for 14 years, is
foremost
in its field in the Eastern Cape as a supplier of tea and coffee
products, with a turnover in excess of R1 million per
month.
At various times first defendant had employed the services of one
Mark Stephenson and of Lee-Anne Stephenson, the fifth plaintiff.
According to second defendant Mark Stephenson and fifth plaintiff had
a somewhat stormy relationship, having been married, then
divorced,
then at various times thereafter reunited with each other. At some
stage Mark Stephenson had left defendant’s employ
and had
joined one of the companies operating in competition to first
defendant before opening his own business known as Koff-Chem.
He had
later attempted to sell this business to first defendant but in doing
so had acted “
under false pretences
” as second
defendant put it. According to second defendant he was aware that
Mark Stephenson had indulged in and was continuing
to indulge in
dishonest practices and that he owed various creditors in excess of
R200 000,00. It is further common cause that
at the time of
publication of the allegedly defamatory statements on 20 May 2002
Mark Stephenson was being investigated by the
Police on various fraud
and theft charges and that he was thereafter convicted on numerous
counts of fraud as well as of certain
offences under the
Insolvency
Act no 24 of 1936
.
The fifth plaintiff, however, remained in the employ of first
defendant as a salesperson for a further two to three years after
Mark Stephenson had departed before herself leaving such employ
approximately two to three weeks prior to 20 May 2002. According
to
second defendant the fifth plaintiff had been at work on a Friday
only for him to discover the following Monday that she had
left over
the weekend without having giving notice of her intention to do so
and that she had, in the process, stolen first defendant’s
customer lists as well as other confidential information relating,
inter alia
, to first defendant’s product costing
structure and formulas.
Shortly after fifth plaintiff had left first defendant’s employ
second defendant was advised by certain of first defendant’s
customers that they had received quotations, in respect of products
similar to those distributed by first defendant, from a business
known as G&B Enterprises, such quotations being in each case a
few cents cheaper than those of first defendant. According to
second
defendant he had not previously heard of G&B Enterprises but was
appalled to discover, on seeing the quotations, that
Mark Stephenson
and fifth plaintiff had been involved in the preparation thereof on
behalf of G&B Enterprises. He discovered
that the telefax number
from which these quotations had been telefaxed belonged to a company
known as Federal Mogul. He ascertained
that Mr. Newton Glen Bouwer
was involved in the running of G&B Enterprises and that his wife,
Mrs. Denise Bouwer (the third
plaintiff) was the sole proprietor of a
business known as Federal Mogul Canteen. He eventually managed to
speak to Mr. Bouwer on
the telephone on 14 May 2002. His reason for
contacting Mr. Bouwer was to warn him specifically about Mark
Stephenson. He was,
so he testified, not concerned that G&B
Enterprises posed any threat in the normal course of events to first
defendant’s
business but was concerned about the fact that it
was using confidential information stolen from first defendant in
order to compete
unfairly with first defendant.
After Mr. Bouwer had confirmed that Mark Stephenson and fifth
plaintiff were indeed in the employ of G&B Enterprises second
defendant warned him that Mark Stephenson was untrustworthy and
dishonest and that there were a number of fraud cases being
investigated
against him. According to second defendant Mr. Bouwer
stated that he would investigate the matter and that he would come
back to
second defendant. According to Mr. Bouwer, who testified on
behalf of the plaintiffs, it had been agreed that he would meet
second
defendant during the week commencing Monday 20 May 2002.
Nothing, however, turns on this dispute.
Second defendant stated further that when Mr. Bouwer did not revert
to him as agreed he attempted unsuccessfully to contact him
during
the course of the week. When he got to work on Monday 20 May of the
following week he discovered that a number of further
quotations
which had obviously also utilised first defendant’s
confidential information had been sent out by G&B Enterprises
to
customers of first defendant. He then telephoned the wife of Mr.
Bouwer in an effort to speak to him. She said, however, that
she
could not get hold of him. Second defendant stated that he gained the
impression that Mr. Bouwer was avoiding him. I pause
to mention that
his impression in this regard was in fact justified as Mr. Bouwer, in
his evidence, stated that after the telephone
conversation on 14 May
2002 he had decided not to contact second defendant. Second defendant
stated that he was extremely angry
at what was going on and, having
thought about the matter, he decided that the only course of conduct
open to him would be to send
a letter to each of first defendant’s
suppliers advising them of the situation and warning them of the
conduct of the Stephensons.
He accordingly drafted a letter which he
considered would meet the exigencies of the situation. It is this
letter which has given
rise to this action. He drafted as well a
covering letter for the attention of Mr. Bouwer and caused the
covering letter together
with the draft letter to be telefaxed at
09h14 to the telefax number of Federal Mogul, such being the only
contact number for Mr.
Bouwer of which he was in possession. The
purpose of sending the letter was, according to him, to get Mr.
Bouwer to contact him
in order to sort out the problem.
The covering letter (annexure GM1 to the defendant’s plea)
reads as follows:
“
ATTENTION: GLEN BOUWER
Below is a basic idea of a letter we will be sending to
all suppliers, wholesalers, customers, etc. Please discuss these
details
with your staff and let us know if anything is untrue, as we
would not like to be accused of spreading lies. We will also be
sending
a story to the newspapers, as we feel that it is only fair to
warn people of what is going on.
GREG MILES
”
The letter referred to (annexure A to the particulars of plaintiff’s
claim) is written on first defendant’s letterhead
and reads as
follows:
“
ATTENTION: ALL
SUPPLIERS/CUSTOMERS
RE: MARK & LEE-ANNE
STEPHENSON/“KOFF-CHEM”
It has come to our attention that above individuals have
started trading again. It appears this time they are “hiding”
behind the names G.B. Enterprises or Glen Bouwer, or Federal Mogul
Canteen. We suggest you screen all new business very carefully,
as
these guys are extremely sneaky and will go to any lengths to commit
fraud.
In the last couple of years, they have been opening
accounts with various supplies (sic) around the country supplying
goods to
customers at rock bottom prices, and not paying there (sic)
creditors or issuing bad cheques.
They have also defrauded various people along the way
who have lent him money or signed security and been conned out of
there
(sic) money. He has in this way run up debts of hundreds of
thousands of rands (this is what we know about)
After running out of people who would supply him, he
closes his business, collects all his debtors’ money and hides
away.
They seem to some how be avoiding arrest, as there are
numerous fraud and theft charges against them.
Lee-Anne who worked at Tea & Coffee Distributors
until recently has stolen all our customer lists, formulas, etc and
they
have started operating again. We are not quite sure how they
are managing to aquire (sic) stock, but are pretty sure they are
conning someone, as this has always been there (sic) way.
We know that the law must take its course and sort them
out, but we urge you not to assist their criminal activities by
supporting
them.
We have included a list of know (sic) creditors, and
would urge you to contact them to confirm above details.
GREG MILES
”
In his evidence first plaintiff, Mr. Bouwer, testified that fifth
plaintiff had been working for G&B Enterprises for approximately
6 weeks prior to 20 May 2002. He denied that Mark Stephenson had ever
been similarly so employed. He stated that on 20 May 2002
he received
a telephone call from his wife advising him of the receipt of the
above two telefaxes. He was shocked and horrified
on reading the
letter (annexure A) and immediately contacted his attorney, Mr.
Bester. A letter (exhibit B1) written by Mr. Bester
was delivered to
the defendants at 13h25 on 20 May 2002. In this letter Mr. Bester
stated that the letter (annexure A) was defamatory
of both first and
fifth plaintiffs for whom he acted, and also constituted “
a
form of unlawful competition
” in respect of G&B
Enterprises. The following demands were then made:
“
1. That Tea and Coffee Distributors EP CC and
Greg Miles jointly and severally confirm within two hours from the
time of delivery
of this letter to yourselves, that the letter
addressed to suppliers and/or customers will not be sent or
distributed in any form
or manner whatsoever.
That all allegations of dishonesty, fraud, theft and
criminal activities be immediately withdrawn in writing.
That Tea and Coffee Distributors EP CC and Greg Miles
jointly and/or severally immediately pay the amount of R250 000 to
Mr. Glen
Bouwer and Mrs. Lee-Anne Stephenson each in view of the
defamatory allegations contained in your letter.
To refrain from intervening in clients’ business
and/or competing with our clients unlawfully; and
To refrain from spreading any defamatory remarks about
our clients.”
It was now second
defendant’s turn to be shocked. He testified that on receipt of
this letter he “
got a big fright
” more especially
as he had never intended to cause harm to either first plaintiff or
G&B Enterprises. He immediately
telephoned Mr. Bester and,
according to him, gave Mr. Bester an “
unequivocal
undertaking
” that the letter would not henceforth be sent
or distributed in any form or manner to any suppliers or customers.
Mr. Bester
asked him whether it had already been sent to which he
replied “
not as far as I know
.” He testified,
however, that this reply was false inasmuch as at that time he
already knew that the letter had been telefaxed
on his instructions
to at least 10 suppliers and customers, such telefaxes having
commenced at 09h57 after first plaintiff had
failed to immediately
contact him. He had lied to Mr. Bester because he was frightened now
that lawyers had become involved and
wished to consult first with his
own attorney.
Whether the second defendant did in fact give Mr. Bester the
unequivocal undertaking referred to above is in dispute, although
no
evidence was led on behalf of the plaintiffs in this regard other
than a hearsay allegation by Mr. Bouwer to the effect that
Mr. Bester
had informed him that second defendant had refused to give any such
undertaking. Mr. Bouwer’s evidence in this
regard was, however,
contradictory and at one stage he stated that he had been told by Mr.
Bester that such an undertaking had
indeed been given. Be that as it
may, the five plaintiffs then launched an application in the South
Eastern Cape Local Division
under case no 1009/02 as a matter of
urgency on 21 May 2002 for certain relief against both defendants.
The application came before
Jansen J on 22 May 2002 on which date all
the parties were legally represented. The following order was granted
by Jansen J:
“
1. Dat Eerste en Tweede Respondente verbied word
om op onregmatige wyse in kompetisie te tree met Applikante deur die
verspreiding
van lasterlike bewerings, wat insluit mondelingse
mededelings aan die publiek in die algemeen en in die besonder aan
enige gebruikers
van daardie produkte waarin die Trust sowel as
Eerste Respondent handel dryf;
Dat Eerste en Tweede Respondente verbied word om
skriftelike publikasie te laat geskied van lasterlike en ander
onregmatige publikasies
aan die publiek in die algemeen en in die
besonder aan daardie gebruikers van die produkte waarin die Trust en
Eerste Respondent
handel dryf;
Dat die koste van die aansoek sal koste in die aksie
wees wat die Applikante beoog om in te stel soos in paragraaf 4
infra.
Dat Applikante ‘n aksie instel teen Eerste en
Tweede Respondente binne twintig dae na datum van hierdie bevel, by
gebreke
waarvan die bevel ipso facto sal verval en Respondent
geregtig sal wees om
die Hof te nader vir ‘n
gepaste kostebevel.”
It thereafter came to the attention of the first plaintiff that
publication of the letter to certain suppliers had in fact already
occurred at the time that the above order was granted. Mr. Bester
accordingly addressed a letter (exhibit B3) to defendant’s
attorney, Mr. Fred Stemmett, stating,
inter alia
, as follows:
“
Dit spreek vanself dat die regshulp wat aangevrae
was gemik was op die voorkoming van die publikasie sonder dat dit
reeds plaasgevind
het. In die lig van voormelde is ons kliënt
nou genoop om hom weer na die Hooggeregshof te wend om ten eerste ‘n
mandamus
teen u kliënt aan te vra om volle besonderhede te
verskaf aan wie die dokumente en/verklarings gepubliseer is en die
tyd daarvan.
In die omstandighede word u hiermee versoek om
onmiddelik en voor 17h00 vandag volledige besonderhede te verskaf ten
opsigte van:
Die persone aan wie publikasie gemaak is, in welke vorm
ookal;
Die tyd van publikasie aan gemelde persone;
Die vorm en/of wyse van publikasie;
Die oorsprong van publikasie;
‘
n Skriftelike onderneming van u kliënt
tesame met stawende dokumentasie as bewys dat al die persone aan wie
reeds kennis
gegee is meegedeel word dat ‘n Hofbevel ter
verbieding van die gedrag bestaan;
Die kennisgewing, soos hierin vantenvore vermeld, moet
ook die onwaarheid van die bewerings bevestig;
Die kennisgewing moet ‘n ongekwalifiseerde
apologie bevat;
Name en adresse van alle persone betrokke by die
publikasie daarvan, hetsy in diens van die Eerste Respondent en/of
wie se optrede
in opdrag van en/of medewete van die Tweede
Respondent opgetree het.”
Defendant’s
attorney, Mr. Stemmett, responded hereto furnishing all the requisite
information sought. He included in the correspondence
a draft letter
for the “
consideration and approval
” of Mr.
Bester. This draft letter, (exhibit B9) was intended for onward
transmission to those suppliers who had already received
the letter
(annexure A). It reads as follows:
“
We act on behalf of Mr. Greg Miles the managing
member of Tea and Coffee Distributors EP CC.
We have been instructed to place the following on
record:
that on 20/05/02 a telefax was forwarded to your
goodselves concerning Mark and Lee-Anne Stephenson/Koff-Chem;
this fax is now the subject matter of a defamatory
action to be instituted by Mr. Newton Glen Bouwer both in his
personal capacity
and in his capacity as Trustee of the Basie Bouwer
Family Trust, which trades as G.B. Enterprises;
the said Mr. Bouwer upon learning of the said document,
felt aggrieved thereby and immediately obtained a Court Order, a
copy
of which is annexed hereto;
our instructions are to unequivocally and categorically
apologise to Mr. Bouwer on behalf of our client for any
embarrassment
and inconvenience caused by the said document and its
publication, and hereby do so;
it is our instructions further, that our client has no
dispute with Mr. Bouwer and/ or his business and that it was never
his
intention to bring Mr. Bouwer or his business into disrepute;
We furthermore hereby wish to unreservedly withdraw on
behalf of our client as untrue any allegation in the said fax which
may
be construed at (sic) pertaining to the said Mr. Bouwer and/or
his business.”
Mr. Bester replied by
letter dated 28 May 2002 (exhibit B18) stating that he was taking
instructions as to the contents of the draft
letter of apology and
would revert to Mr. Stemmett. For some reason, never explained, this
letter was only delivered by hand to
Mr. Stemmett’s offices on
18 June 2002. It is common cause that Mr. Bester did not at any time
thereafter revert to Mr. Stemmett
concerning the draft letter of
apology and that particular matter has remained in abeyance ever
since.
Thereafter on 19 June 2002, action was instituted by the five
plaintiffs in compliance with paragraph 4 of the Order of Court dated
20 May 2002.
CLAIM ONE
In his argument before me Mr. Jooste, who appeared for all five
plaintiffs, submitted that the publication by the defendants of
the
letter (annexure A) to the suppliers was unlawful and constituted
unfair competition. He referred in this regard to
Woodlands Dairy
(Pty) Ltd v Parmalat SA (Pty) Ltd
2002 (2) SA 268
(E) where the
following was stated by Nepgen J at 279 B – C:
“
As was pointed out in
Schultz
v Butt
1986 (3) SA 667
(A) at 678 F – G
every person is, as a general rule, entitled to carry on his business
in competition with his rivals, but
such competition must remain in
lawful bounds. A litigant who seeks relief from competition which he
contends is unfair must establish,
inter alia
,
that his opponent has committed a wrongful act. The unlawfulness
which must be proved is not limited to unlawfulness falling into
a
category of clearly recognised illegality. Fairness and honesty in
competition are criteria that have been emphasised in many
of the
decided cases.”
In the view which I take of this matter it is not necessary to decide
this issue. I shall assume, without deciding, that publication
of the
letter to the suppliers did constitute unlawful conduct as envisaged
in the
Woodlands Dairy
case,
supra
which would,
provided the other requisites were met, justify the granting of a
final interdict.
The requisites for a final interdict are well known, being a clear
right, an injury actually committed or reasonably apprehended,
and
the absence of similar protection by any other ordinary remedy.
Assuming, as I have, that the plaintiffs have established a clear
right, it is necessary to consider the second requisite, namely
that
an injury has actually been committed or is reasonably apprehended.
In this regard what was stated in
Francis v Roberts
1973 (1)
SA 507
(RAD) at 512 H – 513 B is apposite. In that matter
Beadle CJ, with whom MacDonald JP concurred, referred with approval
to
the following statement in
Performing Right Society Ltd v
Berman and Another
1966 (2) SA 355
(R) at 375 A where Lewis J
stated:
“
It seems to me that the statement of the learned
authors that the plaintiff must show positively that the defendant is
likely to
continue his infringement, refers to the type of case where
the
prima facie
position
is that the infringement has occurred once and for all, and is
finished and done with; and if, in addition, the defendant
has given
a
bona fide
undertaking
not to repeat the infringement, that is an important factor which
will influence the Court in refusing an interdict.
See, for example,
the case of
Condè Nast Publications Ltd
v Jaffe
1951 (1) SA 81
(O).”
At 513 C – D Beadle CJ continued:
“
The injury with which this case is concerned is
not the sort of injury which can be described as an injury which ‘has
occurred
once and for all’. It is the type of injury which is
quite capable of repeating itself time and again. The defendant also
has not, even today, given an unequivocal undertaking that she will
refrain from allowing the infringement to occur again. Furthermore,
from the manner in which the defendant has defied the plaintiff’s
rights in the past, it cannot be said with any confidence
that the
plaintiff’s fear that she will infringe his rights again are
groundless. I do not think that this is a case where
there is any
obligation on the plaintiff to show, on a balance of probabilities,
that if he is not granted an interdict the defendant
will again
infringe his rights.”
In my view, the
present is indeed the type of case where the infringement by the
defendants which has occurred has occurred once
and for all and is
finished and done with. It is not in dispute that prior to
institution of this action the defendants complied
with each and
every demand made by the plaintiffs in respect of this claim. The
draft letter prepared by Mr. Stemmett on behalf
of the defendants
amounts to a grovelling apology which defendants were prepared to
convey to whomsoever the letter (annexure A)
had been published.
Although not couched in the form of an unequivocal undertaking not to
repeat the publication it is clear that
such was its effect.
In my view,
therefore, it was clear as far back as 24 May 2002 that there was no
likelihood that the injury which had been inflicted
in the past would
be repeated in the future. Mr. Bester’s letter of 28 May 2002,
stating that he would take instructions
from plaintiffs as to the
letter of apology, was only delivered to Mr. Stemmett on 18 June
2002. It appears therefore that neither
Mr. Bester nor the plaintiffs
had applied their minds to the issue in the interim. Had they done so
they would, in my view, immediately
have appreciated that the need,
and indeed the basis, for a final interdict had fallen away.
In all the circumstances I am satisfied that the second third and
fourth plaintiffs have not made out a case for a final interdict
and
that judgment must be entered for defendants on this claim.
That leaves the question of costs, including the costs of the
application for the interdict
pendente lite
. Mr. Scott, who
appeared for the defendants correctly did not seek to contend that
the plaintiffs had not been justified in bringing
the application for
an interdict
pendente lite,
regard being had to the
circumstances pertaining at the time. There can be no doubt that
plaintiffs are entitled to the costs of
that application. It seems to
me also that plaintiffs were entitled to a
spatium deliberandi
within which to consider the draft letter of apology and their
position in the light thereof. I am therefore of the view, in the
exercise of my discretion in this regard, that defendants should pay
the costs of the application and of the action up to and including
18
June 2002. The costs thereafter will be borne by the second, third
and fourth plaintiffs.
CLAIM TWO
This claim was formulated solely on the basis that the letter
(annexure A) was
per se
defamatory of first and fifth
plaintiffs, no secondary meaning or innuendo being pleaded. That
being so, plaintiffs stood to stand
or fall by the
ipsissima verba
relied on.
On the defendant’s plea, as eventually amended at the
commencement of the trial, defendants’ denied that the letter
(annexure A) was
per se
defamatory of either first or fifth
plaintiffs but pleaded further, in the case of the fifth plaintiff,
that in the event of it
being found that the letter was
per se
defamatory of her, the contents thereof were true and publication
thereof was in the public interest.
I will deal first with the case of first plaintiff.
That it is defamatory
per se
to impute to a person fraudulent
conduct admits of no doubt. So too is it defamatory to allege that a
person is “
conning
” another as stated in the
letter. In
Jasat and Another v Paruk
1983 (4) SA 724
(N) Law J
stated at 732 H – 733 A:
“
The words “con artist” mean the same
as the words “confidence trickster”. Both terms describe
a person who
is dishonest in a devious or cunning way; who manages to
trick others by inspiring in them confidence in his honesty. There is
no doubt in my mind that it is
per se
defamatory to call a person a con artist.”
The issue with regard to first plaintiff is whether the averments
contained in the letter contain any imputation against first
plaintiff’s moral character such as to lower him in the
estimation of ordinary or reasonable members of society. (Compare:
Mahomed v Jassiem
[1995] ZASCA 115
;
1996 (1) SA 673
(SCA)).
It is clear from the relevant decisions that in a matter such as the
present the Court has to determine the ordinary meaning of
the words
used in the letter, such being the meaning which an ordinary,
reasonable person of average intelligence and education
would
attribute to the words. In
Demmers v Wyllie and Others
1980
(1) SA 835
(AD) the following was stated at 842 H:
“
[T]he
words ‘reasonable person’ or ‘reasonable man’
referred to in the decisions cited 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.”
In
Argus
Printing and Publishing Co Ltd v Esselen’s Estate
1994 (2)
SA 1
(AD) Corbett CJ stated as follows at 20 G:
“
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.”
At 20 I
– 21 B Corbett CJ continued:
“
And
in
Jones v Skelton
[1963] 3 All ER 952
(PC) Lord Morris of Borth-y-Gest, citing Lewis’s
case, stated (at 958 F – G):
‘
The
ordinary and natural meaning of words may be either the literal
meaning or may be an implied or inferred or an indirect meaning;
any
meaning that does not require the support of extrinsic facts passing
beyond general knowledge but is a meaning that is capable
of being
detected in the language used can be a part of the ordinary and
natural meaning of words…’
(See
also
Gatley on Libel and Slander
8
th
ed paras 86,
93, 97;
Duncan and Neill on Defamation
2
nd
ed paras
4.05 and 4.06;
Burchell The Law of Defamation in South Africa
at 85; cf
Sauls and Others v Hendrickse
[1992] ZASCA 68
;
1992 (3) SA 912
(A) at
919 E). And I must emphasise 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.”
See too:
Jonathan Burchell: Personality Rights and Freedom of Expression
at 187 et seq.
Mr.
Jooste submitted that the ordinary, reasonable reader of average
intelligence would understand from the letter that Mark and
Lee-Anne
Stephenson were deceiving or “conning” the public with
the assistance and connivance of Glen Bouwer and would
read the
letter as implying that Glen Bouwer was part and parcel of the
nefarious activities conducted by the Stephensons and was
colluding
with them in order to defraud members of the public.
In this
regard he referred in particular to the sentence “we suggest
you screen all new business as ‘
these guys
are
extremely sneaky and will go to any lengths to commit fraud’”
(My emphasis). He submitted that the words “
these guys
”
following immediately upon the names “G.B. Enterprises or Glen
Bouwer or Federal Mogul Canteen” behind which
the Stephensons
were allegedly hiding would be understood by the ordinary reader as
including those latter names. So too, he submitted,
would the
ordinary reader understand the references to “
they
”
and “
them
” contained in paragraphs 5 and 6 of the
letter.
It is,
however, necessary to have regard to the context of the letter as a
whole in order to ascertain the natural and ordinary
meaning thereof.
In this regard, in my view, the heading of the letter is of critical
importance. This heading, in bold capitals,
makes it clear at the
outset that the letter is concerned with Mark and Lee-Anne Stephenson
and Koff-Chem. No mention is made therein
of Glen Bouwer. The very
first line of the body of the letter then refers to the “above
individuals”, meaning only
the Stephensons. The numbered
paragraphs 1 to 7 also clearly refer only to Mark and Lee-Anne
Stephenson and, in my view, the ordinary
reader thereof would not
understand the references to “
they
” and “
them
”
in paragraph 5 and 6 as being references to any other person. In my
view therefore the ordinary reader would understand
the letter as
meaning that the Stephensons, who were “
extremely sneaky
”
and prepared to “
go to any lengths to commit fraud
”
were “
hiding
” behind Glen Bouwer. The allegation
that they were “
hiding
” behind him would not, in
my view, convey to such a reader that first plaintiff was himself
guilty of amoral and fraudulent
conduct. All that the statement would
convey or imply, in my view, is that the dishonest Stephensons were
using the name of first
plaintiff as a front or cover for their own
fraudulent activities.
In my
view therefore the ordinary reader would find no express or implied
imputation of dishonesty against first plaintiff in the
letter.
If I
were to be wrong in my finding that the letter is not
per se
defamatory of first plaintiff then I am in any event of the view
that the averments contained therein are, at best for first
plaintiff,
ambiguous. As to the test to be applied in such
circumstances the Appellate Division in
Demmers v Wyllie and
others
supra
at 843 A – E approved of the following
dictum of Colman J in
Channing v South African Financial Gazette
Ltd and Others
1966 (3) SA 470
(W) at 473 E:
“
The
inquiry relates to the manner in which the article would have been
understood by those readers of it whose reactions are relevant
to the
action and who are sometimes referred to as the ‘ordinary
readers’. If, upon a preponderance of probabilities,
it is
found that to those readers the article bore a defamatory meaning,
then (subject to any defences which may be established),
the
plaintiff succeeds, even if there is room for a non-defamatory
interpretation. If not, the plaintiff fails (See
Gluckman
v Holford
1940 TPD 336).
”
In
Burchell: The Law of Defamation in South
Africa
this approach was explained in the
following terms at pages 89 – 90:
“
Where
there is an equal possibility of an innocent and a defamatory meaning
as seen through the eyes of the ordinary reader the
innocent meaning
should be preferred. Or, to put it in another way, the plaintiff will
not have proved the defamatory meaning on
a balance of probabilities.
If, however, there is a possibility of an innocent meaning, but the
defamatory meaning is more probable,
the defamatory meaning should be
favoured.”
In my
view, if the letter is indeed ambiguous, then, at best for first
plaintiff, there is an equal possibility of an innocent and
a
defamatory meaning as seen through the eyes of the ordinary reader,
and, this being the case, the innocent meaning must be preferred.
I should
perhaps mention that throughout his evidence second defendant was at
pains to disavow any intention to defame first plaintiff.
The
defendants’ plea, however, was a bare denial that the letter
was
per se
defamatory of first plaintiff and contained no
denial of
animus injuriandi
and in the circumstances
defendants could not rely upon any such absence of
animus
injuriandi.
In these circumstances, what was stated in
National
Media Ltd and others v Bogoshi
1998 (4) SA 1196
(SCA) at 1202 G –
H is relevant:
“
In considering the validity of the third defence
it is useful to bear in mind that liability for defamation postulates
an objective
element of unlawfulness and a subjective element of
fault (
animus injuriandi
–
the deliberate intention to injure). Although the
presence of both elements is presumed once the publication of
defamatory material
is admitted or proved, the plaintiff is required
to allege that the defendant acted unlawfully and
animo
injuriandi
, and it is for the defendant to
either to admit or deny these allegations. A bare denial, however, is
not enough; the defendant
is required to plead facts which legally
justify his denial of unlawfulness or
animus
injuriandi
as the case may be.”
In all
the circumstances the claim of first plaintiff must fail and judgment
must be entered for the defendants. There is no reason
in the
circumstances of this case why the costs should not follow the
result. Defendants are accordingly entitled to their costs
in respect
of this claim.
FIFTH
PLAINTIFF
The
letter is clearly
per se
defamatory of fifth plaintiff. She
did not herself testify. In his evidence, second defendant averred
that first plaintiff was
indeed a dishonest person of bad character.
He averred that she was an unrehabilitated insolvent who, without
disclosing such status,
had contracted with other parties and had
opened accounts with them, the implication accordingly being that she
had committed either
fraud or offences under the provisions of the
Insolvency Act No 24 of 1936
. She had, he said, a number of
unsatisfied judgments against her resulting in garnishee orders being
issued, the existence of which
she had hidden from him, thus nearly
resulting in his arrest for his failure to give effect thereto. It
would appear that second
defendant was here referring to emolument
attachment orders in terms of
s 65
J of the Magistrates’ Court
Act no 32 of 1944. She had left the employ of first defendant without
notice whilst being indebted
to it in the sum of R4 000,00, a debt
which remained unpaid. She had, as set out above, also stolen first
defendant’s customer
lists as well as other confidential
information relating to its business activities. In the absence of an
explanation by her the
only inference to be drawn from the fact that
customers of first defendant thereafter received quotations prepared
by her and Mark
Stephenson, undercutting first defendant’s
quotations by a few cents, is that she dishonestly utilised this
stolen confidential
information to the detriment of first defendant’s
business.
Second
defendant was a good witness who was, despite his earlier admitted
prevarication to Mr. Bester, patently honest in his testimony.
I
accept his evidence in regard to the above averments none of which
were in any event disputed under cross-examination. These
averments,
however, do not go as far as the allegations contained in the letter
(annexure A) .
A
comparison of the allegations contained in the letter with those
averments made by second defendant in his evidence reveals that
the
averments in the letter are only partly true. Second defendant did
not attempt to suggest in his evidence that fifth plaintiff
would go
to “
any lengths
” to commit fraud; that she had
opened accounts “
with various suppliers around the country
supplying goods to customers at rock bottom prices and not paying
there (sic) creditors
or issuing bad cheques
”; or that she
has “
numerous fraud and theft charges against her
”.
These averments, second defendant conceded, should only have been
directed at Mark Stephenson.
The
letter (annexure A) is therefore inaccurate to the extent that it
imputes to fifth plaintiff a greater degree of dishonesty
than that
which defendants have proved to be the case. In other words, although
fifth plaintiff has been shown to have been dishonest,
and of bad
character, she has not been shown to be dishonest to the extent
alleged in the letter (annexure A) and the letter is,
to that limited
extent, defamatory of her.
In
Iyman
v Natal Witness Printing and Publishing Co (Pty) Ltd
1991 (4) SA
677
(N) Page J stated at 686 A – B:
“
The
publication of defamatory matter which is only partly true can, of
course, never be in the public interest. It is, however,
of
importance in the determination of the
quantum
of damages suffered to decide whether the publication of the matter
which was shown to have been the truth, was in the public interest.”
That
publication of those allegations by the defendants which were the
truth was in the public interest was not disputed by Mr.
Jooste.
I turn
then to consider the quantum of damages to be awarded to fifth
plaintiff.
In this
regard Mr. Scott submitted that fifth plaintiff should be awarded no
more than a nominal amount. In my view there is merit
in this
submission.
An early
reported case in which a plaintiff was awarded merely nominal damages
is that of
Williams v Shaw
(1884) 4 EDC 105.
This case, a
cause celebrè
in the Eastern Districts during the
latter years of the 19
th
century, involved as plaintiff
the Dean of Grahamstown, who claimed from the defendant the sum of £1
000 as damages for defamation
in consequence of the defendant having,
on the 8 June 1883, stated of plaintiff “
that he had been
guilty of infidelity to his wife, and was a liar, a thief, and an
atheist
.” The trial came before a Full Bench of the Eastern
Districts Court, namely Barry JP, Shippard and Buchanan JJ. The
following
appears from the judgment of Barry JP at 141:
“
T
he
defendant has charged the plaintiff with practical disbelief in a
special providence, with lying, theft and being unfaithful
to his
wife. As public interests justify the imputation of such charges
where truthfully made concerning one standing in the position
of
Minister of St. George’s, the plea of justification if proved
would have entitled the defendant to a verdict with costs.
The
plaintiff having been convicted of lying, of misappropriating to his
own use charities, and of immoral conduct (which may,
however, be
consistent with the absence of adultery), may be entitled to a
judgment, but with so much proved and so much proof
of probable
cause, we can only award nominal damages. The damage done to the
plaintiff in excess of what he has caused to himself
by his own words
and deeds, is estimated at one shilling.”
At 176 –
177 Buchanan J stated as follows:
“
As
the defendant has failed to establish a justification covering the
whole case, judgment must go against him… In assessing
damages
in a case like this, it is obvious that a person cannot suffer any
loss for an injury to that which he does not or ought
not to possess.
And it would be contrary to principles of public policy to permit a
man to make a gain of the loss of that reputation
and character in
society which he had justly forfeited by his misconduct… When
a plaintiff is really guilty of the offence
imputed, he does not
offer himself to the Court as a blameless party seeking a remedy for
a malicious mischief; his original misbehaviour
taints the whole
transaction with which he is connected and precludes him from
recovering that compensation to which an innocent
person would be
entitled. The plaintiff in this case is far from coming out of this
enquiry scatheless. His character has not been
altogether cleared
from the imputations cast upon it. This is not a case of the slander
of a pure and high-principled minister
of the Gospel, who would be
entitled to exemplary damages against the malicious utterer of
virulent defamation. True there has
been an excess of language on the
part of the defendant over what he has been able to substantiate; but
that excess alone, looking
to what has been established, can be
compensated for by damages merely nominal in amount.”
Modern
Newpapers (Pty) Ltd and Another v Bill
1978
(4) SA 149
(C) was a matter where a weekly local newspaper had
reported that the plaintiff had appeared in a Regional Magistrate’s
Court
on several counts of fraud and theft on a particular date
whereas he had only been charged on counts of fraud and had appeared
on a different date. An appeal by the owner and editor of the
newspaper against an award by the Magistrate’s Court of damages
to plaintiff in the amount of R500,00 was successful, Broeksma J,
with whom Van Zijl JP concurred, finding that the extent of the
additional injury caused to the plaintiff by the reference to several
theft charges could not have been otherwise than slight.
A nominal
award of R30 coupled with no order as to costs was made.
Compare
too
Zillie v Johnson and Another
1984 (2) SA 186
(W) where Coetzee J stated at 197 G –
H that had plaintiff’s action succeeded he would have “awarded
very nominal
damages, something of the order of R10 with costs on the
appropriate magistrate’s court scale; further that the
plaintiff
should pay so much of the defendants’ costs as were
incurred by them by being sued in the Supreme Court instead of the
magistrate’s
court.”
In the
present matter the fifth plaintiff has chosen not to testify. Whilst
one may speculate as to the reasons therefor the upshot
of such
failure is that I have been left entirely in the dark as to the
personal circumstances of the fifth plaintiff; the effect,
if any of
the unproven allegations upon her; and the extent to which her
reputation may have been lowered in the estimation of
ordinary or
reasonable members of society.
Having
regard to all the circumstances I am of the view that a nominal award
of damages of R100,00 would be appropriate. There will
be no order as
to costs.
CONCLUSION
The
following order will therefore issue:
CLAIM
ONE
The
plaintiffs’ claim is dismissed.
Defendants
are ordered to pay plaintiffs’ costs jointly and severally,
the one paying the other to be absolved up to and
including 18 June
2002.
Plaintiffs
are ordered to pay defendants’ costs jointly and severally,
the one paying the others to be absolved from 19
June 2002.
CLAIM
TWO
First
plaintiff’s claim is dismissed with costs.
2.1
Defendants are ordered to pay to the fifth plaintiff jointly and
severally,
the one paying the other to be absolved damages in the sum of
R100,00.
2.2 The
fifth plaintiff and the defendants will each pay their own costs.
_______________
J.D.
PICKERING
JUDGE
OF THE HIGH COURT