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[2011] ZAECELLC 9
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De Vries Smuts and Others v Maswana and Another (EL 996/08, ECD 2396/08) [2011] ZAECELLC 9 (23 September 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(EAST LONDON CIRCUIT LOCAL
DIVISION)
CASE NO: EL 996/08
ECD 2396/08
In the matter between:
BOUDEWYN HOMBERG DE VRIES SMUTS
….............................................
First
Plaintiff
RIAN DU TOIT N.O.
…................................................................................
Second
Plaintiff
BOUDEWYN HOMBERG DE VRIES SMUTS
N.O.
…....................................
Third
Plaintiff
IAN FORRESTER N.O.
…............................................................................
Fourth
Plaintiff
DOCTOR ROSS KOBUS N.O.
….....................................................................
Fifth
Plaintiff
EDWARD GUTSCHE N.O.
…..........................................................................
Sixth
Plaintiff
ALBERT SCHULTZE N.O.
…....................................................................
Seventh
Plaintiff
JOHAN VAN SCHALKWYK N.O.
…............................................................
Eighth
Plaintiff
and
NOKULUNGA MASWANA
…......................................................................
First
Defendant
EASTERN CAPE PARKS BOARD
…....................................................
Second
Defendant
JUDGMENT – LEAVE TO APPEAL
Y EBRAHIM J:
The plaintiffs seek leave to appeal
against the entire judgment of this Court, including the order for
costs, handed down on 26
July 2011
.
Mr Byleveld submitted that leave
to appeal should be granted as there was a reasonable prospect
another Court would arrive
at a different conclusion and that
absolution from the instance should not have been granted. He
contended that the words uttered
by the first defendant
prima
facie
had a non defamatory and a defamatory meaning. There
was a subjective element to the meaning of words and not only the
natural
or ordinary meaning was to be considered but also what they
implied.
In my view, this submission overlooks
the fact that the Court took account not merely of the natural or
ordinary meaning of the
words but also what they implied. The
Court’s judgment indicates that this was given proper
consideration in determining
the meaning of the words.
1
Then, it is so that there is a
subjective element to the meaning of words. However, the determining
factor in respect of wrongfulness
is not the subjective element of
the words. As has been stated by the authors Neethling –
Potgieter – Visser, ‘
[t]he
only relevant question is whether, in the opinion of the reasonable
man (person) with normal intelligence and development
the reputation
of the person concerned has been injured (thus an objective
approach)
.
2
These submissions are without merit.
In a further submission Mr Byleveld
stated that the Court over emphasised the campaign launched by
the Landmark Foundation
to boycott farmers’ products. Such a
campaign, he said, was not necessarily anti conservation.
I find no substance in the submission
that the Court over emphasised the boycott campaign. I am in
agreement with Mr Buchanan
that in view of the confrontational
approach adopted by the Landmark Foundation – one which
challenged the Parks Board
to respond to the Foundation’s
boycott campaign – the plaintiffs could not now complain at
the response this had
elicited.
Mr Buchanan submitted that the
plaintiffs were not challenging the statement of law set out in the
Court’s judgment. Moreover,
as the Court had pointed out, the
context in which the statement was made was all important. No
criticism was being directed
either at the Court’s approach in
determining that the words uttered by the first defendant were not
defamatory.
I am not persuaded there is a
reasonable prospect that another Court would reach the conclusion
that the first defendant’s
statement exceeds the limits of
freedom of expression entrenched in the constitution and goes beyond
critical comment and is
defamatory of the plaintiffs. I am of the
view, therefore, that the application for leave to appeal falls to
be dismissed.
Insofar as costs are concerned Mr
Byleveld has not contended that costs should not follow the result
if the application is unsuccessful.
I can find no reason to deprive
the defendants of an order for costs in their favour.
In the result, the plaintiffs’
application for leave to appeal the judgment and costs order of this
Court is dismissed with
costs, inclusive of the costs of two
counsel; the plaintiffs are liable jointly and severally, the one
paying the other to be
absolved, for the costs of the first and
second defendant.
_________________________
Y EBRAHIM
JUDGE OF THE HIGH COURT 23
SEPTEMBER 2011
Judgment delivered: 26 September 2011
Counsel for the plaintiffs: A Byleveld
SC
Attorneys for the plaintiffs: Abdo &
Abdo Attorneys
EAST LONDON
Counsel
for the first and second defendants: R Buchanan SC with X S Nyangiwe
Attorneys for the defendants: Gordon
McCune Attorney
KING WILLIAMS TOWN
De Vries Smuts &
Others v Maswana & Ano.LAPJ
1
See
fn 7 in the Court’s judgment quoting the portion of the
judgment in
Argus Printing & Publishing Co Ltd v Esslen’s
Estate
1994 (2) SA 1
(AD) where the test that is to be applied
is enunciated
2
Law
of Delict
(6
th
edition) at p 333 at 3.2.2.2. See also
SA Associated Newspapers Ltd v Yutar
1969 (2) SA 442
(A) at
451;
NEHAWU v Tsatsi
2006 (6) SA 327
(SCA) at para [8]
(330I-J to 331A);
Tsedu v Lekota
2009 (4) SA 372
(SCA) at
paras [15] to [17] (378D-I to 379A-B)