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[2009] ZAGPPHC 335
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Kleynhans v Read (5693/07) [2009] ZAGPPHC 335 (31 August 2009)
THE
HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG PRETORIA
KLEYNHANS,
JOHN PAUL
PLAINTIFF
V
READ,
BRIAN
DEFENDANT
CASE
NO. 5693/07
DATE:
31 AUGUST 2009
Civil
Trial
Coram
Sapire
AJ
JUDGMENT
The
plaintiff has sued the defendant claiming damages in an amount of
R200 000. The claim as originally framed in the statement
of claim
was based on an alleged defamation. At a late stage the Plaintiff
amended the particulars to add and include a claim for
injuria based
on the same allegations.
There
is also a claim for R2508 for damage caused by the defendant
manhandling the door of a vehicle in which the Plaintiff was
driving.
The
Defendant, in pleading to the claim has admitted using the words
complained of addressing them to Jacob Moroke and N Bavuma
but states
that he was justified in so doing because of the facts alleged in the
defendant’s counter claim. The evidence
led at the trial
indicates that Bavuma probably did not hear the words complained of
being spoken.
The
defendant alleges in his counterclaim that the Plaintiff said of him
“You are a kaffer boetie and a soutie”,
and that this “insult”
provoked the use of the words complained of by the plaintiff. The
Defendant claims that by these
words he was humiliated and degraded,
entitling him to the payment of damages in an amount of R250 000. It
is also the provocation
he alleges which caused him to use the words
complained of by the plaintiff. The Defendant alleges that the words
quoted constituted
an unlawful intrusion upon his personal privacy
and a wrongful and intentional injury to his reputation and mental
well-being.
The Defendant’s allegations appear fanciful but
need be examined and analysed as the evidence which I heard and
accept discloses
that on the balance of probabilities the words were
not said by the Plaintiff.
The
words complained of by the Plaintiff and which were admittedly used
by the Defendant within the hearing of the persons mentioned
above
are
a.
“You are a typical fucking Dutchman”
b.
“You fucking cunt”.
c.
“I hate all you Dutchmen. You are all the fucking same”
and
d.
“You are a fucking Vlok. Are you going to wash my feet as well
”
The
plaintiff alleges that these words, apparently taken together and in
the context in which the were used and “published”
have a
meaning understood by those hearing them, that
a)
Plaintiff is a racist
b)
As a
racist, the Plaintiff should repent for his sins by washing the
Defendant’s feet
c)
Plaintiff lacks and / or is of low
morality
d)
Plaintiff
discriminates against people of colour, in particular against Mr
Moroke
e)
Plaintiff
is a miser and skinflint by refusing to pay a fee (“tip”)
sounding in money to Mr Moroke.
The
circumstances in which the offending words were spoken are as
follows.-
On
29
th
October 2006 the Plaintiff, who is an executive in a
well known company, hosted a golfing day at the Woodhill Golf Club. A
group
of about twenty business associates participated in the event.
The party had completed play for the day and took drinks on the
terrace adjoining the Club house.
The
Defendant was also at the club where he entertained a business
associate, from about three o’clock onwards. The Defendant
maintains that he drank about three Jamesons. (Jameson, for the
uninitiated is the brand name of an Irish whiskey.)
After
Plaintiffs party had left, the waiter, Mr Moroke, nicknamed Maestro,
who had served drinks to Plaintiff’s group found
a bag which
had apparently been inadvertently left behind by one of Plaintiffs
guests. The waiter was about to hand the bag to
the Plaintiff who had
remained behind at the club after the departure of his guests. The
Defendant who apparently saw this, told
the waiter to ask for a tip
from Plaintiff as a token of gratitude for his honesty. The waiter
told the Defendant the plaintiff
had already paid him two hundred
rand as a gratuity for serving drinks to the golfing party and that
he did not think that any
further payment was called for...
This
did not deter the Defendant who then told the plaintiff to give the
waiter a tip. The defendant replied as the waiter had,
that he had
just tipped him two hundred rand, implying that he would pay nothing
further. At this the defendant was incensed and
spoke the offending
words in the presence of the waiter.
Both
Maestro and the Plaintiff testified that the plaintiff said nothing
to provoke the outburst or defendant’s subsequent
behaviour.
The words alleged in the counterclaim according to them were not used
by the plaintiff.
The
Defendant became aggressive and showed signs of an intention to
physically assault the plaintiff but he was restrained by the
waiter.
The plaintiff then went to where his car was parked intending to go
home. The Defendant followed him, and when the plaintiff
opened the
car with a remote the defendant opened one of the doors and forced it
wider open than was intended, thereby damaging
the hinges. The cost
of repair was R2085.00 for which the Plaintiff seeks payment in his
second claim. The Defendant admits that
he caused the damage and the
amount claimed in respect thereof, but does not admit that it was the
plaintiff who suffered the damage.
This claim I will deal with later.
To the parties to a case, even such as this, the issues are in their
subjective perceptions
of great importance. So it is with the
Plaintiff who sees the defendant’s conduct, with particular
reference to the use of
the words complained of, as labelling him as
a racist. This he feared might prejudice him in his position with his
company and
with his business and social contacts. I doubt that right
thinking people hearing of the incident would be affected in their
estimate
of the plaintiff.
The
occurrence would, but for reports made to the club management and the
company, by whom the waiter was employed, not have become
known to
anyone who was not present at the time. The events which I have
sketched in broad outline would not have tended to lower
the
Plaintiff in the estimation of right thinking people who came to know
of it. If anything the recounting of what happened reflects
badly
only on the Defendant whose conduct was uncouth unbridled and
aggressive probably as a result of the liquor he had consumed.
Perhaps he had more Jameson than that to which he admitted.
The
Defendant’s outburst called for an immediate unequivocal
applogy from him, to be expected once he had cooled off and was
no
longer under the influence of the liquor he had consumed. Had there
been a sincere apology this case would not have come to
court.
It
remains to consider whether the words complained of are in themselves
defamatory or bear the innuendo pleaded.
“
You
are a typical fucking Dutchman”
I
accept that the appellation “Dutchman” is a reference to
Afrikaans speaking people usually used in a denigratory sense.
The
use of an adjectival present participle of the word which originally
connoted sexual intercourse, but which now has become
a meaningless
expletive used mindlessly to lend emphasis, does nothing to add to
the sting of the word “Dutchman” The
sentence standing
alone was not defamatory as we do not know what trait of a “Dutchman
was being referred to. Neither in
my view does the sentence amount to
an insult which should have hurt the Plaintiff. The entire sentence
standing alone is not defamatory
in its primary sense, nor does it
convey the innuendo ascribed to it.
*You
fucking cunt”.
These
words addressed to anyone are crude abuse. . Frequent use has made
them meaningless. The Defendant explained that he understood
the
words to mean that the Plaintiff was an idiot. Even considered in
conjunction with the other sentences of which the Plaintiff
complains
they do not contribute to the substantiation of the innuendo alleged.
“
I
hate all you Dutchmen. You are all the fucking same”
This
statement by the defendant of his own racist prejudices is not
defamatory of the Plaintiff in its primary sense, nor does it
lend
point the innuendo alleged
You
are a fucking Vlok. Are you going to wash my feet as well?”
This
sentence is another example of Defendant’s befuddled thinking
at the time. What he had in mind, is the penance made by
a former
minister in the Nationalist government, for his crimes in the days of
apartheid. The penance took the biblical form of
his washing the feet
of the Archbishop. By liking the Plaintiff to the Minister and his
act of penance, the Defendant was not defaming
or insulting the
Plaintiff. On the contrary he was comparing him to a man who had seen
the error of his ways in the past and had
done what he saw was best
to shrive himself of his guilt. The words are not defamatory in their
primary sense, and are not capable
of being interpreted to have the
meaning of the innuendo alleged.
The
words complained of are not defamatory and not capable of the
defamatory meaning attached to them by the Plaintiff. Any racialism
to be found in the context in which the words were used, arises from
defendant’s self proclaimed dislike of Afrikaans speaking
persons. They are further, although used as invective not so
insulting as to be actionable.
The
Plaintiff is, because I find that no defamatory or insulting meaning
attaches to the words complained, of, not entitled to any
award of
damages on his main and alternative claims.
The
claim for damages for injury to the car in which the Plaintiff was
travelling requires little analysis. The Defendant concedes
that he
was responsible for the damage and liable therefor. The Defendant
contended however that as the vehicle was not that of
the plaintiff
the plaintiff had not suffered the damage. There was clear evidence
however that the Plaintiff had borrowed the car
from his son and was
liable to his son for damage to the vehicle while it was in his
possession. It does not matter that the vehicle
belonged to the
Plaintiffs son’s employer and that there was no first hand
evidence that the son was liable to his employer
for damage to the
car. What is of importance is that the Plaintiff as between his son
and himself was obliged to restore the car
in the condition in which
was when he took possession of it. Plaintiff will succeed on this
claim.
COSTS
Although
the plaintiff has not succeeded on his main claim and was unjustified
in bringing his claim in the High Court I will ward
him his costs
because
(a)
It was the defendant who in the first instance gave offence and
abused the Plaintiff by his uncouth aggressive behaviour for
which
refused to apologise unconditionally,
(b)
The defendant sought to justify his conduct by alleging that he was
provoked by being insulted by the Plaintiff. On the evidence
and the
balance of probabilities no such provocation took place.
(c)The
defendant himself unsuccessfully counterclaimed for an amount even
greater than that claimed by the plaintiff on even flimsier
and
unsubstantiated grounds.
(d)
The Defendant made a poor impression as a witness indicating that by
his arrogant reluctance to appease the Plaintiff with an
apology he
prolonged the litigation.
There
will be judgement as follows
(a)
PlaintifFs claim 1 is dismissed
(b)
On claim 2 the defendant is ordered to pay to the plaintiff the
amount of R 2508
(c)
Defendant’s counterclaim is dismissed
(d)
Defendant is to plaintiff costs