University of Pretoria vs South Africans for the Abolition of Vivisection and Another [2006] ZAFSHC 65; 2007 (3) SA 395 (O) (18 August 2006)

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[2006] ZAFSHC 65
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University of Pretoria vs South Africans for the Abolition of Vivisection and Another [2006] ZAFSHC 65; 2007 (3) SA 395 (O) (18 August 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No. : 2893/2005
In
matter between:
THE UNIVERSITY OF
PRETORIA
Applicant
and
SOUTH AFRICANS FOR
THE ABOLITION OF
VIVISECTION
1
st
Respondent
MRS BEATRICE
WILTSHIRE, THE EDITOR:
THE “SNOUT”
EDITORIAL OFFICE
2
nd
Respondent
HEARD ON:
8
June 2006
JUDGMENT BY:
C.J.
MUSI, J
_____________________________________________________
DELIVERED ON:
18
August 2006
[1] The
applicant seeks, on notice of motion, the following relief:
“
1. Declaring that the First and
Second Respondents, during or about August 2003, published false and
defamatory statements about the
Applicant and its employees, Prof.
Swan, Prof. Bath and Dr. Van Dyk in the 12
th
issue of “The Snout Magazine”, which magazine serves as the
official news letter of the First Respondent.
2. Directing the Respondents to issue
an unqualified public statement in writing, to be published in the
next issue of “The Snout”
magazine alternatively in one English
and one Afrikaans national newspaper, that they accept that the
defamatory statements were
false and that they retract it and
apologise for it.
3. Directing
the Respondents that in the public statements contemplated in prayer
2 above they will inter alia apologise for the factually
incorrect
facts and simultaneously publish the correct facts as set out in
prayers 3.1 to 3.5 below:
3.1 That the Department of Physiology
of the University of Pretoria is not involved in pet food, including
dog food, testing. The
Onderstepoort Nutrition Laboratory formerly,
prior to May 1999, formed part of the Department of Ethology,
whereafter it formed part
of the Department Veterinary Production and
Ethology until March 2001, and then it fell under the Department
Production Animal Studies,
from March to October 2001. This
nutrition laboratory however ceased to operate after October 2001
when the Department of Animal
& Wildlife Sciences of the Faculty
of Natural & Agricultural Sciences took over its assets;
3.2 Urine
collection never formed part of food testing from April 1999 to
October 2001 and the way in which urine is said to have
been
collected, was never used in the assessment of any diet;
3.3
3.3.1 At the time the Nutrition
laboratory of the Applicant formed part of the Department of
Ethology, whereafter it formed part of
the Department Veterinary
Production and Ethology until March 2001, and then it fell under the
Department Production Animal Studies,
from March to October 2001, no
urine collection was done and no invasive techniques of any
description were used for food testing
including dog food
digestibility and palatability tests.
3.3.2 All
foods were subjected to a comprehensive array of chemical tests as
determined by the client in consultation with staff at
the laboratory
and no animals were involved in these chemical analyses of the food.
3.3.3 On
the requests of clients, dogs and cats may have ben fed conventional
registered pet foods to establish their digestibility
and / or
palatability. These animals were weighed, the food was weighed and
faeces produced were weighed. Animals were not confined
for faecal
recovery and urine was not collected for this purpose.
3.3.4 Since
the Nutritional Laboratory was incorporated into the laboratories of
the
Department of Animal & Wildlife Sciences of the Faculty
of Natural & Agricultural Sciences during October 2001 the same
methods
for the testing of pet foods were utilised.
3.4
3.4.1 Neither Dr Ennette van Dyk not
Prof Gareth Bath of Prof G E Swan were ever involved in any cruel pet
food testing methods or
the abandonment of humane pet food testing.
3.4.2 Prof
Bath was transferred to the Department Ethology during April 1999 as
Head of Department of the new Department Veterinary
Production and
Ethology. During April 1999 and October 2001, when Prof Bath held
the position as Head of the Department Veterinary
Production and
Ethology, urine was never included in digestibility trials and faeces
was only collected for digestibility trials,
when requested. Prof
Bath was also not in direct control of the Laboratory.
3.4.3 Dr
van Dyk was never involved in any of the activities of the Nutrition
Laboratory.
3.4.4 Neither
Prof Bath, nor Dr van Dyk, ever gave any instructions to destroy
slanted floor metabolic cages, or authorised or allowed
catheterisation of any animals at any time, or gave any instructions
or allowed the performance of any form of cruelty to the animals
in
the Laboratory.
3.4.5 Prof.
Swan does not serve on the Applicant’s Veterinary Faculty’s
Ethics Committee and was never involved in the testing
of “Vet’s
Choice” pet food or involved in any “cruel methods” utilised
for pet food testing.
3.5 The University of Pretoria and
more specifically its Onderstepoort Veterinary Faculty is not and at
no stage was using inhumane,
cruel and invasive tests on animals for
the testing of pet foods.
4. That the First and Second
Respondents be ordered to pay the costs of this application, jointly
and severally, the one to pay, the
other to be absolved.
5. Futher
and / or alternative relief.”
[2] The applicant is the
University of Pretoria, a university established under the provisions
of the
Higher Education Act, 101 of 1997
as amended (the University).
The first respondent is the South Africans for the Abolition of
Vivisection, a voluntary association
campaigning for the abolition of
vivisection, with principle place of business situated at Honeydew,
Johannesburg, Gauteng (SAVV).
The second respondent is Mrs Beatrice
Wiltshire, the Editor of “The Snout Magazine” (Snout) which
serves as the official newsletter
of the first respondent.
[3] During
August 2003 the second respondent published the following editorial
in the Snout:
“
The new IAMS pet food exposè
has once more brought to the fore the hidden world of cruel animal
tests generally inherent in products
seemingly as innocuous as pet
foods. Few realise, however, that unnecessarily cruel tests are
being conducted right here in South
Africa.
In this regard the Onderstepoort
Veterinary Faculty of the University of Pretoria) once more has some
explaining to do. (Onderstepoort
was embroiled in a major scandal in
1999 when it came to light that carcasses of beloved deceased pets
who had died there had, instead
of the customary incineration, been
turned into dog food as a cost saving exercise)
Even
at its most humane, the testing of pet foods requires that dogs be
confined to kennels for most of their lives. But this is
just the
start of their nightmare. The mandatory testing of urine and faeces
is usually performed by incarcerating the animals in
‘metabolic
crates’ where urine is drawn by means of a catheter placed in the
bladder, or a transmembranal needle (inserted through
their skins and
into their bladders in order to draw urine).
The
testing of pet foods in South Africa is usually done by the
Department of Physiology at Onderstepoort who, which according to
information at our disposal, used to have an innovative and humane
method of collecting urine. A slanted floor caused the urine
to run
down into a dark bottle whence it was collected twice a day. This
method was not only more humane but would have caused the
urine-analysis to be more accurate as the dogs did not have to suffer
the stress of invasive tests.
Then
a curious thing happened. For some inexplicable reason, after 1999,
this humane method of testing was suspended when Dr. Enette
van Dyk
and Prof Gareth Bath allegedly destroyed the innovative slanted
floors and reverted to the cruel, invasive method. The testing
of
our home grown Vet’s Choice is said to have been done in this
manner.
Please
phone or fax Prof. G.E. Swan at Onderstepoort and ask to have the
humane methods reinstated for the testing of pet foods.
Prof. Swan can be contacted by Fax,
No. 012 529 8304 Or e-mail
geswan@op.up.ac.za
”
[4] As a result of the
editorial numerous members of the public and veterinarians wrote
abusive e-mails to Prof. Swan who is employed
by the first
respondent. After correspondence between representatives of the
applicant and representatives of second respondent
the second
respondent agreed to publish an apology to Prof Swan. The said
apology reads as follows:
“
HI
GUYS, PROF. SWAN IS NOT A BAD SORT OF FELLOW
IN
Snout 13, under ‘Cruel Pet Food Testing’, we asked readers to
‘phone, fax or e-mail Prof. Swan and ask that the humane method
of
collection of urine and pet food testing be reinstated. The reason
why we requested readers to contact Prof. Swan was because
he was
obviously a senior member of Onderstepoort. At no stage did we
intimate that he himself did experiments on animals. Unfortunately,
unknown individuals sent him really abusive e-mails, which was never
our intention and a practice we have never condoned. Indeed,
our own
e-mail to Prof. Swan was most respectful. We had no axe to grind
with him.
SAAV has on more than one occasion
written to Onderstepoort, asking them to give an indication of who
were the members of their animal
ethics committee. These reasonable
requests were never even acknowledged. SAAV felt that as
Onderstepoort was a public institution,
funded by the taxpayer, we
had a right know that there was indeed a proper ethics committee
looking after the welfare of animals.
It was in view of this stony
silence that SAAV had to select the name of one of the senior members
whom, we thought, would take
a reasonable stance in the matter.”
[5] The
applicant was not satisfied with this apology and after numerous
failed attempts to resolve the problem approached this court
for the
relief mentioned above.
[6] The
first and second respondents oppose the application vehemently. Mr
Murphy acting on their behalf advanced numerous arguments
as to why
the application should be dismissed. Firstly, he argued that the
joinder of the first respondent was irregular and that
the
application should be dismissed because of this misjoinder.
Secondly, that there are serious disputes of fact and that the
application
ought therefore be referred to trial. Thirdly, he argued
that the statements made in the editorial were neither false nor
defamatory.
Mr Zietsman on behalf of the applicant argued that the
statements are defamatory, false and unreasonable.
[7] Mr
Murphy’s argument in relation to misjoinder has no merit. SAAV
states that Snout is its official newsletter. It is also
clear from
the apology published in Snout that it is the mouthpiece of SAAV.
Snout also states that it is the official newsletter
of SAAV.
Although the second respondent states that she is no longer a member
of SAAV the fact remains that she was a member of
SAAV when she wrote
the article. The second respondent sent the application papers to
the first respondent. The first respondent
indicated to her that
there is nothing that it could add to the application or in defence
thereof. It is clear that SAAV was correctly
joined because it has a
real and substantial interest. SAAV received the application papers.
It had a representative who argued
its case. It was not in anyway
prejudiced.
[8] The applicant
approached this court by way of motion procedure. The manner in
which factual disputes in the papers should be
resolved was stated by
Corbett JA as he then was in
Plascon
– Evans Paints v Van Reebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
AD at 634 H – 635 C where he said:
“
It is correct that where in
proceedings on notice of motion disputes of fact have arisen on the
affidavits, a final order, whether
it be an interdict or some other
form of relief, may be granted if those facts averred in the
applicant’s affidavits which have
been admitted by the respondent,
together with the facts alleged by the respondent, justify such an
order. The power of the Court
to give such final relief on the
papers before it is, however, not confined to such a situation. In
certain instances the denial
by respondent of a fact alleged by the
applicant may not be such as to raise a real, genuine or bona fide
dispute of fact… If
in such a case the respondent has not availed
himself of his right to apply for the deponents concerned to be
called for cross-examination
under Rule 6 (5) (g) of the Uniform
Rules of Court (cf Petersen v Cuthbert & Co Ltd
1945 AD 420
at
428; Room Hire case supra at 1164) and the Court is satisfied as to
the inherent credibility of the applicant’s factual averment,
it
may proceed on the basis of the correctness thereof and include this
fact among those upon which it determines whether the applicant
is
entitled to the final relief which he seeks (see eg Rikhoto v East
Rand Administration Board and Another
1983 (4) SA 278
(W) at 283 E –
H). Moreover, there may be exceptions to this general rule, as, for
example, where the allegations or denials of
the respondent are so
far-fetched or clearly untenable that the Court is justified in
rejecting them merely on the papers.”
[9] Contrary to what Mr
Murphy suggested I am of the view that there are no serious disputes
of fact in this matter. In my view a
over-fastidious approach whould
seriously impede and delay justice in this matter. A respondent
should not be allowed to delay or
frustrate justice by a bare denial.
See
Soffiantini
v Mould
1956 (4) SA 150
E at 154 F – H.
[10] The law of
defamation in South Africa is based on the actio injuriarum which
affords a person the right to claim damages when
his personality
rights had been impaired intentionally by the unlawful act of
another. Defamation is defined as the wrongful and
intentional
publication of a defamatory statement concerning the plaintiff. See
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
CC at 413 G – H. In
Khumalo
v Holomisa
supra
at 414 O’ Regan J stated the following:
“
It is not an element of the delict
in common law that the statement be false. Once a plaintiff
establishes that a defendant has published
a defamatory statement
concerning the plaintiff, it is presumed that the publication was
both unlawful and intentional. A defendant
wishing to avoid
liability for defamation must then raise a defence which rebuts
unlawfulness or intention. Although not a closed
list, the most
commonly raised defences to rebut unlawfulness are that the
publication was true and in the public benefit; that the
publication
constituted fair comment and that the publication was made on a
privileged occasion.”
In
National
Media Ltd v Bogoshi
1998 (4) SA 1196
SCA it was stated that the defendant may, in order
escape liability, establish that the publication of a defamatory
statement was
reasonable in all the circumstances. This was accepted
in
Khumalo
v Holomisa
supra
.
[11] The
second respondent admits that the message conveyed or innuendo
created by the editorial is inter alia that:
“
6.1 The applicant, and more
specifically its Department of Physiology and Faculty of Veterinary
Science situated at Onderstepoort,
was using inhumane, cruel and
invasive tests on animals for the testing of pet foods, which
include, inter alia, the pet food known
as “Vet’s Choice”;
The Applicant and more specifically
its Department of Physiology and Faculty of Veterinary Science
situated at Onderstepoort previously
employed a more humane method
for the collecting of urine necessary for the conducting of the
said tests and the Applicant, through
its employees, Dr Enette Van
Dyk and Prof. Gareth Bath, abolished the more humane method and
substituted it for the aforementioned
cruel and invasive methods;”
To
alledge that a University or a department thereof uses inhumane,
cruel and invasive tests on animals is in my view defamatory to
the
University. Likewise to alledge specific employees of that
institution are responsible for the abolishing of a more humane
method
of testing animals and substituting it by inhumane cruel and
invasive methods is defamatory to the reputations and good names of
those employees. Dr Enette Van Dyk and Prof. Gareth Bath are
academics employed by the applicant. Their reputations and standing
in the academic community and society in general will definitely be
affected if they use inhumane testing methods on animals in general
or dogs in particular. It is also clear from the e-mails that were
sent to Prof. Swan as a direct result of the publication of the
editorial in Snout that members of the public as well as
veterinarians were outraged by the allegations.
[12] The second
respondent alledges that according to her information urine was
collected as part of food testing at Onderstepoort.
She also avers
that Dr Enette Van Dyk and Prof. Gareth Bath are indeed responsible,
according to her information which she has no
reason to doubt, for
the changes in urine collecting methods from the humane to the
inhumane. She is not prepared to disclose her
source. She however
avers that she has taken every reasonable step to verify the
information after it had been provided to her and
she remains
convinced that it is correct. She does not state how she verified it
although she had all the contact details of the
persons and
institution. A bare statement that she verified the information
without stating how she verified it is in my view not
enough.
[13] The
second respondent’s labour of love is indeed landable. It is good
that, in a democracy, institutions and the practices
at institutions
of higher learning especially unsavoury practices should be exposed
and subjected to robust criticism. Constant
vigilance is a hallmark
and necessary companion of a successful democracy. That vigilance is
facilitated and stimulated by people
like the second respondent.
There are however limits to that activity. It must be practiced,
responsibly, reasonable and with the
necessary care that blatant
falsehoods should not be send into the public domain under the guise
of public interest or robust criticism.
[14] In
this matter the second respondent had the telephone number and fax
number of the the institution. She had Prof. Swan’s
e-mail number.
She never endeavoured to get hold of Dr Van Dyk or Prof. Bath to
verify the information that she received from her
source. A source,
impeccable though he or she may be, can be mistaken or may have an
axe to grind. A source who has an ulterior
motive can easily destroy
an innocent person’s reputation by distributing false information
about that person to editors or journalists.
If the journalist is
not circumspect and reasonable with the manner in which that
information is handled that may, unwarrantedly,
be the end of a
person’s reputation. It is therefore of the utmost importance that
information from sources be verified before
it is purveyed in public
as the truth. It is clear that the second respondent did not verify
any of the information that she received
from her source. Prof. Bath
and Dr Van Dyk were a phone call away. The second respondent did not
bother to call them to ask them
what the true state of affairs are.
The information about them was on a website. Every person that has
access to the internet could
log on to the website and view the
publication. Current and prospective student of the applicant had
access to Snout. This might
have influenced their choice of
university. It is also well known that many research institutions
are reliant on donor funding.
Information such as this will
obviously not go down well with donors. The applicant has all the
right to protect its good name
and the good name of its employees
from defamation.
[15] It
is clear that the editorial contained statements that are devoid of
any truth. Dr Van Dyk and Prof. Bath were never involved
in the
inhumane testing of dogs. Likewise the University of Pretoria at its
departments at Onderstepoort never utilised the cruel
and inhumane
testing methods as alledged by the editorial in Snout.
[16] I
accept that Prof Swan’s particulars were only published – not to
indicate that he is involved in the inhumane and cruel
treatment of
animals but - to give particulars of a senior person attached to
Onderstepoort. The ambiguity of the publication however
led to the
unfortunate and unwarranted barrage of insultative and degrading
missives that Prof. Swan received. The apology to Prof.
Swan still
creates the impression that although he is a good guy these tests
were done under his watch. A unambiguous apology is
in my view not
unreasonable.
[17] In
my view the application ought to be granted. There is no reason why
the costs should not follow the success. Although the
second
respondent publishes Snout as a labour of love she was grossly
unreasonable to publish such a piece thereby defaming the applicant.
[18]
In
the circumstances I make the following order:
(a) Prayers 1 to 4 of
the notice of motion are granted.
____________
C.J.
MUSI, R
Namens
die eiser: Adv. P Zietsman
In
opdrag van:
Naudes
BLOEMFONTEIN
Namens
die verweerder: Adv. M Murphy
In
opdrag van:
Garlicke
& Bousfield Inc.
UMHLANGA
ROCKS
/ms