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[2003] ZAWCHC 10
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HT Group (PTY) Ltd v Hazelhurst and Another (6206/01) [2003] ZAWCHC 10; [2003] 2 All SA 262 (C) (18 March 2003)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
Case
No.: 6206/01
In
the matter between :
HT
GROUP (PTY) LTD
Plaintiff/Respondent
and
D
HAZELHURST
First
Defendant/
First
Excipient
INDEPENDENT
NEWSPAPERS (PTY) LTD
Second
Defendant/
Second
Excipient
JUDGMENT
The
Plaintiff is a funeral company. It trades under the name, "Doves".
Its motto is, it would seem, "We Care".
The Plaintiff
had a contract with the City of Johannesburg to bury paupers. On 8
June 2001 The Star newspaper published what
it described as an
"exposé" which revealed, in unflattering terms, details
of the manner in which the Plaintiff was
allegedly carrying out its
contract. A further article followed on 11 June 2001. The next day
The Star editorialised the issue
in a piece entitled "Dignity
for the Dead".
The
Plaintiff was quick to respond. Within a month summons was issued
citing the editor of The Star as First Defendant, and the
owner
publisher and printer of the newspaper as Second Defendant. Damages
of R2 million are claimed from the Defendants jointly
and
severally, on the grounds that the Plaintiff has been defamed in the
articles. The Defendants have not pleaded. Instead they
have noted
an exception to the particulars of the Plaintiff's claim on the
basis that they are vague and embarrassing.
In
its particulars of claim the Plaintiff referred to and annexed a
copy of each of the three articles complained of. The particulars
contain an allegation that the articles referred directly to the
Plaintiff and to the Dove funeral business conducted by it. In
paragraph 9 of the particulars of claim, the following allegation is
made :
"
The
statements contained in the aforesaid articles concerning the
Plaintiff and its aforesaid funeral business are
per
se
wrongful and
defamatory of the Plaintiff and was
(sic)
calculated to cause the
Plaintiff financial prejudice
."
In
paragraph 10 the Plaintiff alleges that "
As
a result of the defamation
"
it has been damaged in its business reputation and goodwill and has
suffered and will further suffer patrimonial loss resulting
from
reduced profits. The particulars of claim then set out the
computation of the Plaintiff's damages.
The
Plaintiff declined an invitation contained in a Rule 23(1) notice to
remedy the defects in its particulars of claim of which
the
Defendants complained. The Defendants accordingly excepted to the
particulars of claim as being vague and embarrassing on
the
following grounds: "
The
particulars of claim identify neither the allegedly defamatory
passages on which the Plaintiff relies in the newspaper articles
allegedly published by the Defendants (annexures "A", "B"
and "C" to the particulars of claim) nor
the respects in
which it is alleged that these newspaper articles defamed the
Plaintiff
".
The
general approach to determining whether a pleading is excipiable on
the grounds that it is vague and embarrassing is by now
relatively
well established. The vagueness complained of must relate to the
cause of action, and not simply to one or other of
the allegations.
It must, it is sometimes said, be vagueness which strikes at the
root of the cause of action. Vagueness
stricto
sensu
is not sufficient. It must be vagueness of a kind that amounts to
embarrassment to the other party and an exception on these grounds
will not be allowed unless the excipient will be seriously
prejudiced if the vagueness is not cured. In order to determine
whether
this threshold has been reached, an
ad
hoc
quantitative analysis of the pleading is called for, requiring a
consideration of the nature of the allegations, their content,
the
nature of the claim, and possibly even the relationship between the
parties. The onus is on the excipient to show both vagueness
amounting to embarrassment and embarrassment amounting to prejudice
(
Quinlan
v McGregor
1960 (4) SA 303
(DCLD) at 393F-H;
Lockhat
& Others v Minister of the Interior
1960 (3) SA 765
(DCLD) at 777A-D;
Absa
Bank Ltd v Boksburg Transitional Local Council (Government of the
Republic of South Africa, Third Party)
1997 (2) SA 415
(WLD) at 421J-422B).
Of
these requirements the element of prejudice has perhaps been the
most slippery to pin down.
Conradie
J sought to define it as ultimately lying in an inability properly
to prepare to meet an opponent's case (
Levitan
v Newhaven Holiday Enterprises CC
1991 (2) SA 297
(C) at 298I). That formulation has not found
universal favour (cf
Jowell
v Bramwell-Jones & Others
1998
(1) SA 836
(WLD) at 901G). It seems to me that no one definition of
prejudice is apt to apply to all cases. Ultimately it is a question
of fairness requiring an assessment of the offending pleading in the
light of the factors mentioned above.
Objections
of this kind must be considered with reference to the basic
principle that particulars of claim should be so framed that
a
defendant may reasonably and fairly be required to plead to them,
and that the object of pleadings is to enable each side to
come to
trial prepared to meet the case of the other and not be taken by
surprise. Rule 18(4), which provides that every pleading
shall
contain a clear and concise statement of the material facts upon
which the pleader relies for his claim, defence or answer,
with
sufficient particularity to enable the opposite party to reply
thereto, is an adjunct to that general common law requirement
(
Trope
v South African Reserve Bank & Another & 2 Other Cases
1992 (3) SA 208
(TPD) at 210H;
Buchner
& Another v Johannesburg Consolidated Investment Co Ltd
1995 (1) SA (T) at 216I-J;
Nationale
Aartappel Koöperasie Bpk v Price Waterhouse Coopers Ing en Andere
2001 (2) SA 790
(TPA) at 798F-799J). In some cases, but not
necessarily in all, a failure to comply with the requirements of
Rule 18 may simultaneously
render a pleading vulnerable to an
exception on the grounds that it is vague and embarrassing and
expose it to the sanction contemplated
in Rule 18(12) read with Rule
30(1).
There
is, I think, something to be said for the suggestion made by
Harms
JA in his guise as author of Civil Procedure in the Supreme Court
(at B18.7, page B-140) to that effect that, since the abolition
of
further particulars for the purposes of pleading, a greater degree
of particularity of pleadings is to be expected (
Jowell
v Bramwell-Jones & Others, supra
,
at 901E-G). It is certainly to be encouraged. It must also be
borne in mind, however, that pleadings should not be examined
under
too-powerful a microscope, and unless a Court is persuaded that
there is real embarrassment and prejudice, an exception should
not
be allowed (
South
African National Parks v Ras
2002 (2) SA 537
(C) at 541E-542A).
Mr
Chaskalson, who appeared for the Defendants, submitted that the
Defendants would have had no complaint if the particulars of
claim
had either identified the particular passages in the articles which,
it was contended, were defamatory, or had stated the
respects in
which the articles were allegedly defamatory of the Plaintiff.
Complaints similar to the one raised here have more
than once
enjoyed consideration by our Courts in the context of cases
involving publication of allegedly defamatory material.
The correct
general approach, it seems to me, was formulated by
Van
Heerden
J in
Deedat
v Muslim Digest & Others
1980
(2) SA 922
(DCLD) at 928E-G :
"
A
Plaintiff is entitled to rely on the whole of an article if he claims
that the whole of it is defamatory of him. He may, however,
in an
appropriate case be under a duty to furnish the Defendant with
particulars of those portions or words upon which he specifically
relies. There is no hard and fast rule which dictates such a duty.
In each case the matter complained of as being defamatory has
to be
considered and the Court has to ask itself whether in the particular
circumstances the Defendant would or would not be embarrassed
in
pleading. The test is not the length of the document but the nature
of the matter complained of.
Meintjies
v Wallachs Ltd
1913 TPD 278
and
Amalgamated
Engineering Union v Hodgson
1939 WLD 295.
Where the defamatory meaning is not quite explicit a
Court would probably be more inclined to order the words or passages
relied
on to be pointed out but might be less so inclined when the
Plaintiff sets out the meaning or meanings which he attributes to the
article. This is sometimes loosely referred to as pleading an
innuendo.
"
(See
also the remarks of
Wessels
J in
Meintjies
v Wallachs Ltd, supra
,
at 282)
Van
Heerden
Jâs reference to pleading an innuendo is, in this context, a
reference to a so-called "quasi innuendo", that is, a
paraphrase of the allegedly defamatory statement in order to point
to and identify the sting of the defamation (compare
New
Age Press Limited v O'Keef
1947 (1) SA 311
(W) at 315;
Sachs
v Werkerspers Uitgewers Maatskappy (Edms) Bpk
1952 (2) SA 261
(W) at 263A;
Demmers
v Wyllie & Others
1978
(4) SA 619
(DCLD) at 622C-D;
Deedat
v Muslim Digest & Others, supra
,
at 928H). The English Courts require the Plaintiff to plead the
particular innuendo, in this sense of the word, in most if not
all
cases, even where the Plaintiff alleges that the natural and
ordinary meanings of the words are
per
se
defamatory (
Lewis
v Daily Telegraph Ltd
[1963] 2 All ER 151
(HL) at 171-172;
Allsop
v Church of England Newspapers Ltd & Another
[1972] 2 All ER (CA) 26 at 29;
DDSA
Pharmaceuticals Ltd v Times Newspapers Ltd & Another
[1972] 3 All ER 417
(CA) at 419). It seems to me that, save perhaps
in the clearest cases, the English approach has much to commend it.
As appears
from the extract from the
Deedat
decision
quoted above, our Courts have adopted a less rigid approach. I
shall do likewise.
It
is, of course, no solution to say that the Defendants in the present
case can produce an exception-proof plea by simply denying
the
allegations, or pleading a series of potential special defences in
the alternative. If that were the test, the object of pleadings
would be rendered nugatory (
Trope
v South African Reserve Bank & Another, supra,
at
211B-D;
Absa
Bank Ltd v Boksburg Transitional Local Council, supra,
at 421I). Mr Scholtz, on behalf of the Plaintiff, did not suggest
as much. Instead, he submitted that in the present case it
was
clear to any reasonable reader that the articles complained of all
alluded to, or developed, three basic themes, each of which
was
manifestly defamatory of the Plaintiff. These themes were, he said,
1) that the Plaintiff had breached various health laws,
2) that the
Plaintiff was guilty of treating the bodies of paupers in an
undignified way and 3) that the Plaintiff was acting in
breach of
its agreement with the City of Johannesburg. Mr Chaskalson
identified some 12 possible passages in the articles which,
he said,
might be seen as defamatory and several others which, so he argued,
could also potentially form a basis for the Plaintiff's
complaint.
Several of the potentially offending passages identified by Mr
Chaskalson would, or might arguably, fall within the
three broad
themes mentioned by Mr Scholtz. Certain others do not comfortably
fit into any of these categories, for example, the
mention in the
first article of remarks made by an opposition politician in the
City Council concerning the possibility of fraud,
or the incident
describing certain insensitive remarks by an alleged employee of the
Plaintiff.
There
is no
numerus
clausus
of defamatory allegations. Whether a particular article is
defamatory of the Plaintiff is to be determined objectively and with
reference to the hypothetical reasonable reader of normal
intelligence and judgment (
SA
Associated Newspapers Ltd v Schoeman
1962 (2) SA 613
(A) at 616G). Judicial decision-making on whether
publication of particular material is
prima
facie
defamatory of a Plaintiff may be informed by a variety of factors.
Some parts of an allegedly offending newspaper article may
in a
given case be clearly defamatory of the Plaintiff, others less
obviously so. Without prejudging the ultimate outcome of the
trial,
it does appear to me that
prima
facie
certain of the passages in the three articles referred to are
defamatory of the Plaintiff. I agree with Mr Chaskalson,
however,
that as the pleadings stand at present the Defendants are
left to speculate to a large extent as to the particular respects in
which the Plaintiff contends it was defamed.
There
are a number of potential defences open to a defendant in opposing a
claim for damages arising from publication of allegedly
defamatory
material. A Defendant may wish to deny that a particular statement
referred to the Plaintiff; he may wish to place
in issue whether a
particular passage was
prima
facie
defamatory; he may wish to plead that certain defamatory allegations
were true and that publication was for the public benefit,
or
contend that they constituted fair comment on matters of public
importance. The Supreme Court of Appeal has also held, in a
decision recently endorsed by the Constitutional Court, that a
publisher may successfully ward off a claim for defamation if it
is
able to show that publication of the defamatory material was
reasonable in all the circumstances even in the absence of one
or
more of the recognised defences (
National
Media Ltd & Others v Bogoshi
1998 (4) SA 1196
(SCA);
Khumalo
& Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) ). The Defendant may wish to raise
differing defences to the different respects in which the Plaintiff
contends it has
been defamed in an article or, as here, a series of
articles. Until it knows precisely what charges it has to meet, as
it were,
it is hardly in a position sensibly to do so. The
particular respect or respects in which the Plaintiff has been
defamed also
affects the assessment of the quantum of damages to
which it may ultimately be entitled. Where there is uncertainty on
the pleadings
about this, that process of assessment is also
rendered more difficult both for the Defendant and the Court (cf
Kritzinger
v Perskorporasie van Suid Afrika (Edms) Bpk en 'n Andere
1981 (2) SA 373
(O) ).
In
a number of previous decisions it was held that it was not necessary
for the Plaintiff in a defamation action to identify the
particular
passages in published material of which it had complained (see, for
example,
Meintjies
v Wallachs Limited, supra; Amalgamated Engineering Union v Hodgson
1939
WLD 295
at 299;
Cleghorn
& Harris Ltd v National Union of Distributive Workers
1940
CPD 632
at 643-644;
Argus
Printing & Publishing Co v Weichardt
1940
CPD 453
at 464;
Rogaly
v General Imports (Pty) Ltd
1948
(1) SA 1216
(C) at 1226-1227). In each of those cases, however, the
Plaintiff
had
pleaded the particular quasi-innuendo, in other words, it had
paraphrased the allegedly defamatory content of the material. In
the present case the Plaintiff has not done so. Those decisions are
accordingly distinguishable. It is one thing for the Plaintiff's
counsel in argument to identify the three broad "themes"
running through the articles which, it is submitted, are defamatory
of it. The Defendant is, I think, entitled in a case such as this
to be told this in the particulars of claim, or to have the
particular passages complained of, identified. In my opinion the
Defendants have shown that the particulars of claim are vague
and
that the Defendants are as a consequence embarrassed and prejudiced
thereby as contemplated in Rule 23(1).
It
follows that in my view the Defendants' exception was well taken.
There will be the following order :
The
Defendants' exception is upheld.
The
Plaintiff is given leave to amend its particulars of claim so as to
remove the Defendants' cause of complaint as set out in
its notice
of exception, within ten days of the date of this order, failing
which the particulars of the Plaintiff's claim will
be deemed to be
set aside, with costs.
The
Plaintiff shall bear the costs occasioned by the exception,
including the costs of the hearing on 13 March 2003.
I
J MULLER A. J.
High
Court
CAPE
TOWN
18
March 2003