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1990
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[1990] ZASCA 13
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Beckett and Another v Buthelezi (195/88) [1990] ZASCA 13 (15 March 1990)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter of:
DENIS BECKETT
First Appellant
SAGA PRESS (PROPRIETARY)
LIMITED
. Second Appellant
and
MANGOSUTHU GATSHA BUTHELEZI
. . . Respondent
C
ORAM
:
Corbett CJ, Van Heerden, et E M Grosskopf JJA, Friedman et Goldstone AJJA.
DATE OF HEARI
NG: 15 February 1990
DATE OF JUDGMENT
: 15 March 1990
J
UDGMENT CORBETT
CJ:
The second appellant is the proprietor and
publisher of a news magazine named "Frontline" and first appellant is its
editor. Frontline
is printed and published
2
in Johannesburg and is distributed throughout the Republic of South
Africa. In the November 1986 issue of Frontline there was published,
under the
caption "Foreign Perceptions", an article entitled "Swigging gins and searching
souls". It appears from a note under the
title that the article originally
appeared in the British journal, The Spectator, and that its author is a writer
named Stephen Robinson.
From the article it would seem that the author had, at
the time of writing, recently returned to Britain from a visit to South Africa;
and the article records the writer's views upon certain aspects of the political
situation in this country. In it Mr Robinson is
critical of the superficiality
of some of the judgments passed on South Africa by foreign correspondents and he
proceeds to correct
what he perceives to be some of the inaccurate impressions
current about South Africa overseas. He states,
inter alia
, that this
superficiality is "apparent in
3
the portrayal of black nationalist leaders". He then singles out three
such leaders, Mrs Winnie Mandela, Archbishop Desmond Tutu and
the respondent in
this appeal, Chief Minister Mangosuthu Buthelezi. About each of them he makes
disparaging remarks. The paragraph
devoted to the respondent reads as
follows:
"By contrast, Chief Buthelezi is commonly portrayed as the rogue stooge of
Southern Africa, dismissed by Denis Healey after his flying
visit as a puppet of
Pretoria. The Zulu leader is not everyone's cup of tea, he is nauseatingly
pompous and self-important. His claim
to represent the sole non-violent
alternative to Marxist revolution is questionable to say the least, and his
well-drilled impi regiments
are among the most thuggish operators in South
Africa. In a perfect world, or if Africa were like Europe, he would not exist.
But
the plain fact is that many Zulus - well over a million of them in fact - go
for that sort of thing. He simply cannot be ignored,
and ANC and
4
United Democratic Front leaders admit as much
privately. Only someone who has never lived in Natal would dismiss him as
irrelevant."
The respondent is the Chief Minister of the Government of KwaZulu, a
self-governing territory established under the National States
Constitution Act
21 of 1971; and he is also the Chairman of the Black Alliance and the President
of Inkatha, the latter being a Black
political and cultural organization drawing
its support mainly from the Zulu nation. Citing the above-quoted extract from
the Frontline
article, respondent instituted an action for damages for
defamation against the appellants in the Durban and Coast Local Division.
The
case was heard by Howard J (as he then was) and he gave judgment for the
respondent in the sum of R12 000, interest thereon f
rom date of judgment to
date of payment and costs. He also granted leave to appeal to this Court.
Condonation for the late filing
of the record of appeal and provision of
security was granted at the
5
inception of the hearing of the appeal, appellants to pay the costs of the
application.
At the appeal stage the issues had become crystallized and to some extent
narrowed., For respondent it was agreed that the defamation
lay mainly in the
sentence
"His claim to represent the sole non-violent alternative to Marxist
revolution is guestionable to say the least, and his well-drilled
impi regiments
are among the most thuggish operators in South Africa."
For appellants it was conceded that these words were defamatory. Three
defences were raised: (i) truth and justification, (ii) fair
comment and (iii)
want of unlawfulness on the ground that publication of the defamation was
justified by public policy (cf
Zillie v Johnson and Another
1984 (2) SA
186
(W) ).
Although it was common cause that the article was
6 defamatory of the respondent, the parties were not ad
idem
as to
precisely what that defamation was. In his particulars of claim (paras 12 and
13) the respondent pleaded that the contents of
the article were intended to
mean and understood by those members of the public who read it to mean, or
alternatively carried innuendoes
to such effect, viz. -
(1) that the plaintiff (now respondent) is a purveyor of violence in South
Africa;
(2) that the plaintiff has trained military regiments to commit illegal acts of
violence in South Africa;
(3) that the plaintiff is responsible for regiments of ruffians who commit
illegal acts of violence in South Africa; and
(4) that the plaintiff's conduct falls short of Western and/or civilized
standards.
7 The first three of these meanings, or
innuendoes, were evidently based upon the vital sentence quoted above; the
fourth meaning
upon the portion of the paragraph following that sentence.
Appellants' plea contains a blanket denial of paras 12 and 13 of respondent's
particulars of claim, but in argument before us appellants'
counsel conceded
that what I have called "the vital sentence" carried meanings (1) and (3) above,
and also meaning (2) by way of
innuendo. Meaning (4), however, was disputed.
In oral argument on appeal respondent's counsel appeared to put upon the
vital sentence a somewhat different gloss. He referred to
the word "and" in the
sentence and submitted that it meant "witness the fact that" or "as proved by
the f act that". He f urther
argued (1) that the first part of the sentence
-
8
"His claim to represent the sole
non-violent
alternative to Marxist revolution is
questionable "
read in the light of the article as a whole, had reference
to the struggle
of the Black man in South Africa to change
the existing political and social
order (what I shall call
for the sake of brevity "the Black struggle"); (2) that
accordingly the
second part of the sentence -
".... and his well-drilled impi regiments are among the most thuggish
operators in South
Africa",
bearing in mind the meaning attributed to the word "and", meant that
respondent's well-drilled impi regiments were conducting thuggish
operations in
implementation or support of the Black struggle, thereby contradicting
respondent's claim to represent a non-violent
alternative to Marxist revolution;
and (3) that there was no possible basis upon which this allegation could be
justified. Appellants'
9 counsel contested this interpretation, but conceded
that, if it were correct, it had not been justified.
The test for
interpreting words alleged to be defamatory is to ask how they would be
understood by the ordinary, reasonable reader
of the publication in question.
This hypothetical reader should be endowed with average intelligence and
education (
Basner v Trigger
1945 AD 22
, at 35) and, I suggest, with a
normal or average general know-ledge and experience (see
Sutter v Brown
1926 AD 155
, at 167; cf
Lewis and Another v Daily Telegraph Ltd; Lewis and
Another v Associated Newspapers Ltd
1963 (2) All ER 151
(HL), at 154;
Gatley on Libel and Slander
, 8th ed., par 98).
Applying this test, I am not persuaded that the meaning which respondent's
counsel sought to place cm the vital sentence is the correct
one. The evidence
indicates, and I think that as at November 1986 the ordinary reasonable reader
of Frontline, particularly one living
in Natal, would
10 have known, that for
some years prior thereto there had been many violent and politically-inspired
clashes in Natal between members
of Inkatha, of which respondent was the leader,
and members of other rival organizations, notably the United Democratic Front
("UDP").
In evidence respondent likened such clashes, to some extent, to the
political violence taking place in the Lebanon and Northern Ireland.
(Again for
the sake of brevity I shall call this "Black against Black" violence. In doing
so I am not unmindful of the fact that
the UDF is not an exclusively Black
organization.) It was not suggested in evidence that violence in which members
of Inkatha may
have been involved was at any time directed in support of the
Black struggle; nor do I think that the ordinary informed reader of
Frontline
would have any grounds for so thinking. In the circumstances I am satisfied that
the ordinary informed reader would have
understood the second part of the
vital
11
sentence to refer to the Black against Black
violence which had plagued Natal for so long.
Admittedly the word "and", in the context of the vital sentence, would seem
to indicate some connection between the two parts of the
sentence. If, as
respondent's counsel has suggested, it means "witness the fact that" or "as
proved by the fact that", then it betrays
an illogicality of thought on the part
of the writer, for the Black struggle and the wave of Black against Black
violence are unconnected
phenomena, the one being aimed at White dominance in
the country as a whole and the other being a power struggle for predominance
between Black groupings in Natal. Be that as it may, it seems to me that in
substance the sentence comprises two averments, both
of which are defamatory and
both of which had to be substantiated for the defence of justification and/or
fair comment to succeed.
I turn now to consider the evidence on the issues
12 of justification and fair comment. The only witness called in support of
the claim was the respondent himself. For the defence
three witnesses were
called - Mr P L Mann, Mr R S Smith and Mr R Radebe. Broadly speaking,
appellants' case on the issues of justification
and fair comment rested on proof
(1) that over the years there had been in Natal much Black against Black
violence; (2) that groups
of Inkatha members had participated in such violence;
and (3) that respondent had made a number of public utterances in which he,
as
leader of Inkatha, had threatened rival political groups with violence.
(1 ) above is common cause. In support of (2) evidence was given of certain
episodes in which, it was alleged, the Inkatha groups
involved had been the
aggressors and had behaved in a thuggish fashion. I deal in more detail with
these episodes later. And in support
of (3) above extracts from various speeches
and other public
13 statements, admittedly made by the respondent, were put
to the respondent in cross-examination.
With regard to these speeches it was submitted by respondent's counsel that
each extract should be read in the context of the relevant
speech as a whole;
and I did not understand appellants' counsel to dispute this. Indeed the
proposition seems to me to be indisputable.
Some of the speeches are to be found
in a batch of documents annexed to the minute relating to the pre-trial
conference held in terms
of Rule of Court 37, but the majority are contained in
a bundle of documents handed in by respondent's counsel at the commencement
of
the trial. In his opening address respondent's counsel stated that the parties
were agreed that the documents "would be what they
purported to be" and that
some of them would be referred to in the course of the evidence. From this I
infer that by consent the
documents, or at any rate those used at the trial,
were properly before the Court and became part of the trial record.
14
I have read in their entirety all the speeches
and other public utterances (about 18 in number) referred to in the
cross-examination
of respondent, together with the evidence given by the
respondent in regard thereto, and I have come to the following conclusions.
The
respondent is unquestionably given to the use in his speeches of colourful
imagery and of strongly emotive language. His utterances
are at times
aggressive, even bellicose. Some of the sentiments expressed by him are such as
would not be . approved by many peace-loving
persons; and certainly the
retaliatory action advocated by him on certain occasions (I shall later refer to
this in more detail)
would often be likely to exceed the lawful bounds of
self-defence. But these utterances must, as I have said, be seen in their
context
and also against the background of the general circumstances prevailing
in the territory of KwaZulu and in the rest of Natal at the
time, viz endemic
internecine
15 feuding between Black and Black, Inkatha and the UDF, Inkatha
and other Black political organizations.
The importance of viewing statements in their context is, in my view, well
illustrated by a speech made by the respondent to the Royal
Commonwealth Society
on 24 April 1987, in which he said:
"(i) As a Black leader in South Africa, who
has spent his whole life in
politics, I am
deeply aware of the potential for violence
which exists. I
could in fact go on a
violent rampage which could leave previous
violent
episodes as pale reflections of what
violence can be in South Africa. I lead
a
VERY ANGRY people. I am myself disgusted
with the intransigence of the
South African
Government. It is this very potential for
violence which
fires our determination now to
get the negotiation process under way
(ii) White South Africans will adopt scorched-earth policies to meet
revolutionary scorched-earth policies before they
16
capitulate." (My numbering.)
On the basis of these statements it was suggested to the respondent in
cross-examination that his professed commitment to non-violence
was qualified in
many respects, ie by the menace of violence which he directed both at the
Government and at his political enemies.
In my opinion, a reading of the speech
as a whole totally refutes this suggestion. The themes of the speech are the
pressing need
for all ethnic groups in South Africa to come to the negotiating
table in order to work out a new political and social dispensation
for the
country, and the unacceptability of violence as an alternative solution. The
first of the above-quoted passages itself reflects
the respondent's urgent
advocacy of the "negotiation process"; and the reference to "the potential for
violence" is made in order
to underscore such urgency and the danger of alleged
intransigence on the part of the South African Government.
17 The second
passage, which appears in the same paragraph as the first, is made with
reference to a formula for settlement reflecting
an assertion by the African
National Congress ("ANC") that the only thing to be negotiated is the handing
over of power to it (the
ANC). Later in the speech respondent states -
"If violence wins the day, any future government will have to attempt to rule
nct only over a deeply polarised South Africa, in which
there will be no
consensus amongst the country's population groups about how South Africans want
to be governed, but will also have
to attempt to do so with a destroyed economy
which will leave it incapable of making liberation meaningful to ordinary people
in
terms of improved standards of living. A people who struggle because they
starve, and struggle because they are oppressed, and who
struggle to escape this
fate by changing the government of the country, will do so yet again if they
continue to be starved and continue
to be
18
oppressed. If violence wins the day, there will
be no Rule of Law and there will be no multi-party democracy, because there will
be
a South Africa laid waste by it."
The speech is, in my view, clear evidence of a commitment on respondent's
part to a peaceful alternative solution to the problems
of South Africa.
The background circumstance of continual internecine feuding between Black
and Black is a recurrent theme in the speeches of respondent
referred to in
evidence and it appears to have sparked off much of the more emotive and
bellicose language used by him. A reading
of the speeches in question reveals a
conviction on respondent's part that this internecine feuding was initiated by
the UDF and
other organizations opposed to Inkatha as part of a campaign of
political intimidation; and a determination upon respondent's part
that he and
his organization and its members should not be so intimidated or thereby
deflected
19 from their chosen role in the politics of the country. Whether
this conviction as to the culpability of the UDF and others was
well-founded is
not the point. In this connection the case is concerned with respondent's views
and attitudes. Nor is his
bona fides
or the genuineness of these
statements in issue; indeed appellants' case was that respondent's attitudes and
beliefs were to be gleaned
from his public utterances.
Accordingly, many of the speeches referred to in evidence contain complaints
about the aggressive behaviour of the opponents of Inkatha
and the need for
Inkatha members to defend themselves. Thus in a presidential address to the
so-called "Women's Brigade", a branch
of Inkatha, on 19 October 1985 respondent
stated -
"Just look at the tactics and strategies which are employed against us in the
violent onslaughts that are made. A car drives up to
a bus rank; a man leaps
out, shoots somebody
20
dead and shouts to the crowd, every member of Inkatha will be killed. He
leaps back into his car and disappears before the stunned
crowd can do anything
and before the police arive. Look at the hideousness of what our enemies do when
they lurk in wait for Mrs
Mxenge, slay her brutally, and then instigate rumours
that it is Inkatha which has done this foul deed. Look at what they do; gangs
of
thugs are imported from the Transvaal, the Eastern Cape and other places. They
throw a petrol bomb, they hack a person to death,
they set fire to a shop and
incite people to loot it, and when they get a group of excited people together,
they drum up mob behaviour
with emotional appeals and leave them to be
confronted with the brutality of the police. And then when Inkatha members stand
up in
those circumstances to defend their lives and their property, the rumours
are started that Inkatha is working with the police against
the people. And when
they have done these things and more, those who are obedient lackeys working on
newspapers, start the rumours
that Inkatha is losing support and that the people
are revolting
21
against it. These are the tactics which are used
against us. Kombi-loads of strangers come into our townships and incite our
children
to stay away from schools, to burn schools and to reject their mothers
and fathers. These are the tactics we have to contend with.
We are unarmed and
these political thuga come with bombs to plant in the cloakroom next to the
disco where our children are dancing.
We can thank God that there was no loss of
life. These are the tactics that we face. Are we to stand by and moralize about
the evils
of what they are doing? Or are we to defend ourselves?"
The answer to these questions is given in subsequent paragraphs, some of
which were cited in cross-examination. It appears to be that
the persons
responsible for all this violence must be spoken to sternly and if they do not
listen then they must be -
".... hounded out by the people whom they are sent to destroy. We do not go
to bed with jackals, hyenas and serpents".
22
These and other passages from respondent's speeches were
quoted by appellants as amounting to incitements to violence and, therefore,
as
establishing, or tending to establish, the truth of the allegations contained in
what I have termed the vital sentence. In particular,
reference was made to
speeches in which the respondent expounded his retaliatory philosophy of "an eye
for an eye and a tooth for
a tooth". Typical examples of this are an address at
a summer camp on 29 December 1985 and a presidential speech to the central
committee
of Inkatha on 11 January 1986. In both speeches the reference to "an
eye for an eye" etc is preceded by a diatribe against internecine
Black feuding
and violence directed at Inkatha, for which the UDF and the ANC are said to be
responsible. In the former speech the
respondent said:
"We will not be intimidated and ours now is
the motto: An eye for an eye and a tooth
for a tooth. If a man sticks out his hand to
23
shake my hand, I will shake his hand. If a man swears at me, I will swear at
him. If a man hits me with his fist, I will hit him
with my fist. If he uses a
knife on me, I will use a knife on him. History demands no less of me than this.
We dare not be weak.
We dare not be intimidated. We dare not fail the people,
and we will continue to take our right place in the forefront of the
struggle."
In evidence respondent
agreed that this statement fairly represented his philosophy. While the
philosophy is consistent with the Mosaic
law, as expounded in
Exodus
21.22-5,
Leviticus
24.17-21 and
Deuteronomy
19.21, respondent
had to concede in cross-examination (correctly -see
The Gospel according to
S. Matthew
5.38-41) that it did not accord with the teachings of Jesus
Christ. I must confess, however, that the relevance of this cross-examination
escapes me. When further questioned about this
24
philosophy the respondent justified it on the basis that
"my
people have a right to defend themselves". The Judge a
quo
rightly
observed in this connection -
"He (referring to respondent) says that what he means by an eye for an eye
and a tooth for a tooth is the right to defend oneself
by meeting violence with
commensurate violence. He calls it self-defence but the evidence shows that what
he has in mind is proportional
retaliatory violence rather than the use of force
within the bounds of self-defence recognized in criminal law."
It would appear from respondent's further statements in evidence that such
retaliatory action was regarded by him as defensive as
it would demonstrate to
the aggressors that they could not attack Inkatha with impunity and would thus
deter future violence. One
is reminded of the motto of the Kings of Scotland:
nemo me impune lacessit
.
25
In assessing respondent's speeches some
allowance
must be made for the kind of audiences to which they are addressed. He
resorts on occasion to hyperbole and also to homespun metaphor.
For example at a
Kwamashu prayer rally held on 18 May 1980 the respondent said:
"It is nothing short of political suicide to attempt to get the people of
South Africa to achieve the impossible. It is nothing short
of political
sabotage, of treachery and treason to present the people with alternatives which
are not viable and cannot succeed.
We will not tolerate such false prophets in
our midst. The people might even crack their heads if they are not careful. I
shudder
at this thought. If the scrawny cockerels which crow on dunghills will
not scatter when we stamp our feet we will grab their scrawny
necks with our
rough hands and squeeze them a little bit and make them gasp. And then we will
see what will happen. Someone said
that the best form of defence is to be first
to attack."
26
The respondent stated in evidence that this should not be
taken literally and should be read in the context of the speech as a whole,
in which the policy of non-violence is strongly advocated.
Some speeches contain
military overtones and are full of the imagery of battle, as for example an
address to the Inkatha Youth Brigade
on 31 August 1984; but, as respondent
himself pointed out, the Zulu nation is "a people steeped in the military
tradition" and its
members "have warrior blood coursing through (their) veins".
Military allusions and metaphors would thus appeal to and be understood
by such
audiences and should not be taken too literally.
In the course of his evidence under cross-examination the respondent averred
that he had many times called upon his supporters to
refrain from acts of
violence and that he had attempted to have talks with representatives of the UDF
in order to bring an end to
the feuding. He
27 gave particulars of such
attempts. This was not
contradicted in evidence and there is no reason to doubt its
correctness.
He also denied that he had impis or regiments
(let alone well-trained ones) that committed acts of
violence.
I come now to the evidence of aggressive violence imputed to Inkatha. The
witness Mann, a journalist by profession, deposed to an
episode in July 1979
when he went to Ulundi to see the respondent by appointment. The respondent was
outraged because the Sunday
Tribune, for which Mann then worked, had published a
report written by Mann about a farmer in Natal who had named his dog "Gatsha"
(respondent's middle name) and had dressed it up with an Inkatha tie and beret.
Mann went to Ulundi on a "peace mission", ie in order
to try to -as he put it -
"normalise" the relationship between himself and his newspaper and the
respondent. While waiting for the
interview Mann was
28
manhandled and his clothing torn by persons (presumably
members of Inkatha) outside respondent's office. When Mann was ushered in to
meet the respondent the latter did not apologise for
what had happened, nor did
he appear unduly concerned. As the learned trial Judge remarked, this was a
"deplorable incident", but
I have difficulty in seeing what it has to do with
the case. Moreover, I might add in passing that, bearing in mind how insulting
it evidently is, according to Zulu tradition, to call somebody a dog, it seems
to me that the writing and publication of the article
in question was very
foolish, insensitive and indeed provocative.
The witness Smith was a political reporter on the Natal Daily News in 1985.
He deposed to three episodes which he had witnessed in
the course of carrying
out his journalistic duties. The first related to the funeral of an unrest
victim (evidently a member of the
UDF), which took
29
place at the Umlazi cemetery in August 1985. Smith and
a
fellow journalist and photographer, one Paddock, went to "cover" the
funeral. While he was with the family mourners at the graveside
a group of about
150 UDF supporters arrived and sang and chanted and waved placards. They later
moved off. Thereafter a group of
about 100 men armed with sticks, spears and
shields arrived at the entrance to the cemetery. With them was Prince Gideon
Zulu, a
senior member of Inkatha. Prince Gideon told Smith that they had heard
that there were people at the cemetery who might make trouble
and that they had
come to make sure that no shops, stores or homes were attacked after the
funeral. After the funeral Smith saw a
large group of men massing on the road
leading to the entrance to the cemetery. Several buses were drawn up behind them
and men were
still embarking from the buses. The group was shouting and
chanting. A car drove up and a Mr Sabelo, a senior member of Inkatha,
alighted
and joined the group. Members of the group shouted and brandished
30 their
weapons at mourners leaving the cemetery and
questioned and manhandled some of them. Later Smith saw
some of the group chasing two men down the hill and over
some fields. Heading home they encountered on the road two
men who had
been injured and took them to hospital.
The second episode occurred at KwaMashu in September 1985. Having heard that
there was trouble there, Smith and others went to investigate.
In the centre of
the township Smith found a large group of school pupils facing a Caspir armoured
vehicle, which was blocking the
road. A van then drove up, stopped next to the
Caspir and a group of men armed with sticks, spears and shields jumped out. They
charged
the pupils, caught some of them and beat them. The pupils
counter-attacked, hurling stones and bricks. Thereupon the armed group
jumped
back into their vehicle and drove away. Later a microbus and a small bus arrived
and discharged a larger group of armed men,
who again charged
31 and chased
the school pupils. Smith witnessed a pupil being
dragged from a house and assaulted. At the school itself
there was a group
of about 30 armed men at the entrance
gate. A verbal altercation took place
at the gate between
a Mr Thomas Shabalala, a member of Inkatha, and
the
headmaster, who appeared terrified. Teachers intervened
and asked
Shabalala to leave, which he eventually did.
The third episode concerned a King Shaka Day commemoration rally which took
place in a stadium at Umlazi in September 1985. It was
addressed by the
respondent and was attended by several thousand Inkatha supporters. Amongst the
audience were a number of VIP guests,
politicians and members of the diplomatic
corps. While respondent was delivering his address a number of armed Inkatha
supporters
left the stadium in three buses and proceeded to Lamontville. There
they attacked a house; the residents counter-attacked; and then
security
forces
32 arrived and drove the Inkatha and counter-attacking groups
apart. Prince Gideon Zulu and Thomas Shabalala were seen
in the Inkatha group. Members of this group were very angry
and seemed
intent on returning to attack the residents, but
the police prevented this. While the police were talking
to the Inkatha
people a van came down the road and, finding
itself blocked off, veered round to proceed up a side road.
As it did so
some Inkatha members beat the sides of the van
with their sticks. Shortly
thereafter the Inkatha members
marched back to their buses and returned to
the stadium.
Not long after Smith had himself returned to the stadium he
saw Prince Gideon Zulu at respondent's side talking to him
and looking in his (Smith's) direction. Smith grew
concerned and decided to leave.
The third defence witness, Mr Reginald Radebe, deposed to what had happened
at a graduation ceremony at the University of Zululand
in May 1980. He was at
the time
33
president of the SRC at the University. Prior to the
ceremony there had been reports of an intended demonstration at the ceremony
against respondent, who occupied the position of Chancellor
of the University,
and of a plan by respondent's supporters to come to the University to defend
him. The students decided that respondent
be requested to ask his supporters not
to come to the ceremony armed or dressed in Inkatha uniforms. A telegram to this
effect was
sent to the respondent by the students. On the day armed Inkatha
supporters in uniform did come onto the campus of the University;
confrontations
with students occurred; and, according to Radebe, students and others were
assaulted by members of Inkatha. The graduation
ceremony took place. After the
ceremony Radebe was cornered by armed Inkatha supporters and beaten up.
The episodes deposed to by Smith were canvassed in the cross-examination of
the respondent, but it was not
34
suggested that he had knowledge thereof. He was
also cross-examined about the graduation ceremony referred to by Radebe, but was
unable
to recall it clearly and had no knowledge of the assault upon Radebe. In
re-examination, it transpired that the incident was investigated
by a commission
under the chairmanship of Prof Middleton of the University of South Africa; and
that prior to this the respondent
had condemned the violence in strong
terms.
The question now is whether this evidence was sufficient to discharge the
onus of showing that the defamatory words were true. If
they were, then there
JLs not much doubt that the publication thereof was in the public interest.
As to the first part of the vital sentence, there is, in my view, no
justification in the evidence for the allegation that respondent's
claim to
represent a non-violent alternative to Marxist revolution is questionable.
35
On the contrary respondent's evidence shows that he was at the relevant time a
firm adherent of the policy of solving the country's
problems by negotiation;
and there is abundant support for this in the speeches of respondent canvassed
at the trial. In argument
appellants' counsel appeared to contend that if the
second part of the vital sentence were shown to be true this would serve as
justification
for the first part. I am unable to see this, but in any event, for
the reasons which follow, I am of the view that the appellants
failed to
establish the truth of the second part of the sentence.
In my opinion, this part of the vital sentence means, and would be understood
by the reader to mean, that respondent has under his
command or control
well-drilled impi regiments and that they are mandated by him to carry out acts
of criminal violence in such a
way as to make them "among the most thuggish
operators in South Africa". The
36
word "thug" is of Indian origin and in that
country related to an association of professional robbers who strangled their
victims.
In a transferred use the word "thug" means "a cut-throat, ruffian,
rough" (The Oxford English Dictionary).
The four, apparently unconnected, incidents deposed to by Smith and Radebe
involving groups of armed Inkatha supporters did undoubtedly
include acts of
violence, some of which might be termed "thuggish". But I agree with the finding
of the Court a
quo
that -
"....there is nothing to gainsay or cast doubt on the plaintiff's evidence
that he had nothing to do with these incidents and was
in no way responsible for
the conduct of those who were involved".
As the learned Judge points out, Inkatha has a membership of about 1,5
million, apart from supporters, and its leader can hardly be
held responsible
for everything done in its name
37 or in its interests. Moreover, these
incidents rnust be seen against the background of Black against Black feuding
which had been
going on for years. And obviously it would be fallacious to pass
judgment on the four incidents and to draw general conclusions therefrom
without
having fuller information than Smith and Radebe gave, or were able to give, as
to the background to these incidents and their
causes.
The learned trial Judge also accepted respondent's denial that either he or
Inkatha had impis or regiments. I agree with this f inding
and also with the
Judge' s observation that this posed an insuperable obstacle to proving the
truth of the second part of the vital
sentence. And I might add that the
somewhat motley groups of persons depicted in the photographs taken at the
Umlazi funeral and
in the course of the second episode at KwaMashu appear to me
hardly to conform to the description of "well-drilled impi
38
regiments".
It was argued by appellants' counsel that in expounding his philosophy of an
eye for an eye, respondent had espoused violence in a
volatile situation and
that he must accordingly be held responsible for the thuggish behaviour
described in the evidence. There is
no evidence that the alleged thuggish
behaviour was in . any way influenced or inspired by respondent's philosophical
dissertations.
But in any event it seems to me that this argument fails to meet
the real gravamen of the defamation, which is that respondent commands
or
controls well-drilled impi regiments which are mandated by him to carry out acts
of criminal violence deserving of the description
"thuggish operations".
Appellants' counsel also placed considerable emphasis on the principle of law
that a defendant in a defamation suit, relying on justification,
need only
justify
39
the main charge or gist of the defamation - he
need not justify immaterial details or mere expressions of abuse which do not
add to
its sting and would produce no different effect on the mind of the reader
than that produced by the substantial part justified (see
Johnson v Rand
Daily Mails
1928 AD 190
, at 206). I fail to see any application for that
principle in the present case.
Next I would refer to the defamation alleged to reside in the words following
the vital sentence. Of this Howard J said:
"The plaintiff also, takes exception to the two sentences following upon the
one which is underlined. According to Mr
Gordon
they carry the imputation
that the plaintiff does not measure up to civilised standards as accepted in
Europe. Mr
Cameron
's submission is that it is either inoffensive or trite
to say of the plaintiff that "in a perfect world, or if Africa were like Europe,
he would not exist". That may be so, but the
40
sting lies in the explanation for his
"existence": the fact that more than a million Zulus go for "that sort of
thing", an obvious
reference to the thuggery attributed to his well-drilled
regiments. Although this does not take the matter much further I think that
the
defamatory imputation is clear."
I agree.
In my opinion, therefore, the trial Judge rightly dismissed the defence of
justification on the ground that appellants had failed
to prove the truth of the
factual averments contained in the defamatory statements. Such failure also
destroys the defence of fair
comment.
In
Zillie v Johnson and Another
1984 (2) SA 186
(W) it was held that
once words are shown to be defamatory of the plaintiff there is a presumption of
unlawfulness, thus casting
a burden on the defendant to prove the lawfulness of
the publication; that well-known defences
41 such as privilege, fair comment
and justification are merely instances of lawful publication and do not
constitute a
numerus clausus
; and that the general principle is whether
public policy justifies the publication and requires that it be f ound to be a
lawf ul
one (see p 195 B-C) . The learned Judge (Coetzee J) added (at 195
D):
"The extent of the defence involves in each case the resolution of two
conflicting interests; the interest of the individual in his
own good reputation
and the interest of society in hearing of a matter of public concern."
While conceding that the facts in
Zillie
's case were very different
from those in the present case, appellants' counsel nevertheless sought to
invoke the above-stated principles
and asked the Court to hold that in
accordance therewith the publlcation in this instance was lawful. I do not
propose to examine
in detail the arguments adduced in
42
support of the proposition that it was in the
public interest that Frontline should publish these false and defamatory
statements
concerning the respondent. In my view, there is no substance whatever
in them. Were we to hold otherwise I fail to see how any public
figure could be
protected from vilification by the law of defamation. Consequently, assuming the
correctness of all the principles
stated in
Zillie
' s case, I am of the
view that their application does not assist the appellants in this case.
Finally, it was argued on behalf of the appellants that the quantum of
damages awarded was excessive. The reluctance of the court
of appeal to
interfere with the damages awarded by a trial court for defamation is well
known. Generally speaking, it will do so
only where the trial court has
misdirected itself (and thereby come to an incorrect assessment) or the damages
awarded are manifestly
excessive or inadequate, as the case may be. It has
not
43
been shown, in my view, that Howard J misdirected
himself in any respect. He rightly emphasized, without overstating, the
seriousness
of the defamation and its likely impact upon respondent's reputation
as as political léader; and he also took into account,
correctly in my
view, the aggravation brought about by appellants' conduct in vigorously (and
without success) pursuing to the end
their plea of justification. He also duly
balanced this against the relatively limited extent of the publication (and here
the fact
that he may have overstated the distribution of this particular issue
of Frontline by a few thousand copies is of minimal significance)
and the
absence of any evidence that the publication of the defamati on had in fact
adversely affected the respondent's reputation.
Appellants' counsel referred to certain other awards of damages where lesser
amounts had been granted for what it was contended were
more serious
defamations. But
44 these cases were decided about 20 years ago and, as
appellants' counsel conceded, any comparison must necessarily take into account
the considerable erosion in the value of money which has taken place in the
intervening years. I am not persuaded that a comparison
with these other awards
shows that the damages granted in this case were excessive.
The appeal is dismissed with costs, including the costs of two counsel.
M M CORBETT
VAN HEERDEN JA) E M GROSSKOPF JA) FRIEDMAN AJA) CONCUR GOLDSTONE AJA)