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1992
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[1992] ZASCA 68
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Sauls v Hendrickse (416/90) [1992] ZASCA 68; 1992 (3) SA 912 (AD); [1992] 2 All SA 205 (A) (19 May 1992)
Case No 416/90 N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
FREDERICK
SAULS
First Appellant
JOHN GOMOMO
Second Appellant
ELLIOT
MTWA
Third Appellant
LESLEY KETTLEDAS
Fourth Appellant
JURIE
HARRIS
Fifth Appellant
and
ALLAN HENDRICKSE
Respondent
CORAM
: HOEXTER, SMALBERGER, et
VAN DEN HEEVER, JJA
HEARD
: 11 MAY 1992
DELIVERED
: 19 MAY 1992
JUDGMENT
SMALBERGER, JA :
At the beginning of 1985 there was unrest at
certain so-called "coloured" schools in the Port Elizabeth and Uitenhage
areas. The unrest took the
2
form,
inter alia
, of students boycotting classes. The unrest was
apparently politically motivated and was inspired by certain elements opposed to
the recently introduced tricameral system of government in the
Republic.
Attempts to resolve the unrest situation proved unsuccessful. The unrest
eventually escalated to the extent where police
intervention was necessary. The
respondent at the time was the leader of the Labour Party in the House of
Representatives and Chairman
of the Ministers' Council. He represented the
constituency of Swartkops which included areas from the Port Elizabeth and
Uitehhage
districts. He was also a member of the Cabinet. On 27 February 1985
the respondent called a press conference at which he made a statement
concerning
the unrest situation. At the press conference he said,
inter alia
, (as
subsequently reported in the Eastern Province Herald newspaper) that "it had
been shown that office bearers of the National
3
Automobile and Allied Workers Union (NAAWU) were involved behind the scenes
in the unrest and that certain teachers had also incited
the students" ("the
statement"). The above facts are either common cause or not in dispute.
The appellants were all office bearers of NAAWU (a registered trade union) at
the relevant time. They claimed that the statement was
defamatory of them. They
consequently instituted an action for damages against the respondent in the
South Eastern Cape Local Division.
(They also instituted action against the
reporter and the newspaper concerned with the publication of the statement, but
their action
against them was settled.)
The matter came before JENNETT J. The appellants relied upon the facts
admitted in the pleadings and closed their case without leading
any evidence.
The respondent testified to the
4
circumstances giving rise to the making of the statement. The learned trial
Judge came to the
conclusion, on the assumption that the statement was
defamatory, that the onus of proof that the statement "relates to the plaintiffs
or any of them, and/or would be understood as so doing has not been discharged
and for this reason the action fails". He accordingly
absolved the respondent
from the instance, with costs, but granted the appellants leave to appeal to
this Court. Hence the present
appeal.
In order to succeed the appellants must prove (the onus being on them) that
the statement was defamatory, and that it was published
of and concerning them
(
South Africa Associated Newspapers Ltd and Another v Estate Pelser
1975(4) SA 797 (A) at 810 C). The statement makes no specific reference to the
appellants. What it does is to refer to persons belonging
to a class or group -
office bearers of NAAWU. To succeed in
5
their action the appellants must establish that the
words complained of would lead an ordinary reasonable
person acquainted with them to believe, cm reading the
statement, that such words referred to them personally.
The test is therefore an objective one and the actual
intention of the respondent is irrelevant. In
Knupffer v London Express Newspaper Ltd
[1944]
1 ALL ER 495
(HL) at 497 F - G, Viscount Simon, LC
propounded a two-fold test for a matter such as the
present in the following words:
"The first guestion is a question of law - can the article, having regard to
its language, be regarded as capable of referring to
the appellant? The second
question is a question of fact, namely, does the article in fact lead reasonable
people, who know the appellant,
to the conclusion that it does refer to
him?"
It is common cause that the first question
must be answered in favour of the appellants. What is
in issue is whether the second question also falls to be
6
so answered. Whether defamatory words used of or concerning a group will be
taken to refer to every
member of such group will depend in each case upon
the
precise words used seen in their proper factual matrix.
The mere
reference to a group
per se
will not be
sufficient. A plaintiff must still prove that, as a
member of such group,
he was included in the defamatory
statement - often a difficult matter, particularly when
one is dealing with a group comprising a large or
indeterminate number of persons. In
Knupffer's
case
(
supra
) at 498 A Lord Atkin remarked:
"The reason why a libel published of a large or indeterminate number of persons
described by some general name generally fails to
be actionable is the
difficulty of establishing that the plaintiff was in fact included in the
defamatory statement : for the habit
of making unfounded generalisations is
ingrained in ill-educated or vulgar minds : or the words are occasionally
intended to be a
facetious
exaggeration."
7
He went on to add (at 498 C):
"It will be as well for the future for lawyers to concentrate on the question
whether the words were published of the plaintiff rather
than on the guestion
whether they were spoken of a class."
In the
South Africa Associated Newspapers
case (
supra
,
at 810 D) the above statements were said to reflect the
law correctly.
Mr Liebenberg, for the appellants, referred us
to a number of reported cases where an individual member
of a group was held to have been personally defamed in a
reference to the group. Amongst these were
Hertzog v
Ward
1912 AD 62
(the Medical Council);
Younq v Kemsley
and Others
1940 AD 258
(the Licensing Board); and
Bane
v Colvin
1959(1) SA 863 (C) (where a reference to a
company was held to include all its directors).
Further examples are also to be found in
Gatley
on
Libel and Slander, 8 ed, para 288. These cases are all
distinguishable. They relate to instances where,
8
because of the express words used, or by necessary
implication, the
defamatory imputation was held to apply to every member of the group concerned.
For a contrary decision see
Visse v Wallachs' Printing and Publishinq Co
Ltd
1946 TPD 441
where the allegedly defamed class was held to be "unlimited
and so large as not to justify the application of any stigma to each
member,
including plaintiff" (at 449).
This is not a case where reference was made to all the members of a group.
The statement refers simply to "office bearers of NAAWU".
It does not in express
terms refer to
all
the office bearers. Nor can such a reference
necessarily be implied. The position may have been different had it spoken of
"
the
office bearers", for that might have implied
all
. Seen in
their proper context the words "office bearers of NAAWU" only refer to
some
office bearers - an interpretation which Mr Liebenberg was obliged
to
9
concede.
Some
in that sense denotes an unspecified yet relatively
limited number.
NAAWU is a national trade union. It apparently operates on a
national, regional and local level. This may be inferred from the pleadings
where the first appellant is described as the "national secretary", the fourth
appellant as the "regional secretary" and the remaining
appellants simply as
"president", "vice-president" and "treasurer" (presumably of a local branch).
There is no evidence of how many
branches of NAAWU there are on a regional or
local level throughout the Republic, nor of how many office bearers there are at
each
such branch, or on the national executive. For all we know the overall
number of office bearers in the Republic may be a very sizeable
one. The
statement only refers to some of them.
A reasonable person reading the statement would have no grounds for
connecting it with the
10
appellants personally. Nor are there any background facts or surrounding
circumstances from which a person acguainted with the appellants
could
reasonably have inferred that they were the office bearers to whom the statement
referred. There is not even admissible evidence
that the appellants come from or
reside in the Port Elizabeth or Uitenhage areas. If the statement had referred
to an office bearer
it could clearly not have been taken to refer to the
appellants, or any one of them. The position can be no different where the
reference
is to some of an indeterminate and potentially large number of office
bearers.
Mr Liebenberg contended that if the appellants were seen walking
down the street together by someone acguainted with them, such person
would
associate them with the office bearers referred to in the statement. The answer
would seem to be that any such acquaintance,
in the absence of information with
regard to how many
11
NAAWU office bearers there are and other relevant background facts and
circumstances, could not
reasonably
come to such a conclusion.
In
the result the trial Judge correctly held that the appellants had failed to
discharge the onus of proving that the statement referred
to them personally. It
therefore becomes unnecessary to consider any of the other defences raised by
the respondent at the trial.
The appeal is dismissed, with costs.
J W SMALBERGER JUDGE OF APPEAL
HOEXTER, JA ) Concur
VAN DEN HEEVER, JA )