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[1991] ZASCA 175
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Johnson v Beckett and Another (104/90) [1991] ZASCA 175; 1992 (1) SA 762 (AD); [1992] 1 All SA 383 (A) (28 November 1991)
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
CASE NO:104/90 In the appeal of:
MEYER ALBERT JOHNSON
APPELLANT
and
DENIS BECKETT
1
ST
RESPONDENT
SAGA PRESS (PTY) LTD
2ND
RESPONDENT
Coram: CORBETT CJ, HEFER, VAN DEN
HEEVER JJA, KRIEGLER et HARMS AJJA.
Date heard: 17 September 1991 Date
delivered: 28 November 1991
2 JUDGMENT
HARMS AJA
:
The appellant was the unsuccessful
plaintiff in a defamation trial heard in the Witwatersrand Local
Division by Goldstein J. The court
a
guo
granted leave
to appeal. The first respondent is the editor and the second
respondent, the publisher of a publication known as "Frontline".
In the April/May 1988 edition of Frontline an article was published
entitled "The Slippery Search for Moral Outrage". In
a
sentence in the article, the words "the increasingly depraved
Johnny Johnson" appeared. The appellant is known as Johnny
Johnson. The issues in the case are whether these words in the
context of the article were defamatory of the appellant and, if so,
whether the respondents established
3 the defence of fair comment.
The full title of the article is
"FOREIGN MEDIA
The Slippery Search for Moral
Outrage
From Our Own Foreign
Correspondent"
It was commissioned by first
respondent, written by one
Robinson, the local correspondent
of the Daily Telegraph (an
English newspaper) and then edited
by the first respondent.
It i s not possible to summarize
the article without doing it
an injustice. Its tone and object
do, however, appear from
the first few paragraphs:
"In one of Johannesburg's
choicest northern suburbs there lives an admired and learned foreign
correspondent. Local legend has
it that he grows the finest mealies
this side of the equator. Like all of us his salary is paid in hard
currency which when converted
into slimline Botha-rands looks like a
Houghton telephone number. What could be better than this delightful
existence? But a dark
cloud hangs over this man's life. In his own
words, he has lost his ability to inject a bit of moral outrage into
the situation'.
He risks falling into the foreign correspondent's
4
vision of
hell - becoming the 'balanced reporter', ridiculed by his colleagues
for 'understanding the complexities of the South African
situation'
to the satisfaction of the crimplene toadies in Pretoria. It's a
condition we all dread. The first sign of infection is
when the SABC
starts reporting one's despatches; the condition is terminal when
complimentary mutterings appear in the leader columns
of the Citizen.
The first
imperative is to remain hostile, to guard against what is classed in
South African terms as the balanced view. Thus, we
are castigated for
negativity, intellectual dishonesty, and whooping it up while the
country is burning (or not, as the case may
be).
'Go on,'
said the saintly editor of this esteemed journal, it's time someone
lifted the lid on this whole foreign correspondents circus.
An
unbalanced view in itself, one might think, but here we go."
The
context in which the offending words appear is the following:
"You
revile us, but you need us. You deplore our
outpourings
as you flatter us by reprinting them in the columns of local
newspapers. The 'normally balanced Daily.X', and the invariably
hostile Sunday Y', report this, that, and the other. We send out our
thoughts only to see them return, repackaged and sanitised for
the
South African reader. Witness the local media's second-hand coverage
of the Sharpeville Six. Not one local journalist stood up
to say:
reprieve them, they patently don't deserve to hang.
5
The Progs
whined in the wilderness about diplomatic damage and sanctions. It
was left to us to create their ammunition. Certainly
some of us went
over the top, but something had to be done to shake you out of your
lethargy. How much easier to let the foreign
media stick their heads
above the parapet. Then wait for the Argus man in London to telex our
reports back to let you know there's
something pongy about hanging
six people who didn't do it.
You
readily attach labels to us, but - on the rare occasions we find it
necessary to quote from the local media - we are restrained.
We don't
refer to the invariably soporific Harvey Tyson,
the
increasingly
depraved
Johnny
Johnson
, or the nauseatingly smug Hogarth column. Perhaps
we should, and then we could recover our lost sense of moral
outrage."
(My
emphasis. The "you" is a reference to the local media and
the "we" one to the foreign media.)
Some
background facts are necessary to make the sentence in which the
offending words appear, more understandable: Mr Harvey Tyson
was the
editor-in-chief of The Star newspaper; the present appellant is the
editor of The Citizen newspaper; Hogarth was the pseudonym
of the
late Mr Tertius Myburgh, editor of The Sunday Times. All of them
wrote
6 columns
for their respective newspapers, and they were also responsible for
the editorial content thereof, The appellant's column
is entitled
"Johnny Johnson's Height Street Diary".
The
article can thus be typified with reference to the following words of
Brian St Pierre in
The
Devil's
A
dvocate
;
An Ambrose
Bierce
Reader
at p 53:
"Of
course, the press always had some ambiguity toward itself.
Journalists are alternatively self-congratulatory, defensive,
or
especially self-righteous when attempting to knock some mud from
their shoes as unobtrusively as possible. Occasionally, they
are sure
of their ends but insecure about means, sometimes the other way
round."
The issues
in this case concern the alleged wrongfulness of the statement only.
The enquiry whether a plaintiff's right has been infringed
-
"is
basically objective in the sense that the defendant's state of mind,
motives, degree of care taken etc are not taken into
account. These
factors concern the presence or absence of fault on the part of the
defendant. The inquiry is concerned with whether
the infringement of
the plaintiff's interest was in the particular circumstances
objectively
7
unjustifiable.
In order to determine this, account must be taken of the particular
conflicting interests of the parties, the parties'
relation to each
other, the particular circumstances of the case, and any appropriate
considerations of social policy."
(Van der
Walt 8
Lawsa
para 20 sv Delict.) The evidence given in this
case is of virtually no relevance to decide this issue and can, for
purposes of this
judgment, be ignored.
I
now
turn
to
consider
whether
the
offending
words
are, in
isolation,
defamatory.
The
verb "to deprave" is
derived
from
the
Latin
"depravare"
and is
defined
in
the
Shorter
Oxford
English
Dictionary
on
Historical
Principles
(3rd
ed)
as follows:
"1.
To make bad; to pervert; to deteriorate, corrupt. Now
rare
,
exc. as in sense 2. 2.
spec
. To make morally bad. (The current
sense.) 1482. 3. To represent as bad; to vilify, defame, disparage -
1667. Also absol. 4. To become
bad or depraved."
8 There
can be little doubt that to say of someone that he is "increasingly
depraved", and without taking into account the
context in which
it is said, is defamatory.
Two
questions arise at this juncture: Were the words used in their
literal sense, and, did they refer to the appellant personally,
to
him in his professional capacity, or to his writings? It was alleged
(and argued) on behalf of the appellant that the words in
their
context meant that the appellant:
(a) is
morally corrupt and/or debased and/or perverted;
in his
calling as an editor and journalist is morally corrupt and/or
debased and/or perverted;
is not a
fit and proper person to be an editor and a journalist;
is not an
honest person and therefore does not deserve to be recognised as an
editor of standing or a person who can be trusted.
9 It
appears to me to be obvious from a contextual point of view that the
word "depraved" was not used in a literal sense.
The author
used figurative language and thereby deviated from the standard
significance of words. (M.H Abrams, "A Glossary of
Literary
Terms" 4th ed. sv Figurative Language.) An example is a
description of the Hogarth column as being "nauseatingly
smug":
words that do not apply to a column. The reasonable reader would
therefore have realised that in using the words "increasingly
depraved" the figure of speech employed was hyperbole, i.e. a
bold overstatement or extravagant exaggeration of fact, used either
f
or serious or comic effect. (Abrams, op cit sv Hyperbole and
Understatement).
Before
reaching a conclusion as to the meaning of the words in their
context, it is necessary to determine the second question posed,
namely, who or what was "increasingly depraved"? It was
clearly not a reference to the appellant as a person. The author
of
the article was dealing with
10
possible
sources
in
the
local
media
from
which
to
quote.
It
was
in
this
context
that
the
appellant's
name
was
mentioned.
It must, therefore,
follow
that the reference was one to the
appellant's
journalistic
writings.
But
what
was
said
about
these
writings?
As
I
understand
the
article,
the
author
intended
to
satirize
press
coverage
on
South
Africa.
On
the
one hand one
has a
foreign
press
that
feigns
moral
outrage
and
creates moral
issues
where
there may
be none. On the
other
hand, one
has
a
local
press
that
forsakes its
journalistic
duty
by
failing
to
raise
moral
issues.
"Satire
has usually been justified by those who practice it as a corrective
of human vice and folly. Pope remarked that 'those
who are ashamed of
nothing else are so of being ridiculous'. Its claim (not always borne
out in the practice) has been to ridicule
the failing rather than the
individual, and to limit its ridicule to corrigible faults, excluding
those for which a man is not responsible."
(Abrams,
op
cit
. p168.) Seen against that background, the author
conveyed to the reasonable reader that the appellant's writings were
increasingly
morally bad
11
especially
since
they
failed
to address moral
issues.
It is not
necessary
for
the
purpose
of
this
judgment
to find
whether
that
statement
is
defamatory.
I
shall,
on the
assumption
that it is, proceed to
deal
with
the defence
of fair comment
which
was
pleaded
in
justification.
The
court
a
q
uo
upheld
this
defence.
The
requirements
of
the
defence
were
stated
to be
that:
(i) the
statement must be one of comment and not of fact; (11) it must be
fair;
(iii) the
facts upon which it is based must be true; and (iv) the comment must
relate to matters of public interest.
(
Marais
v
Richard
en 'n Ander
1981 (1) SA 1157
(A)
1167.) A fifth requirement was stated to be that the defence is
available only if it is "...based upon facts expressly stated
or
clearly indicated in the document or speech which contains the
defamatory words". See
Crawford v
Albu
1917 AD 102
at 114; Neethling,
Persoonlikheidsreg
, p 153.
12
It was
submitted on behalf of the appellant that the defence must fail
because the statement was a factual averment and not comment;
there
is no factual foundation for the comment; there is no reference in
the article to the facts upon which the comment was based;
and,
lastly, the moral standards of the appellant are not of public
interest.
The
submission that the statement was one of fact and not comment cannot
be accepted in the light of the finding of the meaning of
the
statement. This is a classic case of comment dressed up as fact: it
remains an expression of opinion. See
Crawford v
Albu
,
supra
, at 114. The submission that there was no factual
foundation for the comment also has no merit. The respondents relied
upon a number
of identified columns which appeared in the Citizen
under the name of the appellant. It is common cause that those
columns were written
by the appellant. They therefore form the
factual foundation for the comment. The submission that
13
the moral standards of
the
appellant
are not
matters
of
public
interest
is
based
upon
the
appellant's
reading
of
the
article.
I
have
already
found
that
that
interpretation
is
incorrect.
It was
not suggested
that
if
the
criticism
was
directed
at
the
appellant's
work
the
matter
was
not
one of
public
interest.
To
quote from
Kemsley
v
Foot
and Others
[1952] AC 345
(HL) at 355:
"If
an author writes a play or a book or a composer composes a musical
work, he is submitting that work to the public and thereby
inviting
comment."
And,
further, at 356:
"...
a literary work can be criticised for its treatment of life and
morals as freely as it can for bad writing, e.g., it can
be
criticised as having an immoral tendency."
It appears
from the quotations from the offending article set out above that the
facts upon which the comment was
14 based,
were not stated in the article. It is therefore necessary to consider
the scope of the fifth requirement of the defence
of fair comment.
Its origin in South African law is to be found in Roosv
Stent
a
nd
Pretoria
Pr
inti
ng
Works Ltd
1909 TS
988.
Innes CJ there stated at 998:
"But
it is obvious that to entitle any publication to the benefit of this
defence it must be clear to those who read it what
the facts are and
what comments are made upon them. And for two reasons. Because it is
impossible to know whether the comments are
fair unless we know what
the facts are; and because the public must have an opportunity of
judging the value of the comments. If
a writer chooses to publish an
expression of opinion which has no relation, by way of criticism, to
any fact before the reader, then
such an expression of opinion
depends upon nothing but the writer's own authority, and stands in
the same position as an allegation
of fact."
The
learned Chief Justice proceeded to quote from Hunt v
Star
Newspaper
Co
[1908] 2 KB 309
, and concluded (at 999
-1000):
"His
words seem to me to apply
a
fortiori
to cases where the
facts commented upon are not placed before the reader at all. There
must surely be a placing
15
before the
reader of
the
facts
commented
upon
before the
plea
of
fair
comment
can
operate
at
all.
I
do
not
wish
to be
misunderstood
upon
this
point:
I
do
not
desire
to say that in
all
cases the facts must be set
out
verbatim
and
in
full;
but
in my
opinion
there
must
be some reference in
the
article
which
indicated
clearly
what
facts are
being
commented
upon.
If there
is no
such
reference,
then
the
comment
rests
upon
the
writer's
own
authority."
Smith J, in a concurring judgment,
expressed similar views in the following terms (at 1010):
"It
is
not
necessary for
the
decision
of
this
case,
and
I
do not
wish
to be understood to
lay
it down as a
principle,
that
every
fact
on
which
a cumment is
based
should
be set
out
in the
article.
I
think
there may
be
cases
where
the
facts
are so
notorious
that
they
may
be
incorporated
by reference.
But
in
the
present
article
no
reference was made to any of
the
sources
from
which
the writer deduced the facts on
which
he
based
the
assertion
complained
of. No
opportunity
was
afforded
to a
reader of the
article
to know the
grounds
on
which
the
imputation
was
based."
The matter was once again raised
by Innes CJ in Crawford v Albu, supra, where he stated, as set out
above, that the
16 defence of fair comment is only
available if it is "...based upon facts expressly stated or
clearly indicated...." This
statement was, probably, in its
context, obiter, but it nevertheless is of strong persuasive
character. If regard is had to the rest
of the judgment one notices
that the learned Chief Justice had regard to facts which were not
stated in the offending speech of the
defendant but which were part
of the recent history of the country (per Solomon JA at 124) and in
the common knowledge of the author
and addressee (per de Villiers AJA
at 137).
Kemsley v Foot and Others
,
supra
, is for all practical purposes on all fours with the
present case. It, in effect, held that a reference to well known or
easily ascertainable
facts was a sufficient statement of those relied
upon (at 360) and that the reference may be by way of implication.
Lord Porter concluded
(at 360):
"I
do
not
think
it
necessary to go
through
the
other
cases
one by one,
but
reference
must
be made to the
17
South
African
case of
Roos
v
Stent
and
Pretoria
Printing
Works Ld.
If
I
thought
that
that
judgment
represented
a new and
independent
view,
it would be
necessary to
analyse
its
reasoning
carefully.
But
in
truth
it
is
founded
on
Fletcher
Moulton
L.J.'s
opinion
in
Hunt
v Star
Newspaper
Co. Ld.
and
does
not
contain
any
fresh
point
of
view."
I
am
in
respectful
agreement.
Roos
's
case
must be read
in its context. It represents
good
1 aw as far as it goes.
Kemsley
's
case is
merely
a
logical
extension
thereof
and,
since
both
cases
rely
upon
the
same
authority,
should
be
followed.
See
also
Golding
v Tor
ch
Printing
and
Publishin
g
Co (Pty) Ltd and Others
1948 (3) SA 1067
(C). To
conclude:
Literary
criticism
may be
justified
by
reference to
published
works referred to in general or by
implication
in
the
alleged
defamatory statement. See too
Telniko
ff
v
Matusevitch
[1990]
All
ER 865
(CA) 871 and 881.
The last issue of substance to
consider is whether the comment was fair. The word "fair"
is used in a specialised
18 sense and means that the
opinion must be an opinion which a fair man, however extreme his
views may be, might honestly have, even
if the views are prejudiced.
It must, objectively speaking, qualify as a genuine expression of
opinion which does not, "disclose
in
itself
actual
malice".
McGuire
v Western
Morning
News
Co
Ltd
[1903] KB 100
;
Crawford v
Albu
,
supra
at 115;
Marais
v
Richard
en 'n Ander
,
supra
at 1167 - 8. (My emphasis. It was not suggested that the
article under discussion "in itself" disclosed actual
malice.)
The respondents relied upon a
number of "Height Street Diaries" to justify their comment.
Each column occupies a full page.
The most conspicuous portion,
visually, is a framed insert headed IHowlers. These "howlers"
consist almost exclusively
of quotations of misprints with comment
highlighting the misprint. Here is a random example:
"But the public appearance,
said to have been engineereded by the Queen Mother...'
We don't know how she engineereded
anything."
19
The
column
itself
deals
with
matters
political,
royal,
social
and
sexual
in a
mocking
manner;
names are
perverted;
fictitious
events
and
dialogue
are
created; fact,
fiction
and
comment are
mixed;
misspellings
abound;
rules
of grammar are
ignored:all
under
the
guise
or in
the
name of
humour.
It would
be
inappropriate
to comment on
the
quality
of
these
columns.
See
McGuire
's
case,
supra
.
I
disagree
with the
learned
trial judge where he
held
that
the
alleged
defamatory
statement
was
justified
by reference to the
eccentric,
peculiar
or
outlandish
style
of
these
columns
and the
corruption
and
distortion
of
the
English
language.
To my
mind, the words
"increasingly
depraved"
related
not to
style and form
but
to
content.
A
glance
at these
columns,
which
were
intended
to
be
humorous,
indicates
that
serious
political
matter was
trivialised
and
that
no
moral
issues
were
raised
or
promoted.
There
was
nothing
worthy of
quotation
f or
foreign
consumption.
A
serious
commentator may
honestly
hold
the
view
that
the
column
is
devoid
of any
redeeming
value,
I
do
not
thereby
wish
to
suggest
that
the
20
appellant
is not entitled to be frivolous about political and social issues or
to his own brand of humour; however, he cannot complain
if others
deem his outpourings as being "increasingly depraved"
because they do not enunciate moral precepts.
But
the
matter
goes
further.
The
few
articles
are
replete
with
crude sexual
fictitional
anecdotes. Persons of
stature
are,
in this way,
ridiculed.
One
example
of
what
can be
described
as
"morally
corrupt"
writing
will
suffice
and
I
can do no
better than to quote from the
Height
Street
Diary
of 4 April 1988:
"
Folksy
Humour
Folksy (or
leery) humour of Professor Chris Barnard
appearing
on Late Night Live with his new wife, Karen.
'I
think
the
song
that
I
need
is,
"Will
you
still
need
me, will
you still need me, when I'm 64."
'Karen is
going to learn to make sausages, and
biltong,
and to handle meat (on their Karoo farm).
And maybe
during that period, we'll do something else.
(Wink,
wink, nudge, nudge). Next time you get me on
this show,
there'll be a little one sitting on my
lap.'
'I've been
through two wives, of course, and through
21
many
women, of course, too.'
'Two
things
I
go by,
the
Bible,
I
believe
it's the
book of
wisdom, and nature. Is there anything in the
Bible
that says you
must
marry a
girl
of
your age?
I
couldn't
find it.'
'And in
nature, an old bull can have a young thing,
not so, as
long as he can compete with the young
bulls. The
important thing is performance.'
'This age
difference business they talk about. Let's
be
practical now. Say, for example, you were not a
married
man
and
this
girl
comes to you
and she says
"I
love you,
will you marry me?" Will you say "No, I'm
not
going
to marry
you
because
I'm
too old." Of
course
not.
I
would
jump
at it.
I
mean
to have such
a
beautiful
woman
like
that as my
wife,
I
consider
that an
achievement maybe bigger than my transplant.'
'If God
wanted us to have clothes on, he would have
the babies
born with clothes on.'
'I
never
climb
into
bed;
I
jump
into
bed.'
Wink,
wink, nudge, nudge, say no more."
No
more need be said.
I
agree
that
the
appeal
must be
dismissed
with
costs.
L.T.C.HARMS
AJA
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE DIVISION
)
In the matter between:
MEYER ALBERT JOHNSON
Appellant
and
DENIS BECKETT
....
First
Respondent
SAGA PRESS (PTY) LIMITED
Second Respondent
CORAM
: CORBETT CJ, HEFER et
VAN DEN HEEVER JJA, KRIEGLER et HARMS AJJA.
DATE OF HEARING:
17
September 1991
DATE OF JUDGMENT
: 28
NOVEMBER 1991
JUDGMENT
CORB
ETT
CJ/
1
CORBETT
CJ:
The facts of
this matter are set forth in the judgments of Van den Heever JA and
Harms AJA, which
I
have
had the benefit of reading.
I
agree
that the appeal should be dismissed with costs.
As to the words
complained of by the appellant ("the increasingly depraved
Johnny Johnson"),
I
am
of the view (i) that read in their context they should be understood
as referring to the writings of the appellant as a journalist;
(ii)
that they convey that such writings are bad, debased, perverted (see
the Oxford English Dictionary, 2ed sv "depraved");
and
(iii) that, so understood, the words are prima facie defamatory of
the appellant in that they constitute an impairment of his
professional reputation.
Turning to the
defence of fair comment,
I
agree
with both my colleagues for the reasons given by them that the words
in guesticn constitute comment, not a statement of
2
fact; and that
the facts upon which the comment is based, viz appellant's writings
in the newspaper column known as "Johnny Johnson's
Height Street
Diary", need not have been stated in the Frontline article. In
this connection
I
agree
that the principles laid down in the English case of
Kemsley
v Poot and Others
[1952] AC 345
should
be followed. It is not disputed that the comment in question relates
to a matter of public interest. In substantiation of
the defence of
fair comment respondents have placed on record eight samples of the
Height Street Diary which appeared in issues of
the newspaper during
November 1987 and February 1988. There is no suggestion that these
are not representative of the appellant's
writings as a newspaper
columnist. Moreover, the samples are genuine; i e the facts are true.
The only remaining question is whether
the comment is fair.
The Height Street Diary samples
have been analysed
3 and some
illustrative extracts quoted in the judgments of my colleagues. To
sum up my overall view of these writings,
I
would say that they are bad, both in style
and content; they trivialize important matters in a manner no doubt
intended to be humorous
but seldom achieving this; the language used
is often ungrammatical and is replete with slang, much of it derived
from Afrikaans;
certain of the writing is in extremely poor taste and
here
I
refer in
particular to certain lengthy references to members of the British
royal family and to the extract quoted at the end of the
judgment of
my Brother Harms; and there is throughout the writings a recurring
theme of sexual suggestiveness of the crude variety.
I
say
this about the writings not to moralize but in order to answer the
question whether the comment published in the Frontline article
was
fair, in the sense that objectively speaking it qualified as an
honest,
4 genuine
(though possibly exaggerated or prejudiced) expression of opinion
relevant to the facts upon which it was based, and not
disclosing
malice. In my view, it was.
I
concur in the order made by Van den Heever
JA.
M M
CORBETT
CASE NUMBER: 104/90
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
MEYER ALBERT JOHNSON
Appellant
and
DENIS BECKETT
First
Respondent
SAGA PRESS (PTY) LIMITED
Second
Respondent
CORAM
: CORBETT CJ, HEFER et
VAN DEN HEEVER JJA, KRIEGLER et HARMS AJJA
HEARD: 17 SEPTEMBER 1991
DELIVERED
: 28 NOVEMBER 1991
JUDGMENT VAN DEN HEEVER JA
2
Denis Beckett is the editor of
Frontline Magazine which is published by Saga Press (Pty) Ltd. It
deals in serious and sometimes controversial
fashion mainly with
political issues. It has a circulation of about 10 000 readers of
various political persuasions, and is aimed
at the reasonably
well-educated, sophisticated English-speaker.
Mr M A ("Johnny")
Johnson, editor of The Citizen daily newspaper, sought damages for
defamation from the editor and publisher
of Frontline. The action was
dismissed with costs but leave to appeal granted.
For the sake of
brevity and clarity
I
refer
to the plaintiff (appellant) and first defendant (first respondent)
by their names, intending no discourtesy by omission of
their
courtesy titles, and generally omitting reference to the publishing
company, which took no active part in the trial itself.
Johnson annexed a copy of an
article containing
3
the alleged defamation to his
particulars of claim, which state:
"6. A statement in the
article refers to the plaintiff as 'increasingly depraved' (the
statement).
7. The statement:
is per se defamatory of the
plaintiff;
was caused to be published by the
first and second defendants unlawfully and animo iniuriandi;
Alternatively to sub-paragraph
7.1 above
The statement, in the context of
the article, meant, was intended to mean and was understood to mean
one or more or all of the following,
which are defamatory of the
plaintiff:
The plaintiff is morally corrupt
and/or debased and/or perverted.
The plaintiff in his calling as
an editor and journalist is morally corrupt and/or debased and/or
perverted.
The plaintiff is not a fit and
proper person to be an editor and a journalist.
The plaintiff is not an honest
person and therefore does not deserve to be recognized as an editor
of standing or a person who can
be trusted."
4
I
deal
with the article in more detail below.
To understand the allegations in
the plea it is necessary
to quote here the immediate
paragraph in which the
statement appears:
"You readily attach labels to
us, but - on the rare occasions we find it necessary to quote from
the local media - we are restrained.
We don't refer to the invariably
soporific Harvey Tyson, the increasingly depraved Johnny Johnson, or
the nauseatingly smug Hogarth
column. Perhaps we should, and then we
could recover our lost sense of moral outrage."
The plea admitted the identity of
the parties
and publication of the article,
but denied that the
statement constituted defamation,
and elaborated:
"2.3 The following facts were
public knowledge:
2.3.1 Harvey Tyson was the
editor-in-
chief of The Star newspaper and a
regular
contributor to its
editorial content.
2.3.2 The plaintiff was the editor
of
The Citizen newspaper and a
regular contributor to
its
editorial content.
2.3.3 Hogarth was the pseudonym
under
5
which a regular column appeared in
the Sunday Times newspaper. 2.3.4 The aforementioned newspapers were
'local media' in the sense
that they were published in South Africa.
Given those facts, the statement
meant and would have been understood to mean that the plaintiff was
increasingly depraved in his
writing.
The statement constituted fair
comment in that it was a genuine expression of comment or opinion on
the plaintiff's writing which
was a matter of public knowledge and
interest.
In the premises, the defendants
deny
that the statement was defamatory
of the plaintiff; or
that the statement was published
unlawfully or animo iniuriandi."
In a request for particulars for
purposes of
trial, Johnson asked for
identification of every instance
of his writing relied on in
paragraph 2.5 of the plea,
and why in the opinion of the
writer of the statement
such writing was depraved or
increasingly depraved. The
reply (amended, to retract
reference to editorial
columns) referred to Johnson's
column in The Citizen
6
known as the "Height Street
Diary", eight issues of which were annexed as examples of the
general content and style of Johnson's
writing in that column. These
had appeared on the Thursdays of November of 1987 and February of
1988. The statement, so it was alleged,
constituted a genuine
expression of comment or opinion on Johnson's writing generally in
these articles.
At the trial Mr Mostert appeared
for Johnson. In opening he contended with reference to a variety of
dictionaries listing synonyms
for "depraved", that the
statement is per se defamatory; and that the onus whether of proof or
rebuttal accordingly burdened
Beckett. Mr Mostert closed his case in
respect of the issues on which the onus burdened Johnson.
The only witness at the trial was
Beckett. He put in as an exhibit the front page of the issue of
Frontline magazine in which the
article appeared and the article
itself, and told how it came to be written. He
7
was of the opinion, and thought
moreover that he was not alone in that, that foreign correspondents
in writing about South Africa
reported for overseas publication what
their private conversations here belied. He approached Mr Robinson,
local correspondent of
the Daily Telegraph, a conservative newspaper
in the United Kingdom, and commissioned an article on the topic.
Robinson wrote it.
Beckett read and edited it and provided the title.
The cover page of the April/May 1988 edition of Frontline records
what are presumably
the major subjects dealt with in that issue:
These include
"THE TROUBLE WITH THE FOREIGN
PRESS
LIFTING THE LID ON THE MEDIA
CIRCUS"
The title of the article is
"FOREIGN MEDIA
The slippery search for moral
outrage."
The article is satirical in tone
but serious in
content, and spares none who come
within firing distance
over a wide range: an individual
foreign correspondent,
8
foreign correspondents en masse,
clerics playing at politics, Mr Sonny Ramphal, overseas editors with
an eye on circulation figures,
and so on. It deals with the
accusations of hypocrisy and bias levelled against foreign
correspondents as regards their reporting
on events in South Africa -
where they live in luxury, being paid in foreign currency - by
admission and counter-attack. The gist
of the article as regards
reporters, is to admit that individual foreign correspondents and
foreign correspondents as a group sometimes
behave badly and write
what they do not personaliy believe, or with deiiberate
sensationalism, for an overseas readership many of
whom are also
hypocritical about events here. However, South Africa is not regarded
as a news story but a moral issue, and approval
of and by Pretoria is
the kiss of death for a foreign correspondent. It is difficult to
muster sufficient genuine moral outrage (to
ensure remaining posted
here in luxury), about local
9
politicai figures none of whom
merits belng taken
seriously. The writer then turns
to the local press, and
has this to say:
"You reviie us, but you need
us. You deplore our outpourings as you flatter us by reprinting them
in the columns of local newspapers.
The 'normally balanced Daily X',
and the 'invariably hostile Sunday Y', report this, that, and the
other. We send out our thoughts
only to see them return, repackaged
and sanitised for the South African reader. Witness the local media's
second-hand coverage of
the Sharpeville Six. Not one local journaiist
stood up to say: reprieve them, they patently don't deserve to hang.
The Progs whined
in the wilderness about diplomatic damage and
sanctions. It was left to us to create theír ammunition.
Certainly some of us
went over the top, but something had to be done
to shake you out of your lethargy. How much easier to let the forelgn
media stick
their heads above the parapet. Then wait for the Argus
man in London to telex our reports back to let you know there's
something
pongy about hanging six people who didn't do it."
Then follows the paragraph already
quoted, thereafter a
salvo at South Africans generally,
another at racist UK
readers in "ethnically
interesting Labour-controlled
10
local .
authorities", and the concluding paragraph, returning to foreign
correspondents, cocks a snook at
their
critics:
"We
in the foreign press are not actually horrible people. We merely
drive horribly expensive cars and live in horribly large
houses. That
is why we are disliked, indeed why the present article was
commissioned at all - it is Am-Ex envy. But we must not whinge.
We
are a small band of men at the southernmost tip of Africa, doing the
best we can. Like you, we can live with our pariah status.
Besides,
we must preserve our sense of moral outrage for the really important
issues of this world. Sonny Ramphal would expect nothing
less of us."
Beckett
was led by counsel as to the facts set
out in the
plea. He stated, i.a., that Tyson writes a
column
often criticised as boring (indeed, in his Height
Street
Diary Johnson himself refers to him as "Harvey
Tiresome"),
that Hogarth is the pseudonym under which the
late Mr
Tertius Myburgh then wrote a column in the Sunday
Times; and
that most of the readers of Frontline would
be
familiar with The Citizen, and would know that Johnson
11
is the editor and writes a column
therein entitled "Johnny Johnson's Height Street Diary".
This evidence stands uncontradicted.
The court a quo held that the
words "increasingly depraved" used in the alleged
defamation meant, in their context, that
Johnson's work was
"exceptionally bad" or "poor" but that it was
unnecessary to decide whether it was per se
defamatory since the
defence of fair comment was well-founded.
When leave to appeai was granted
the trial
judge said
"Given the
fact that the ordinary dictionary meaning of the word 'depraved' may
be more serious than the innocuous one
I
ascribe to it,
I
think there is a reasonable prospect of
another court differing from my interpretation of these words".
Beckett stressed in his evidence
that, in
adopting as his own the article he
had commissioned, what
he had intended to criticize,
criticize even harshly, was
12
Johnson's style of writing rather
than the content of his work, certainly not Johnson personally. His
evidence was not admissible
for purposes of determining the meaning
of the statement since that is for the court to determine. It
construes the words in their
context, and considers what meaning they
would convey to ordinary reasonable persons, having regard to the
sort of people to whom
the words were or were likely to be published
(
CHANNING v SOUTH AFRICAN FINANCIAL GAZETTE LTD AND OTHERS
1966 (3) SA 470
(W) at 474 A-C; Jansen JA in
DEMMERS v WYLLIE AND
OTHERS
1980 (1) SA 835
at 840: "the average ordinary reader
of that newspaper";
DUNCAN AND NEILL ON DEFAMATION
2nd
ed, p 13, para 4.10). The kind and guality of the readership is
relevant, since it is as much part of the context in which the
alleged defamation occurs, as the other words contained in the
article are.
Mr Mostert argued that it matters
not whether Johnson's personal integrity is impugned or that of his
13
writing since the latter reflects
the former.
In all cases, the nature of the
allegation made
must determine whether the
reputation of the person about
whom it is made, is tarnished as a
result. Flemming J
puts it thus in
KRITZINGER v
PERSKORPORASIE VAN SA
1981
(2) SA 373
(0) at 384H:
"Die uitgangspunt by laster
is dat dit gaan om 'n skending van die benadeelde se fama; sy aansien
of agting in die oë van
andere. Soos 'n geslypte diamant het die
fama vele fasette wat saam die beeld na buite bepaal. Beskadiging van
enige faset het die
potensiaal om 'n verminderde agting van die
aanskouer vir die beeld na buite te veroorsaak en 'n lasteraksie
regverdig."
Our courts have long recognized
that a man's reputation
includes a general estimation of
his professional
competence. An aspersion on his
competence in his
calling may be sufficient to
constitute defamatory
matter, "calculated to bring
(him) into contempt, even
though it may not reflect on his
moral character"
(
PITOUT v ROSENSTEIN
1930
OPD 112
at p 117), which is
14
what the inquiry is ultimately all
about. Relevant cases
are referred to
in BURCHELL, THE LAW OF DEFAMATION
IN
SOUTH AFRICA
at pp 124-5.
Since the Frontline article
contrasts the sins of foreign correspondents as such with the sins of
their local counterparts, and since
Johnson is mentioned in the
company of two other columnists well known in the ranks of "the
local media", the ordinary
reader of Frontline could not view
the statement as an attack on Johnson in any other capacity than the
only relevant one: as a journalist.
In dealing with journalists as a
breed, the Frontline article confessed on behalf of foreign
correspondents to sins of style, content
and ethics: they are often
too shrill in stating matters they themselves have no faith in. The
reasonable Frontline reader would
have no reason to assume that in
comparing the performance of foreign correspondents with that of the
local media, Frontline was
comparing apples and
1 5
pears. The labels given the three
chosen representatives
of the local media must therefore
relate to the style
and/or content of their writing.
In calling Johnson the journalist
"depraved"
the statement was defamatory
whether referring to his
journalistic mores or the content
of his writing or even
his style, or more properly the
first of these as
reflected in the other two. Strunk
and White (THE
EEEMENTS OF STYLE
, p 84)
say:
"Style takes its final shape
more from attitudes of mind than from principles of composition, for,
as an elderly practitioner
once remarked, 'Writing is an act of
faith, not a trick of grammar'. This moral observation would have no
place in a rule book were
it not that style is the writer, and
therefore what a man is, rather than what he knows, will at last
determine his style."
Since "depraved"
ordinarily means bad, corrupt, perverse,
and the adjective was moreover
used albeit satirically in
the context of trying to regain a
sense of "moral
outrage" the statement was
one calculated to bring
16
Johnson into contempt (
PITOUT'S
case, supra).
Mr Mostert argued that the defence
of fair comment must fail at the first hurdle: the statement
complained of was a statement of fact,
he contended, not a comment
upon other facts. Should that hurdle be cleared, nothing in the
Frontline article, he submitted, dlrected
the reader's attention to
the Height Street Diary as being the matter commented upon; and in
any event the comment was not fair since
whatever other rude
adjectives might be appropriate in describing the column, "depraved"
was not among them.
The writer of the Frontline
article was clearly expressing his opinion of Johnson's writing.
Though his opinion appears in the guise
of a statement of fact, in
the context of the article the reasonable reader could have been
under no misapprehension that the author,
who throughout the article
was voicing his unflattering opinion on a wide range of topics,
suddenly purported to
17
state an objective fact. That is
even less likely where the statement is made in the same breath as
what can indubitably be only opinion:
that Tyson's work is
"soporific", i.e. dull, and Myburgh's "smug".
Generally it is necessary that the
facts on which the comment is made be incorporated in the article
containing the comment, at the
very least by reference.
ROOS v
STENT AND PRETORIA PRINTING WORKS LTD
1909 TS 988
at 999, 1000;
CRAWFORD v ALBU
1917 AD 102
at 114;
GOLDING v TORCH
PRINTING AND PUBLISHING CO (PTY) LTD AND OTHERS
1948 (3) SA 1067
(C) 1078-1081. In
GOLDING'S
case, however, Ogilvie Thompson AJ
held that a matter of public interest may by its very notoriety be
regarded as having been incorporated
by reference in a statement even
though such matter is not specificaily mentioned in the statement in
question (pp 1082-3). The Height
Street Diary in The Citizen
proclaims itself the product of Johnny Johnson. Any reader of
Frontline not aware of the
18
content and tenor of his work
would be able to discover
that without difficulty. In any
event Beckett's
uncontradicted evidence was that
most people who would
have read the article, would have
known that Johnson
wrote a column in The Citizen.
In a similar situation in England
the House of
Lords held:
"If an author writes a play
or a book ... he is submitting that work to the public and thereby
inviting comment. Not all the
public will see or read ... it but the
work is public in the same sense as a case in the Law Courts is said
to be heard in public
... (T)he subject-matter upon which comment can
be made is indicated to the world at large.
The same observation is true of a
newspaper. Whether the criticism is confined to a particular issue or
deals with the way in which
it is in general conducted, the subject
matter upon which criticism is made has been submitted to the public,
though by no means
all those to whom the alleged libel has been
published will have seen or are likely to see the various issues.
Accordingly its contents
and conduct are open to comment on the
ground that the public have at least the opportunity of ascertaining
for themselves the subject-matter
19
upon which the comment is
founded." (
KEMSLEY v FOOT AND OTHERS
1952 AC 345
pp
355-6)
(See too
TELNIKOFF v
MATUSEVITCH
1990 (3) AER 865
(CA) at
871 f-j, 881 g-j.) Unlike the
situation where a fact may be objectively ascertainable: "he
stole"; or "he lied";
there is no absolute and
objective norm against which written work can be judged. In such a
case, the requirements for the defence
of fair comment to succeed can
only be that the opinion voiced about the writing should be
objectively fair in the sense that it
is one which, in the judgment
of the court based on the material placed before it, a fair man might
honestly hold about the particular
author's work, whether the defamer
was aware of the particular examples of that offered in evidence when
he spoke or not.
CRAWFORD v ALBU
1917 AD 102
, 130.
KEMSLEY'S
case, supra, at p 358 pointed out that where the factual substratum
on which comment is based is so wide - "your work"
- the
defence of fair
20
comment will succeed where any
fact sufficient to justify
the criticism voiced'is proved.
And in testing whether
comment in a given case is fair or
not, the court ruled
that:
"... a literary work can be
criticized for its treatment of life and morals as freely as it can
for bad writing, e.g. it can
be criticized as having an immoral
tendency. The fairness of the criticism does not depend upon the fact
that it is confined to form
or literary content". (
KEMSLEY'S
case, supra, at p 356.)
In the absence of pertinent local
authority, reference to the English law whence we derive the defence
of fair comment is appropriate;
and
KEMSLEY'S
case has stood
the test of time. Cf
BRENT WALKER GROUP PLC AND ANOTHER v TIME OUT
LTD AND ANOTHER
1991 (2) AER 753.
The problem facing a writer suing
for damages for defamation based on criticism of his work is usually
that the inference that an
expressed opinion could not honestly have
been held by a literary critic may be a difficult one to draw. Quot
homines, tot sententiae.
21
For
that reason it is unnecessary to analyse
the
Height Street Diary in great detail. Only because in
my
view Johnson's style is part of the "factual
substratum"
on which to assess the fairness of the
statement,
do
I
add to the
succinct description by Harms AJA of the general tenor of the Height
Street Diary. A reasonable reader, without conscious
awareness of
what
Strunk and White say in the passage
quoted earlier, would
be entitled to regard
the style of the column as appropriate to its content. Slang words
abound,
languages are mixed, ("'acerbity'
is just a way of
donnering up ous like me
verbally"), attempts to mock
foreigners'
English are crude ("Mith Thluzman velly nice
thlady
for Plesident. Thentral Clomittee, Thlinese
Thlommunist
Plarty"). The passages in brackets are merely quoted as
representative examples.
In the
circumstances the defence of fair comment succeeds.
22
The appeal
is dismissed with costs.
L VAN DEN
HEEVER JA