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[1993] ZASCA 203
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Neethling v Du Preez and Others, Neethling v Weekly Mail and Others (184/91, 401/91) [1993] ZASCA 203; 1994 (1) SA 708 (AD); [1994] 3 All SA 479 (AD) (2 December 1993)
LOTHAR PAUL NEETHLING
Appellant
MAX DU PREEZ
1st Respondent
CAXTON LIMITED
2nd Respondent
WENDING PUBLICATIONS
3rd Respondent
JACQUES PAUW
4th Respondent
AND
LOTHAR PAUL NEETHLING
Appellant
and
THE WEEKLY MAIL
1st Respondent
W M PUBLICATIONS (PTY) LIMITED
2nd Respondent
GAVIN EVANS
3rd Respondent
Case Nos 184/91 and 401/91
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
LOTHAR PAUL
NEETHLING
Appellant
and
MAX DU PREEZ
1st
Respondent
CAXTON LIMITED
2nd
Respondent
WENDING PUBLICATIONS
3rd
Respondent
JACQUES PAUW
4th Respondent
AND
LOTHAR PAUL NEETHLING
Appellant
and
THE WEEKLY MAIL
1st Respondent
W M PUBLICATIONS (PTY) LIMITED
2nd Respondent
GAVIN EVANS
3rd Respondent
CORAM:
CORBETT CJ, HOEXTER, NESTADT, NIENABER JJA et NICHOLAS,
AJA
HEARD:
16, 17, 18, 19, 20 AUGUST 1993
DELIVERED:
2 December
1993
JUDGMENT
HOEXTER, JA
2
HOEXTER, JA
(A) INTRODUCTION:
In two separate actions instituted in the Witwatersrand Local Division
during December 1989 the plaintiff, now the appellant, claimed
damages totalling
R1'5 m in respect of certain matter defamatory of him which had been published
in two weekly newspapers published
and circulating within the Republic of South
Africa. The newspapers in question were VRYE WEEKBLAD ("VWB"), which is
published in
Afrikaans, and THE WEEKLY MAIL ("WM"), which is published in
English.
In what follows I shall, in the main, refer to the action against VWB as
"the VWB case", and to the action against WM as "the WM case".
The VWB case
related to articles in two separate editions of the newspaper, the
3
earlier article ("article VWB (1)") appearing on 17 November 1989 and the
later one ("article VWB (2)") on 1 December 1989. The author
of both these
articles was Mr Jacques Pauw ("Pauw"). The WM case related to an article ("the
WM article") which appeared in the edition
of WM dated 24 - 30 November 1989,
the author of which was Mr Gavin Evans ("Evans").
As the first,
second and third defendants in the VWB case there were respectively cited that
newspaper's editor, printer and publisher;
the fourth defendant being Pauw. In
respect of each of articles VWB(1 ) and VWB(2) the appellant claimed damages in
the sum of R500
000. As the first, second and third defendants in the WM case
there were respectively cited that newspaper's editor, printer ("Seculo
Printers") and publisher; the fourth defendant being Evans. In respect of the WM
article the appellant claimed damages in the sum
of R500 000.
4
Both actions were defended. In each action all four defendants filed a
single joint plea. In both actions the same team of senior
and junior counsel
drew the pleadings on behalf of the appellant on the one hand and on behalf of
the defendants on the other. In
terms of a court order granted on 14 August 1990
the hearings of the two actions were consolidated.
The trial came before Mr Justice Kriegler. In the course thereof a
settlement was concluded between the appellant and Seculo Printers,
the second
defendant in the WM case. Against the remaining defendants the appellant's
actions proceeded to their conclusion. At the
end of the trial Kriegler J gave
judgment with costs, including the costs of two counsel, in favour of the four
defendants in the
VWB case and the remaining three defendants in the WM case.
The aforesaid seven defendants are the respondents in this appeal.
5
Against the judgment of the trial court the appellant sought leave to
appeal. Kriegler J granted the appellant leave to appeal to
this Court in the WM
case but refused him leave to appeal in the VWB case. In the latter case,
however, this court subsequently granted
the appellant leave to appeal to it. At
the trial leading counsel for the appellant was Mr Oshry, with Mr Witz as his
junior. Both
in the court below and before us the respondents were represented
by Mr Levin and Mr Rautenbach. In this court the case for the appellant
was
argued by Mr Cilliers, with whom Mr Witz appeared.
(B) THE CHIEF CHARACTERS
There are two chief characters in this unusual case. They were the main
witnesses at the trial. The one is the appellant himself.
He is a
Lieutenant-General in the South African Police ("the SAP"). The other is
a
6
retired SAP officer: Captain Dirk Johannes Coetzee ("Coetzee"). The
ultimate resolution of the issues in the appeal involves, inter
alia, a careful
appraisal of their respective characters, dispositions and proclivities. To
provide some background to the case it
is convenient at this juncture to mention
a few personal details concerning these two men, and to give a thumbnail sketch
of their
respective careers.
The appellant, who was born in East Prussia in 1935, came from Germany to
South Africa as a war orphan in 1948. Having matriculated
in this country he
enrolled as a science student at the University of Pretoria where in the years
1955 and 1958 he successively gained
the degrees of B Sc and M Sc, the latter
cum laude. Next the appellant was awarded a bursary by the Atomic Energy Board
which enabled
him to undertake research in chemistry in the United States of
America where he gained a Ph D in 1 962 at the
7
University of California.
In 1965 the appellant was appointed
head of the biological radiation unit at the Onderstepoort Veterinary Research
Station. Thereafter
part-time study earned him a D Sc in physiological organic
chemistry from the University of Pretoria in 1970. In that year the SAP
required
the services of a scientist equipped to undertake research into hair analysis.
There were 26 applicants for the post. The
appellant was the successful
candidate, and in January 1971 he was appointed to the position with the rank of
a full colonel. The
task of creating a forensic laboratory for the SAP was
entrusted to him. Initially the laboratory was housed in a building in Church
Street, Pretoria. During 1971 it moved to premises at 171 Jacob Mare Street.
There it remained until February 1987 when it moved
to the L P Neethling
Building, named after the appellant, in Silverton, Pretoria. From small
beginnings the forensic laboratory
8
rapidly expanded. In its first year of operation it dealt with some 150
analyses. By 1 989 the figure had grown to 26 000. On 1 September
1979 the
appellant was made a Major-General in the SAP. Further promotion to his present
rank of Lieutenant-General followed on 1
June 1985. When his actions were
instituted the appellant was the Chief Deputy Commissioner, Scientific Technical
Services, in the
SAP. The appellant has been the recipient of various local and
foreign police decorations. He is a member of the SA Chemical Institute
and of
the Akademie vir Wetenskap en Kuns. The appellant is a member of the Society for
Forensic Science in England and the International
Society of Toxicologists. In
1989 he received the Armscor Award for exceptional contribution to the
development of explosives detection
techniques. In his official capacity he has
attended many conferences in his field of study in the United States of America,
in England,
Switzerland and
9
Western Germany. The appellant has frequently testified as an expert
forensic witness in criminal trials in this country and in neighbouring
states.
In short the appellant is an eminent forensic scientist whose skills have gained
international recognition.
Coetzee was born in the Northern Cape in
1945. After matriculating he worked for a while in the Post Office before
joining the SAP
in March 1970. At the end of that year he passed out of the
Police College as the best student on the training course. His further
advancement in the SAP was rapid. Having become a sergeant he attended a course
for dog-handlers. Thereafter, and as a warrant officer,
he served for a while
north of the country's borders with the Rhodesian security forces. While so
seconded he became acquainted with
counter-insurgency techniques such as the use
of poison against the foe, and the incineration of the slain enemy to prevent
subsequent
identification of
10
corpses. Having been stationed for a while at Sibasa, Coetzee became a
commissioned officer in the SAP in 1975. As a lieutenant he
did a brief stint
first at the Police College and then at Volksrust.
In January 1976
Coetzee was appointed commander of the SAP border post at Oshoek on the frontier
between South Africa and Swaziland.
His duties there involved close cooperation
with the Security Branch of the SAP. In addition they afforded Coetzee very
ready access
to Swaziland, in which kingdom he soon acquired a wide circle of
friends and agents. At Oshoek he became involved in certain irregular
activities, the nature of which will be detailed later, in consequence whereof
Coetzee was transferred to Sunnyside, Pretoria. Through
the intervention of
senior officers well-disposed to him the transfer was countermanded and instead
he was moved to the Security
Branch at Middelburg. Shortly thereafter Coetzee
was promoted to the rank of
11
captain.
In August 1980 Coetzee was transferred to the head
office of the Security Branch in Pretoria. He was posted to Section C1 under the
command of Brigadier Viktor; and he worked from a secret station situate
south-west of Voortrekkerhoogte called Vlakplaas. Vlakplaas
was used as a base
to accommodate a number of men who had defected from the African National
Congress ("the ANC") and who assisted
the Security Branch in tracking down
members of that organisation.
Coetzee remained at Vlakplaas from
August 1980 until the end of 1981. From Coetzee's own evidence it appears that
this period of his
police career was one of sustained participation in
wide-ranging illegal acts, including a number of murders. At the end of 1981
Coetzee was transferred to the Security Branch office at Krugersdorp. For
personal reasons this move was
12
unacceptable to him. Once again senior officers interceded on his behalf
and in the result he was transferred instead to the Pretoria
office of the South
African Narcotics Bureau where he remained, until July 1982, as the head of the
section dealing with offences
involving liquor, immorality and gambling. Next
Coetzee served as staff officer to the Divisional Command for the Northern
Transvaal.
In August 1984 he was moved to radio control.
At about this time Coetzee seems again to have incurred the displeasure
of his seniors in the SAP. He did so by meddling with a police
inquiry into the
affairs of a friend of his, one Whelpton. This and other behaviour on Coetzee's
part resulted in a departmental
disciplinary inquiry against him, at the
instance of the then Commissioner of the SAP, General Johan Coetzee. He faced
seven charges
of misconduct. At the conclusion of the hearing he was found
guilty on five of the charges. Coetzee
13
is a diabetic. At the hearing, and in mitigation of sentence, medical
evidence was adduced on Coetzee's behalf regarding the nature
and extent of his
diabetic condition. In the final upshot Coetzee's salary was reduced by two
notches and he was permitted to retire
on pension from the SAP on the grounds of
medical unfitness.
In broad outline Coetzee's fluctuating fortunes
have now been traced up to the year 1985. When the appellant instituted his
actions
in December 1989 Coetzee had, shortly before, fled South Africa. His
testimony at the trial was taken by a commission de bene esse
in London from 8
to 12 October 1990.
It is necessary next to consider what befell Coetzee after his retirement
from the SAP; what precipitated his flight from this country;
and to see in what
circumstances VWB came to publish the articles VWB(1) and VWB(2) on which the
action against VWB was founded.
14
Before taking up the narrative it is convenient at this stage to
interpose a synopsis of that portion of Coetzee's evidence in chief
at the trial
in which he described his involvement in the murder of a Durban attorney, Mr
Griffiths Mxenge ("Mxenge"), on 19 November
1981.
While he was stationed at Vlakplaas, so testified Coetzee, he was made
the leader of an operational group. Its second-in-command was
sergeant Paul van
Dyk ("van Dyk"). Other members of the group included Constable Tshikalanga
("Tshikalanga"), Constable Butana Almond
Nofomela ("Nofomela") and two men
respectively named Joe Mamasela and Brian Nqulunga. By November 1981 Brigadier
Viktor had been
succeeded as the commander of Vlakplaas by Brigadier Schoon
("Schoon"). In command of the Security Branch for Port Natal at that
time was
Brigadier van der Hoven ("van der Hoven"). Coetzee's account of his part in the
Mxenge
15
murder, tersely stated, amounts to the following. During November 1981,
and at the request of van der Hoven, Schoon had sent Coetzee's
operational group
to Durban in order there to assist in tracking down ANC members at places like
railway stations and shebeens. During
this period van der Hoven told Coetzee
that Mxenge, who practised and lived in Durban, was suspected of using his bank
account as
a conduit for channelling ANC funds and that Coetzee should eliminate
him otherwise than by shooting, and in such a way as to create
the appearance
that Mxenge had been the victim of a robbery. As a first step towards the
assassination of Mxenge the dogs at his
home were poisoned by means of meat
which had been treated with strychnine. Coetzee assigned the actual killing to
Nofomela, Tshikalanga,
Mamasela and Nqulunga. He instructed them to stab Mxenge
to death with knives and they agreed to report back to Coetzee at an appointed
place after they had carried out their grisly
16
assignment. When on the night in question the four
men
rejoined their leader Mamasela was wearing Mxenge's
jacket
and wristwatch. He was also in possession of
Mxenge's
wallet and the keys of his Audi motor car. Having on
the
same night reported the success of his mission to van der
Hoven, Coetzee and others on the next day took Mxenge's
motor
car to the Golel frontier station on the Swaziland
border. There the Audi was provisionally concealed in a
garage. Coetzee says he then returned to Pretoria and
reported to a senior Security Branch officer, Brigadier Jan
du Preez ("du Preez"). Coetzee proposed to du Preez that
Mxenge's Audi be exchanged for a Koevoet vehicle, but this
idea was rejected by du Preez. In the result Coetzee and
van Dyk travelled to the Eastern Transvaal in order to get
rid of the Audi. In Bronkhorstspruit the demolition party
was joined by Captain Koos Vermeulen ("Vermeulen"), a man
who according to Coetzee was involved in many of his
17
criminal exploits. They travelled on to Golel where
Mxenge's
Audi was removed from its place of concealment,
taken to a plantation near the Bothasnoop border post,
doused
with petrol, and then set alight.
After the above digression in regard to the Mxenge
murder the chronicle of events following upon Coetzee's
retirement from the SAP must be resumed. This part of the
case has been succinctly summarised by the learned trial
judge in the course of his very thorough and comprehensive
judgment. Here I can do no better than to quote from it at
considerable length. The observations by Kriegler J which
follow hereunder are based largely, but not exclusively,
on Coetzee's own evidence. Kriegler J remarked:-
"Die dissiplinêre stappe teen hom laat Coetzee met 'n wrok teen die
polisiemag, of ten minste teen sekere senior lede daarvan.
Voor die uitslag
daarvan was daar reeds blyke van onvergenoegdheid en ontrou jeens die mag by hom
aanwesig, soveel so dat hy loslippig
geraak het oor vertroulike sake, waaronder
die werksaamhede van die Vlakplaas-kontingent. Hy kom deur Whelpton in
aanraking
18
met twee joernaliste verbonde aan Rapport, mnre Welz en Pauw, en maak
mettertyd talle mededelings aan hulle oor wat hy tydens sy Vlakplaasdae
sou
gedoen het ....
Coetzee se verbittering word na uitdienstrede gesterk toe hy etlike
werksgeleenthede verloor as gevolg van sy ongunstige veiligheidsklaring.
Hy
bekom naderhand 'n aantal werkies by vriende en familie waardeur hy die pot aan
die kook hou. Eers laat in 1989 slaag hy daarin
om 'n werksaanbod te kry wat sy
ervaring en kwalifikasies waardig is. Voor hy egter daarmee begin, vind daar 'n
aantal dramatiese
gebeure plaas.
Almond Nofomela, die eertydse lid van Coetzee se Vlakplaas-groep, bring
op Donderdag, 19 Oktober 1989, vanuit die dodesel waar sy
teregstelling die
volgende oggend sou geskied 'n dringende aansoek om stuiting daarvan. In sy
vestigende eedsverklaring ....beweer
hy onder andere dat hy laat in 1981 tesame
met Brian Ngulunga, Tshikalanga en Joe Mamasela, in opdrag van Coetzee en Brig
Schoon
'n Durbanse prokureur by name Griffiths Mxenge vermoor het vanweë sy
betrokkenheid by ANC aktiwiteite. Luidens Nofomela se verklaring
sou Coetzee 'n
foto van Mxenge en besonderhede van sy bewegings aan hul verstrek en ook opdrag
gegee het dat hy nie geskiet nie maar
met 'n mes gedood moes word.
Uiteraard het Nofomela se bewerings groot openbare beroering ontketen en
is dit onder andere die Vrydagaand, 20 Oktober 1989, in beide
SAUK-TV
19
nuusuitsendings genoem. Tshikalanga bel
uit
Venda vir Coetzee by sy huis na die
vroeë
uitsending en Coetzee kyk na die tweede.
Vroeg
die volgende oggend le hy besoek af by
Brigadier
Jan du Preez, 'n afgetrede
senior,veiligheidsman,
mentor en beskermer van Coetzee tydens hul
Veiligheidstakdae. Hy soek raad oor wat hom te
doen
staan in die storm waaraan die Nofomela-
aantygings horn blootgestel
net. Die advies wat
hy kry is om vas te staan op 'n ontkenning van
die
bewerings. Dieselfde dag probeer Coetzee in
aanraking kom met Paul van Dyk met wie hy in die
jare sedert sy uittrede uit die polisie kontak
verloor het. Hy word meegedeel dat van Dyk van
die grens teruggeroep is en daardie aand op
Waterkloof-vliegveld sou aankom. Coetzee reel
met van Dyk se eggenote dat van Dyk hom sou bel.
Die Sondag en Maandag, 22 en 23 Oktober 1989, hoor
Coetzee nie van van Dyk nie. Op laasgenoemde dag
tree hy in verbinding met twee persone. Die een
is Pauw, die joernalis met wie hy reeds in 1984/85
kennis gemaak het en wat toe vir Vrye Weekblad
werk en mettertyd die vierde verweerder in die
aksie sou wees. Die twee van hulle was juis
enkele weke tevore in gesprek met mekaar oor die
moontlike skryf van 'n boek waarin Coetzee se
wedervaringe in gefiksionaliseerde vorm verhaal
sou word. Die ander persoon was 'n Johannesburgse
professionele man wie se naam Coetzee geweier het
om te openbaar maar wat hy beskryf as 'n middelman
tussen homself en die ANC.
Vroeg dieselfde week word bekend gemaak dat die prokureur-generaal van
die Oranje Vrystaat,
20
advokaat McNally en luitenant-generaal
Alwyn
Conradie, hoof van die Suid-Afrikaanse
Speurdiens,
opgedra is om die Nofomela bewerings te
ondersoek.
Die daaropvolgende Maandag, (30 Oktober
1989),
besoek van Dyk vir Coetzee by sy huis waar hulle
in die straat voor die huis 'n gesprek voer.
Volgens Coetzee
(wie se weergawe nie voor my
weerspreek of bevraagteken is nie) deel
van Dyk
horn mee dat hyself, brigadier Schoon,
Brian
Ngulunga en Joe Masamela reeds voor die
McNally-
kommissie getuig het en te kenne gegee het
dat
hulle van Nofomela se bewerings niks weet nie.
Van Dyk deel hom ook mee dat die ondersoekbeampte
van die McNally-kommissie vir hulle polisiemanne
op die hoogte hou van wat by die kommissie gebeur
en dat daar rede is om te vertrou dat Nofomela se
bewerings in verband met die Mxenge-moord verwerp
gaan word as net 'n poging om sy nek te red.
Coetzee en van Dyk is toe uitmekaar met die
verstandhouding dat laasgenoemde weer kontak sou
maak. Teen Vrydag van daardie week het hy nog
nie van hom laat hoor nie en Coetzee probeer
tevergeefs met hom in aanraking te kom. Intussen
is daar, sover Coetzee weet, ook geen stappe van
die kant van die Suid-Afrikaanse Polisie of die
McNally-kommissie om met hom in verbinding te tree
nie. Dit bevreem hom aangesien hy volgens
Nofomela 'n sleutel rol gespeel het. Sy kommer
groei. Dit lyk vir hom of hy in 'n hoek gedryf
word waar hy Nofomela se bewerings sou moes ontken
(wat hy nie wou doen om redes wat later onder die
loep kom) en bowendien die risiko loop dat hy as
potensiële sondebok uitgesonder word.
21
Saterdag, 4 November 1989 besluit hy finaal
om
land uit te vlug, sy verhaal in die buiteland
aan
Pauw te vertel en dan sy lot by die ANC in te
werp.
So besluit so gedaan. Hy en Pauw vlieg
die volgende dag na Mauritius
waar hulle tot die
Woensdag (8 November 1989) 'n bandopname
maak
waarvan die oorkonde (bew "P") 198 bladsye
beloop.
Hulle stel ook 'n formele verklaring op (bew
"K")
wat 26 bladsye beslaan. Die wou hulle
beëdig
maar kon vanweë formaliteitsprobleme nie
daarin
slaag nie. Die Woensdagmiddag vlieg Coetzee na
London waar hy
daelank met verteenwoordigers van
die ANC konfereer. Sedertdien werk
hy vir die ANC.
Sy vlug na Londen, sy verblyf aldaar en sy
bestaansbehoeftes sedertdien word deur sy nuwe
meester gefinansier.
Na die verskyning van die eerste gewraakte berig in die Vrye Weekblad
[article VWB(1)] en voor die tweede verskyn, skakel Coetzee
vanuit Bulawayo,
waarheen hy intussen gereis het, met Pauw en maak 'n aantal verdere mededelings
aan hom wat in die tweede berig
[article VWB(2)] bygewerk word. Op 4 Januarie
1990 word op aansoek van die prokureur-generaal van Natal 'n lasbrief uitgereik
vir
Coetzee se inhegtenisname (bew "XX") -
'....aangesien daar op grond van inligting onder eed redelike gronde vir
verdenking teen hom bestaan dat hy....'
op 19 November 1981 vir Griffiths Mxenge vermoor het.
22
Van 25 April tot en met 3 Mei 1990 gee hy sewe dae lank in Londen voor die
Harms-kommissie getuienis waartydens hy deur 'n battery
advokate ondervra word.
Die getikte oorkonde van sy getuienis aldaar beloop 690 bladsye. In Oktober 1990
getuig hy weer in Londen
en wel voor die kommissaris de bene esse in hierdie
verhoor. Tydens die verhoor is 'n video-band in die hof vertoon (en ingedien
as
bewysstuk "B") van 'n TV-program wat op 4 April 1990 in Brittanje gebeeldsend
is, getitel 'Dispatches'. Dit is 'n sensasionele
en wydlopende stuk,
propagandisties en striemend in sy kritiek op die Suid-Afrikaanse
veiligheidsorgane en 'n aantal politieke figure.
Coetzee speel 'n prominente rol
daarin, word telkemale vertoon en gehoor en doen oenskynlik lustig
mee."
(C) THE DEFAMATORY
ARTICLES
The way has now been prepared for a scrutiny of
the matter published in articles VWB(1) and VWB(2) and in the WM article.
For the sake of convenience reproductions of these three
articles have been
embodied in appendices, respectively numbered "I", "II" and "III", subjoined to
the body of this judgment. Further,
and in order to facilitate reference to
specific parts of the text, there have been introduced by me in the margins of
the columns
in each
23
article a series of capital letters to identify
particular
paragraphs together with a series of numerals in order
to
pinpoint their sub-paragraphs.
Dealing first with article VWB(1) one finds on the
front page a large photograph of Coetzee with the caption
"Bloedspoor van die SAP". Flanking the photograph on its
right-hand side the following is then stated:-
"Ontmoet kaptein Dirk Johannes Coetzee bevelvoerder van 'n moordbende van
die SA Polisie. Hy vertel eksklusief die volle grusame verhaal
van politieke
sluipmoorde, gifkelkies, buitelandse bomaanvalle en
briefbomme."
The following page features
four smaller photographs of
Coetzee, underneath which there appear the words:-
"Moordbende se register van terreur. Alle berigte en foto's deur
JACQUES PAUW"
Below this there are portrayed three miniature photographs
of (1 ) the appellant; (2) Craig Williamson; and (3) Gen
Johan Coetzee. It is in the balance of article VWB( 1 ) in
24
which the statements defamatory of the appellant are to be
found. The introductory portion reads thus:-
"KAPTEIN DIRK COETZEE erken dat hy tot en met 1982 aktief deelgeneem en help
beplan het aan verskeie moorde en terreuraanslae wat
deur die S A Polisie se
spesiale eenheid te Vlakplaas gepleeg is. Daarna het hy steeds noue kontak met
verskeie lede van die moordbende
behou en is bewus van nog terreur in die jare
daarna. Hier is sy doodregister:"
What
follows is a catalogue of murders furnished by Coetzee
to Pauw. Each section of the register begins with a brief
superscription marked by an asterisk, presumably composed
by
Pauw, followed by Coetzee's narrative between quotation
marks.
Paragraph (A) [* Die moord op die anti-
apartheidsaktivis en Durbanse prokureur Griffiths Mxenge] is
devoted to an account of the Mxenge murder and the alleged
roles therein of van der Hoven, Schoon, Coetzee himself, van
Dyk, Nofomela, Tshikalanga, Nqulunga, one Joe [Mamasela ?]
and others.
25
Paragraph (B) [* Die moord op twee ANC-lede naby Komatipoort] involves a
description of a protracted chapter of events to which hereafter
reference will
be made as "the Vusi and Peter murder." Here are alleged the roles played in the
Vusi and Peter murder by Schoon,
Coetzee himself, Vermeulen, Major Archie
Flemington ("Flemington") and, very pertinently, the role alleged to have been
played by
the appellant. In sub-paragraph (B)(2) Coetzee is quoted
thus:-
"Ek en Vermeulen het gif, wat deur die forensiese laboratorium voorberei is,
in hul koeldrank en bier gegooi. Almal het gepraat van
'Lothar se gif, (Generaal
Lothar Neethling is die hoof van die forensiese laboratorium). Ons is verseker
dat sestig gram genoeg sou
wees om hul aan 'n 'hartaanval' te laat beswyk. Die
gif wou nie werk nie. Ons het die dosis tot 360 gram elk verhoog, maar niks het
gebeur nie."
In sub-paragraph (B)(4)
Coetzee is quoted thus:-
"Ons het Vusi en Peter 'n slaapmiddel ingegee wat ook deur die forensiese
laboratorium voorberei is. Ons is vooraf gevra om aantekeninge
oor die
uitwerking daarvan te hou. Toe die twee terries
26
goed deurmekaar was, het Vermeulen hul met 'n Makarov-pistool met 'n
knaldemper deur die kop geskiet.
Die twee lyke is hierna met hout en buitebande wat ons op 'n ashoop gaan
haal het, verbrand. Dit het sewe ure geneem voor die liggaam
uitgebrand was. Die
as en oorblyfsels is in die Komatirivier
geskep."
In sub-paragraph (B)(5) Coetzee is
quoted thus:-
"Tydens die verbranding van die twee terries het die veiligheidsmanne van
Komatipoort aan my vertel hoe hulle sterk drank wat met
gif gedokter is, onder
ANC-lede in Maputo versprei. Die gif word met 'n mikronaald deur die prop in die
bottels ingespuit."
In paragraph (C) [* Die
verbranding van 'n "tweede Biko"]
there is described in
sub-paragraph (C)(1) the theft in the
Eastern Cape by Coetzee and
Nofomela of a motor car
belonging to a trade union leader in Port Elizabeth; and in
sub-paragraph (C)(2) Coetzee's subsequent encounter at
Jeffrey's Bay with a lean detainee said to be suffering from
haemmorrhage of the brain. I pause to mention that
according to Coetzee's evidence at the trial the detainee
27
in question was one Kondile. In what follows reference
will
be made to Kondile's alleged fate as "the Kondile
murder". In
sub-paragraph (C)(3) there is described a
decision to get rid of
this detainee, and to that end a
meeting at a Komatipoort farm of
various persons including
Coetzee and Flemington.
In sub-paragraph (C)(4) Coetzee is quoted thus:-
"Die skraal man is van Lothar se slaapmiddel ingegee waarna 'n polisieman
van Komatipoort horn met 'n Makarov-pistool met 'n knaldemper
deur sy kop
geskiet het.
Ons het hom op h brandstapel
van hout en buitebande verbrand en die as na die tyd gelyk gehark."
Paragraph (D) [* Die moord op die aktivis Patrick
Makau] deals with the destruction by explosives in Manzlnl
of (i) a house used by the ANC as a transit facility and
(ii) the house of an unnamed ANC member. Sub-paragraph
(D)(1) mentions that for this purpose Coetzee was in charge
of a group consisting of van Dyk and two explosives experts.
28
Sub-paragraph (D)(2) describes the successful execution of the mission
and concludes with a hearsay statement by Coetzee that a child
was
killed.
Paragraph (E) [* Die bomaanslag op Chris Hani,
militêre bevelvoerder van Umkhonto We'Sizwe] deals (in subparagraph (1))
with
an alleged plan by the Security Branch in Bloemfontein to assassinate Chris
Hani in Lesotho by means of a car bomb planted by one
Moshesh. Sub-paragraph
(E)(2) describes the premature detonation of the bomb, with consequent injury to
Moshesh, and the latter's
arrest by the Lesotho authorities.
In sub-paragraph (E)(3) Coetzee is quoted thus:-
"Ons het borg vir hom gaan reel, en nadat hy losgelaat is, het ons hom uit
Lesotho gesmokkel en na Vlakplaas
geneem."
Paragraph (F) [* Die moord op Ruth
First] deals (in subparagraph (1) thereof) with an order given to Coetzee to
break into the office
of the United Nations High
29
Commissioner for Refugees in Mbabane. Sub-paragraph (F)(2) describes the
housebreaking and the articles stolen. Subparagraph (F)(3)
contains hearsay
statements by Coetzee concerning the murder of Ruth First in Maputo by means of
a letter-bomb.
I deal next with article VWB( 2). On the front page of the newspaper
there is the headline:
"LOTHAR SE DOEPA" followed by the
quotation:
"Hy het die gif aan my gegee"
Under the
name "Jacques Pauw" there appear two large
photographs of Coetzee
(on the left-hand side of the page)
and of the appellant (on the
right-hand side of the page).
Beginning in the column separating the
two photographs the
following statements are then made on the front page:-
"GENERAAL Lothar Neethling het persoonlik gif aan kaptein Dirk Coetzee
verskaf om twee ANC-verdagtes mee te vergiftig. By 'n ander
geleentheid het die
generaal 'n slaapmiddel aan Coetsee gegee om 'n
ANC-
30
lid uit Swaziland mee te ontvoer.
Die en nuwe onthullings oor die vergiftiging van ANC-lede is vandeesweek
deur Coetzee gemaak kort nadat Neethling, hoof van die forensiese
laboratorium
in Pretoria en assistent-kommissaris van polisie, gedreig net om Vrye Weekblad
weens beweerde laster vir R500 000 te
dagvaar."
On the newspaper's second page
paragraph (G)(1) refers to the fact that in article VWB(1) [see subparagraph
(B)(2) above]:-
"....vertel Coetzee dat hulle gif voorberei deur die polisie se forensiese
laboratorium, in die koeldrank en bier van twee gewese
ANC-lede wat geelimineer
moes word, Vusi en Pieter, moes gooi. Coetzee verwys na die gif as 'Lothar se
Gif.'"
Thereafter the alleged role of the
appellant in the Vusi and Peter murder is considerably amplified and embellished
with circumstantial
detail. It is stated that in his own office the appellant
personally handed to Coetzee a sleeping-draught and poison; that he gave
Coetzee
instructions as to the dosage of the former to be administered; and that he
expatiated on the efficacy of the latter. In
paragraphs
31
(G)(2) to (4) Coetzee is quoted thus:-
"Voor die operasie om Vusi en Pieter te elimineer, is ek en Koos Vermeulen
deur brigadier Willem Schoon opdrag gegee om na Neethling
se kantoor by die
forensiese laboratorium in Jacob Marestraat te gaan om die gif te gaan haal. In
sy kantoor net 'n Oostelikes-rugbyfoto
gehang en 'n sertifikaat dat hy in die
Concorde of een of ander snaakse vliegtuig gevlieg net.
Hy net eers die slaapdruppels uit sy kluis gehaal en vir ons vier tot agt
druppels per volwasse man uitgemeet indien ons dit sou nodig
kry. Hy net ons
gewaarsku om nie te veel te gebruik nie omdat 'n oordosis fataal mag
wees.
Daarna het hy 'n gryserige poeier uitgehaal en vir ons gese as iemand
daarvan inkry, gaan hy dood aan 'n hartaanval. Hy het gese hulle
het dit op
skape getoets en dit is baie effektief."
In
sub-paragraaf (G)(5) it is stated that according to
Coetzee they
followed the appellant's directions closely by
adding 60 milligrams
of the poison to the drinks of the two
intended victims. When this did not work Vermeulen
returned
to Pretoria where he obtained more of the poison.
The second dosage
of 120 milligrams likewise failed to
32
produce the desired result.
Thereafter article VWB(2) proceeds to relate
details of an alleged further visit by Coetzee and Vermeulen
in guest of an effective poison. Sub-paragraphs (G)(6) to
(10) quote Coetzee thus:-
"Toe die gif steeds nie wou werk nie, is ek saam met Vermeulen weer terug na
Pretoria waar ons vir Lothar die Sondagoggend by sy huis
gaan sien het.
Hy het in die Hatfield-omgewing naby Tukkies gebly. Ek onthou nog hy het
twee verskriklike wreedaardige Dobermanns of Rottweilers
gehad.
Hy het uitgekom in sy pajamas en gou 'n kortbroek en slippers aangetrek voor
ons saam met hom na die forensiese laboratorium gery
het. Neethling kon nie glo
dat die gif nie wou werk nie.
Hy het van sy chemiese boeke uit sy boekrak gehaal en daarin
rondgeblaai.
Hy het dieselfde gif uitgehaal en die keer 180 milligram afgemeet. Hy het
die gif self opgelos en dit in een van my insulienspuite
opgetrek en ek het dit
met foelie toegedraai....
Neethling het gevra dat ek vir hom aantekeninge moet hou oor die uitwerking
van die gif. Ek het die aantekeninge in my ondersoekboek
gemaak."
33
Article VWB(2) goes on to say that according to
Coetzee's
account the third dosage of 180 milligrams (360
milligrams
in all) failed to work, whereupon the sleeping-draught
was
administered to Vusi and Peter before they were
ultimately
shot through the head and incinerated.
In sub-paragraph (H)(1) article VWB(2) states:-
"Coetzee vertel dat die slaapdruppels in verskeie binnelandse en buitelandse
operasies gebruik is. Coetzee vertel dat hy persoonlik
van die slaapdruppels by
Neethling se kantoor gaan haal het."
In
sub-paragraph (H)(2) reference is made to an abortive
kidnapping raid into Swaziland undertaken by Coetzee and
Nofomela with the object of abducting an ANC commander known
as "General". The attempt failed because by mistake the
sleeping draught was added to the drinks of the General's
driver. In connection with the sleeping draught provided
for use on this occasion sub-paragraph (H)(2) states:-
"Hy het vir die operasie agtien druppeltjies
van
34
Neethling ontvang, onthou Coetzee."
In
sub-paragraph (H)(3) mention is again [see sub-paragraph
(C) above] made of the Kondile murder, and there is
said,
inter alia:
"Hy ['n gevange verdagte ANC-lid] is na Komatipoort geneem en van die
slaapdruppels ingegee voordat hy tromp-op deur sy kop geskiet
en verbrand
is."
In sub-paragraph (H)(4) it is stated
that Coetzee was also
involved in the poisoning of a COSAS leader in
the Eastern
Cape in 1981. The article VWB(2) does not link the
alleged
incident with the appellant.
Lastly I deal with the WM article. It begins
with the headline:
"THE OLD THEORY THAT ASSASSINATIONS WERE THE WORK OF RIGHT-WING GROUPS IS
BEING SWEPT ASIDE."
It proceeds (in
paragraph (J)) to quote at length from a
paper written in 1977 by a military writer who was offering
advice to intelligence services as to how "extra legal
operations" should be carried out. The WM article then
35
states that much suggested by the military writer "has
come
to pass with devastating effect to its victims." By way
of
example it cites recent instances of "activists" who
were
victims of hand grenades which had been booby-trapped
and
which exploded in their own hands.
Paragraph (K) reads as follows:-
"According to self-confessed death squad leader Captain Dirk Coetzee poison
was one of the methods used by the SA Police in dealing
with ANC
suspects.
He said bottles of whiskey were injected with poison prepared by the police
forensic department and sent to Maputo to be given to
ANC members and that an
ANC suspect in detention in Post Elizabeth was
poisoned."
Paragraph (L) reads as
follows:-
"Evidence of hit-squad activity has mounted steadily over the past 18
months in a series of court cases and inquests. What the Dirk
Coetzee
allegations have done is give shape to the jigsaw. GAVIN EVANS traces the
emerging patterns."
Sub-paragraph (M)(1) begins by saying:-
"SUPPORT for police assassination squads has
come
36
from the commanding heights of South Africa's security
forces"
and adds that this is the
implication of the account by,
inter alia,
Coetzee.
Sub-paragraph (M)(2) reads as follows:-
"Coetzee's account names former police commissioner General Johann Coetzee
as approving the hit squad murders and both Coetzee and
Nofomela name recently
retired police Brigadier Schoon as the man behind several of the
slayings."
This is followed up immediately
by sub-paragraph (M)(3),
which states:-
"According to Coetzee, another senior police officer involved was
Lieutenant-General Lothar Neethling, head of the South African Forensic
Bureau,
which is said to have prepared the poisoned whiskey allegedly sent to ANC
members in Maputo."
It is
necessary next to determine the main issues
in the case by reference to the pleadings in the two
actions, both in their original form and also after an
amendment to the pleas following upon an application
37
therefor made and granted at a very late stage of the trial.
(D) THE PLEADINGS: (1) In the VWB case:
The appellant's particulars of claim alleged that
articles VWB(1) and VWB(2) contained matter which was
"false, malicious and defamatory" of him. The plea to
the
claim based on article VWB(1) denied that the words
used
were defamatory. The plea to the claim based on
article
VWB(2) denied merely that the words used were false
or
malicious. In the case of each claim there was the same
first alternative defence, formulated thus:-
"....the statements contained in the article were
true; and
the publication thereof was in the public
benefit."
In the case of each claim there was pleaded a second
alternative defence, formulated thus:-
"....the publication of the article complained
of
38
was lawful in that it took place pursuant to a duty on the part of the
Defendants to inform the readers of the Vrye Weekblad newspaper
as members of
the general public of the contents of the article and a corresponding right on
the part of the readers of the Vrye
Weekblad newspaper as members of the general
public to receive the information contained in the said
article."
The appellant's replication was a
general joinder of issue.
(2) In the WM case:
The appellant's particulars of claim alleged that
the words in the WM article were per se defamatory of the
appellant. The main defence pleaded was the followlng:-
"The Defendants admit that the statements were defamatory per se of and
concerning the Plaintiff, but plead as follows:
The statements were true, and their publication was in the public
benefit."
As an alternative to the above
the plea raised a defence
which was formulated thus:-
"....the statements were published as the result of a debate about the
existence or otherwise of
39
organisations or persons that had allegedly committed unlawful acts on
behalf of the State, which debate had been raging in the press
for some time,
about, inter alia, the following disputed
allegations...."
Thereafter the alternative
plea in five sub-paragraphs gave
particulars of five different
disputed allegations, the
fifth being that on 17 November 1989 VWB
had published
article VWB(1) which contained a reference to the
appellant.
The alternative plea concluded with the
following
averments:-
"In the circumstances the Defendants plead that the statements formed part
of a series of allegati ons and denials thereof by the
State, in an ongoing
debate which was reported widely in the press, and as such the publication of
the statements was in the public
interest."
The appellant's replication was
a general joinder of issue.
(3) The effect of the amendment to the Plea in each case:
By notice of amendment dated 29 November 1990 the respondents jointly
gave notice of their intention to amend
40
their respective pleas. The application was resisted
on
behalf of the appellant. Having heard argument on
the
application Kriegler J allowed the amendment.
Paragraph A of the notice referred to discursive
particulars set forth in paragraph B thereof. The preamble
to
paragraph B recited that -
"Details of the facts and circumstances surrounding and leading to the
publication of the contents of annexures 'A' and 'B' [articles
VWB(1) and
VWB(2)] to plaintiff's particulars of claim in case 89/24659 [the VWB case] and
of annexure 'A' [the WM article] to plaintiff's
particulars of claim in case no
89/24969 [the WM case] are as
follows..."
What followed were six foolscap
pages containing nineteen
paragraphs, respectively lettered (a) to (s), which were
rounded off by a further paragraph bearing the letter (t).
This last paragraph Kriegler J described as a peroration.
The thrust of the amendment appears sufficiently from the
following passage from the judgment of the court below:-
"In wese kom die wysiging daarop neer dat 'n reeks
41
van 19 openbare en belangwekkende verklarings in verband met onregmatige
optrede deur lede van Suid-Afrika se veiligheidsmagte onder
beskerming van bo
groot openbare belangstelling gaande gemaak het. Daar word dan afgesluit met die
perorasie [paragraph (t)]:
'In all the
premises the publication by the aforesaid defendants of the said articles took
place pursuant to a duty to publish vitally
important information concerning a
matter of wide public interest and concern and readers of the said newspapers as
members of the
general public had an interest in and a right to receive the said
information.'"
The terms of paragraph A of the notice of
amendment show at once that the effect thereof was
more
radical in the WM case than in the VWB case.
The
particulars set forth in paragraph B of the notice were
to
be inserted after those paragraphs in the pleas in the VWB
case which raised the defence that publication of the
matter complained of had taken place pursuant to a duty on
the part of the defendants to inform its readers and a
corresponding right on the part of the readers to receive
42
the information. In the WM case, however, the particulars set forth in
paragraph B of the notice of amendment were to be inserted,
not after the
paragraph of the plea in which the alternative defence was raised, but in place
thereof. In the original plea in the
VWB case the second alternative defence was
explicitly formulated so as to indicate that the defendants in that case were
relying
on the defence of qualified privilege. In the VWB case, therefore, the
function of the amendment sought was simply to supplement
and augment the
alternative defence of privilege. This follows from the unambiguous terms of
paragraph (t) in paragraph B already
quoted above, which is cast in the typical
and traditional mould of a defence of qualified privilege, i.e. by averring the
existence
of a duty on the part of the defendants to publish and the existence
of a reciprocal interest on the part of the readers of the newspapers
to have
the defamatory matter brought to their
43
attention. In the WM case the matter stands otherwise. In the original
alternative plea in the WM case the defendants pleaded no more
than that by
virtue of an "ongoing debate", reported widely in the press, the publication of
the defamatory matter "was in the public
interest." Through the amendment this
lastmentioned plea, for whatever it may have been worth, was jettisoned; and in
its stead the
defendants in the WM case invoked, as their only alternative
defence that of qualified privilege.
After the amendment had been granted therefore, and assuming proof of the
defamatory nature of the matter published in each case,
the court below had to
consider both in the VWB case and in the WM case the validity or otherwise of
(1) a main defence of justification
(that the defamatory matter in respect of
the appellant was true and that its publication was in the public interest) and
(2) an
alternative defence of qualified privilege based on the
44
existence of a duty on the part of the newspaper to publish the
defamatory matter and a reciprocal interest on the part of its readers
to have
the matter communicated to them.
For the sake of completeness I
mention that in both cases Kriegler J correctly found the matter published of
the appellant to be defamatory
of him.
(E) THE EVIDENCE
The essential issues reflected in the pleadings having been indicated,
one turns to the evidence led at the trial.
In regard to the quantum of damages claimed three witnesses were called
on behalf of the appellant. These were (1) Dr D J C Geldenhuys,
the general
secretary of the SA Akademie vir Wetenskap en Runs; (2) Dr M J Pieterse, the
deputy executive director of the Water Research
Commission and a former
fellow-student of the appellant; and
45
(3) General M C W Geldenhuys, a former Commissioner of the SAP and an old
friend of the appellant. Their testimony as to the appellant's
unblemished
reputation was not challenged by the respondents; and it was accepted by
Kriegler J.
On the merits a number of witnesses testified on either
side, the main witness for the respondents being Coetzee. Before examining
the
main features of his testimony it is convenient to get out of the way a whole
body of evidence which was led at the trial but
which is irrelevant for purposes
of the appeal. On Coetzee's evidence the space of time during which the
appellant supplied him with
poison and soporifics is confined to the period
between September and December 1981. On behalf of the respondents evidence was
further
adduced, however, in order to establish that at a much later date, that
is to say, during the period January to March 1987, poison
had been supplied by
the appellant or his subordinates at the
46
forensic laboratory; and that such poison had been used
by
South African security forces against the ANC. In
this
connection three persons testified for the respondents,
the
main witness being a Mr C J Lesia. Their allegations
were
denied by the appellant himself and by four other
witnesses
on his behalf. This evidence in regard to the
alleged
supply of poison during 1987 need not be recounted. It
was
meticulously sifted by the learned trial Judge in the
course
of his judgment. Kriegler J recorded as his conclusion
(which was not challenged in this court):-
"....dat die getuienis wat die gebeure rondom
Lesia in 1987 betref onafdoende is om die
lasterlike bewerings in die gewraakte berigte
te
bewys."
At an
early stage of Coetzee's examination in
chief, and by way of a prelude to the lengthy recital of the
various crimes committed by him in the course of his
chequered career in the SAP, counsel for the respondents
asked the witness to enlarge upon a concept described as "die
veiligheidskultuur." It is necessary to quote at
47
length from Coetzee's response:-
"Ek kan miskien dit net meld dat in die veiligheidspolisie het ek en my
kollegas, soos alle ander lede van die veiligheidspolisie
bale spesiale
beskerming geniet, 'n Beskerming wat ons in staat gestel het om onwettige
operasies binne en buite die Republiek van
Suid-Afrika uit te voer, asook binne
en buite werksverband. Nou hierdie spesiale beskerming wat ons in staat gestel
het om verhewe
bokant die wet en polisiereels en regulasies op te tree, is nie
statuter vasgestel nie en is moeilik om te definieer. Dit is vervat
in wat ek
noem ' 'n kultuur' wat behoort het aan 'n ' kliek' of wat was soos 'n hegte
klein familie. Nou die kultuur is 'n droom
van arrogante eksklusiwiteit, van
verhewe wees bokant die wet, van geheimhouding, van noodsaaklikheid, van
lojaliteit, van vertroue
en begrip onder mekaar, van 'n baie spesiale verhouding
tussen seniors -die hoofde - en juniors wat jy nie in die uniformafdeling
byvoorbeeld sal kry nie .... hierdie eksklusiwiteit en noodsaaklikheid van
geheimhouding is gerespekteer deur die res van die polisiefamilie,
asook deur
die bree publiek in die algemeen .... ons het dit aanvaar dat u weet 'all is
fair in love and war'. Ons vaardighede, ons
tegnleke, ons metodes is
konstruktief aangewend om die regering van die dag se doelwitte en doelstellings
te bevorder. Hierdie nie
alleen ons kultuur nie, maar ook ons ingesteldheid, ons
vaardighede en tegnleke, het baie ooreengestem met die van 'n bende boewe.
Al
verskil tussen ons was dat ons het deel gevorm van die
bree
48
polisiefamilie wat sulke boewery aan die man moes bring .... Ek kan
miskien ook meld dat hierdie polisiekultuur is nie iets wat amptelik
onderrig is
nie. Dit is iets waar jy in gegroei het, jy groei in dit in. Jou vordering word
bepaal deur jou bonding teenoor die ANC,
jou vaardighede en jou persoonlikheid
.... Ons bet dus oortredings of misdaad soos moorde, poging tot moord,
ontploffings, diefstal
was aan die orde van die dag....Dit het by ons gegaan oor
landsveiligheid en met enige middel moontlik die doel te bereik deur die
aanslag
teen Suid-Afrika van die sogenaamde terroriste af te weer met alle middele tot
ons beskikking .... Die 'need to know' is
'n algemene uitdrukking in die
veiligheidsmagte dwarsoor die wereld soos ek uitgevind het ook in die ANC. As ek
'n opdrag sou ontvang
om iemand te elimineer, sal daar nie vir my gese word: Ons
bet vanmôre 'n vergadering gehad met die minister of met Johan Coetzee
of
met wie ookal en die opdrag bet van hulle gekom en hulle het gesê jy moet
daardie man gaan doodmaak, met ander woorde dat
ek presies die aanloop tot die
ding self nie noodwendig ken nie. Vir my sal daar gesê word: Jy moet
ontslae raak van so en
so en ek weet dit kom van bo af, dit is nie vir my nodig
om te weet van wie af nie en ek sal dit uitvoer en so vir my word daar gese
wat
hulle nodig ag ek moet weet en so sal ek ook ondertoe werk met die
ondergeskiktes ....As 'n man gevang word, dan se hy jy bet
die elfde gebod
oortree, moenie gevang word nie."
Coetzee's evidence-in-chief roved far and wide.
49
It involved, inter alia, affirmation of the truth of those statements
which had been culled by Pauw from the transcript (exh "P")
of the interview
recorded at Mauritius and attributed to Coetzee in articles VWB(1) and VWB(2).
In his evidence at the commission
de bene esse Coetzee expanded upon the matter
traversed in the articles by providing further circumstantial detail; and in
addition
he testified to the commission of further crimes by him not mentioned
in articles VWB(1) and VWB(2). It is convenient here to make
brief reference to
the more important examples of such crimes.
(1)
Car thefts in Swaziland:
Coetzee testified that while he was a lieutenant at Oshoek Captain Nick
van Rensburg ("van Rensburg") of the Security Branch at Ermelo
asked him to
steal in Swaziland motor vehicles for relocation to Rhodesia as
replacements
50
for vehicles destroyed in that country in land-mine explosions. In
compliance with this request Coetzee stole a number of motor vehicles
in
Swaziland.
(2)
The Rita Botes incident:
While Coetzee was
stationed at Oshoek a woman called Rita Lourens was prosecuted for illicit
dealing in diamonds. She sought the assistance
of Coetzee in the matter of
concocting an alibi defence. Coetzee helped her by falsely affixing certain date
stamps to the pages
of her passport.
(3)
Accessory after the murder of a diamond
dealer:
During or about November 1981, and while he
was
based at Vlakplaas, Coetzee lent the
sum of R5 000, which he had borrowed from his mother-in-law, to Nofomela,
Mamasela, Tshikalanga
and a fourth man ("the buyers") to enable them to buy
diamonds from a seller in Lesotho. When the buyers returned from Lesotho with
the diamonds Coetzee inspected
(50)a
their purchases and told them that they had been gulled. Coetzee told the
buyers to return to Lesotho and to recover what they had
paid. Soon afterwards
the buyers reappeared in a Datsun motor car ("the Datsun") bearing a Lesotho
registration number. The Datsun
belonged to the seller of the diamonds. The
buyers informed Coetzee that they had lured the seller out of Lesotho and that
they had
shot him to death near Lindley where they had left his corpse. Coetzee
took prompt steps to have removed from the Datsun all marks
of identification,
whereafter he used his own police vehicle to travel with Nofomela and
Tshikalanga to Lindley in order to collect
the corpse. Having retrieved
(cont. p 51)
51
the corpse Coetzee travelled with it in the boot of his car via Durban to
a spot close to the Swaziland border. There, with the assistance
of van Rensburg
and van Dyk, a pyre was built and the corpse of the seller was incinerated. In
order to effect repayment of the loan
to Coetzee's mother-in-law the Datsun was
sold in Durban to an Indian who had useful trade connections in Maputo and
Swaziland.
(4)
The Joyce Dipale incident - attempted murder in
Botswana:
Coetzee testified that on the evening of 26 November 1981 he sent
Mamasela in a police van bearing false registration number plates
through the
Kopfontein border post to reconnoitre the road to Gaborone. Thereafter, and
under cover of darkness, Coetzee, Vermeulen,
van Dyk, Tshikalala and Nofomela
surreptitiously crossed the border fence. The marauding party was armed
52
and the object of their exercise was an attack upon
the
occupants of a house in Botswana well-known to Mamasela
who
had earlier infiltrated the ranks of the ANC.
Having
established the absence of road blocks Mamasela linked
up
with the marauders and guided them to the house of
one
Joyce Dipale. The party had taken up their position at
the back of the house when at midnight a heavy thunderstorm
cut off the electricity supply and plunged the house into
darkness. The ensuing attack was only a qualified
success. In his evidence Coetzee described the critical
events thus:-
"En terwyl ons daar papnat gereën of gestaan en wag het en gedink
hoe gaan ons in die huis inkom het twee dames met 'n kers in
die hand in die
kombuis ingekom, die agterdeur oopgemaak en in Joe [Mamasela] en Almond
[Nofomela] vasgeloop. Joe het die een om
die nek gegryp haar mond toegedruk en
'n skoot teen haar afgetrek wat vir my gelyk het in die donker soos 'n nek- of
kopskoot. Sy
het op die grond neergeslaan. Die ander dame het in die huis
teruggehardloop, skote is agter haar ingeskiet. Ek het agter haar aangehardloop
tot in die gang en nog skote agter
53
haar aangeskiet waarna ons padgegee
het...."
(5)
The theft in Johannesburg
of a trade union Kombi:
Coetzee testified that in August 1981 he
was informed by van Rensburg, then a colonel in the security branch at Port
Elizabeth, that
a group of trade unionists from that city were travelling by car
to Harare in order to attend a trade union congress, and that they
would break
their journey by spending the night at a Johannesburg hotel. Van Rensburg told
Coetzee that this party should be prevented
at all costs from reaching Harare in
time for the congress.
In response to this instruction a party
including Coetzee, Vermeulen, van Dyk and Nofomela went by car to the hotel in
question where,
in the hotel's parking area, they located the car in which the
trade unionists were travelling. It was a new Kombi ("the Kombi")
and the
ignition keys were in it. Vermeulen drove the Kombi away
54
followed by the remainder of the party in their own
vehicle.
At a later date, and with the approval of Schoon, the Kombi
was driven to the Oshoek border post by Coetzee and van Rensburg. The
Kombi had
meanwhile been provided with false licence and third party insurance discs. On
the South African side of the border the
Kombi was sold for R7 000 cash to an
obliging Portuguese motor dealer from Swaziland with whom Coetzee had earlier
had dealings.
(6)
Malicious damage to property in the North-Eastern
Cape:
According to Coetzee's evidence he set alight a number of motor vehicles
in the North-Eastern Cape. These acts of arson were committed
at the instance of
the major in charge of the Security Branch office at Aliwal North, within whose
area of operation there fell also
the village
55
of Rhodes.
In Aliwal North there served in the uniform
division of the SAP a black sergeant who was viewed with disfavour for his
leftist tendencies
and his negative attitude towards the Security Police. He was
the owner of a Toyota Cressida motor car. Coetzee and others placed
an old tyre
containing petrol in this vehicle and set it alight. For reasons unknown to
Coetzee the flames failed to engulf the car.
At the same time there lived at Rhodes a colony of so-called "hippies" or
artists whose presence was regarded by the major in Aliwal
North as a nuisance.
Late at night a party including Coetzee, van Dyk, Tshikalanga and Nofomela made
an unobtrusive entry into Rhodes
by car. While van Dyk and Tshikalange devoted
their attentions to certain other parked vehicles Coetzee and Nofomela doused
with
petrol and then set alight a Volkswagen and a car
56
described as "'n stompneusvoertuig", before they sped away in their own
car.
(7)
The Lindley incident - defeating the ends of
justice.
According to Coetzee
the killing of Vusi and Peter at Komatipoort was the culmination of a
complicated sequence of events involving
much roaming over large tracts of the
country. These travels, in which hundreds of kilometres were covered, were
punctuated by a
brief incursion into the town of Lindley in the Orange Free
State while he was motoring from Lesotho and bound for Middelburg in
the
Transvaal.In the course of this incursion Coetzee was travelling alone in his
car followed by a truck driven by Nofomela in which
Mamasela was a passenger,
when a car ("the coupe") with five occupants turned into the road ahead of
Coetzee. The coupe careered
from side
57
to side in the road and Coetzee noticed that its driver as well as its
four passengers were very drunk. Coetzee tried unsuccessfully
to force the coupe
off the road. Mamasela decided on firmer measures. He opened the door on the
passenger's side of the truck, and
while leaning out of it, he fired several
shots at the coupe with a Makarov pistol.
When the coupé was finally brought to a stop it was discovered
that three of the passengers had sustained gunshot wounds. Mamasela
was not a
member of the SAP and the Makarov pistol used by him in his attack on the coupe
was an unregistered weapon. Mindful of
possible complications Coetzee decided
that a cover-up operation was necessary. He gave his own 9 mm parabellum to
Nofomela with
which the latter fired a few shots. Coetzee gathered the empty
cartridge shells from the shots fired with the parabellum and took
them to the
police station at Lindley.
58
From Lindley Coetzee telephoned Schoon. He described the incident to
Schoon and suggested that in the official report thereof it would
be better if
Nofomela should be represented as the man who had fired the shots, using the SAP
parabellum, and that Masamela should
be kept out of the whole matter. Coetzee
testified that Schoon approved this course of action. Accordingly Coetzee drew
up statements
for the police dossier, for signature by himself and Nofomela
respectively, in which the above false version of the shooting was
set
forth.
Against the above background I proceed to examine those parts of
Coetzee's evidence which bear directly cm the actual issues in the
case. The
sting of the defamation is that as part of a criminal scheme to murder persons
the appellant prepared and supplied poison;
and that as part of a criminal
scheme to kidnap and abduct persons the appellant prepared and supplied
soporifics in
59
the form of "knock-out drops" which would render the victims unconscious.
Of particular relevance, therefore, is the testimony of
Coetzee in regard to (1)
the murder of Vusi and Peter; (2) the murder of Kondile; and (3) the abortive
kidnapping raid into Swaziland
[see sub-paragraph (H)(2) in article VWB(2)] with
the object of abducting an ANC commander, to which reference will hereafter be
made as "the 'General' incident".
(1)
The murder of Vusi and Peter:
The Vusi and Peter murder involves an account of the peregrinations of
Coetzee and Vusi and those of Vermeulen and Peter during the
month of October
1981. The saga begins with the date on which Vusi was released at the Brits
police station and delivered into the
custody of Coetzee; and it ends with the
date on which, Vusi and Peter having finally been killed at Komatipoort,
Coetzee
60
returned to base at Vlakplaas.
Documentary evidence established that Vusi
was
released from the Brits police station
on 11 October 1981,
and that Coetzee, having thereafter travelled
far and wide,
returned to Vlakplaas on 29 October 1981. Coetzee did
not
have an independent recollection of the former date, but
he
was firm on the point that he had received instructions
to
collect poison and sleeping-drops from the appellant before
he collected Vusi at Brits. In his evidence in chief
Coetzee said:-
"Wel, voor ek Brits toe is het brigadier Schoon vir my gereël by
generaal Neethling en ek is na generaal Neethling se laboratorium
toe in Jacob
Maréstraat waar ek by hom 'n gifpoeier opgetel het en druppels vir die
doeleindes van ontvoering."
According to
the witness the appellant was then known to
him only by name and reputation:-
"Ek het geweet dat hy 'n bale goeie chemiese ekspert was, spesialis was,
'n dubbele doktorsgraad in chemie gehad het, hy die hoof
van die forensiese
laboratorium was en baie knap was
61
in sy werk ... dat as die veiligheidspolisie gif nodig gehad het, het hy dit
altyd voorsien asook drank en wat wie ookal nodig gehad
het."
Coetzee was initially
emphatic on the point that
before this visit to the laboratory in Jacob Mare Street
in
connection with Vusi and Peter, he had never met
the
appellant. " In describing this meeting the witness
said
that he introduced himself to the appellant:
"....en hom gesê daar is twee manne wat ek van ontslae moet raak,
waarna hy my met twee pakkies gifpoeier voorsien
het."
This conversation took place in the
appellant's office, but
according to Coetzee he was given tea in the laboratory.
In the office Coetzee noticed an old police safe standing
on a base which he described as "houtstellasietjies"; and
hanging on the wall he observed a certificate recording the
fact that the appellant had been a passenger on a Concorde
flight; and a photograph of a rugby fifteen of the
Oostelikes Club wherein the appellant could be seen
62
standing in the middle row. The appellant told Coetzee
that
he had played rugby for the Oostelikes Club.
Questioned by counsel for the respondents as
to
what the appellant had given him on this
occasion, Coetzee
replied as follows:-
"Twee ....pakkies poeiertjies .... die getal 60
is genoem ....Dit was baie min gewees. So dit moet wees 60 milligram. En ek
het ook gevra vir druppels wat ons kan gebruik in drankies
van persone tydens
ontvoering, waar hy my van 'n deurskynende plastiekhouertjie voorsien het nadat
hy druppels uit sy brandkas uit
gehaal het, en hy gese het dit is baie duur
druppels. Ek dink hy het R30/40 gemeld per druppel. Hy het vir my ek dink dit
was agtien
druppels afgetel in ook 'n deurskynende houertjie. Wat jy dan in 'n
persoon se drank moes gooi. Vier druppels vir 'n medium-bou persoon
wat
dieselfde uitwerking as choloroform sou gehad het en wat die man dan in slaap
sou laat ingaan en jy hom sou kon ontvoer. As jy
te veel van dit sou toedien sou
die man sterf."
Having left the appellant's
office, so Coetzee's
evidence-in-chief continued, he obtained in Pretoria the
documents necessary for him to procure the release of Vusi
63
at Brits. He duly secured Vusi's release and took him,
via
Zeerust, to a farm near the Kopfontein border post on
the Botswana
border. On the farm there was an old
farmhouse which was used by
Vermeulen and his men as
sleeping quarters whenever they engaged in operations in
that
area. Vermeulen and Peter were already at the farm.
The events at
the farm were described thus by Coetzee:-
"Koos Vermeulen het die twee poeiertjies in 'n drankie leeggemaak. Vusi ....
het 'n koeldrank gedrink, Peter het bier gedrink ....
en terwyl hy dit voorberei
het, het ek Vusi drie hoofkantoorbron-salarisontvangs voor laat teken, blanko,
oningevulde salaris-kwitansies
met twee verskillende penne .... twee sal in
dieselfde kleur ink wees en die ander een dan in die ander kleur .... Dit was om
voor
te gee ....dat hy vir drie maande salaris sou ontvang het, 'n hoofkantoor
informant-toelae, waarna hy weggeraak het .... om enige
persoon wat navraag doen
te mislei oor die werklike toedrag van sake, naamlik dat ons van horn ontslae
geraak het."
As to what took place after
Vusi and Peter had consumed
their drinks laced with the powder obtained from the
appellant, Coetzee remarked:-
64
".... daar het niks gebeur nie. Volgens generaal Neethling as iy die
spesifieke poeier in daardie hoeveelheid vir 'n skaap sou ingee
was dit tussen
vyf en ek dink vyftien minute, die skaap sou net in die lug spring en dood
neerslaan en die nadoodse ondersoek sou
dan 'n hartaanval
aandui."
The powder having had no apparent
effect on the intended victims, when night fell meat was grilled and consumed.
Vusi was manacled
to Peter, the latter having been led to believe that Vusi was
in his custody. Coetzee and Vermeulen then gave Vusi a drink containing
four
drops of the appellant's soporific - later to be dubbed "knockout drops" -
whereafter they proceeded to note down what the effects
of the drops were on
Vusi and how soon they manifested themselves. Coetzee explained that the
appellant had told him that the effects
depended upon a number of imponderables
as, for example, how long before their taking them the victim had last had
anything to eat,
and the rate of ingestion of the drops; and it was at the
specific request of the appellant that he kept a
65
record of Vusi's reactions. The effects, as observed
by
Coetzee, were that within twenty or thirty minutes Vusi
was
bereft of speech. His eyes were:-
"wild, wild oopgesper, hy het op stadiums in die grond langs hom gegrawe
terwyl sy oë oopgesper was. Dan het hy begin rondrol,
vreeslik rusteloos
gewees. Dwarsdeur die nag en dit het aangehou tot die volgende oggend .... ek
dink die volgende môre het
hy net van hoofpyn
gekla."
On the following day Coetzee
remained at the farm while
Vermeulen went to see the appellant in Pretoria, whence he
returned with a double dose of the poison. The appellant,
so Vermeulen informed Coetzee, found it difficult to
believe that his powder had not had the desired results.
According to Coetzee a further dosage was then administered
by them to Vusi and Peter, with equally disappointing
results.
From Coetzee's evidence-in-chief it is clear that
it was after this second and abortive administration of the
appellant's poison that he and Vermeulen travelled to
66
Pretoria to see the appellant at his home on a
Sunday
morning. Coetzee's recollection of the sequence of
the
events intervening before the visit to the appellant's
home
was somewhat hazy. Having described the second
and
unsuccessful attempt to poison their victims,
Coetzee
proceeded to say:-
"....en toe net daar 'n periode verloop wat ons. onder andere verhuis het
Groblersdal toe om in daardie omgewing te gaan werk met
die hele
span
When counsel for the respondents asked
the witness whether he could remember what happened from the time they left
Kopfontein and
until they reached Groblersdal, Coetzee answered that he had no
specific recollection thereof. He added, however, that from certain
dates that
had been made available to him he knew that at a stage when he was journeying by
car from Lesotho to Middelburg in order
to give assistance in tracking down
certain terrorists who were on the run after they had gunned down people in
a
67
caravan at Ogies ("the Ogies incident"), his journey had been interrupted
near the town of Lindley. At this stage of his evidence
in chief Coetzee
embarked upon a lengthy and detailed account not merely of the Lindley incident
(whose essential facts have already
been outlined in this judgment) but also of
the whole and rather complicated aftermath of the Lindley incident in regard to
prosecutions
by the office of the Attorney-General of the Orange Free
State.
After this diversion involving a description of the Lindley incident the
threads of the Vusi and Peter tale were taken up once more
by the witness.
Having finally completed his journey from Lesotho to Middelburg Coetzee reported
to the divisional headquarters of
the Security Branch at Middelburg, whereafter
he and the entire Vlakplaas contingent were based in an old farmhouse at
Groblersdal
while the search for the terrorists involved in
68
the Ogies incident continued. After Coetzee had already moved into the
farmhouse Vermeulen arrived there with the two hapless captives
still in tow.
With reference to Vermeulen's appearance at the Groblersdal farmhouse counsel
for the respondents inquired of Coetzee
whether this happened "daardie selfde
Saterdag aand", to which the witness replied that he could not remember whether
it was on that
night or the following morning. Thereafter Coetzee's
evidence-in-chief proceeds:
"
MNR LEVIN:
Ja, en wat het toe gebeur? ----
KAPTEIN COETZEE:
Ons het toe....op 'n
Sondagmôre
na generaal
Neethling se huis toe gery.
MNR LEVIN:
Wie?
KAPTEIN COETZEE:
Ek en Koos Vermeulen.
MNR LEVIN:
Met watter doel?
KAPTEIN COETZEE:
Om weer gif te gaan haal vir
die derde keer om Vusi en Peter dood te maak."
Coetzee then proceeded to describe the situation
of the appellant's house in Prospect Street in the Eastern
69
suburbs of Pretoria. He put the time of the visit at
between
9 am and 10 am, and said that they had come from
Groblersdal. When
counsel sought to elicit the date of
the visit more precisely, the
answer of the witness was:-
"Ja, ek kan nie onthou of dit spesifiek daardie Sondag was of die Sondag net
daarna."
When they knocked at the door, so
Coetzee testified, the
appellant, still clad in his night-clothes, appeared.
Asked whether he and Vermeulen had explained their purpose
of the visit, the witness said:-
"Ja, maar net weer gerapporteer dat daardie gif wat hy vir ons gegee het,
nie gewerk het nie."
Thereupon the
appellant went into the house to get dressed.
He did not invite the visitors to come inside his house;
and while the appellant got dressed Coetzee and Vermeulen
waited for him on the stoep. After a while he reappeared
holding a bunch of keys. Coetzee and Vermeulen then
accompanied him to the forensic laboratory.
70
Of the events at the laboratory on the
Sunday
morning Coetzee gave the following
account:-
"In die laboratorium het hy op 'n stadium in 'n boek naslaanwerk gedoen
waarna hy die poeier, 'n triple (sic) dosis in twee insulienspuitjies
van my
opgelos het, en in twee insulienspuitjies 100 eenhede insulienspuitjies opgetrek
het, dit in blink papier toegedraai het sodat
die silinders nie kan afdruk en
die vloeistof uitspuit nie, en waarna ons .... hom eers gaan aflaai en toe terug
is Groblersdal toe."
Counsel for the respondents invited the
witness
to say something of the appellant's
house. Having
described its external appearance Coetzee went on to say:-
"Die huis het 'n stoep voor met 'n gang na die voordeur toe, en die voordeur
in die gang wat in die huis afloop, deel die huis basies
in 'n linker- en
regterkantse deel. Die vertrekke loop links en regs uit die gang uit. Die huis
het plankvloere."
As they were leaving the
house, so testified Coetzee, he
heard the appellant speaking in German to females in the
house -
71
"....en op 'n vraag van my net hy my meegedeel dat hulle huistaal Duits is.
Hy praat Duits met sy dogters."
The witness
further said that he heard two large dogs
barking. He noticed on the
premises two Rottweilers.
There was some sort of discussion between
him and the
appellant about these two dogs, but Coetzee was unable
to
recall what had been said.
Having dropped off the appellant at his
home,
Coetzee and Vermeulen returned to
Groblersdal. There, so
testified Coetzee, Vermeulen used the triple dosage of the
appellant's poison to lace drinks which were given to Vusi
and Peter; but again the powder proved to be a complete
failure. Thereupon it was decided that the party should
move to Komatipoort. At Komatipoort they joined forces
with Flemington and two or three of his men. They all
foregathered at a spot next to the Komati river which
Coetzee proceeded to describe in minute detail. There it
72
was that the two victims finally met their end. Coetzee
gave the following description of their execution:-
"....daar is ....Vusi en Peter van hierdie druppels ingejaag ... wat die
effek van chloroform het, en toe hulle goed bedwelmd was
het Kaptein Koos
Vermeulen elkeen van die twee agter die oor geskiet nadat hy hulle kop skeef
vasgetrap het met 'n skoen."
The victims
were shot to death with a Makarov pistol fitted
with a silencer
provided by Flemington. According to the
witness Vermeulen, whom he described as a reactionary with
no love for Blacks, insisted upon doing the shooting
himself. Thereafter the two corpses were placed on a pyre
made of old tyres and leadwood stumps, and set alight.
The fire was carefully tended through the night as members
of the party refreshed themselves -
"....digby die vuur, by hierdie brandstapel het ons die hele nag maar
gesit en drink en vleis gebraai terwyl ons heelnag natuurlik
die grootste hompe
van die liggaam wat nog oor was, vars kole onder ingekry het sodat dit kan
heeltemal uitbrand tot as - en die
volgende more vroeg het ons wat oorgebly het
van die brandstapel in die
73
rivier met grawe ingegooi."
Counsel for
the respondents asked whether during the night
in question there had
been any talk of poison. This
question elicited the following reply
from Coetzee:-
"Daar was. Majoor Flemington het ons meegedeel hoe generaal Neethling vir
hulle 'n bottel whisky voorberei het deur met 'n mikronaald
gif in die whisky in
te sit sodat die seel nie gebreek word nie en die gaatjie weer afgeseel word
waarna hulle die bottel met 'n
informant in Maputo ingesmokkel het na die ANC
toe en iedere een wat uit daardie bottel iets sou drink sal doodgaan."
Coetzee's evidence in chief in regard to the
Vusi
and Peter murder was rounded off by a
further reference to
the salary receipt forms which Vusi had been made to sign
in blank at the farm near Kopfontein. The witness
testified that late in 1982 or early in 1983 he was
summoned to the Security Branch head office by Schoon.
Schoon told him that Vusi's attorneys were becoming a
nuisance; and he instructed Coetzee to make a statement to
the effect that Vusi had disappeared from Vlakplaas.
74
Coetzee described how he carried out this instruction:-
"Ek het toe 'n verklaring ingesit in my handskrif waarin ek meegedeel het
dat hy losgelaat is en vrywillig vir ons gewerk het; dat
hy 3 maande vir ons
gewerk het; dat ek hom nie op die plaas gebring het, maar aan die einde van die
maand wanneer die ander Askaris
af het, het ek hom by die stasie gaan aflaai
sodat hy die naweek sy familie kon besoek en dan het ek weer 'n punt met horn
bespreek
waar ons hom sou optel. Dit was om te verhoed dat daar van ons ander
kollegas op die plaas, Askaris, wat hom kon sien en later kon
sê dat hy
wel op die plaas was. En nadat ek hom die derde keer afgelaai het aan die einde
van die maand, het hy nooit weer
teruggekeer nie. Ons weet nie wat het van hom
geword nie. En natuurlik as bewys dat hy sy salaris ontvang het en 3 maande vir
ons
gewerk het, het ons dus daardie 3 getekende informantfooie-kwitansies
voorgelê."
2)
The Kondile
murder:
In sub-paragraph (C)(1) of article VWB(1) there is described the theft in
the Eastern Cape by Coetzee and Nofomela of a motor car
belonging to a trade
union leader in Port Elizabeth. Coetzee testified that the car in question was
an Audi. Documents made available
by the
75
SAP established that Coetzee and Nofomela were in the Eastern Cape during
September 1981, and that an Audi car was stolen there on
13 September 1981.
Coetzee further testified that the stolen Audi was taken to Jeffrey's Bay, and
that it was there that he encountered
Kondile (cf subparagraphs (C) (2)-(4) of
article VWB(1))
In his evidence in chief Coetzee gave the following account of his
dealings with Kondile:-
"Op 'n stadium later nadat ek op Jeffreysbaai was, ek kan nie spesifiek
onthou watter datum nie, het ek opdrag ontvang van brig Schoon
om druppels van
gen Neethling te verkry, wat soos chloroform werk, wat ek gaan optel het
vergesel van adjutant-offisier Paul van
Dyk van Vlakplaas en dat ek kol van
Rensburg saam met maj Archie Flemington op Komatipoort moes
ontmoet."
According to Coetzee he and van
Dyk saw the appellant in
the latter's office, collected the drops, and proceeded to
Komatipoort where they met up with Flemington and two of
his men. On a particular farm, whose location Coetzee
described in some detail, there arrived later in the
76
afternoon Col van Rensburg, Capt du Plessis and a Sgt
Raadt.
They were travelling in a Cortina motor car, and
they had Kondile with them. What happened thereafter
Coetzee described rather tersely in his evidence in chief:
"....waar hy [Kondile] weer van hierdie druppels in 'n bier ingegee is, baie
kort daarna omgeval het en toe is hy met dieselfde Makarov
pistool en knaldemper
van maj Archie Flemington in die kop geskiet deur 'n sersant of 'n
adjutant-offisier -skraal ligte-kop sersant
of adjutant-offisier van die
personeel van maj Archie Flemington. Weer eens het hulle die hout aangery en
bande waarmee 'n brandstapel
opgerig is en waar hy, Kondile, deur die nag op
gebrand is tot as terwyl ons baie na aan die vuur deur die nag maar vleis
gebraai
en gedrink het."
The place in
question was not near a river. The ash was
simply raked flat.
(3)
The "General" incident:
In his evidence in chief Coetzee testified that "General" was a
relatively senior ANC official living in Mbabane, Swaziland. He was
a friend of
one Lockwood, a
77
South African citizen, and a police informer, who spent
much
time in Swaziland where he had a flat and was often
visited by "General". Coetzee was given orders to abduct
"General" from Swaziland. It was hoped to obtain from him
information concerning the places of residence of other ANC
members living in Swaziland.
In execution of the above order, so alleged
Coetzee, he and Nofomela:-
"....het die nodige druppels na oorleg met brigadier Schoon en generaal
Neethling van generaal Neethling opgetel van sy kantoor af
en is af Swaziland
toe waar ons in 'n lee huis by Nerston grenspos ....dit was in Desember 1981
-het ons kamp opgeslaan...."
From Nerston and Oshoek Coetzee telephoned Lockwood and
made certain arrangements with him. On the appointed
night "General" arrived at the flat of Lockwood at Matenga
Craft in a Mazda driven by his driver who was a Swazi.
The plan was that Lockwood should ply "General" with wine
laced with the knock-out drops. The driver of the Mazda
78
was soon rendered insensible but, for whatever reason,
Lockwood failed to drug "General." When Coetzee and
Nofomela had secreted themselves into a darkened bedroom
adjacent to the lounge in which "General" was being
entertained they could hear from his manner of speech that
"General" was far from being benumbed.
Immediately
-afterwards they obtained confirmation of this state
of
affairs when, on his way to the toilet, "General" walked
through the bedroom in question. Of the resulting
encounter between the would-be abductors and their quarry
Coetzee gave the following description:-
"Hy het in die donker kamer in ons vasgeloop. Ons het hom vasgevat en ons
is grond toe met hom. General het geskree soos 'n maervark.
Almond [Nofomela]
het sy mond probeer toedruk - dit is 'n kort, skraal mannetjie, maar hy is so
sterk soos 'n leeu. Hy het Almond
op die voorarm .... ek dink dit is die
linkerarm gebyt . . . .Ek het sy keel probeer toedruk en kon dit nie regkry nie.
Almond het
my meegedeel dat hy hom byt en ek het gesê:Byt terug, waarna
Almond 'n stuk kopvel agter uit sy kop uit gebyt het. Die woonstelligte
het toe
aangegaan en ek het vir Almond gesê ons
79
moet padgee ....ons is toe uiteindelik by die venster uit en weggehardloop
en onverrigtersake is ons terug Oshoek
toe."
So much for Coetzee's account during
his evidence in
chief of his direct personal dealings with the
appellant in
connection with the supplying of poison and soporifics
by
the latter to the former. As will emerge in due
course,
the appellant in his evidence not only denied that he
had
ever supplied poison or soporifics to Coetzee, but he
was
unable to recall that he had ever had any personal
dealings
whatever with Coetzee. A documentary piece of
evidence
relevant to this question is a note-book (exh "B") which
Coetzee kept while he was at Vlakplaas. In the note-book
Coetzee recorded the telephone numbers of a large number of
persons. At page 43 of exh "B" there is inscribed the
telephone number of the appellant at the forensic
laboratory (in 1981 when it was housed in Jacob Maré
80
Street). In what follows reference to this entry will be
made
as "the telephone entry". The telephone entry is
made in the hand of
Coetzee and in it the surname of the
appellant is misspelt. It
appears thus:-
"Genl Neetling Tel: 28.2218 ) 3-2553 )
H "
The circumstances in which he made the
telephone
entry, and the probable date
thereof, were explored at
length with Coetzee during his evidence. In chief the
witness was asked why he would have made the telephone
entry. His answer was -
"Omdat ek met hom kontak gehad het en hy die nommers vir my sou gegee het,
dat as ek hom nodig sou kry of enigiets verder van hom
verlang het, kon ek met
hom skakel."
In cross-examination Coetzee
was asked when he had obtained
the numbers reflected in the telephone entry. He replied
that he had got them at some time during the period of
81
seventeen months (August 1980 to 31 December 1981) while
he
was at Vlakplaas. He said that he was unable to indicate
a
more precise date. When asked how he had obtained
the
numbers the witness initially answered:-
""Dit moes deur gen Neethling persoonlik vir my gegee gewees
net."
Further pressed on the point Coetzee
said "Dit kon net hy
[the appellant] gewees het; and when the suggestion was
made to the witness -
"Now are you sure General Neethling gave you
these two
numbers? "
he answered in the affirmative.
Further questioning elicited that the appellant
had never telephoned Coetzee; and that the witness had no
specific recollection that he himself had ever telephoned
the appellant. When later in his cross-examination
Coetzee was again asked when he had been given the numbers
he responded by saying that it had been in the course of
82
one of his visits to the appellant. Pressed to say when
he
had for the first time visited the appellant the reply
of
the witness was:-
"Ek vermoed dit was die slag toe ek Peter en Vusi se gif gaan optel
het."
Counsel for the appellant explored
with Coetzee the
sequence of his alleged visits to the appellant. The
witness
agreed that on his version the first occasion had
been shortly before the release of Vusi; the second
occasion
had been the visit to the appellant's home; and
that the third visit had been in connection with
Kondile.
Asked to fix the date of the third visit, Coetzee
replied:
"Ek kan nie onthou wanneer is hy doodgemaak nie. Ek weet dat ek hom gesien
het by Jeffreysbaai polisiestasie op 13 September. Nou
weet ek nie hoe lank
daarna ons hom toe uiteindelik doodgemaak het
nie."
The next visit, so testified Coetzee
-
"....moes gewees het vroeg in Desember net voor ek af is Swaziland grens
toe vir General se storie."
83
Coetzee was unable to say whether Kondile was killed
before
or after Vusi and Peter were killed.
In cross-examination Coetzee stated that the
idea
that Vusi and Peter should be killed
by poisoning had
originated with him; and that he had suggested this
means
of killing to Schoon. He explained his penchant
for
poison by saying that it was a better means -
"....om 'n ou dood te maak as om hom te skiet terwyl hy vir jou staan en
kyk."
Counsel for the appellant pointed out
to Coetzee that at an
early stage of their travels with Vusi and Peter he
(Coetzee) and Vermeulen knew that the poison was not working, but that
the drops were. He then put the
following question to the witness:-
"Why did you have to go back to Pretoria on two more occasions to get
poison when the poison had not worked the first time? You had
the drops, you
could have administered the drops and shot them, couldn't you? ---"
84
The witness replied:-
"Ons kon, ons net dit nie gedoen nie."
He proceeded to explain the drops cost R40 each, and that they did not want to
waste them at
that stage.
So much for the evidence of Coetzee. For the purposes of the appeal it is
necessary to consider the testimony of two other witnesses
called on behalf of
the respondents. These were Mrs M S E Coetzee, the mother of Coetzee, and Mr M W
Welz. The evidence of Mrs Coetzee
may be very shortly stated. She was formerly
employed by the Nursing Council in Pretoria. She testified that she stopped
working
for the Council on 6 March 1981 in order to assist in the care of
Coetzee's younger son who is also a diabetic.
On an unspecified date thereafter, but at the time when Coetzee was based
at Vlakplaas, she asked her son to take her to town by car.
When she had
attended to her
85
own business Coetzee asked her whether she was in a hurry -
"Toe sê ek nee hoekom, toe se hy want ek wil gou by die Forensiese
Laboratorium lets by generaal Lothar Neethling gaan
haal."
An objection to the above oral
communication was made by
counsel for the appellant. How it was ultimately dealt
with by Kriegler J may conveniently be considered later.
According to Mrs Coetzee her son then drove to Jacob Mare
Street and parked his car under a tree in front of the
forensic laboratory which he entered. She waited in the
car. After a while she saw her son descending the steps
in front of the laboratory. He carried something in his
hand. She neither saw nor inquired what this object was.
As he approached the car Coetzee put the object into the
pocket of his safari jacket.
Mr Martin Sylvester Welz ("Welz") is a free-lance
journalist. At the end of 1983, when he was following up
a story which led to the resignation of the then Minister
86
of Manpower, he got to know Whelpton who had been
the
Minister's secretary. Whelpton, in turn, introduced
Welz
to Coetzee. Welz said that he was unable to put an
exact
date to the latter meeting "but it must have been
early
1984". Over a period of a year, so testified Welz, he
and
Coetzee often met. The nature of their relationship and
the topics of discussion between them were described as
follows by Welz during his examination in chief:-
"And what was the purpose of these meetings? ---
At first they were more sort of social encounters when I saw Whelpton,
Coetzee would be there or would arrive. Subsequently it was
in the course of
following up a story on possible illegal telephone tapping by the police and
after that it was, I think it was probably
a mixture of the two with some
interest in the possibility of Dirk Coetzee's other material sort of coming to
the stage where one
could publish
something.
Now did Dirk Coetzee confide in
you at all ---
Initially not, subsequently yes.
Was that done on a confidential basis or was it done on a basis that ....
the information was
available for publication? --- It was done on an
absolutely confidential basis, in fact Whelpton
87
had persuaded him that he could speak openly in my presence and that was
when I heard some of the first stories about irregular activities
in the police
force."
Welz kept no notes of the
information given to him by
Coetzee. The witness explained:-
"I soon realised that whatever it was the
material was very dangerous material to be
handling and certainly not publishable at that
time."
When counsel for the respondents asked
the
witness whether Coetzee had mentioned
to him any stories
involving soporifics or poisons Kriegler J questioned the
relevancy of the evidence proposed to be led. Thereupon
Mr Levin submitted that evidence of prior consistent
statements by Coetzee to Welz, at a time when Coetzee had
no motive to misrepresent, was admissible in order to repel
a suggestion implicit in the cross-examination of Coetzee
that his implication of the appellant was an imaginative
fabrication. The question of admissibility was argued by
88
both sides.
In the result Kriegler J ruled the evidence so
tendered to be admissible "to rebut the suggestion of subsequent fabrication by
Coetzee
of the procurement by him from the plaintiff of poison." Welz then
continued to testify. The kernel of his evidence is to be found
in the following
passage:-
"What was the information you were given? ---
I cannot remember any detail of these stories, but I do recall that they had
got to discussing how they had got rid of uncomfortable
witnesses or cases that
were potentially embarrassing and had to be disposed of without sort of
attracting public attention and he
then told with some hilarity, I would say at
the time, of how they had obtained poisons from the police laboratories and he
did name
General Neethling by name at the time, that I do recall as General
Neethling being quite a prominent figure in the police hierarchy
at the time. I
say that because I don't recall the names of other policemen that were involved
...in this specific incident but he
told how
they
89
had obtained the substance which they had added to drinks that had been
given to persons they had in their custody and how they had
sat around waiting
for something to happen and how nothing had happened and how they had
administered more and still nothing had
happened and the hilarity I think was
prompted by the fact that the newfangled methods didn't work, so they finally
just shot them
anyway and the old method seemed to work were the more reliable
ones."
In cross-examination Welz said that
when presented with the
whole of Coetzee's story his assessment at
the time was
that its reference to the appellant was unimportant
and
"merely a funny aside"; and that at that stage he
"regarded .... Neethling as a minor element in the story."
I turn to the testimony of the appellant and to
those of his witnesses whose evidence is germane to the
appeal. Before dealing with the evidence of the appellant
himself it is convenient to deal briefly with two witnesses
called in rebuttal. Mention has already been made of the
fact that General Geldenhuys testified on the issue of the
quantum of damages. While the witness was being led in
90
this connection, however, the questions put by counsel
for
the appellant strayed into the field of the merits.
The
ensuing procedural dilemma for Mr Oshry was removed by
an
agreement between counsel; and thereafter the
witness
testified further on the merits. The purport of
his
evidence was general in nature. It is usefully
summarised
by Kriegler J in the following passages of his
judgment:-
"Die generaal, wat ten tye van die gewraakte gebeure die Kommissaris van die
Suid-Afrikaanse Polisie was, getuig dat hy geen kennis
gedra het van enige
polisiebedrywighede van die aard wat Coetzee beskryf nie en dat hy daarvan bewus
sou gewees het as daar soiets
plaasgevind het. Hy dra geen kennis van enige
bedekte Suid-Afrikaanse optrede oor landsgrense heen nie. Wat hom betref was die
werksaamhede
normale misdaadondersoek wat altyd met die goedkeuring, die
magtiging, die samewerking van die plaaslike polisie geskied het. Hy
het wel
verneem van die opblaas van huise, die gebruik van briefbomme en ontvoerings
maar dra geen kennis van enige verband daartussen
en die Suid-Afrikaanse Polisie
nie. Hy herinner hom vaagweg 'n geval soos dié van Pillay maar kan geen
besonderhede daarvan
onthou nie. Dit is vir hom onbegryplik en onverstaanbaar
dat Schoon ooit vir eiser kon versoek het om gif aan Coetzee te verskaf.
Dit
91
sou ongehoord gewees het en eiser sou horn bejammerenswaardig agter gelaat
het .... Eiser was in geen opsig verbonde aan die operasionele
sy van die
veiligheidspolisie nie...."
Flemington was
also called in rebuttal. This witness joined the SAP in 1959 and was transferred
to the Security Branch some seven
or eight years later. In 1971 he was posted to
the Lebombo border post at Komatipoort where he remained until the end of 1981
when
he was transferred to Durban. He went to Komatipoort as a lieutenant and
left it as a major. In 1983, and for financial reasons,
he retired from the
SAP.
According to Flemington his dealings with Coetzee were few and somewhat
trivial. During Coetzee's spell of duty at Oshoek he and the
witness saw each
other on a number of occasions at Middelburg at conferences of branch
commanders.
Flemington told the trial court that their last meeting occurred
somewhere between March 1981 and, at
92
latest, mid-1981, when Coetzee arrived at his office at Komatipoort with
a party of men which included two Askaris. Coetzee informed
him that they were
on the trail of ANC terrorists who were crossing the border into South Africa,
and he sought accommodation for
his party at one of Flemington's border
guardposts. This Flemington arranged for them.
According to Flemington the persons Koos Vermeulen and Paul van Dyk were
unknown to him. When Coetzee's allegations regarding what
had happened at
Komatipoort in connection with the Vusi and Peter murder were put to the witness
he denied that there was any truth
in them. Flemington similarly denied any
participation by him in the events surrounding the murder of Kondile at
Komatipoort or in
the disposal of his remains.
Asked whether there was any truth in Coetzee's
93
allegation that Flemington had told him of poisoned
whisky
being sent to the ANC in Maputo, the witness said
the
following in his examination in chief:-
"No, I never told him any such thing.
Did any such thing ever take place? ---
Not ever, I don't even know General Neethling, I met him for the first time
on Monday in your chambers .... The very first time I
ever set eyes on him in my
life."
In cross-examination Flemington said
that he had never even
heard of poisoned liquor prepared in the manner mentioned
by Coetzee.
Flemington testified that while he had been
stationed at Komatipoort his border-post men were never
deployed in operations across the border. When tested
during cross-examination as to his knowledge of the "need
to know" rule Flemington responded by saying that he could
imagine what the expression meant, but that he himself had
never encountered it. Nor, according to the witness, had
94
he ever heard of what was known in the security police as "the eleventh
commandment."
Turning finally to the appellant himself, it is
necessary to begin by mentioning a few domestic details. He married in 1959 a
woman
born in Pretoria of a German mother. While the appellant himself is fluent
in German, his unchallenged testimony is that Afrikaans
is his home language. He
says that his wife's understanding of German is reasonably good and that her
spoken German is adequate.
He adds, however, that he speaks German to her only
when they are in the company of Germans. They have two sons and two daughters.
According to the appellant he has never spoken German to any of their children.
Indeed, he says that none of the children is able
to speak German.
The appellant told the trial court that his house in fact has wooden
floors, but that since 1973 or 1974 the floors have been covered
in carpeting
extending from wall
95
to wall. In 1981 the family owned a Rottweiler bitch. They have never had
a Dobermann.
In the course of his evidence the appellant described
with some particularity the lay-out of the forensic laboratory and his office
at
Jacob Mare Street. He stressed that, whether by day or by night, his office had
never been locked and that to gain access to it
would not have been a matter of
difficulty. The appellant also described the furniture and fittings in his then
office. He admitted
the presence both of the certificate recording his flight in
the Concorde and the photograph of the Oostellkes Club rugby fifteen
of which he
had been a member.
The witness agreed that there had been (and still was) a safe in his
office; but when his counsel invited him to say whether there
was any
resemblance between it and the safe which Coetzee had described in his
cross-
96
examination he replied that there was none.
When asked
whether he was an authority on poisons the appellant claimed a wider knowledge
than most of his colleagues in this particular
field for the reason that over
the years he had become engrossed in it. He acknowledged that he would know, if
bent on homicide by
poisoning, what poison would be quick and lethal.
The appellant flatly denied that he had
ever
supplied poison or soporifics to
anybody. In regard to
the so-called "knock-out drops" he said that there was no
such thing in his laboratory. He denied that he had ever
received a telephone call from Schoon requesting him to
supply poison to Coetzee. Asked what his probable
reaction would have been had Coetzee come to him in quest
of poison he replied:-
".... ek sou hom waarskynlik weggejaag het en ek sou die telefoon opgetel
het en of die speurhoof òf die Kommissaris gebel
het...."
97
When his counsel asked the appellant whether
he
knew Coetzee he answered -
"Ek kan hom nie onthou nie al sou 'n mens my gepynig
het."
The appellant's possible knowledge of
Coetzee was explored
with him in cross-examination:-
"Soos ek u getuienis in hoof verstaan het, ken u
horn glad nie,
u het hom nooit ontmoet nie, u kan
horn nie onthou nie, u het niks
met horn te doen
gehad nie op enige geleentheid tydens u
polisie-
loopbaan, is dit die korrekte weergawe wat ek
van
u getuienis-in-hoof verstaan?
Ek dink dit is in hoof trekke korrek met die veronderstelling dat ek
gesê het dat as hy in een van die klasse gesit het waar
hy dalk 'n lesing
van my kon gekry het of as hy dalk by die laboratorium sou aangedoen het vir
watter doel ookal en ek hom daar sou
raakgeloop het sonder dat ek eers geweet
het wie hy is. Met ander woorde, sy gesig op hierdie oomblik is onuitwisbaar in
my geheue
maar ek het hom nie geken voordat hierdie fotos van hom nie
gepubliseer is en .... ek het hom nie geken, ek sou nie geweet waar hy
geopereer
het nie."
During his evidence
in chief the appellant denied
98
that he had ever given any telephone numbers to Coetzee. He also gave
details of his absences from South Africa during the months
of September and
October 1981. He was out of the country from 25 September to 6 October; and he
was in West Germany from 17 October
for a visit lasting one week. He returned to
South Africa after the last-mentioned visit on Saturday 24 October
1981.
Against the background of the above general outline of the appellant's
evidence there must now be brought into closer focus certain
excerpts from the
appellant's testimony not only at the trial but also before the Commission of
Inquiry presided over by Mr Justice
L T C Harms ("the HCI"). Such closer
examination is necessary for a proper understanding of the nature, scope and
significance of
a number of adverse credibility findings made against the
appellant by the learned trial judge which will be considered later in
this
judgment.
99
By way of introduction it may be mentioned that the video-tape of the
particular edition of the British Television programme "Dispatches"
which was
televised in the United Kingdom on 4 April 1990 was handed in at the trial as
exh 3. Exh 3 portrays, inter alia, camera
shots of the front of the appellant's
house. During the trial exh 3 was viewed by the court below. During the hearing
of the appeal
it was also viewed by this court. Before he testified at the HCI
the appellant obtained a copy of exh 3.
(1) At the HCI Mr McNally put the following question
to the appellant:-
"Waar meen u kon kaptein Coetzee die besonderhede
van u huis
gekry het as hy nie, soos u nou getuig
het, u nooit besoek
het? "
In answering this question the
appellant referred to exh 3
and said that he had seen that Coetzee -
100
"....daardie beskrywing kon hy gekry het deur net na die televisieopname te
kyk maar dat hy dan as hy kom by die detail heeltemal
verkeerd
is."
As an example of Coetzee's faulty
detail the appellant then
mentioned to the HCI that the front door
of his house (as
portrayed in exh 3) was open and -
"....as 'n mens met die televisiekamera daar [the open door] ingaan dan gaan
jy tot by die agterste kamers ingaan en jy sien duidelik
dat dit is 'n lang gang
maar verder eintlik niks."
(2) After exh 3
had been viewed in the court below
and during the appellant's evidence in chief counsel put
the following question to the witness:-
"As far as you are able to make out, you have seen this picture, I know,
more than once, at the time when this video was taken was
the front door open or
closed?---"
This simple question elicited
from the witness an effusion
of words which in the transcript of the record occupies
some forty lines but which nowhere contains any sort of
101
answer to the inquiry. The above unsatisfactory response
to a
plain question was taken up at length with the witness
in cross-examination. Again the reaction of the witness
was
unsatisfactory. After a plethora of equivocations one
finds the following question and answer:-
"Ja maar die vraag wat ek u nou vra is spesifiek of 'n mens kan sien of
daardie deur oop is of
nie?---
Vir my lyk dit so."
(3) At the HCI
Coetzee in describing the appellant's
house said that "there is a verandah in the middle of the
house in front". When the appellant testified before the
HCI he was cross-examined by Mr Kuny. When Mr Kuny put
this portion of Coetzee's evidence to the appellant the
latter resisted the notion that his house had a verandah:-
"Dit is die probleem wat jy net. As jy kyk na die video jy kry alleen 'n
twee-dimensionele beeld en nie drie-dimensionele beeld nie
en daarom is ek
oortuig dat wat hy hier beskryf is wat
hy
102
gesien het op die video. Dit is hoegenaamd nie 'n verandah nie." (Emphasis
supplied)
When at the trial Mr Levin was debating with
the
appellant what, - upon a viewing of exh
3, could and could
not be observed of the appellant's house, the
witness
purported to quote to Kriegler J from the HCI record
in
order to demonstrate what his reply to Mr Kuny had been.
In quoting his reply to Mr Kuny the witness used the
following words:-
"As jy kyk na die video kry jy alleen 'n twee-dlmensionele beeld, nie 'n
drie-dimensionele beeld nie daarom is ek oortuig dat wat
hy hier beskryf het hy
op 'n video dalk gesien." (Emphasis
supplied)
The appellant proceeded to
comment thereon to Kriegler J as
follows:-
"Ek sê nie watter video, ek sê êrens 'n video, dalk nie
hierdie een nie want van hierdie een kan daar 'n tien ure
lang video wees wat u
en ek nog nie gesien het nie." (Emphasis
supplied.)
103
4) During his cross-examination at the trial the
appellant
reaffirmed his evidence at the HCI that his house
had no
verandah:-
"En 'n verandah is in my opinie 'n stoep waar mens op sit en koffie drink
en oor jou beeste stories vertel volgens mense maar ek het
nie so 'n plek nog
ooit in my lewe gehad nie. So dit gaan miskien oor semantiek maar ek wil dadelik
vir u toegee om weereens die
hof se tyd te spaar dat daar 'n gedeelte is wat 'n
plaveisel is ...." A little later, in answer to a question by Kriegler J as
to
whether Coetzee had been correct in saying that there was a
verandah in the middle of the front of the house, the
appellant replied as follows:-
"Ja, as ons aanvaar dat die term verandah vir my iets anders beteken as
vir hom en ek het dit uitgeklaar met my kollegas wat argitekte
is, vir hulle is
dit ook nie 'n verandah nie, dit is 'n ingangsportaal maar dit maak nie saak
nie. Ek is heeltemal tevrede om te
se dat hierdie besondere konstruksie kon dalk
deur 'n onkundige wat miskien 'n beter kenner is van honde 'n verandah
verkeerdelik
genoem gewees het, maar ek kan nie toegee dat dit 'n verandah is
nie maar dat dit 'n toegangsportaal is of iets van dié aard
maar as hy
dit 'n verandah wil noem gee ek regtig nie om
104
nie."
So much for the essential
features of the evidence adduced at the trial. The merits of the appeal may now
be considered. On appeal
it was common cause that in each action the matter
published of the appellant was grossly defamatory of him. The main defence
raised
in each action, as already pointed out, was one of truth in the public
benefit; the alternative defence in each action was one of
qualified privilege.
I shall deal with each defence in turn.
(F) THE DEFENCE OF TRUTH AND PUBLIC BENEFIT IN THE WM
CASE:
Kriegler J concluded that on the evidence before him there was
insufficient proof of the truth of the matter defamatory of the appellant
in the
WM article. As the following observations from the judgment will show
the
105
learned judge gave this defence short shrift:-
"Coetzee dra nie persoonlike kennis van die versending van vergiftigde drank
na Maputo nie. Hy het by Flemington daarvan gehoor en
het dit oorgedra vir wat
dit werd is. Gesien my bevindinge aangaande Flemington se geloofwaardigheid se
dit nie veel nie. Gesien
die sentrale belang van die betrokke stukkie hoorse
getuienis, die onbetroubaarheid van die bron daarvan, die potensiële
benadeling
vir die eiser as dit toegelaat sou word en, les bes; Flemington se
ontkenning van beide die bewering self en dat hy dit aan Coetzee
sou vertel het,
meen ek nie dat dit behoorlike uitoefening sou wees van die diskresie wat by
artikel 3(1)(c) van Wet 45 van 1988
verleen word nie. Die enigste moontlike
ander skakel tussen eiser en die vergiftigde drank was die getuienis van Lesia
en dit het
ek reeds ontoereikend gevind om die waarheid van die beweringe te
bewys ...."
(G) THE DEFENCE OF TRUTH AND
PUBLIC BENEFIT IN THE VWB CASE:
In the court below it was initially argued on behalf of the respondents
that inasmuch as in his particulars of claim the appellant
had asserted the
falsity
106
of the matter complained of he bore the onus of
demonstrating
its untruth. This argument was summarily
rejected by Kriegler J who
correctly observed:-
"Valsheid is geen noodsaaklike komponent van lasterlikheid nie. Omgekeerd is
waarheid op sigselfstaande geen verskoning vir die publikasie
van lasterlike
aantygings nie."
In this
court it was common cause that an onus
rests with the respondents. What was in issue at the
trial, however, and what remains an important issue in this
appeal,is the question whether the respondents are
saddled
with a primary onus of proof (the risk of
non-persuasion)
or simply with an evidentiary burden (a "weerleggingslas").
The rival contentions, and their respective implications,
were stated thus by the trial judge in his judgment:-
"Namens eiser word aangevoer dat daar 'n volledige bewyslas op die
verweerders rus om die waarheid te bewys van die lasterlike bewerings
wat hulle
aangaande die eiser gepubliseer het. Daarmee word bedoel dat indien die
getuienis uiteindelik 'n wesenlike ewewig van oortuiging
agterlaat, dit wil se
as daar nie bevind kan word dat
die
107
waarheid van die betrokke bewerings op oorwig van waarskynlikhede bewys is
nie, die eiser moet slaag."
and
"Wat die aard van die las betref, is daar namens die verweerders aangevoer
dat dit nie 'n volle bewyslas in die bovermelde sin is
nie maar slegs 'n
weerleggingslas. Daarmee word bedoel dat indien die feite uiteindelik in
wesenlike ewewig bevind word, die saak
teen die eiser uitgewys moet word. Vir
bedoelde betoog is daar 'n indrukwekkende falanks steun, te wete vier eenparige
beslissings
van die appelhof en verskeie akademici. Daar is egter in 'n verdere
appelhofuitspraak en deur 'n gesaghebbende akademikus twyfel
daaroor
uitgespreek."
This issue Kriegler J resolved in favour of
the
respondents. He concluded:-
"Die gevolgtrekking is dan dat .... die geldende reg in die onderhawige saak
'n weerleggingslas op die verweerders laat rus. By die
ondersoek van die feite
sal dit dan die maatstaf wees wat ek
toepas."
Having decided as a
matter of law that the
respondents bore no more than an evidentiary burden, the
learned judge, after an exhaustive review of the evidence
108
and upon his appraisal of the probabilities, recorded two separate
findings of fact. He concluded not merely (1) that the respondents
had
discharged a "weerleggingslas"; but further (2) that the respondents had indeed
succeeded in establishing the truth of the defamatory
allegations on a balance
of probabilities.
On appeal Mr Cilliers contended on behalf of the appellant that upon a
proper evaluation of the evidence the respondents had failed
to clear even the
lesser hurdle represented by a mere evidentiary burden; and, a fortiori, that
they had got nowhere near proving
the truth of the defamatory allegations on a
balance of probabilities.
For reasons to be indicated later in this judgment I find myself unable
to assent to the argument urged on behalf of the respondents
that in regard to
the defence of truth in the public benefit they bore no more than an evidentiary
onus. In my view the respondents,
109
having pleaded truth in the public benefit, were firmly saddled with a
primary onus in regard thereto: the success of that defence
depended on proof of
the truth of the defamatory allegations on a balance of probabilities. I
consider, with respect, that in ruling
otherwise the court below erred in
law.
In the light of the above I propose at this stage to examine the
correctness or otherwise of the trial court's finding that the respondents
succeeded in proving on a balance of probabilities that the defamatory
allegations in the VWB case were all true. As a starting point
to this inquiry
there has to be noticed in what manner the court below approached the case; to
see in what manner it assessed the
broad probabilities; and to consider its main
findings of credibility and the grounds on which these are based.
The record of the proceedings is a
voluminous
110
one. Despite the mass of evidence which was led at the trial the compass
of the essential factual inquiry on which the fate of the
appeal hinges is a
narrow one. The issue is not whether or not there existed within the Security
Branch of the SAP the climate of
thought and philosophy which in his evidence
Coetzee described as "die veiligheidskultuur". The issue is not whether within
the Security
Branch there roamed assassination squads or what role Coetzee
played in them. The issue is not whether Vusi or Peter or Kondile were
murdered,
and if so, by what means. The issue is not whether Coetzee obtained, otherwise
than from the appellant himself, poison
from the SAP forensic laboratory. The
sole issue of fact is whether or not, as part of a criminal scheme of murder and
abduction,
the appellant personally supplied Coetzee with poison and
soporifics.
The trial court appreciated the
circumscribed
111
nature of the central inquiry. In this connection Kriegler
J observed in the course of his judgment:-
"In die eerste en finale instansie val die kerngeskilpunt in hierdie saak
uitgemaak te word op die beoordeling van die regstreekse
getuienis van twee
getuies, te wete Coetzee en die eiser."
and
again:
"Slegs 'n klein breukdeel van die 754 bladsye wat Coetzee se getuienis
beslaan en van die meegaande bewysstukke, het regstreeks betrekking
op die eiser
en die hoofgeskilpunt. Vir die res gaan dit meerendeels om 'n wye verskeidenheid
onkonvensionele en/of misdadige optredes
waarby Coetzee na sy bewering betrokke
was of waarvan hy kennis dra. Vraag is tot welke mate, indien hoegenaamd,
sodanige ander getuienis
oorweeg moet
word."
In the following five
sections of this judgment
there will be successively examined and discussed: (a) the
trial court's assessment of the appellant's witnesses (i)
General Geldenhuys and (ii) Flemington; (b) the trial
court's assessment of the respondents' witnesses (i) Welz
and (ii) Mrs Coetzee; (c) the trial court's assessment of
112
the evidence of Coetzee; (d) the trial court's assessment of the evidence
of the appellant; and, in the light of the aforegoing, (e)
the correctness or
otherwise of the trial court's finding of fact that the respondents have proved,
on a balance of probabilities,
the truth of the defamatory allegations in the
VWB case.
(a) General Geldenhuys and Flemington: (i) General
Geldenhuys
Of this witness the trial judge observed, inter
alia -
"General Geldenhuys het, soos
dit 'n goeie gesagvoerder betaam, te kenne gegee dat hy van optredes soos die
wat Coetzee beskryf bewus
sou gewees het as hul wel plaasgevind het. Dat dit die
strewe van iedere gesagvoerder is, val nie te betwyfel nie. Ewe seker is egter
dat dit in 'n groot, wydverspreide en divers aktiewe organisasie soos die
Suid-Afrikaanse Polisie by h strewe bly. Dit is eenvoudig
onmoontlik, selfs waar
alles reelmatig daaraan toe
113
gaan, vir die Kommissaris .... om kennis te dra van alles wat orals deur
al diegene onder sy bevel gedoen word. Waar gepostuleer word,
soos wel hier die
geval is, dat 'n klein groepie of groepies met klandestiene bedrywighede besig
is, is die moontlikheid dat die
Kommissaris daarvan te hore sal kom des te
kleiner."
These remarks appear to me to reflect a realistic approach
to
the matter. In addition the court a quo was sharply,
but in my
opinion not unfairly, critical of the hazy
recollection which the witness was able to muster of the
Pillay incident, an event whose impact upon the upper
echelons of the SAP must have been considerable. In my
view the testimony of General Geldenhuys is insufficient to
cast serious doubt on so much of Coetzee's evidence as does
not directly implicate the appellant. At the same time it
is unhelpful in regard to the central factual issue of
Coetzee's alleged involvement with the appellant.
114
(ii)
Flemington
The trial court found Flemington to be a slippery
and unimpressive witness. It rejected as dishonest
his
refusal in cross-examination to budge from 30 June 1981
as
the latest possible date of Coetzee's visit to him
at
Komatipoort. Kriegler J found it difficult to
believe
Flemington's professed ignorance of the "need to know"
rule
and the so-called eleventh commandment. The trial
court
recorded its overall impression of the witness in the
following words:-
"By wyse van samevatting kan gestel word dat majoor Flemington se getuienis
wat inhoud en aanbieding betref, ongeloofwaardig is met
betrekking tot die
belangrike fasette daarvan, naamlik sy kontak met Coetzee. Laasgenoemde se
weergawe van die einde van Vusi en
Peter is alleen deur Flemington
weerspreek."
(b)
Welz and Mrs
Coetzee:
(i) Welz
In giving his reasons for the ruling made
during
115
the trial that the evidence of Welz was
admissible, the learned trial judge in his
judgment stated, inter alia:-
"Die
kruisondervraging van Coetzee in Londen het telkemale uitdruklik en implisiet
gesuggereer dat die byhaal van gif en die daaruitvoortspruitende
bybring van
eiser 'n tierlantyntjie is wat hy onlangs by sy storie bygevoeg het om
pikantheid daaraan te verleen. Die suggestie was
ook dat hy dit opgetower het om
sensasie te verleen aan die weergawe wat hy op Mauritius via Pauw die
wêreld wou instuur. Dat
hy vier of vyf jaar vantevore op 'n vertroulike
basis teenoor Welz geopenbaar het dat gif van eiser verkry en in amptelike
moordpogings
gebruik is, was gevolglik regstreeks tersake." (Emphasis
supplied)
In regard to the evidence of Welz the main argument advanced by Mr
Cilliers was that it was inadmissible. Counsel for the appellant
contended,
first, that the obvious explanation for what he described as the loose-mouthed
disclosures made by Coetzee to Welz was
the
116
following. In speaking to Welz in this vein Coetzee, on his own showing,
was breaching a duty of secrecy owed by him to the SAP and
his colleagues. This
renegade act was born of resentment against the SAP. Accordingly, so the
argument proceeded, a motive on the
part of the speaker to misrepresent already
existed at the time when Coetzee made his disclosures to Welz. Counsel's further
contention
in regard to admissibility was based on uncertainty as to dates. It
was pointed out that Welz's evidence in relation to the date
of the disclosures,
namely, that "it must have been early in 1984", lacked any clear chronological
point of reference; added to which
there was the fact that Coetzee' s rancour
towards the SAP had been aroused before the end of 1984. In these circumstances,
so urged
counsel, the respondents had not discharged the onus of establishing
lack of motive to misrepresent on the part of Coetzee at the
time when he spoke
to Welz.
117
There is considerable force in these objections. I prefer to express no
firm opinion in regard to their validity because it seems
to me that in any case
the alternative argument on which Mr Cilliers relies is sound. Counsel's
alternative submission was that upon
proper scrutiny the evidence of Welz was,
in relation to the critical issue, too vague and unspecific to carry any
significant probative
weight. Counsel contended that Welz had been able to say
nothing more than that "they" had. obtained poisons "from the police
laboratories"
and that the name of the appellant had been "mentioned." Upon a
careful reading of Welz's evidence it seems to me, with respect,
that the
passage "dat gif van eiser verkry ... is" in the paragraph from the judgment of
the court a quo which I have quoted above,
represents an overstatement of the
effect of what Welz in fact said. Looking dispassionately at the words used by
Welz it seems to
me to be not
118
improbable that the name of the appellant might have been mentioned quite
adventitiously as the person heading the forensic laboratory.
The evidence of
Welz is not to the effect that Coetzee explicitly stated to him that the
appellant himself had supplied Coetzee with
poison. It seems unlikely,
furthermore, that such was the impression subjectively gained by Welz from what
Coetzee conveyed to him;
at the time, so Welz testified, he regarded the
appellant as "a minor element in the story."
(ii) Mrs Coetzee
The learned trial judge approached the evidence
of Mrs Coetzee with due caution. Having alluded to her
advanced years Kriegler J went on to say:-
"....sy getuig van 'n kortstondige en betreklik alledaagse gebeurtenis wat
byna tien jaar gelede plaasgevind het. Daar is geen eksterne
hulpmiddel vir haar
geheue nie. Dit het haar betreklik onlangs eers bygeval en daar is nog meer
onlangs eers met haar gekonsulteer
met
die
119
oog op getuienislewering. Wat sy te vertel het, ondersteun die weergawe van
haar seun teenoor wie sy 'n moeder se liefde, toegeneentheid
en trou koester.
Aan die anderkant van die balansstaat moet verskeie plusfaktore aangeteken
word...."
Having examined her testimony
with characteristic
thoroughness the trial judge recorded his
impressions of
this witness in the following terms:-
"Ek bevind haar 'n eerlike en hoofsaaklik betroubare rapporteur van 'n
gebeurtenis wat sy meegemaak het."
What the
court a quo made of the testimony of Mrs Coetzee
appears from the passage of the judgment hereunder quoted:-
"Die waarskynlikheid is dus dat mevrou Coetzee wel haar seun tussen 6 Maart
1981 en die einde van daardie jaar na die forensiese laboratorium
vergesel het;
dat hy 'n ruk lank daar binne besig was en toe met 'n klein vodrwerp uitgekom
het en dit in sy safaribaadjiesak gesit
het. Sodanige insident rym met Coetzee
se relaas en kan nie met eiser se weergawe versoen word nie. Dit dien dus as
stawing van Coetzee
se weergawe ten aansien van 'n belangrike geskilpunt,
naamlik of hy destyds 'n verbintenis met die forensiese laboratorium gehad
het.
120
Die voorgaande bevinding word gemaak sonder enige steun op mevrou Coetzee se
getuienis van wat haar seun destyds aan haar sou gesê
het. Die inhoud van
die mededeling sou wel steun aan Coetzee se weergawe verleen maar ek ag dit
onnodig om te tob of dit ingevolge
die uitsonderingsgrondslag by artikel 3(1)(c)
van Wet 45 van 1988 toegelaat moet word ondanks die hoorsê-aard daarvan.
Word
dit toegelaat is dit maar 'n druppel in die emmer aangesien die
waarskynlikheid in elk geval is dat Coetzee vir eiser gaan spreek
het. Hy het
immers geen besigheid met enigiemand anders by die laboratorium gehad en sou by
niemand anders 'n klein voorwerp gekry
het
nie."
The hearsay constituent
having been thus excised
from her testimony the residue of Mrs Coetzee's evidence,
by
itself, does not point to any dealing on the day in
question between
Coetzee and the appellant. Counsel for
the appellant submitted, correctly in my opinion, that what
the trial court reckoned as a probability (that it was
Coetzee's purpose to see the appellant and to procure
something from him) must remain a matter of inference to be
drawn aliunde from the evidence in the case as a whole.
121
That body of evidence, so Mr Cilliers forcibly contended, did not sustain
such an inference. To this point I shall in due course return.
(c) Coetzee
This was a case in which the court below
laboured under a manifest handicap in regard to one of the two key witnesses in
the matter:
it neither saw nor heard Coetzee when he testified in the witness
stand. Mindful of this disability and bearing in mind the heinousness
of the
catalogue of crimes to which on his own version Coetzee had been a party
Kriegler J rightly treated the evidence of Coetzee
with circumspection. In his
judgment the learned judge observed that although the cause before him was a
civil one his approach to
the testimony of Coetzee was akin to that adopted by a
criminal court in weighing the evidence of an accomplice witness. Kriegler
J
reminded
122
himself, moreover, that in regard to the central issue the case for the
respondents depended on the evidence of Coetzee as a single
witness.
Mindful of the pitfalls involved in an assessment of
credibility by reference to the cold printed word Kriegler J resorted to the
expedient of comparing Coetzee's version given before the commission de bene
esse in the instant trial with the content of six other
versions proved to have
been given by Coetzee on other occasions.
The admissibility . for this purpose of these extra-curial statements by
the witness was vigorously challenged by counsel for the
appellant. I find it
unnecessary to decide this particular issue, and I shall assume in favour of the
respondents that the statements
in question were admissible for this
purpose.
The six versions to which the court below thus had recourse were
respectively: (1) exh "P" (the transcript of
123
Coetzee's conversation with Pauw in Mauritius); (2) exh
"K" (the formal but unsworn statement of Coetzee drawn up
in Mauritius); (3) article VWB(2); (4) exh 3 (Coetzee's
statements recorded in the video-tape of the
television
broadcast); (5) those passages in the evidence of
Coetzee
at the HCI (the Harms Commission of Inquiry) which were
explored with Coetzee in the course of his evidence at the
trial; and (6) Coetzee's statement to Welz to which Welz
deposed at the trial.
It appears from the judgment of the court below
that as a result of the comparative survey undertaken by
him Kriegler J formed a favourable impression of the
consistency between the versions given by Coetzee at
different times:-
"In die algemeen gesproke, is sy getuienis voor die Harmskommissie wat in
hierdie verhoor met hom in debat geneem is asook sy getuienis
alhier onderling
konsekwent en redelik in ooreenstemming met Bewysstukke P en K."
124
and again later -
"Coetzee is einde Desember 1981 uit die veiligheidspolisie en einde Desember
1985 uit die Mag as sodanig. Daarna verloop bykans vier
jaar voordat hy sy
mededelings vir publikasie beskikbaar stel. Op daardie stadium, dit wil se op
Mauritius, net hy geen notas voorberei
of selfs sy dagboekie byderhand nie ....
Die weergawe wat hy uiteindelik in die verhoor voorlê, toon egter geen
wesenlike afwyking
van dit wat hy op Mauritius aan Pauw vertel het nie. Wat meer
is, dit toon 'n merkwaardige konsekwentheid met wat Welz getuig in
1984/85 aan
hom meegedeel is."
In weighing his evidence
the trial court bore in
mind that in regard to the SAP Coetzee had revealed "'n
geestesgesteldheid .... wat 'n vraagteken oor sy motiewe
laat hang." Referring to Coetzee's criminal past Kriegler
J made mention of "talle blyke van oneerlikheid", and
cited, inter alia, the following examples:-
"Reeds in sy Oshoekdae verskaf hy 'n valse alibi vir mevrou Botes. Dan is
hy party tot 'n bekookte verklaring wat die gevolge van
sy optrede help afweer.
Terwyl hy op Vlakplaas is pleeg hy regsverydeling met betrekking tot die
skietery by Lindley deur middel
van valse
125
verklarings aan adjutant-offisier Heath of dan later aan die
prokureur-generaal .... Toe hy met die oog op strafversagting by die
dissiplinêre verhoor mediese getuienis van sy gesondheidstoestand nodig
net, mislei hy sy eie geneesheer daaroor en gevolglik
word misleidende getuienis
aan die dissiplinêre raad
gelewer."
As exemplifying "meer
manifestasies van oneerbaarheid" on
the part of the witness the trial court mentioned:-
"Nie alleen was daar die moorde in Suld-Afrika en Swaziland nie maar etlike
pogings tot moord, huisbraak, motordiefstal en meineed.
Wat laasgenoemde betref,
getuig Coetzee dat sy eedsverklaring oor Vusi se lot vals was . ..."
At the same time, so the learned judge
remarked,
it was necessary to judge
Coetzee's past misdeeds in a
proper context:-
"Die alibi-misstap het in verband gestaan met 'n informant van horn, die
ontwyking was nie sy eie maaksel nie maar is met die advies
en medewerking van
meerderes bewerkstellig ....Die Lindley-insident was weereens met die aktiewe
samewerking van meerderes besweer
en Coetzee is nie daaroor voor stok gekry
nie."
126
The trial court was sensible of the fact that
in
so far as it sought to inculpate the
appellant Coetzee's
tale was a very remarkable one. It conceded that
there
was force in many of the submissions bearing on
the
probabilities in the case which had been advanced by
the
appellant's counsel, which it summarised thus:-
"Ten eerste is dit hoogs onwaarskynlik dat 'n man van eiser se agtergrond en
inbors hom sal leen tot die vergiftiging van gevangenes
soos Peter, Vusi en
Kondile. Dat hy sy reputasie en loopbaan sal plaas in die hande van 'n junior
offisier soos Coetzee is ewe onwaarskynlik.
Wat volgens die advokaat eenvoudig
belaglik is, is dat ' man van eiser se kundighede so sou ploeter wat die
gifdosisse betref dat
daar honderde der honderde kilometer gery sal word om nog
gif te kry en om die slagoffers dwarsoor die Transvaal te karwei net om
hulle
tog maar uiteindelik dood te skiet en dan nog boonop te veras. Hoekom, so word
gevra, hoegenaamd met gif of druppels sukkel
as die lyke tog veras gaan word?
Hoekom druppels toedien en nie somar maar
doodskiet?....
Met heelwat van advokaat
Oshry se submissies is daar geen fout te vind nie. Dit is .... 'n bale
eienaardige storie van 'n bale eienaardige
man.
126(a)
Die bysleep van 'n algehele vreemdeling wat met die veiligheidstak niks te
make net nie en dit by wyse van 'n gif en bedwelmingsverhaal
is nog
eienaardiger..."
Notwithstanding these
implausible features in the story
told by Coetzee, the trial court
felt impelled to take the
following view of its accuracy:- .
"Dit lyk vir my eerder na een van daardie gevalle waar die waarmerk van die
verhaal juis in die onwaarskynlikheid daarvan geleë
is.
Vergelyk
(cont on p 127)
127
Viviers v Kilian
1927 AD 449
op
454."
The court below considered that there
were to be found also
other indications to support its impression
that Coetzee's
version implicating the appellant bore the stamp of
truth.
In reviewing Coetzee's account of how Vusi had been
captured
and kept in custody, and how he had finally
disappeared, Kriegler J
regarded as significant the
correlation between the narrative of the witness and
objective data to be gleaned from official documents which
had been discovered by the SAP. In this connection the
learned judge remarked:-
"In die afwesigheid van enige ander houdbare verduideliking dui dit sterk
daarop dat Coetzee se bewering dat hy verantwoordelik was
vir die moord op Vusi
die waarheid is."
The trial court further reasoned that the
objective facts revealed in official SAP documents pointed
even more strongly to the truth of Coetzee's description of
the treatment accorded to Kondile and of the circumstances
128
in which ultimately he met his fate. Such
documents
established, for example, that at the relevant time an
Audi
had been reported stolen in Uitenhage during the
very
period when Coetzee, Nofomela and Tshikalanga were
engaged
in operations in the Eastern Cape; and that Col van
Rensburg,
Captain du Plessis and Sgt Raath (the trio who on
Coetzee's version brought Kondile by car to the farm near
Komatipoort) were in the Eastern Transvaal at the relevant
time. The evidence in regard to the Kondile incident left
the trial judge with an indelible impression -
"....dat Coetzee se relaas daaroor, hoe skokkend verregaande dit ookal
mag wees, tog die waarheid is. Kondile het bestaan, hy het
verdwyn en Coetzee
noem drie persons wat wel 'n verbintenis met horn gehad het as teenwoordig by sy
uitwissing."
(d)
The appellant
Otherwise than in the case of Coetzee the court below had ample
opportunity of seeing and listening to the
129
appellant. The learned judge gives the following pen-picture of the man
who testified before him:-
"Hy het homself bewys as wetenskaplike, 'n polisieman en 'n mens van
uitmuntende stoffasie. Hy staan bekend as 'n strenge tugmeester,
en het in die
getuiebank hier getoon hoekom hy ontsag en soms moontlik bewing by sy kollegas
afdwing. Hy is fors, indien nie oordonderend
nie. Haastig en selfs ongeduldig.
Hy vorm vaste opinies wat hy welsprekend verwoord en heftig verdedig. Ondanks 'n
hooghartigheid
wat plek-plek deurslaan, openbaar hy soms ook 'n fyn aanvoeling
vir interpersoonlike nuanses en diplomasie. Hy het byvoorbeeld dwarsdeur
die
verhoor....fyn begrip en selfs voorgevoel gemanifesteer vir die rigting waarin
die debat beweeg. Nietemin is sy styl eerder die
van die kapswaard as die
rapier.
Hy is 'n formidabele persoon wat tereg groot aansien verwerf
het."
Having concluded on the one hand that
the extraordinary
quality of Coetzee's version bore the hall-mark of veracity
the court a quo on the other hand recorded its finding that
the appellant was a deliberately untruthful witness. The
grounds on which the court below based its adverse
credibility finding are considered in the paragraphs
130
numbered (i) to (v) which follow hereunder.
(i) That portion of the appellant's evidence
suggested how Coetzee could have gained his knowledge of
the
appellant's house and how much of the house's interior
is revealed by the television camera in exh 3 has already
[see paragraphs (1 ) and (2) at pages 99-101 above] been
described. In this regard Kriegler J commented as
follows:-
"Daardie antwoorde van die eiser was in verskeie opsigte onwaar. Die
eiser, 'n Hoof Adjunk-Kommissaris van die Suid-Afrikaanse Polisie,
het die
Harms-kommissie mislei:
(a)
Coetzee kon nie
'deur net na die televisieopname te kyk' sy beskrywing van eiser se huis gekry
het nie;
(b)
die voordeur van
die huis was nie oop
nie;
(c)
jy kan nie tot by
die agterste kamers ingaan met die kamera
nie;
(d)
jy kan nie duidelik
of hoegenaamd sien dat dit 'n lang gang is
nie."
The trial judge was
further critical, and
131
correctly so, of the rambling and inconclusive response by the appellant
to his counsel's question whether the front door of the house
was open when the
video exh 3 was shot.
(ii) Reference has already been made to the appellant's evidence at the
HCI concerning the existence or otherwise of a verandah at
the front of his
house, and the misquotation by the appellant of that evidence when he testified
at the trial [see paragraph (3)
at pages 101-4 above]. The misquotation (which
in fact contains several errors) passed unnoticed at the trial. It was the
subject
neither of cross-examination by counsel or of query by the trial judge.
In the judgment, however, the misquotation became the basis
for a finding of
critical importance. In the eyes of the trial judge this misquotation was at
once destructive of the appellant's
credibility and determinative of the truth
of Coetzee's implication of the
132
appellant. In this connection the learned judge remarked:-
"Wat ek destyds .... nie besef net nie .... is
dat hy sy toevlug neem tot 'n wanaanhaling. Dit was eers toe ek by die
bestudering van die stukke vir die voorbereiding van hierdie
uitspraak die twee
sinne woordeliks met mekaar vergelyk dat dit my tref - en ek moet erken soos 'n
donderslag omdat dit haas ongelooflik
is dat 'n man van eiser se aansien tot so
'n gemene kunsgreep sou daal .... Die jammerlike konklusie waartoe ek gedwing
is, was dat
daar geen ander moontlike uitleg is nie.
Waar sy geloofwaardigheid 'n onmisbare komponent is van 'n oortuigende
weerlegging van die web getuienis om hom, skryf die voorgaande
bevinding eintlik
Ikabod oor sy vooruitsigte van sukses."
The
trial judge went on to say that this was a deceitful
ruse on the part of the appellant inspired by his
appreciation -
"....dat Coetzee se kennis van sy huis ten alle koste weggepraat moet
word."
(iii) As reflected in photographs
handed in at the
trial there projects from the front main wall of the
133
appellant's house an exterior structure forming a covered
approach to the front door. It is described thus in the
judgment:-
"....'n uitstek van die hoofdak met 'n plafon, 'n geut met afvoerpype, twee
stutpilare en twee lae muurtjies wat weerskante die pilare
met die voormuur van
die huis verbind."
The structure concerned
appears not to be large enough to
accommodate furniture. Speaking
for myself, I should
hesitate to describe it as a verandah. The
court below
discerned in the prolonged debate about the "verandah"
a
sly attempt on the part of the appellant to gloss over
what
was regarded as a deception by him both of the HCI and
the
trial court:-
"Ondanks sy taalvaardigheid en retoriese vernuf, by voorbeeld die optowering
van die beeld van 'n boer op sy breë plaasstoep
en die gevatte klap na
Coetzee, gaan die poging nie op nie. Nie alleen misluk die poging nie maar dit
moet aangemerk word as 'n doelbewuste
stap om sy wanvoorligting van die
Harmskommissie en van hierdie hof te
verbloem."
134
(iv) Under cross-examination, and in response to a question by the trial
judge, the appellant admitted that the safe in his office
was in fact a standard
police safe of a sort to be found in charge offices and in the offices of SAP
station commanders. The court
below regarded as deliberately misleading the
statement by the appellant in his evidence in chief that there was no
resemblance between
his safe and the description given by Coetzee of the safe
that he had noticed in the appellant's office.
(v) In the course of his evidence the appellant testified at some length
on the efficacy of certain cyanide compounds when administered
as a means of
homicide. In the course thereof the appellant had elaborated on the fact that
these substances were tasteless, colourless
and almost odourless. The witness
omitted to deal with the question
135
whether in the case of human consumption these
substances
left detectible traces. Since on Coetzee's version it
was
important for him to procure poison which was not
merely
tasteless, colourless and odourless, but which in
addition
was incapable of detection, the trial court considered
that
the appellant's evidence on cyanide compounds was a
red
herring designed to divert attention from the true
issue.
The learned judge said:-
"Eiser het voor en tydens die verhoor geweet wat die schwerpunkt van Coetzee
se getuienis met betrekking tot die verskaffing van gif
was. As polisieman van
die naashoogste rang en gifdeskundige van die hoogste, die veteraan van 'n
menigte forensiese veldslae, wat
hom maandelank instudeer het in die saak, kon
hy nie anders nie. Tog is die hoftyd verbeusel met die tangensiële
getuienis.
Die afleiding wat ek daaruit maak is dat dit daarop bereken was om
die aandag van die kern te
deflekteer."
136
(e)
The correctness or otherwise of the trial court's finding of
fact
I turn to the crucial question whether the respondents
succeeded in proving, on a balance of probabilities, the truth of the defamatory
allegations made of the appellant in the VWB case.
In order to put
into perspective the chief criticisms which Mr-Cilliers levelled at the
conclusions reached by the court a quo on
this part of the case it is useful to
trace the broad line of reasoning underlying the findings of the learned
judge.
Having pointed out that Coetzee's evidence of his
alleged personal dealings with the appellant lay at the
very core of the issue in the case Kriegler J remarked:-
"Hy [Coetzee] beweer naamlik dat hy by een geleentheid vir eiser by sy
huis gespreek het en verskeie kere op kantoor terwyl eiser
ontken dat hy Coetzee
ken of hoegenaamd lets met horn persoonlik te doen gehad het.
137
Die beweerde besoeke lê dus aan die episentrum van die feitekompleks.
Dié bestaan op sy beurt uit aantal sentrale momente,
te wete Coetzee se
kennis van eiser se huis, sy kennis van eiser se kantoor en Coetzee se
sakboekie. Daarop is dit die sinvolle beginpunt
van die kritiese ontleding van
die getuienis en die
waarskynlikhede."
Having analysed in depth
the evidence bearing on the three
"sentrale momente" the learned judge observed:-
"Dit blyk dan dat iedereen van die drie sentrale momente op sigself beskou,
daarop dui dat daar waarskynlik wel teen die einde van
1981 meermale persoonlike
kontak tussen eiser en Coetzee was. Die oortuigingskrag van die drie momente
gesamentlik is natuurlik groter
as die som van die drie
afsonderlik."
Thereafter the trial court
embarked upon an appraisal of
the probabilities "rondom die sentrale momente". It began
by stressing that the case involved a weird tale told by a
single witness with a depressing past record of dishonest
dealing and a possible motive to misrepresent; a witness,
moreover, whose performance on the witness stand had not
been observed by the trial judge. Having recited (in a
138
passage of the judgment already quoted by me) the more obvious
improbabilities inherent in Coetzee's version as detailed in Mr Oshry's
argument
to it the trial court next discussed a number of features which in its opinion
tended to fortify Coetzee's trustworthiness
as a witness. These included such
factors as the apparent consistency in the various statements made by Coetzee on
earlier occasions;
the developments which precipitated his departure as
demonstrating the truth of Nofomela's death-cell revelations; the unlikelihood
that Coetzee would needlessly implicate himself in a string of crimes (some of
which were already buried in the distant past) unless
he wished to unburden his
soul by telling the whole truth; the corroboration, to be gleaned from data in
official SAP records, for
many features of Coetzee's version dealing with the
histories of people like Vusi, Kondile and Joyce Dipale; and the untruthfulness
of Flemington's denials of
139
Coetzee's version.
Next the trial court dealt with the fact
that
there were three men, Schoon,
Vermeulen and van Dyk, who
were able to give evidence of critical
importance but who
had not been called as witnesses by either side.
For
reasons mentioned in his judgment the learned judge
concluded that no inference against either side should
be
drawn from the failure to call them as witnesses. Those
reasons need not be here reviewed. For purposes of
argument I shall deal with the appeal on the basis that the
said conclusion was correct. In the end result, so
pointed out the court a quo, as the matter stood:-
"....is daar Coetzee se getuienis oor talle gebeure, of beweerde gebeure,
wat nie op die man af ontken of weerspreek is nie. Dit,
afgesien van enige
ongunstige afleiding, is 'n gewigtige oorweging by die beoordeling van die
feitemassa as geheel."
Having reasoned as indicated above the trial
court reverted to the attack which Mr Oshry had launched
upon Coetzee's general credibility, but found it unacceptable:-
140
"Sy submissie dat Coetzee 'n gewoonteleuenaar is aan wie se woord geen
waarde geheg kan word nie, kan ek nie mee saamgaan nie. Ten
eerste is die
voorbeelde van sy leuenagtigheid in die verlede nie so talryk nie. Ten tweede
reflekteer sodanige voorbeelde, kontekstueel
gesien, nie so ernstig op sy
geloofwaardigheid in die algemeen nie. Op die beste vir die eiser toon dit dat
Coetzee die 'elfde gebod'
eerbiedig. Hier gaan dit egter nie om nie uitgevang te
word nie maar juis die teenoorgestelde. Hy is nie nou die benoude kat wat
by sy
tugverhoor benoude spronge maak om uit die net te bly nie. As hy besig is om
hier te lieg, dan lieg hy hom al hoe vaster in
die net
in."
A little later in its
judgment the trial court
reflected once more upon Coetzee's strange tale
involving
repeated but fruitless attempts at poisoning. The
learned
judge remarked:-
"Die verhaal van hoe Vusi en Peter van bakboord na stuurboord geneem is, van
die eksperimentering met die druppels en die vernietiging
van Coetzee se notas
van sy waarneming daarvan is nou eenmaal moeilik om te
glo."
However, citing the dictum of Megarry
J in John v Rees
[1970] 1 Ch 345
that "the path of the law is strewn with
141
examples of ....inexplicable conduct which was
fully
explained...." Kriegler J iterated that "die
blote
eienaardigheid van die verhaal 'n aanduider van die
waarheid
daarvan is."
Next the trial court weighed the evidence of
Mrs
Coetzee. As already mentioned earlier
in this judgment it
concluded that her testimony served to corroborate Coetzee -
on the important issue "of hy destyds h verbintenis met die
forensiese laboratorium gehad het." Kriegler J then
rounded off this part of his judgment with the following
summation:-
"Die eiser se ontkenning van enige verbintenis met Coetzee moet beoordeel
word in die wete dat daar 'n formidabele web getuienis om
hom saamgetrek is.
Nietemin kan hy met oortuigende weerlegging daarin slaag om die web te
deurbreek. En voorvereiste nommer een vir
'n oortuigende weerlegging is dat dit
geloofwaardig is."
Thereupon the learned judge embarked upon an inquiry into
the appellant's credibility, and, as has been shown earlier
142
in this judgment, decided that the appellant was a witness unworthy of
credence.
In the course on an able argument on behalf of the
appellant Mr Cilliers submitted that the reasoning of the court below was marred
by a fundamental logical flaw. From its acceptance (whether rightly or wrongly)
that the evidence by Coetzee of grave malpractices
by the security police and
his own active participation therein was the truth, so it was said, the trial
court had wrongly inferred
that Coetzee's evidence implicating the appellant in
the supply of poison was also true. As a matter of logic, so the argument
proceeded,
the validity of that inference depended wholly upon an entirely
different finding: that in relation to the critical issue itself
(the alleged
supply of poison by the appellant to Coetzee) the evidence of Coetzee was to be
accepted in preference to that of the
appellant. While evidence to show that the
Special
143
Branch had not engaged in the sort of malpractices alleged
by
Coetzee would doubtless have served to impair Coetzee's general credibility,
positive evidence pointing to such malpractices, so
counsel stressed, could
reinforce Coetzee's credibility only in regard to the existence of such
malpractices. Such evidence in no
way heightened the probability that the
appellant had been implicated in the supply of poison to the appellant.
I think that counsel's stricture is well-founded. Those features, already
enumerated, upon which the trial court sought to rely in
order to buttress
Coetzee's credibility are all factors tending merely to prove the criminal
activity in which Coetzee participated
other than his alleged procuring of
poison from the appellant. None of the factors is verificatory of Coetzee's
claims that the appellant
supplied him with poison. Moreover, although there is
in the passage quoted hereunder no specific
144
mention of the appellant himself, it is of some
significance
to note the broad approach to the
probabilities reflected in the
following statement in the
trial court's judgment:-
"As bevind word dat Coetzee en sy groep inderdaad ampshalwe die verskeie
ander dade gepleeg het waarvan hy getuig, sal dit die bestaan
van die 'kultuur'
en die waarskynlikheid van die half-amptelike klandestiene verskaffing van gif
of slaapdruppels aan hom en ander
veiligheidsmanne
versterk."
Counsel for the appellant
further challenged the validity
of the trial court's finding that each of the three
"sentrale momente" yielded a probability that towards the
end of 1981 there had been, on several occasions -
"....persoonlike kontak tussen eiser en Coetzee."
In this connection it was submitted that the knowledge of
Coetzee of the matters concerned supported nothing more
than an inference that Coetzee: had on some single
occasion visited the appellant's house; had on some single
145
occasion visited the appellant's office; and that Coetzee had somehow
obtained the appellant's telephone number at the forensic laboratory.
A finding
that there had existed a "verbintenis" between Coetzee and the appellant
depended, so the argument ran, not upon the "sentrale
momente" but upon an
acceptance of Coetzee's evidence in regard to his alleged personal communication
with the appellant.
1 agree with the above submission, and with the further contention
developed by Mr Cilliers that Coetzee's evidence in regard to his
alleged visits
to the appellant is unsatisfactory in several respects. In regard to the latter
it seems to me that the following
criticisms may fairly be levelled at Coetzee's
version:
(1) According to Coetzee he communicated personally with the appellant on
four or five occasions. Two of these visits had as an object
the fetching of
poison to be used in the murder of Vusi and Peter. The remaining two
146
or three visits must therefore have been in connection with the procuring
of the so-called "knock-out drops". It is noteworthy that
Coetzee, whose
narrative is in general characterised by vivid attention to minute detail, is
here unable to provide any circumstantial
framework for the remaining visits. In
particular he is unable to say when these visits took place.
(2) Whereas Coetzee's initial evidence was to the effect that his first
meeting with the appellant had been in connection with poison
for Vusi and
Peter, this recollection evaporated in cross-examination when he confessed his
inability to say in what connection he
had first visited the appellant. One
would have imagined, having regard to the respective positions and functions of
the two main
characters involved, that Coetzee's first visit to the appellant
would have left him with an indelible recollection of both the occasion
and
the
147
surrounding circumstances.
(3)
Coetzee was
constrained to admit that he was quite unable to determine the sequence of (i)
the Vusi and Peter murder; (ii) the Kondile
murder; and (iii) the "General"
incident.
(4)
It is an
arresting feature of Coetzee's description of his visits to the appellant's
house and his office that it involves what is
essentially eye-testimony. His
account is curiously barren of personal details concerning the appellant which
could have emanated
only from the appellant himself. Had Coetzee visited the
appellant on 25 October 1981 it would have been very natural for the latter
to
have made mention of the fact that he had returned from Germany only on the
previous day. Coetzee's account is silent as to any
such communication by the
appellant. On the other hand when Coetzee does venture to provide some detail of
the appellant's domestic
1 48
regime based on what the appellant said to him, his attempt fails.
According to Coetzee during his visit to the appellant's house
on 25 October
1981 the appellant claimed that his home language was German and that he spoke
German to his daughters. On the appellant's
unchallenged testimony his home
language is Afrikaans and his daughters are unable to speak German.
(5) On Coetzee's own version of his movements immediately before the
morning of Sunday 25 October 1981 it is difficult to understand
precisely when
and how Coetzee managed to accommodate within his very busy schedule a journey
to Pretoria and a visit to the appellant's
home. He says that he arrived there
at between 9 am and 10 am in the morning. However, on the evening of Saturday 24
October Coetzee
was still in Lindley. From Lindley he had to travel to
Middelburg, whence he was sent to the old farm-house at Groblersdal where
the
entire Vlakplaas
149
contingent was involved in tracking down the
terrorists
involved in the Ogles incident. What prompted a
sudden
interruption of his duties at Groblersdal and when he
left
Groblersdal for Pretoria are left unexplained.
(6) Coetzee had attended a course for dog-trainers
and he had
a knowledge of dogs. Coetzee told Pauw [ see
sub-paragraph (G)(7) of article VWB(2)] that from his visit
to the appellant's house he recollected that the appellant
had:-
"....twee verskriklike wreedaardige Dobermanns of
Rottweilers."
When he testified at the HCI
Coetzee described the two dogs
in question as being Dobermanns. The video-tape exh 3 portrays a
Rottweiler sign at the house of the appellant. When Coetzee testified
at the
trial he identified the two dogs as Rottweilers. The uncontradicted evidence of
the appellant was that in 1981 he had been
the owner of a single
Rottweiler.
150
The third "sentrale moment" is the telephone entry. When an individual
keeps a note-book for the purpose of recording telephone numbers
the presence of
a particular number therein will in general be indicative of some or other
personal communication between the owner
of the note-book and the person whose
telephone number it is. In all the circumstances of the present case, however,
there seems
to me to be force in the submission of Mr Cilliers that the
telephone entry is readily to be explained on the hypothesis that Coetzee
may
simply have wished to communicate with the appellant; or that he anticipated the
need to do so on some future occasion. The fact
that the telephone entry
embraces only the appellant's number at work while the space specially provided
by Coetzee himself for the
home number remained blank is a pointer to the
conclusion that the appellant himself was not the source of the information. It
is
151
significant, moreover, that initially in his evidence Coetzee, a witness
whose memory in general displayed quite remarkable powers
of retention, was
unable to say from whom, or when or in what circumstances he had obtained the
information which enabled him to
make the telephone entry. Equally noteworthy is
the fact that on Coetzee's version he never telephoned the
appellant.
Reference has already been made to the trial court's
rejection of the submission made on behalf of the appellant at the trial that
Coetzee was an habitual liar. A perusal of Coetzee's own evidence sufficiently
demonstrates, I consider, not only that Coetzee is
an entirely amoral person but
also that in the past he lied as often as a lie served his convenience. I agree,
furthermore, with
the submission by counsel for the appellant that in weighing
the evidence bearing on the crucial issue in the case there should be
steadily
borne in
152
mind not only Coetzee's proclivity for perverting the
truth
but in addition his cunning and ingenuity in
fabricating
evidence in order to lay a false trail.
The learned judge was disposed to believe Coetzee
for the reason, inter alia, that -
"As hy besig is om hier te lieg, dan lieg hy hom al hoe vaster in die net
in."
In this connection there seems to me to be considerable
force in the argument of counsel for the appellant that,
having thrown in his lot with an organisation which was
critical of the operations of the SAP, it suited Coetzee's
book falsely to weave into his narrative of events a senior
police officer. As to the selection of a probable victim,
so counsel urged upon us, the appellant was an obvious
choice. Already at the time when Coetzee served with the
Rhodesian security forces he had become familiar with the
use of poison. Thereafter he appears to show a
preoccupation with the notion of poison as a means of
153
killing. On his own version he was the author of the idea that Vusi and
Peter should be murdered by administering poison to them.
Coetzee himself
testified that he knew that the appellant was a specialist in the field of
chemistry.
In regard to what was the crucial issue in the case
Coetzee was a single witness with a grudge against the SAP and a motive to
misrepresent.
He was a criminal whose many misdeeds included crimes of
dishonesty. His evidence at the trial was recorded by a commission de bene
esse
sitting in London. How well or indifferently he deported himself when he
testified, how convincingly or unconvincingly he told
his story to the
commissioner, were matters upon which the trial judge was left to speculate. In
that part of his evidence which
inculpated the appellant there was grave
improbability. The trial court was alive to this improbability but it was
disposed to regard
it as
1 54
the hall-mark of the truth of Coetzee's story.
In Coetzee's
whole narrative involving the supply of poison to him by the appellant there is
a double incongruity. First, it attributes
to two seasoned police officers,
neither of whom appears to have suffered from undue squeamishness, over a period
of some fourteen
days a dithering course of conduct entirely incomprehensible
and bordering on the ludicrous. Second, it casts a scientist of note,
described
by the trial court as a toxicologist of the first rank, in the comic role of an
obstinate and bungling apprentice. One
does not overlook the adage that truth is
stranger than fiction. However, when faced with extravagances evocative of the
Baron von
Münchhausen a court will incline to healthy scepticism. In the
instant case the improbability is so manifest that, in my respectful
view, it
cannot be seen to wear the badge of truth. Instead it must tip the scales
against an
155
acceptance of the tale.
So much for Coetzee. Next there must
be considered the appellant's qualities as a witness. His evidence was marred by
certain obvious
blemishes. The record demonstrates that he was a voluble witness
much given to discursive answers which often did not deal properly
- or indeed
at all - with the crux of the question. The appellant often betrayed signs of
impatience, and he was prone to exaggeration.
Paying due regard to the various
imperfections in his testimony, however, I am, with respect unable to agree with
the adverse credibility
finding which the trial judge made against the
appellant. Still less am I satisfied that the testimony of Coetzee should be
preferred
to that of the appellant.
Turning to the grounds on which the court below based its rejection of
the appellant's testimony, it is
156
convenient to deal at once with the two ancillary reasons summarised in
paragraphs (iv) and (v) above. As to (iv) it is clear that
in suggesting that
Coetzee's description of the safe in the office was quite inaccurate the
appellant was guilty of gross exaggeration.
In truth it was only in respect of
the base on which the safe stood that Coetzee was mistaken. A photograph of the
safe was, however,
an exhibit before the trial court, and I am not satisfied
that the hyperbole on the part of the appellant was intended to mislead
the
court. In any case the complaint - as the learned judge rightly pointed out to
counsel when he cross-examined the appellant in
regard thereto - is a very
trivial one. The court's criticism of the appellant based on the ground
indicated in paragraph (v) is,
in my respectful opinion, unmerited. If, as
Coetzee himself maintained throughout, the ultimate intention was to incinerate
the bodies
of their victims when
157
they had succumbed to the poison, the fact that the
poison
might leave traces in their corpses was perhaps not
of
first importance.
Dealing next with the grounds of criticism
mentioned in paragraphs (i), (ii) and (iii) above, a number
of considerations must be borne in mind. In the first
place
it must be remembered that at the HCI exh 3 was
available to the
chairman and to counsel there appearing.
The trial judge had before
him a transcript of the
appellant's evidence at the HCI, and by the time the
appellant came to testify at the trial the court below had
already viewed exh 3. Had the appellant been tempted to
mislead the trial court in relation either to what he had
said at the HCI or to what would be seen by an observer of
exh 3, it must have been apparent to a person of his
intelligence that the prospects of a successful deception
were slim indeed.
Second, it is a striking feature of the main
158
grounds on which the trial court's adverse credibility finding rests that
they involve matters entirely unrelated to the essential
facts surrounding the
critical issue itself. Those grounds relate to purely collateral matters which,
in my respectful opinion, are
of peripheral significance and minor importance.
The grounds there detailed all derive from the question: what is objectively
observable
on a viewing of exh 3, and what were the subjective perceptions of
the witness. In addition paragraph (3) largely reduces itself
to a matter of
mere semantics.
Assuming for the moment that the appellant was in truth innocent of
Coetzee's very serious charges against him, his position was an
awkward one in
the sense that it would be difficult if not impossible for him to explain when,
where and how Coetzee had acquired
the knowledge which the trial court
identified as the three "sentrale
159
momenta." Any attempt to provide an answer would necessarily involve a
process of pure speculation on the
part of the witness. Such a witness is, in a real sense, simply beating
the air; and in this situation even an innocent witness will
easily succumb to
the temptation of grasping at straws or of venturing theories and possible
explanations which may not bear serious
scrutiny. Cf in this connection the
remarks of Davis AJA in Rex v Du Plessis
1944 AD 314
at 323.
In respect of the adverse finding of credibility the whole judgment of
the court below hangs on the misquotation. Looking at the evidence
of the
appellant as a whole I find it difficult to conclude that his misquotation was
deliberate. It seems to me to be far more probable
that this misquotation was
the product of impatience and slipshod reading in the course of a rather
blustering attempt by the witness
to vindicate his earlier
160
(and untenable) proposition in regard to the likely source of Coetzee's
knowledge of his house.
It is well known that an appellate tribunal
will not lightly assume the responsibility of differing from a trial court's
finding of
fact on the strength of its own comparisons of the witnesses and its
own assessment of the probabilities in the case. In my respectful
judgment that
responsibility must be shouldered in this appeal. The burden of the
responsibility is appreciably lessened, of course,
by the fact that the learned
trial judge did not have the advantage of seeing and hearing Coetzee, and of so
judging what manner
of man he was. Not influenced at all in the case of Coetzee
by considerations of demeanour, the trial court proceeded on inferences
which
this court is in as favourable a position to draw as was the trial judge. In
regard to Coetzee one of the governing facts in
the case is the glaring
improbability involved in his inculpation of
161
the appellant. In my judgment the court below misdirected itself by
glossing over that cardinal factor. In regard to the trial court's
estimation of
the appellant I find myself unable, with respect, to accept the reasoning, based
on what appear to me to be grounds
far too narrow and insubstantial, which
impelled the trial court to find that the appellant was an untruthful
witness.
For all the aforegoing reasons (and on the assumption aforementioned that
the trial court correctly held that no inference should
be drawn against the
respondents from their failure to call Schoon, Vermeulen and van Dyk as
witnesses), I am driven to the conclusion
that the trial court erred in its
finding that the respondents had succeeded in proving on a balance of
probabilities the truth of
the defamatory allegations made of the appellant in
the VWB case.
162
(H) THE BURDEN OF PROOF:
The survey earlier undertaken
in this judgment as to the effect of the pleas (as amended) respectively filed
in the two actions shows
that in both actions there were raised (1) a defence of
truth in the public benefit and (2) a defence of qualified privilege. In
regard
to these defences it will be recalled, the trial court ruled that the
respondents did not bear a primary onus of proof (the
risk of non-persuasion);
and that they were encumbered by no more than an evidentiary burden in the sense
that if, at the end of
the case, the court were to be left in a state of
uncertainty as to whether or not the defences pleaded had been established, the
appellant's actions should fail. The correctness or otherwise of this ruling
must now be examined.
163
Over a long period of time and in the many decisions of this court
flowing from actions for defamation, statements as to the burden
of proof in
relation to both defences here in question are frequently to be encountered.
Before noticing in what directions the currents
of judicial opinion in regard
thereto have flowed reference may usefully be made to certain principles which
may be regarded as having
been firmly established in our law.
The broad position obtaining in the Civil law
as
to the incidence of the burden of proof
was summarised thus
by Kotzé JA in Kunz v Swart and Others
1924 AD 618
at
662-3:-
"The rule of the Civil law was actori incumbit suae intentionis probatio,
so that if the
plaintiff failed to establish his claim the defendant was absolved. The
defendant (reus), however, if he sets up an exception or defence,
was, in
respect of it, considered to be in the position of a plaintiff and had to prove
his exception. It was also a rule that, per
naturam
164
rei a negative is not capable of proof, but this refers to a negative in
substance and not in expression or mere form of words. All
matters of fact had
to be established by the party alleging and relying on such fact or facts, for
facts are not presumed but have
to be proved. Where, however, a legal
presumption exists in favour of one of the parties, such presumption will
prevail donee probetur
in
contrarium."
For an
exposition of the fundamental rules which
govern the incidence of onus the locus classicus in our
law
is Pillay v Krishna and Another
1946 AD 946.
The
statements by Davis AJA in that judgment were concurred in
by
Watermeyer CJ, Tindall JA, Greenberg JA, and Schreiner
JA. Of the
onus probandi Davis AJA took care immediately
to note (at
951):-
"....that this is a matter of substantive law and not a question of
evidence; Tregea and Another v Godart and Another
(1939, A.D. 16
, at
p.32)."
Thereafter the learned judge of
appeal made the following
observations (at 951-952):-
"The first principle in regard to the burden of proof is thus stated in the
Corpus Juris:
165
'Semper necessitas probandi incumbit illi qui
agit' (D.22.3.21). If one person claims something from another in a Court of
law, then he has to satisfy the Court that he is entitled
to it. But there is a
second principle which must always be read with it: 'Agere etiam is videtur, qui
exceptione utitur : nam reus
in exceptione actor est (D. 44.1.1). (Exceptio does
not mean, of course, an exception in the sense in which the term is now used
in
our practice). Where the person against whom the claim is made is not content
with a mere denial of that claim, but sets up a
special defence, then he is
regarded quoad that defence, as being the claimant: for his defence to be upheld
he must satisfy the
Court that he is entitled to succeed on it. (I am not here
going into questions as to how far either party may be assisted by presumptions:
nothing of the kind arises here, so far as I know, and I am only stating the
general rules which, as I see them, are applicable to
the present
case.)"
Davis AJA proceeded (at 952) to
deal with the rule stated
by Voet in (22.3.10), and likewise to be
found in a number
of places in the Corpus Juris, to the effect that
the onus
is on the person who alleges something and not on
his
opponent who merely denies it. Thereafter (at
952-953)
the learned judge enunciated three further
propositions
166
which are germane to the debate in the instant case:-
"The first is that, in my opinion, the only correct use of the word 'onus'
is that which I believe to be its true and original sense
(cf. D.31.22), namely,
the duty which is cast on the particular litigant, in order to be successful, of
finally satisfying the Court
that he is entitled to succeed on his claim, or
defence as to the case may be, and not in the sense merely of his duty to adduce
evidence to combat a prima facie case made by his opponent. The second is that,
where there are several and distinct issues, for
instance a claim and a special
defence, then there are several and distinct burdens of proof, which have
nothing to do with each
other, save of course that the second will not arise
until the first has been discharged. The third point is that the onus, in the
sense in which I use the word, can never shift from the party upon whom it
originally rested. It may have been completely discharged
once and for all, not
by any evidence which he has led, but by some admission made by his opponent on
the pleadings (or even during
the course of the case), so that he can never be
asked to do anything more in regard thereto; but the onus which then rests upon
his opponent is not one which has been transferred to him : it is an entirely
different onus, namely the onus of establishing any
special defence which he may
have. Any confusion that there may be has arisen, as I think, because the word
onus has often been used
in one and the same judgment in different senses, as
meaning (1) the
167
full onus which lies initially on one of the parties to prove his case, (2)
the quite different full onus which lies on the other
party to prove his case on
a quite different issue, and (3) the duty on both parties in turn to combat by
evidence any prima facie
case so far made by his opponent: this duty alone
unlike a true onus, shifts or is transferred."
An instructive practical illustration of
an
"onus" in the secondary and loose sense
of a duty on the
part of a litigant to combat a prima facie case
presented
by his opponent is afforded by the facts of South
(Cape)
Corporation (Pty) Ltd v Engineering Management
Services
(Pty) Ltd 1977(3) SA 534 (A). In delivering the judgment
of
the court Corbett JA referred (at 548A) to the
distinction drawn by
Davis AJA in the passage from Pillay v
Krishna (supra) at 952-3
quoted above, and went on to say
(at 548A-G):-
"Only the first of these concepts represents onus in its true and original
sense. In Brand v Minister of Justice and Another, 1959(4)
SA 712 (AD) at p 715,
Ogilvie Thompson JA called it 'the overall onus'. In this sense the onus can
never
shift from the party upon whom it
originally rested. The second concept may be termed, in
168
order to avoid confusion, the burden of adducing evidence in rebuttal
('weerleggingslas'). This may shift or be transferred in the
course of the case,
depending upon the measure of proof furnished by the one party or the other.
(See also Tregea and Another v Godart
and Another,
1939 A.D. 16
at p 28; Marine
and Trade Insurance Co Ltd v Van der Schyff, 1972(1) SA 26 (AD) at pp 37-9).
Applying these concepts to an application
for leave to execute a judgment
pending an appeal, the onus proper (or overall onus) rests, as I have already
indicated, upon the
applicant. This is so, in my view, irrespective of whether
the judgment in question is one sounding in money only or is one granting
other
forms of relief. Where the judgment is for money only, then, in an appropriate
case, the inference may be drawn, prima facie,
that the furnishing of security
de restituendo would protect the appellant against irreparable harm or
prejudice. This would go a
long way towards establishing, prima facie, the
applicant's claim for relief, and, in the absence of any rebutting evidence from
the other party (the appellant), might be conclusive .... It is only in this
sense, in my view, that an 'onus' can be said to rest
on the other party. This
not being an onus proper but merely a burden of adducing evidence to rebut a
prima facie case, the other
party would not be obliged to establish a case on a
preponderance of probability; and, if upon a consideration of all the evidence
the Court were left in doubt as to whether irreparable harm would be suffered or
not, then the applicant upon
169
whom the true onus rested, would fail on this
issue."
See further : Vasco Dry Cleaners v
Twycross 1979(1) SA
603(A) at 615G-616A; 620E-621B.
Long before this court's decision in Pillay v
Krishna (supra) South African courts had
consistently
accepted that defended defamation actions tended to
yield
different issues each of which attracted its own and
independent burden of proof. As a typical statement
(albeit made in a case dealing with the expression res ipsa
loquitur) there may be taken the following passage from
the judgment of Schreiner J in Klaassen v Benjamin 1941 TPD
80 at 86:-
".... the plaintiff has to prove the publication of a defamatory statement
concerning him, the defendant has to prove that it was
published on a privileged
occasion, and the plaintiff has to prove that the occasion was
abused."
Moreover, over a period of some
sixty years, this court in
a long line of decisions dealt with the defence of
170
qualified privilege explicitly on the footing that the defendant bore an
overall onus to be discharged on a balance of probabilities.
The authorities,
and brief excerpts from them, are conveniently collected in the judgment of
Kotzé JA in Joubert and Others
v Venter 1985(1) SA 654(A) at 696D-G, and
need not here be repeated. However, what came to be interpreted as a sharp
change of direction
was thereafter heralded by certain remarks made by Rumpff CJ
in Suid-Afrikaanse Uitsaaikorporasie v O'Malley 1977(3) SA 394 (A) ("O'Malley's
case"), which remarks were echoed in a number of later decisions of this court.
It is necessary now to examine the various dicta
concerned and the various
settings in which they occurred.
The facts in the O'Malley case were the following. O'Malley was the
editor of a daily newspaper in
171
which there had appeared an advertisement of an illegal gathering. While
O'Malley was attending a social function at an hotel he was
arrested on a charge
relating to the offending advertisement. In a news report by the SABC the latter
mentioned the fact of O'Malley's
arrest under the Riotous Assemblies Act; but
the report was couched in language which suggested that O'Malley had been
arrested while
he was actually attending the illegal meeting. In the court below
O'Malley successfully sued the SABC for damages for defamation.
At the trial no
evidence was tendered on behalf of the SABC. On appeal it was contended on
behalf of the SABC, inter alia, that the
news report had not been broadcast
animo injuriandi. The appeal was dismissed. This court held that in the absence
of any evidence
the presumption arising from the publication of the defamatory
matter had not been rebutted.
172
Having referred to the pleadings and the evidence on
behalf of O'Malley Rumpff CJ said (at 401 in fin - 402A):-
"Dit moet aanvaar word dat in ons reg die publikasie van lasterlike woorde
'n vermoede laat ontstaan dat die woorde opsetlik gepubliseer
is en dat die
publikasie onregmatig is. Weens die oorname van Engelse terminologie in ons
lasterreg het die twee noodsaaklike elemente
van laster as delik, nl.
onregmatigheid en skuld, nie altyd duidelik na vore gekom nie en het daar
heelwat vertroebeling ontstaan....".
Later
in his judgment (at 402 in fin - 403C) the learned
Chief Justice made the following observations:-
"Die vermoede van onregmatigheid kan in ons reg weerlê word deur
getuienis wat aantoon dat die lasterlike woorde gebesig is
in omstandighede wat
onregmatigheid uitsluit en wanneer die vraag ontstaan of die publikasie van die
lasterlike woorde regmatig of
onregmatig was, is dit die taak van die Hof om vas
te stel, vir sover dit die gemene reg betref, of publieke beleid verg dat die
publikasie geregverdig is en dus as regmatig bevind moet word. Die geykte
Engelse 'privileges' word juis as 'privileges' geag, omdat
die publikasie van
die lasterlike woorde in
173
die betrokke omstandighede 'in the interest of public policy' geag word.
Vgl. Eraser, On Libel and Slander. 7de uitg., bl 116. Die
omstandighede wat
aanleiding gee tot die sgn. ' privileges' in die Engelse reg geld ook in ons reg
as voorbeelde van omstandighede
wat onregmatigheid uitsluit. Die vermoede van
die opset om te belaster, wat weens die publikasie van die lasterlike woorde
ontstaan,
plaas 'n weerleggingslas op die verweerder, wat die vermoede kan
weerlê deur getuienis voor te lêdat hy nie so 'n opset
gehad het
nie. 'n Blote ontkenning van die opset om te belaster sou onvoldoende wees om 'n
eiser in staat te stel om te weet watter
feite die verweerder aan die Hof gaan
voorlê, en daarom sal die verweerder, in sy pleit of nadere besonderhede,
die feite moet
stel op grond waarvan hy beweer dat hy nie die opset gehad het om
te belaster nie."
In what follows it will be convenient to refer to the words which in the
above quotation I have rendered in bold print as "the O'Malley
dictum."
Since the defendant broadcasting corporation had at the
trial adduced no evidence whatever towards rebutting the presumption in question
it was, I consider, quite immaterial to the decision of this court in
O'Malley's
174
case whether such a rebuttal would in law saddle
the
defendant with a full onus, to be discharged on a
balance
of probabilities, or with a mere evidentiary burden.
In
either eventuality the appeal was doomed to failure.
In Borgin v De Villiers and Another 1980(3) SA
556 (A) the first respondent (defendant) had written to a
Professor Liese in Hamburg a letter containing information
about the appellant (plaintiff). In an action by the
appellant for damages for defamation the trial court held
that the letter was defamatory of the appellant, but it
upheld a defence of qualified privilege raised by the
respondent. The appellant appealed. In delivering the
judgment of this court Corbett JA observed (at 571E-G):-
"It is not disputed that the letter .... bears at least some of these
meanings and it is consequently prima facie defamatory. It follows
that the
publication to Prof Liese of exh 'C' raised a presumption that the publication
was unlawful and was made animo injuriandi.
This placed on respondents an onus
(in the form of a 'weerleggingslas') to rebut these presumptions.
175
One of the ways in which the presumption of unlawfulness may be rebutted is
by showing that
the publication was made on a so-called privileged occasion. In such a case
the publication of the defamatory words is regarded as
being in the interest of
public policy and, therefore, as being lawful (See generally Suid-Afrikaanse
Uitsaaikorporasie v O'Malley
1977(3) SA 394 (A) at 402-3). In this case
respondents' main defence was that exh 'C was published on a privileged
occasion. The
onus (in the sense of a 'weerleggingslas') was, therefore, upon
them to establish this
proposition."
On appeal it
was not disputed on behalf of the
appellant that the occasion had been privileged. As
appears
from the following passage from the judgment (at
572A-C) the issue concerned the ambit of the privileged
occasion:-
"It is conceded that Prof Liese's enquiry established a privileged occasion,
but it is contended that the enquiry was not as wide
a one as that alleged by
respondents and that this limited the ambit of the privileged
occasion...."
Having embarked upon a
detailed examination of the facts
176
this court concluded (at 577C-D) that it seemed probable that the scope
of the enquiry made by Professor Liese related to the wider
issue for which the
respondents contended. Corbett JA proceeded to consider and reject a further
contention advanced on behalf of
the plaintiff that portions of the letter
indicated that the defendant had acted unreasonably or abused the
occasion.
It was common cause that the occasion was privileged. In addition this
court was satisfied on the probabilities that the ambit of
the privilege was as
wide as alleged by the respondents. Consequently the question whether in order
to repel the presumption of unlawfulness
the respondents bore a full onus of
proof upon a balance of probabilities or a "weerleggingslas" was not in Borgin v
De Villiers
an issue which fell to be decided in the appeal.
177
Borgin v De Villiers was decided in May 1980. In September of the same
year there was handed down in this court the judgment in May
v Udwin 1981(1) SA
1 (A). In that case the plaintiff (Udwin) was an attorney and had appeared as
such in certain litigation before
the defendant (May) who was a magistrate. In
the ensuing judgment May made unflattering remarks about Udwin which prompted
the latter
to sue May for damages for defamation. At the trial the issues on the
pleadings were narrowed by agreement between the parties. They
agreed not merely
that the remarks of which Udwin complained were defamatory but also that they
had been published by May on an occasion
of qualified privilege. The parties
further agreed that the onus was on the plaintiff to prove that the defendant
had abused the
privilege or that he had exceeded its ambit.
178
The trial court decided this issue in favour of the
plaintiff
and against the defendant; and it ordered the
latter to pay damages. The defendant appealed. The narrow
issue on appeal to this court was stated by Joubert JA (at
12A-B) in the following words:-
"The question before this Court is whether the Court a quo was correct in
holding that May had abused or exceeded the ambit of the
qualified privilege and
in consequence thereof forfeited the protection of the qualified
privilege."
This court came to the
conclusion (at 21E-F) that the trial
court was wrong in holding that the plaintiff had
discharged the onus of proving that the defendant had
forfeited the protection of the qualified privilege.
Accordingly the appeal by the defendant succeeded.
Having at an early stage of his judgment (at 10C-
D) referred to O'Malley's case in connection with the two
rebuttable presumptions of fact which arise upon proof of
the publication of defamatory matter, the learned judge of
179
appeal proceeded to say (at 10D-E):-
"Once the presumptions of animus injuriandi and unlawfulness have arisen
from the publication of the defamatory matter an onus (in
the form of a
'weerleggingslas') rests on the defendant to rebut
them."
Since it was common cause that the
defamatory matter had
been published on a privileged occasion this
court was not
required in May v Udwin to ponder whether, in the absence
of such agreement between the parties, the defendant in
seeking to establish his defence of qualified privilege
would have born a primary onus or a mere evidentiary
burden.
In December 1980, and close on the heels of May v
Udwin (supra), came the judgment of this court in Marais v
Richard en 'n Ander 1981(1) SA 1157 (A). The defendant was
a newspaper editor whose newspaper published a leader
concerning the plaintiff. The plaintiff sued for damages
for defamation. The trial court found that the matter in
180
the leader was defamatory of the plaintiff in certain respects, but it
sustained a defence of fair comment on a matter of public interest.
The
plaintiff appealed. This court held (at 1170E) that the attack upon the judgment
of the court below could not succeed and it
dismissed the appeal.
The plaintiff's grounds of attack upon the trial court's judgment are
comprehensively set forth by Jansen JA at 1165G-1166D of this
court's judgment.
Their validity was examined at 1167A-1170E. A consideration of these portions of
the judgment will indicate, so
I consider, that the judgment on appeal in no way
turned upon the question whether any of the three defences of (1) qualified
privilege
(2) fair comment (3) truth in the public benefit requires proof on a
balance of probabilities or whether it suffices for the defendant
to adduce
evidence adverse to the presumption sufficient to leave the court in doubt
on
181
the issue.
However, Jansen JA remarked (at 1166E) that
before he proceeded to consider the plaintiff's grounds
of
complaint a few general observations on the defence of
fair
comment were necessary. These general remarks
involved,
inter alia, reference to the O'Malley case. At
1166F-
1167A of the reported judgment the learned judge of
appeal
remarked:-
"Dit word nou deur hierdie Hof aanvaar dat in ons reg skuld en
onregmatigheid afsonderlike elemente van die onregmatige daad is
(Suid-Afrikaanse
Uitsaaikorporasie v O'Malley 1977(3) SA 394 (A)). By laster
bestaan die onregmatigheid in die krenking van die goeie naam en publikasie
van
'n lasterlike bewering oor 'n ander sal prima facie as onregmatig beskou word.
Trouens, publikasie daarvan skep die 'vermoede'
dat dit onregmatig en met opset
geskied het en dit plaas 'n weerleggingslas op die verweerder (Suid-frikaanse
Uitsaaikorporasie v
O'Malley (supra te 401-402A); Borgin v De Villiers and
Another 1980(3) SA 556 (A) te 571F). Die vraag of dit nou aanvaar word dat
in
die geval van die pers aanspreeklikheid 'skuldloos' is - vgl O'Malley-saak supra
te 404H - kom nie nou te berde nie. Soos later
sal blyk, word die onderhawige
saak op
182
grond van die onregmatigheidselement van laster beslis, in welke geval die
aanwesigheid van animus injuriandi irrelevant is.
Daar kan weinig twyfel bestaan dat, soos in die geval van die sg
'privilegies' (O'Malley-saak supra te 403A-B; May v Udwin [1981(1)
SA 1 (A)],
die verweer van 'billike kommentaar' (asook die verweer van 'waarheid in die
openbare belang') slaan op die onregmatigheidselement
van die injuria en as
regverdigingsgrond beskou moet word. In hierdie stadium van ons regsontwikkeling
sou dit dus onjuis wees, en
lei tot onnodige verwarring, om nog te sê dat
hierdie verweer 'die vermoede van animus injuriandi
weerlê'".
Some three
months after the decision in Marais v
Richard (supra) a question-mark as to the correctness
of
certain of the dicta contained in the O'Malley case was
raised, albeit obliquely, by the judgment of this court in
the case of Mabaso v Felix 1981(3) SA 865 (A). It was
there held, in a joint judgment of Wessels and Diemont
JJA and Trollip AJA, that in actions for damages for
delicts affecting the plaintiff's personality and bodily
integrity, such as assault, it is fair and accords with
183
experience and common sense that the defendant should ordinarily bear the
onus of proving the excuse or justification, such as self-defence.
That
approach, so it was held, is ordinarily correct, and should be followed in such
cases, unless the form of the pleadings in a
particular case places the onus on
the plaintiff to negative the excuse or justification.
The question whether this court's stance on the burden of proof in
relation to self-defence in a civil action for assault was reconcilable
with the
O'Malley case was raised by Professor J M Burchell in an article to which
reference is made by Kotzé JA in Joubert
and Others v Venter (supra) at
696 G-I. In the article the learned author suggested that this problem required
attention. This last
sentiment was endorsed by Kotze JA in Joubert v Venter. The
learned judge of appeal stressed (at 697A) that on the facts of the case
before
him it was
184
unnecessary to resolve the problem; but he remarked that
it
might not be out of place to point out some of the
aspects of the
problem worthy of attention. Kotzé JA then
proceeded (at 697
B-H) to make the following
observations:-
"When the notion of a 'weerleggingslas', as opposed to a full onus was first
raised by Rumpff CJ in O'Malley's case supra in relation
to a
defence of privilege, it was done obiter, without reference to the earlier
decisions of this Court, and without any discussion of
the considerations
relevant to the policy of the law in regard to a choice between burdening the
defendant with a full onus or merely
a 'weerleggingslas'. - The subsequent cases
merely repeated what had been said in O'Malley's case, again obiter and without
discussion
of policy considerations. By contrast, the decision in Mabaso v Felix
(supra), relating to a plea of self-defence, was founded 'after
full argument
upon a full review of considerations of policy, practice and fairness inter
partes. In regard to a plea of justification
(i e absence of unlawfulness) it is
difficult to see why a defendant who has injured a plaintiff's fama should be in
a better position
than a defendant who has injured a plaintiff's body. There are
authors who have criticised the decision in Mabaso v Felix (see eg
Schmidt
Bewysreg 2nd ed at 44-45) and the notion that
a
185
defendant who relies on a defence of privilege is burdened with a full onus
(see eg Hoffmann and Zeffert South African Law of Evidence
3rd ed at 389).
However, in the pursuit of justice practical considerations may sometimes
require the policy of the law to override
considerations based on an
academically orientated view of jurisprudence. If the latter kind of
considerations are to be applied
consistently they can lead to unacceptable
results. Take, for example, the case of a defence, in a defamation action, of
truth in
the public interest. If the defendant adduces evidence of the truth of
the defamatory words which falls short of proving it on a
balance of
probabilities, but is sufficient to leave the issue in balance, and the
criterion of a 'weerleggingslas' is applied, the
plaintiff must be non-suited. I
cannot believe that that is the law. In my opinion, therefore, the question of
'weerleggingslas'
versus full onus in relation to a plea of qualified privilege
should be regarded as being still an open question in our law. For
the purpose
of the decision in the present case it can and should be left
open...."
The conclusion at
which Kriegler J arrived in the
court below, namely that -
"....die geldende reg in die onderhawige saak 'n weerleggingslas op die
verweerders laat rus...."
stemmed from his
reliance upon the quartet of defamation
186
cases (O'Malley's case; Borgin v De Villiers; May v Udwin; and Marais v
Richard) which have already been analysed above.
For the reasons
stated earlier in this judgment the O'Malley dictum was, in my opinion, no more
than the statement of a parenthetic
opinion unnecessary for the decision of the
appeal. In dealing with the onus of proof necessary to repel the presumption of
animus
injuriandi the learned Chief Justice stated that the defendant was
burdened with a "weerleggingslas". The important question which
crisply arises
in this appeal is whether in his judgment in the O'Malley case Rumpff CJ went
further, and indicated in addition that
a defendant seeking to refute the
presumption of unlawfulness arising from the publication of defamatory matter
was likewise burdened
with no more than a "weerleggingslas."
It would seem that since the O'Malley case the
187
view has been widely held and expressed, both by the
courts
and by academic writers, that the dicta in that
judgment
involved an assertion that a defendant in a
defamation
action who wishes to repel the presumption of
unlawfulness,
e g by raising a defence of qualified privilege, bears
no
more than a "weerleggingslas" or evidentiary burden. As
an
example I cite the judgment in Joubert and Others v Venter
(supra) to which I was also a party. It will be recalled
that there Kotzé JA remarked (at 697A-B):-
"When the notion of a 'weerleggingslas', as opposed to a full onus, was
first raised by Rumpff CJ in O'Malley's case supra in relation
to a defence of
privilege..."
This view of
the matter, in my respectful
opinion, rests upon a misapprehension as to what was in
fact said by Rumpff CJ in the O'Malley case. A careful
examination of that judgment, so I consider, points rather
188
to the conclusion that in truth the learned Chief
Justice
proceeded upon the assumption that a defendant
invoking
privilege is burdened with a full onus and is required
to
refute the presumption or unlawfulness by proof on
a
balance of probabilities.
At the outset it is to be noticed that Rumpff CJ
expressly mentioned a weerleggingslas" (at 403A-B) only in
relation to the presumption "van die opset om te belaster".
When earlier in his judgment (at 402 in fin-403A) the
learned Chief Justice discussed the presumption of
unlawfulness, and described in what manner it might be
repelled, no reference whatever to a "weerleggingslas" was
made. In that part of the judgment, moreover, the language
in fact employed -
"...deur getuienis wat aantoon dat die lasterlike woorde gebesig is in
omstandighede wat onregmatigheid uitsluit..."
(at 402in fin - emphasis supplied) and again
189
"...is dit die taak van die Hof om vas te stel, vir sover dit die gemene reg
betref, of publieke beleid verg dat die publikasie geregverdig
is en dus as
regmatig bevind moet word."
(at 403A - emphasis supplied)
is
indicative, so I consider, of a full onus to be
discharged on a
balance of probabilities. What tends in
the same direction is the
reference (at 403A) to the
"privileges" in the English law of defamation, since
in
England the defence of qualified privilege requires
proof
on a balance of probabilities. Of further significance,
in my view, is the following reference by the learned
Chief
Justice (at 405F-G) to his own judgment in the
earlier
defamation case of Craig v Voortrekkerpers Bpk 1963(1) SA
149 (A):-
"Al wat wesenlik in die uitspraak van die Craig-saak behandel word, is
die vraag of 'n bevoorregte geleentheid deur verweerder bewys
is of nie..."
(Emphasis supplied.)
Next it must be remembered that the
190
O'Malley case there is in this court a long line of decisions affirming
and reaffirming that in a defamation action a defence of privilege
has to be
established on a balance of probabilities. Had Rumpff CJ intended to state that
a defendant raising the defence of privilege
attracts no more than an
evidentiary burden in order to succeed thereon, it appears to me to be
distinctly improbable that he would
have done so without so much as a passing
reference to the many decisions of this court holding otherwise which had
remained unimpeached
for more than half a century.
Finally it should be borne in mind, I think, that although both the
presumption of animus injuriandi and the presumption of unlawfulness
arise from
the happening of the same event (the publication of matter defamatory of the
plaintiff) these two presumptions are essentially
different in character. The
presumption of animus injuriandi
191
relates to the defendant's subjective state of mind (a deliberate
intention to inflict injury) whereas the presumption of unlawfulness
relates to
objective matters of fact and law.
For the aforegoing reasons I
respectfully conclude that nothing stated in the O'Malley case represents
authority for the proposition
that in our law of defamation a defence raised in
order to repel the presumption of unlawfulness attracts no more than an
evidentiary
burden or "weerleggingslas."
In supporting the decision of the court a quo that in respect of the
defences raised by them the respondents bore no more than an
evidentiary burden
Mr Levin rested his argument upon the authority of the same four decisions
invoked by Kriegler J. Counsel did
not suggest that in Joubert v Venter the
effect of the earlier decisions of this court dealing with the onus to
be
192
discharged by a defendant raising a defence of qualified privilege had
been misstated by Kotzé JA. While fully recognising
what the earlier
cases had decided on this issue counsel contended that, on the strength of
O'Malley's case and the three subsequent
decisions in which the O'Malley dictum
had been invoked, this court had deliberately overturned the earlier decisions.
'However,
counsel did not, in the alternative, contend that the earlier cases
manifested such clear and palpable error that, in any case, we
were at liberty
to reconsider them.
Apart from the fact that we are bound to follow the earlier decisions, I
would add that I am unable to see any good grounds for doubting
their soundness
as judicial precedents. That there is a full onus on a defendant raising a
defence of qualified privilege seems to
me to follow from an application of
those principles enunciated in Pillay v Krishna (supra) to which attention has
already
193
been called. The defence of privilege involves entirely new factual
allegations unrelated to the plaintiff's cause of action. It is
a true case of
confession and avoidance (cf Mabaso v Felix (supra) at 674G-675H).
In my view the substantive law governing defamation prescribes not only
what facts the plaintiff must prove but also what facts must
be established by a
defendant whose defence involves confession and avoidance. If the defendant
raises the defence of qualified privilege
then he must prove his duty or right
to communicate the defamatory matter to another; and the latter's reciprocal
interest to receive
the communication. These are matters which need to be
established on a balance of probabilities. The requirements of the substantive
law cannot here be satisfied by a mere equiponderance of
194
evidence which leaves the court unable to say whether or
not
either element of the defence has been established. To
hold
otherwise would be subversive of principles governing
the law of
defamation deeply entrenched in our legal
system.
The earlier cases cited by Kotzé JA in Joubert
v
Venter (supra) at 696D-G all dealt with qualified
privilege.
But also in regard to the defence of truth in
the public benefit there is venerable authority in this
court for the proposition that the defendant likewise bears
a full onus. In Johnson v Rand Daily Mails
1928 AD 190
Stratford JA (at 196) remarked of the publication there in
issue:-
"As to the whole statement, the words were undoubtedly defamatory, and it
was for the defendant to prove their
truth."
For a more recent but no less
outright affirmation by this
court that in regard to the defence in question truth of
195
the defamatory matter has to be established by the defendant "on a
balance of probability" see the remarks of Steyn CJ in South African
Associated
Newspapers Ltd and Another v Yutar 1969(2) SA 442(A) at 451G-452A. Moreover, as
pointed out by Jansen JA in Marais v Richard
(supra) at 1166 in fin - 1167A, the
defence of qualified privilege, fair comment and truth in the public benefit all
relate to "die
onregmatigheidselement" of the delict of defamation.
Apart from the fact that in principle all three defences should be
governed by the same onus, there are in the case of the defence
of truth in the
public benefit cogent policy considerations for burdening the defendant with the
full onus of proof. In the case
of qualified privilege the defendant who
transmits the defamatory matter is generally thus impelled by considerations of
duty or
of protection of an interest. The matter stands rather
196
differently in regard to the defence of truth in the public benefit. Here
no form of compulsion operates on the mind of the defendant
whose decision to
put the character of the plaintiff in jeopardy proceeds entirely from his own
volition. The rationale of the defence
seems to be that the law will not allow a
person to recover damages in respect of an injury to a reputation which he does
not, or
at any rate should not, possess; coupled with the fact that society has
an interest in correctly estimating the true character of
its members. The
general policy appears from the response of the jurist Paulus, (D.47.10.18) who
tells us "that it is not right or
just that anyone who has defamed a guilty
person should on that account be condemned; for it is both proper and expedient
that the
transgressions of delinquents should be known." Since it is entirely of
his own accord that the defendant elects to vilify the plaintiff,
justice
demands that he should do so
197
at his peril; and that in an action for defamation he should have to
establish what he should have troubled to verify before he maligned
the
plaintiff. I recoil from the suggestion that it is enough for a defendant who
invokes the defence of truth in the public benefit
to plead, and to prove, no
more than: (1) that it is just as likely as not that his defamatory allegations
concerning the plaintiff
are true; and (2) that it is not improbable that they
might be in the public benefit.
For all the aforegoing reasons I
conclude that in our law a defendant in a defamation action is encumbered with a
full onus in regard
to the defences of truth in the public benefit and of
qualified privilege. Such defences can be sustained by nothing less than proof
on a balance of probabilities. In passing it may be mentioned that proof on a
balance of probabilities is required also in England
and those Commonwealth
countries in which the common law of
198
defamation allocates to the defendant the burden of proof in regard to
the defence of truth and the defence of qualified privilege.
In my respectful
view the court a quo erred in holding that the respondents were burdened with no
more than an evidentiary burden.
(I)
CONCLUSION : IN THE VWB CASE THE COURT BELOW ERRED IN UPHOLDING THE
DEFENCE OF TRUTH IN THE PUBLIC
BENEFIT
The court below held, rightly
in, my opinion, that in the WM case the defence of truth in the public benefit
could not succeed. Earlier
in this judgment I have indicated my conclusion that
in the VWB case the truth of the defamatory matter was not established on a
balance of probabilities. In the light of my further conclusion that the defence
in question demands proof on a balance of probabilities,
it follows that in my
view the said defence
199
should have failed also in the VWB case; and that the court a quo was
wrong in upholding it.
(J) THE ALTERNATIVE DEFENCES OF QUALIFIED
PRIVILEGE:
Since it sustained the plea of truth in the public
benefit in the VWB case the court below found it unnecessary to consider in that
case the validity of the plea of qualified privilege pleaded in the
alternative.. That necessity now arises in the VWB case. Bearing
in mind my
conclusion that also in regard to the defence of qualified privilege a defendant
bears a primary onus requiring proof
on a balance of probabilities, I proceed to
consider in turn whether on the evidence adduced the said defence was
established (1)
in the WM case or (2) in the VWB case. For the reasons which
follow it is my view that in each case the question is to be answered
in the
negative.
200
(1)
The defence of qualified privilege in the WM
case:
Earlier in this judgment I
examined in some detail the pleadings in both actions and the effect of the
belated amendment which was
allowed in respect of the alternative defences
raised in the respective pleas. I concluded that through the amendment in
question
the defendants in the WM case had discarded their original alternative
plea (publication in the public interest by virtue of an ongoing
debate) and had
pinned their colours to the mast of qualified privilege as their only
alternative defence. Here it is appropriate
to mention that during argument in
this court, and in response to a direct question from the bench, counsel for the
respondents affirmed
that the defence raised in the alternative plea as amended
in the WM case was the defence of qualified
201
privilege.
It seems to me, however, that in effect the
defence upheld by the court below in the WM case may
well
have been the original alternative defence (publication
in
the public interest by virtue of an ongoing debate)
rather
than a defence of qualified privilege. That this may be
the position is indicated by the heavy reliance which the
trial court placed on the reasoning of Coetzee J in the
case of Zillie v Johnson and Another 1984(2) SA 186 (W).
In regard to the alternative defence the learned judge
defined the issue by saying:-
"Die vraag is of daar in bepaalde omstandighede 'n houdbare beroep op
regverdiging kan wees al is die geopenbaarde laster nie waar
nie. (Met
regverdiging word hier natuurlik bedoel 'n verweer van
nie-onregmatigheid)."
A clear answer to
this question, so Kriegler J held, was to
be found in Zillie v Johnson (supra), to which decision
reference will hereafter be made as "the Zillie case".
201(a)
Before looking more closely at the Zillie case and considering how the
court below relied upon it, it is convenient to make reference
to an article
written in 1976 by Professor J C van der Walt which appeared in Gedenkbundel H L
Swanepoel and to which reference is
made in this court's judgment in Pakendorf
en Andere v De Flamingh 1982(3) SA 146 (A), in Zillie's case, and in the
judgment of the
court below. For the sake of easy reference I shall number
separately the three paragraphs from the article hereunder quoted. The
paragraphs numbered (1) and (2) run consecutively in the article. At page 68 of
the article the learned author writes:-
202
(1) "Die pers se funksie is om die openbare belang te dien. Wat behels die
openbare belang? Die openbare belang word gedien deur die
beskikbaarstelling van
gemeenskapsrelevante inligting en kritiek oor alle aspekte van openbare
politieke en sosiaal-ekonomiese aktiwiteite
en meewerking tot vorming van die
openbare mening. Hierdie funksie waarborg die vryheid van die pers en plaas
meteen ook die grense
daarvan. Dit verleen prinsipieel 'n besondere wye
vryheidsfeer aan die pers. Lasterlike bewerings wat binne die grense van hierdie
sfeer val, is in beginsel nie onregmatig nie. Die individuele belang moet in so
'n geval wyk voor die openbare
belang."
(2)
"Die
wye funksie van die pers om
die
openbare belang te dien, regverdig in beginsel persoonlikheidskrenkende
publikasies. Dit skep 'n wye vryheids-en invloedsfeer waaraan
die belange van
die individu ondergeskik gestel word. Die bevordering van die openbare
belang
203
as regverdigende omstandigheid in die geval van lasterlike beriggewing
vind neerslag in die bekende regverdigings-gronde by die lasterreg,
naamlik
privilegie, waarheid en openbare belang, en billike kommentaar. Hierdie
regverdigingsgronde pas die pers met sy besonder
funksie soos 'n
handskoen.
Hulle laat in beginsel ruimskootse bewegingsvryheid aan die pers.
Privilegie berus wesenlik op belangebevordering. Mits die pers,
gesien sy
funksie, die openbare belange dien, kan hy hom te enige tyd op hierdie
regverdigingsgrond beroep. Die objektiewe bestaan
al dan nie van 'n belang
behoort, waar die aanspreeklikheid van die pers ter sprake kom, onder andere aan
die hand van die besondere
funksie en aard van die personderneming bepaal te
word. Ook die regverdigingsgrond van waarheid en openbare belang is besonder
geskik
om die pers se openbare funksie te waarborg. Die regverdigingsgrond van
billike kommentaar is meetpas om die kritiese funksie van
die pers te
beskerm.
Indien 'n lasterlike persberig dus ter bevordering van die openbare
belang geskied, en wel soos dit neerslag gevind het in die drie
genoemde
204
regverdigingsgronde, is die perspubli-kasie regmatig. Die
persoonlikheidsbe-lang van die belasterde word oorwoeker deur die betrokke
openbare belang. Die persbelang in vryheid van spraak word beskerm ten koste van
die individuele belang."
At page 76 of the same article Professor van der
Walt says the following:-
(3) "Die beheerders van die personderneming skep myns insiens normaalweg
'n genoegsame tipiese en hoe risiko van benadeling van die
persoonlikheidsbe-lange van die individu om die risiko-beginsel tot
aanspreeklikheidsgrondslag te verhef. Die pers skep ongetwyfeld,
deur die
verspreiding van sy produkte, een van die potensieel grootste bronne van
persoonlikheidskrenking van die individu."
In Pakendorf v De Flamingh (supra) the basis of
the liability of the mass media for defamation was authoritatively laid
down. In delivering the judgment of this court Rumpff CJ adopted
a stance
foreshadowed some years previously in the O'Malley case, that the
liability
205
of owners, editors, printers and publishers of a
newspaper
which publishes a defamatory statement is a strict
one,
independent of fault. The learned Chief Justice held, on
the
grounds both of authority and the requirements of
public policy, that the press, radio and television are
strictly liable for the publication of defamatory
statements. In the course of his judgment (at 157G-H)
Rumpff CJ referred to an article by Professor J M Burchell
entitled "The Fault Element in the Law of Delict" (1978
SAW 170) in which at 179 there had been quoted in a
footnote the paragraph (which I have numbered (3)) in the
article by Professor van der Walt quoted above by me. Of
the footnote Rumpff CJ, proceeded to say (at 158A in the
Pakendorf case):-
"Dit is natuurlik aanloklik om die risiko-aanspreeklikheid ten opsigte
van produkte toe te pas omdat 'n koerant as 'n 'produk' beskou
sou kon word.
Radio en televisie wat op dieselfde basis as die pers behandel behoort te word,
kan egter kwalik as bron van 'produkte'
beskou word."
206
With that prelude I turn to the facts of the Zillie case. The plaintiff
was the political correspondent of the Rand Daily Mail ("the
RDM"). At the time
of the 1981 general election the then Minister of Health ("the Minister") made a
statement to the effect that
pensioners were able to subsist on a diet costing
no more than R20 a month. The plaintiff reported this story in the RDM and this
triggered off a series of public statements and disclaimers. Reacting to
criticism of himself in the press the Minister sent a telegram
to the chairman
of the Steyn Press Commission in which he stated that certain newspapers had
said that it was expected of pensioners
to exist on R20 a month. This, so
complained the Minister in the telegram, was a "flagrant and total distortion of
the facts and
a malicious misrepresentation of my intentions...." This
ministerial statement was published by all the daily newspapers in the
country,
207
including the RDM and The Citizen. On the strength of
the
publication in The Citizen the plaintiff claimed
damages
for defamation against that newspaper's editor
and
publisher. By way of defence the defendants pleaded,
inter
alia, (see 188D) that:-
"....the said article was published pursuant to a duty on the part of the
defendants to inform the readers of The Citizen newspaper
as members of the
general public of the contents of the said telegram and a corresponding right on
the part of the readers of The
Citizen as members of the general public to
receive the information contained in the said
telegram."
On behalf of the
plaintiff in Zillie's case it
was contended that this alone did not constitute a defence
to her claim, and that the plea of public interest had to
be coupled to an affirmation of bona fide belief in the
truth of the matter published. The court held that
lawfulness of the publication had been established and it
dismissed the plaintiff's claim.
In the course of the judgment reference was
made
208
to O'Malley's case, Borgin v Richard (supra), May v Udwin (supra), and
Marais v Richard (supra). The learned judge
said (at 195B) that he would summarise the effect of the
dicta in these four cases as
follows:-
"1
3.
Well-known
defences such as privilege, fair comment and justification are mere instances of
lawful publication and do not constitute
a numerus
clausus.
4.
The general
principle is whether public policy justifies the publication and requires that
it be found to be a lawful one. As the
test is an objective one it involves. an
application of the 'general standard of reasonableness' but it relates to the
sense of justice
prevailing in South Africa as opposed to that in other
countries and systems."
Coetzee J stressed
what he conceived to be the role of the
press. In this connection he remarked (at 195F-G):-
"Plaintiff's counsel submitted that the press and other public media are
in no better position than other members of the public; and
the law recognises
no such peculiar rights, privileges or claims to indulgence of the press. Whilst
I
209
cannot find any fault with this contention, one must not lose sight of the
special position of the press in our modern society when
deciding whether as a
matter of policy an action should lie in circumstances like the present. This
special position has been frequently
recognised -cf Pakendorf's case supra at
154. A concise statement of the position of the press and its importance is well
expressed
by Prof J C van der Walt in an article referred to by Rumpff CJ at 158
of Pakendorf's case as follows (at
68):....."
Coetzee J then proceeded to
quote from Professor van der
Walt's article the paragraph which I
have numbered (1) and
the content whereof I have already indicated. The learned
judge went on (at 196 A-C) to say:-
"It seems to me that the present case is an excellent example of the right
of the press, nay its duty, to have published the Minister's
telegram to the
Steyn Commission which he released to SAPA on the Sunday night. That the
Government's policy with regard to pensions
had become the burning public issue
of the moment is beyond question. Equally important to the public was the
question what the Minister
had said at his press conference and what his
attitude was to the widely published comment thereon .... I have no doubt that
the
public at large had a right to know what his reaction was at that stage. The
average right thinking
2 10
person would have felt justifiably annoyed if the public media had
suppressed the existence of this telegram or its contents only
became public
knowledge subsequently. He would have felt deprived of knowledge to which he was
entitled."
In weighing the application for
amendment
Kriegler J in his judgment quoted
at length from the
remarks of Coetzee J in the Zillie case. Before
granting
the amendments sought Kriegler J remarked of the judgment
in the Zillie case:-
"Die geleerde regter se ontleding van die tersaaklike reg en uitleg van die
rigtinggewende gewysdes is so kennelik suiwer dat ek my
eerbiedig daarby
aansluit sonder enige toevoeging."
Earlier
in this judgment reference was made to the nineteen
paragraphs (respectively lettered (a) to (s)) introduced
into the plea as a result of the amendment granted. Before
considering the reasons which prompted Kriegler J to uphold
the alternative plea in the WM case it is convenient here
to quote paragraphs (k), (n), (o) and (r) therefrom. They
211
read thus:-
"(k) In the said article [article VWB(1)] extremely important and far
reaching information was furnished in regard to various illegal
activities of
Coetzee and other members of the South African security forces and of the
involvement of highly placed officers in
the security police in such
activities.
(n) The publication of the said article [the WM article] by the Weekly
Mail as aforesaid, likewise related to a matter of great public
interest and
concern which had been widely covered in the press and' furnished further
relevant information in regard thereto.
(o) The matter was widely debated in the press and further calls were
made for the appointment of a judicial commission of enquiry
into the
matter.
(r) In the circumstances set out herein it was in the public interest
that the readers of the Vrye Weekblad and Weekly Mail and the
South African
public at large should be informed of Coetzee's said allegations to ensure as
wide a public debate thereon as possible
and a full and proper public
investigation of
212
the said allegations."
In the concluding part of his judgment
Kriegler J applied
what he had said earlier in regard to the Zillie
case to
the facts in the WM case. Before doing so, remarked
the
learned judge -
".... wil ek een verdere beginselstelling aanhaal. In die Zillie-saak
(supra) verwys Coetzee R met instemming na die volgende passasie
in 'n artikel
deur prof J C van der Walt:...."
Kriegler J
thereupon quoted the paragraph from the article
in question which I have numbered as (1). Having done so
the trial judge said:-
"Die tweede stel verweerders het, myns insiens, ieder wesenlike bewering in
paragraaf 2.3.2 van hul gewysigde verweerskrif bewys.
In die besonder het hulle
die bewerings in sub-paragrawe (k), (n), (o), (r) en die reeds aangehaalde
slotsubparagraaf [paragraph
(t) already quoted by me] daarvan bewys. In
substansie kom dit daarop neer dat die aard en strekking van Coetzee se
bewerings, gesien
teen die agtergrond van die wydlopende en voortslepende
openbare debat rondom bewerings van magmisbruik tot op hoe vlak deur lede
van
die veiligheidsmagte, sodanig was dat die Suid-Afrikaanse publiek geregtig was
om
213
daaroor ingelig te word. Die inligting was so belangrik dat dit die reg en
belang van die pers om dit te publisher en van die lesende
publiek om dit te
verneem die individu se reg om nie te na gekom te word nie moet
verdring....
Ondanks die feit dat die betrokke bewering nie as waar bevind kan word nie
was die besondere wyse en omstandighede van die publikasie
daarvan sodanig dat
dit nie onregmatig was nie. Met
sodanige
konklusie skep ek geen gevaarlike
presedent nie. Die onderhawige omstandighede was ongeewenaard en sal hopelik
nooit weer geewenaar word nie."
In my
respectful judgment the trial court's finding
represented not only a
marked departure from precedent and
principle but also an unsound
one. Into what juristic
niche it is designed to fit is, I think, a
matter of some
difficulty. That its links with the defence of
qualified
privilege which was pleaded are tenuous is suggested by the
following comments in Burchell's Principles of Delict
(1993). The learned author, while approving the result
achieved by the trial court's finding, makes the following
observations thereon at 174-5:-
214
"It has always been accepted in the law of defamation that the statements
published need not be true in every minute detail - the
material allegations or
sting of the charge must be true. Or to put it another way, substantial but not
absolute accuracy is required.
But, Kriegler J's judgment in the Neethling case appears to go further
than this concession to freedom of speech. The judge accepts
that the protection
of the defendant's (sic) reputation in that case must also yield to the
publication of matter, which is of a
more significantly harmful nature, and for
which there is insufficient evidence of truth..
This approach of Kriegler J to the public benefit element of the defence
of truth for the public benefit could equally apply to the
public interest
element of the defence of fair comment and could be included in the judicial
approach to the defence of qualified
privileged occasion which relies upon a
duty or legitimate interest in making a disclosure to someone who has a
corresponding right
or interest in receiving the information. The right of the
public to be informed adequately will thereby receive appropriate attention
within the general defences to a defamation action.
Another possible perspective on Kriegler J's judgment .... is to
interpret his conclusion on
215
the defence available to the Weekly Mail as creating a new ground of
justification. It has been accepted by our courts that .... there
is, in fact,
no closed list of defences excluding unlawfulness .... His own conclusion that
the facts of the .... case were unequalled
and hopefully will not occur again
and that he was thus not establishing a dangerous precedent, might point in the
direction of his
developing a 'new' defence. One of the difficulties of
developing a new defence is the obvious one of delimitation and definition.
How
would one formulate the defence? Would 'duty to inform the public on a matter of
major public concern' suffice for these purposes?
It is perhaps better to regard the approach of Kriegler J as a logical and
desirable policy-based extension of the fundamental defence
of publication of
the truth for the public
benefit."
Such
jurisprudential conjecturing apart, one has
the situation that the trial court's judgment in regard
to
the Weekly Mail was based entirely on the reasoning
of
Coetzee J in the Zillie case. For present purposes
the
propriety of the final result in that case- a matter
to
which brief attention will be given later in this
judgment
- is not directly in issue. In my respectful opinion,
216
however, the reasoning adopted in the Zillie case is faulty inasmuch as
it accords to the press a licence recognised neither by South
African law nor
(with the exception of the United States of America) by the legal systems of
most other countries in the English-speaking
world.
Before briefly
stating the effect of the many decided cases bearing on this issue which were
mentioned to us in argument, a few general
observations on Zillie's case are
necessary. Coetzee J attached significance to what (at 195F-G) he described as
"the special position
of the press in our modern society." Inasmuch as in this
connection the learned judge relied both upon the Pakendorf case and the
article
by Professor van der Walt to which Rumpff CJ made reference in his judgment in
that case, it is as well to bear in mind,
first, that the special position
assigned to the media in the Pakendorf case was an
217
unpropitious one. The effect of the decision is that where a person has
been defamed by a newspaper it is no defence for the newspaper
to plead that a
mistake has been made which negatives the existence of animus injuriandi.
Second, it might be pointed out that Rumpff
CJ made reference to Professor van
der Walt's article not in amelioration of the position of the press, but in
order to fortify his
conclusion that its liability should be a strict one. That
portion of the article cited by Coetzee J in the Zillie case was not referred
to
at all by Rumpff CJ in the Pakendorf case. Finally it appears to me that the
answer to the question posed in the passage of the
article quoted by Coetzee J,
namely, "Wat behels die openbare belang?" is to be sought not in that passage
alone, but no less by
what is said in the following passage (paragraph (2)); and
more particularly by reference to the following words thereof:-
2ia
"Die bevordering van die openbare belang as regverdigende omstandigheid in
geval van lasterlike beriggewing vind neerslag in die bekende
regverdigingsgronde
by die lasterreg,
naamlik privilegie, waarheid en openbare belang, en billike kommentaar. Hierdie
reverdigings-gronde pas die pers
met sy besondere funksie soos 'n
handskoen."
It will be
recalled that in the Zillie case,
after making reference to four decisions of this
court,
Coetzee J sought to distil therefrom as a proposition
in
our law of defamation (at 195B-C) that -
"4. The general principle is whether public policy justifies the
publication and requires that it be found to be a lawful one ...."
In my respectful opinion the above proposition is
untenable. It is trite that underlying the three
traditional and specialised defences (privilege; truth in
the public benefit; and fair comment) are the requirements
of public policy. Since these three categories of
justification do not represent a numerus clausus it may
219
also be accepted that in the further development of our law of
defamation, if and when the courts decide to define and delimit any
further
categories of justification, the governing factor will likewise be the dictates
of public policy. The fact that the traditional
defences do not constitute a
closed list of categories of justification, however, does not mean that in the
present state of the
law a court is free to consider the issue of liability for
the publication of a defamatory statement by a newspaper independently
of the
substantive requirements of. the traditional defences, and simply by abstract
reference to a "general principle .... whether
public policy justifies the
publication and requires that it be found to be a lawful one". In my opinion our
law recognises no such
defence to an action for defamation, whether the matter
complained of be published by a newspaper or by anybody else.
At common law there is no general
"newspaper
220
privilege". Contrary to the view expressed by Coetzee J
(at 195G) any notion that for the purposes of
claiming
justification in respect of defamation the press
occupies
"a special position", so far from being recognised by
our
law, is entirely alien to it. Some eighty years ago
Lord
Shaw in delivering the judgment of the Privy Council
in
Arnold v The King Emperor
30 TLR 462
, remarked (at
468):-
"The freedom of the journalist is an ordinary part of the freedom of the
subject, and to whatever lengths the subject in general may
go, so also may the
journalist, but apart from statute law, his privilege is no other, and no
higher. The responsibilities which
attach to his power in the dissemination of
printed matter may, and in the case of a conscientious journalist do, make him
more careful;
but the range of his assertions, his criticisms, or his comments
is as wide as, and no wider than, that of any other subject. No
privilege
attaches to his position."
The above-quoted
remarks, so I consider, accurately reflect
the position in our modern South African law. In regard
to the immunity which the defence of qualified privilege
221
accords to statements published in discharge of a duty or
the
exercise of a right, the matter is summarised thus in
LAWSA vol 7
par 249 at p 209:-
"The duty or right may be legal, moral or social. The test of whether such a
duty or right exists in a particular case is objective:
did the circumstances in
the eyes of a reasonable man create a duty or a right which entitled the
defendant to speak. Thus there
is a legal duty to furnish information in
connection with the investigation of a crime; and statements about the creditors
of a company
may be made in a report on its claim for insurance. One public
official may be obliged to make a defamatory statement to another
in the course
of his official duty. Members of public bodies may have a social duty or right
to make defamatory statements to other
members at meetings of these bodies. A
former employee has a right to inform a prospective employer about the character
of an employee,
and inquiries as to creditworthiness may in appropriate
circumstances be answered. A member of a church may have a moral duty to
speak
about the morality of a minister of the church to the elders of the church, and
a close relative may make a statement to a
young woman about the character of a
suitor. The statement must be published in the discharge of the duty or exercise
of the right
in the sense that the statement must be relevant or germane and
reasonably appropriate to the discharge of
the
222
duty or exercise of the right.
The statement will not be published in the discharge of the duty or the
exercise of the right if it is published to a person who has
no similar duty or
interest in receiving
it...."
As already indicated
it is unnecessary for
purposes of the present appeal to express a firm opinion
as
to the correctness of the ultimate result in the Zillie
case. That
result followed Coetzee J's conclusion (at
196A) that it was the duty of the press to publish
the
Minister's telegram to the Steyn Commission. However,
it
seems to me, with respect, that without the arrogation of
any
special position to the press and without the
invocation of the unwarranted "general principle"
formulated by the learned judge in the Zillie case, his
conclusion that the press had a duty to publish the said
telegram might nevertheless readily have been reached upon
the application to the facts in that case of the ordinary
principles of qualified privilege.
223
Publication in the press involves dissemination to the world at large.
Although courts are in general disinclined to recognise between
a newspaper and
its readers a community of interest sufficient to sustain the defence of
qualified privilege, there are a few well-recognised
exceptions to the general
rule. One exception involves a public answer by a defendant in refutation of a
public charge. It will be
recalled that in the Zillie case the Minister was
reacting to public criticism of himself in the press. A useful illustration of
the exception under discussion is afforded by the facts of the oft-cited case of
Adam v Ward
[1917] AC 309.
The plaintiff, a member of Parliament, was a former
officer in a regiment within a brigade commanded by a certain General. In a
speech
in the House of Commons the plaintiff charged the General in question
with having sent to headquarters reports on his officers containing
deliberate
224
misstatements. The defendant was the Secretary of the Army Council.
Having written a letter to the General vindicating him and containing
statements
defamatory of the plaintiff, the defendant sent his letter to the press. The
letter was widely published in the British
and Colonial press. In an action for
libel by the plaintiff against the defendant it was held that the letter had
been published
on a privileged occasion; and that the defamatory statements were
strictly relevant to the vindication of the General. For a discussion
of the
position where the medium of both the attack and its repulse is the press,
reference may be made to Loveday v Sun Newspapers
Ltd
[1938] HCA 28
;
[1937-8] 59 CLR 503.
A
newspaper published an article containing extracts from a letter addressed to it
by the secretary of a relief council attacking
the local municipal council by
reason of its refusal of relief to the plaintiff. The same article contained a
statement in reply
to the attack, prepared for
22P
publication by the town clerk, which contained
matters
defamatory of the plaintiff. The plaintiff sued
the
newspaper for defamation. In the course of his
judgment
Latham CJ said (at 512):-
"The plaintiff himself had chosen the public press for the purpose of giving
publicity to his complaint and he cannot complain if
the defendant uses the same
medium for reply."
Starke J remarked (at
515):-
"A person attacked has both a right and an interest in repelling or refuting
the attack, and the appeal to the public gives it a corresponding
interest in
the reply. Occasions of this kind are privileged and communications made in
pursuance of a right or duty incident to
them are privileged by the
occasion."
(See, per contra, the remarks of
Dixon J at 520).
Before leaving Zillie's case, and for the sake of
completeness, mention should be made of a brief reference
to that decision which was made in Argus Printing and
Publishing Co Ltd v Inkatha Freedom Party 1992(3) SA
579(A). In delivering this court's judgment in the last-
226
mentioned case E M Grosskopf JA said the following (at 590C-E):-
"In principle, therefore, the Court is not limited to the accepted grounds
of qualified privilege. Where public policy so demands,
it would be entitled to
recognise new situations in which a defendant's conduct in publishing defamatory
matter is lawful. So, in
Zillie v Johnson and Another...Coetzee J weighed up the
interests of the public against those of the persons defamed, and held that
the
defendants (the editor and publisher of a newspaper) were entitled to publish
defamatory matter where the public had, in the
circumstances, a right to be
informed of the facts."
The passage just
quoted, so I consider, cannot be taken as
signifying this court's approval either of the view
expressed by Coetzee J in the Zillie case that the press
occupied a special position or the "general principle"
enunciated by the learned judge.
Before I turn to the many foreign authorities
which were cited to us in the course of a lengthy argument,
reference may usefully made at this stage to the
227
observations to be found (albeit in a different context)
in
regard to the concept of "the public interest" in the
recent judgment of this court in Financial Mail (Pty) Ltd v
Sage Holdings Ltd 1993(2) SA 451 (A). In delivering
the
majority judgment Corbett CJ said at 464C-D):-
"(1) There is a wide difference between what is interesting to the public
and what it is in the public interest to make known ....
(2) The media have a private interest of their own in publishing what
appeals to the public and may increase their circulation or
the numbers of their
viewers or listeners; and they are peculiarly vulnerable to the error of
confusing the public interest with
their own interest...."
In the United States of America media liability
for defamation appears to have been shaped by
constitutional guarantees of free speech and a free press;
and the law stands in rather sharp contrast to that of most
other countries in the English-speaking world. It was
228
therefore on the decisions of the courts and the writings of learned
authors of England and the Commonwealth countries that counsel
on both sides
concentrated. We were referred to a long list of authorities.
I have considered all the authorities cited by counsel, but I find it
unnecessary, for purposes of the present appeal, to embark upon
any detailed
discussion of them. They appear to me to reflect a fairly consistent pattern of
judicial thought, and one unfavourable
to the alternative defences pleaded in
this case. I shall do no more than refer, in passing, to those dicta which
appear to me to
be pertinent to the issues under discussion. Before I do so it
may be convenient to set forth briefly a number of broad propositions
which in
my opinion may be extracted from the relevant authorities. These appear to me to
be the following:
229
(a) At common law there is no general "media privilege"; and there is no
defence of "fair information on a matter of public interest."
A journalist who
obtains information reflecting on a public figure has no greater right than any
other private citizen to publish
his assertions to the world.
(b) The common law does not recognise a duty-interest relationship between a
newspaper and its readers sufficient to support qualified
privilege. Publication
in the media is publication to the world; not everyone can be regarded as having
a sufficient interest in
the subject-matter.
To
230
this rule there are limited exceptions, such as replies to public
attacks, and publication in "crisis" cases, where speedy national
warnings are
necessary to avert possible disaster. (c) Although all privilege is based on the
publication in question being "in the
public interest", there is a palpable
difference between that which is interesting to the public and what is in the
public interest
to be known. (d) A newspaper publication is not the subject of
qualified privilege merely because it gives the public information
concerning a
matter in which the public is interested. Qualified privilege requires
publication pursuant to a duty, whether legal,
moral or social, and the
existence on the part of its readers of a corresponding interest or right to
receive the defamatory communication.
231
This reciprocity is essential. It connotes a common legitimate interest
which is more than idle curiosity in the affairs of others.
(e) The test of the existence of a duty to publish is an objective one,
based on the standards of the community concerned: Would the
great mass of
right-minded persons in the position of the defamer have considered, in all the
circumstances, that it was their duty
to make the communication? The test is the
common convenience and welfare of society.
(f) One function of a newspaper is to provide its readers with fair and
accurate reports of proceedings, parliamentary, judicial and
otherwise. Another
function of a newspaper is to provide its readers with news of current events
and gossip.
232
(g) The commercial incentive to increase circulation figures renders
newspapers prone to the error of confusing what is in the public
interest with
the newspaper's private economic interest.
(h) In deciding whether a defamatory publication attracts qualified
privilege the status of the matter communicated (i e its source
and intrinsic
quality) is of critical importance. In this connection obvious questions which
suggest themselves (the examples given
are not intended to be exhaustive) are:
Does the matter emanate from an official and identified source or does it spring
from a source
which is informal and anonymous? Does the matter involve a formal
finding based on reasoned conclusions, after the weighing and sifting
of
evidence, or is it no more than an ex parte statement or mere
hearsay?
233
I proceed to consider some of the dicta from the
various decisions upon which the propositions stated in
(a)
to (h) above are based. Blackshaw v Lord and another
(supra) deals with the question whether the public at
large
has a legitimate interest in the publication of what
is
mere inference by a journalist. The judgment of
Stephenson W contains (at 327 a-j) the following succinct
statements of the circumstances in which a newspaper report
in England is entitled to protection at common law:-
"The question here is, assuming Mr Lord recorded Mr Smith's conversation
with him fairly and accurately, did Mr Lord (and his newspaper)
publish his
report of that conversation in pursuance of a duty, legal, social or moral, to
persons who had a corresponding duty or
interest to receive it? That, in my
respectful opinion, correct summary of the relevant authorities is taken from
the Report of the
Faulks Committee, p 47, para 184(a), repeated in Duncan and
Neill p 98, para 14.01. I cannot extract from any of those authorities
any
relaxation of the requirements incorporated in that question. No privilege
attaches yet to a statement on a matter of public
interest believed by the
publisher to be true in relation to which he has
exercised
234
reasonable care. That needed statutory enactment which the Faulks
Committee refused to recommend (See pp 53-55 paras 211-215). 'Fair
information
on a matter of public interest' is not enough without a duty to publish it
....Public interest and public benefit are
necessary (cf s 7(3) of the 1952
Act), but not enough without more. There must be a duty to publish to the public
at large and an
interest in the public at large to receive the publication; and
a section of the public is not enough.
The subject matter must be of public interest; its publication must be in
the public interest. That nature of the matter published
and its source and the
position or status of the publisher distributing the information must be such as
to create the duty to publish
the information to the intended recipients, in
this case the readers of the Daily Telegraph. Where damaging facts have been
ascertained
to be true, or been made the subject of a report, there may be a
duty to report them (see eg Cox v Feeney (1863) 4 F & F 13
[1863] EngR 18
; ,
176 ER 445
,
Perera v Peiris
[1949] AC 1
and Dunford Publicity Studios Ltd v News Media
Ownership Ltd
[1971] NZLR 961)
, provided the public interest is wide enough
(Chapman v Lord Ellesmere
[1932] 2 KB 431
,
[1932] All ER 221).
But where
damaging allegations or charges have been made and are still under investigation
(Purcell v Sowler (18V7)
2 CPD 215)
, or have been authoritatively refuted (Adam
v Ward
(1915) 31 TT,R 299
; affd
[1917] AC 308
, [1916-17 J All ER Rep 157), there
can be no duty
235
to report them to the public.
In this case, as counsel for the plaintiff points out, there is, when Mr
Lord types his article, no allegation against the plaintiff
which has been made
good.... He may have been under a duty to inform the public of the £52m
loss, but not to attribute blame
to the plaintiff or to communicate information
about his resignation, even if it was of public interest. The general topic of
the
waste of taxpayers' money was, counsel for the plaintiff concedes, a matter
in which the public, including the readers of the Daily
Telegraph's first
edition, had a legitimate interest and which the press were under a duty to
publish; but they had no legitimate
interest in Mr Lord's particular inferences
and guesses, or even in Mr Smith's and the defendants had' certainly no duty to
publish
what counsel for the plaintiff unkindly called 'half-baked' rumours
about the plaintiff at that stage of Mr Lord's investigations.
There may be extreme cases where the urgency of communicating a warning
is so great, or the source of the information is so reliable,
that publication
of suspicion or speculation is justified; for example, where there is danger to
the public from a suspected terrorist
or the distribution of contaminated food
or drugs; but there is nothing of that sort here. So Mr Lord took the risk of
the defamatory
matter, which he derived from what he said were Mr Smith's
statements and assumptions turning out untrue."
236
The matter of qualified privilege in relation to
the liability of a broadcaster as a publisher of
defamatory
matter was one of the issues considered by the
Federal
Court of Australia (Smitners, Weaves and Pincus JJ)
in
Australian Broadcasting Corporation v Comalco Ltd 68 ALR
(1986) 259. In rejecting a "public debate" argument
raised on behalf of the appellant Neaves J in the course of
his judgment endorsed the approach adopted by Stephenson LJ
in Blackshaw v Lord and Another (supra). At 328 Neaves
J said:-
"The appellant's submissions involve the proposition that it is
sufficient to constitute an occasion one of qualified privilege if
it be shown
that what is published can properly be characterised as the public discussion of
matters germane to a general subject
matter which can itself be classified as
one of great public interest or concern.
In my opinion, the authorities do not support the proposition for which
the appellant contends. I respectfully adopt what was said
by Stephenson LJ in
Blackshaw v Lord, supra ...."
237
Pincus J made the following observations at 340:-
"....a thorough review of the authorities .... suggests that only in unusual
circumstances will defamation emanating from neither
an official nor
quasi-official source come under the cloak of privilege on the broad ground
being discussed. Most of the cases in
which the defendant's claim has succeeded
have involved publications of material from a person or body connected with
government,
or with some institution having responsibility for the
administration of an aspect of community affairs. Perhaps the most important
examples are the decision of the Privy Council in Perera v Peiris, supra, and
that of the House of Lords in Adam v Ward
[1917] AC 309
....The nature of the
source is the best practical guide to the likely result, at least where the
material is published at large...."
At 342
the same learned judge remarked:-
"Despite a number of judicial denials that the categories are closed, it
seems clear that the law has proceeded in this area with
great caution and in
such a way that the balance of authority is clearly against the existence of the
privilege claimed by the appellant.
Courts have evinced a strong reluctance to
hold that the broad principle above supports the existence of a duty to publish
any material
not coming from or associated with an 'authoritative' source,
particularly where the defamatory material is
238
disclosed to the public at large. We were referred to no case in England or
Australia in which there was held to be such a duty to
publish such material to
the public at large, in the public interest: it was not suggested that any of
the established specific categories
of common law privilege
applied."
In Smith's
Newspapers Ltd v Becker [1932-3] 47
CLR the plaintiff practised medicine in South Australia
where
he was riot registered so to practise. A newspaper
article attacked
the plaintiff, describing him as a person
with a discreditable past
who treated his patients in an
incompetent manner, and whose treatment had in some cases
resulted in the death of the patient. The newspaper
sought unsuccessfully to rely on qualified privilege. In
the course of his judgment (at 304) Evatt J said:-
"There was no community of interest between the defendants and the general
body of their readers which gave rise to any occasion for
the communication to
them of the imputations against the plaintiff. Communications of genuinely
entertained opinions and suspicions
to the proper State or professional
authorities, by the defendants or any other person, might have
given
239
rise to an entirely different
situation....."
In Doyle v
Economist Newspaper
[1980] NILR 171
the defendant published an article concerning the
appointment
of the plaintiff as a county court judge
implying that the
appointment had not been made on merit.
The freelance journalist,
Miss Holland, who wrote the
article, testified that it was based on
interviews with
senior members of the Bar and other eminent persons, but
she declined to name her sources. It was held that
although the quality of the county court bench was a matter
in which the public had an interest there was no duty on
the defendant to pass on to the general public views
expressed in private discussions by unnamed persons which
views were untested for reliability or motive. In ruling
against the defendant Murray J (at 179E-180A) tested the
matter in the following way:-
"Put the matter the other way round. If Miss Holland had
decided not to publish those views
240
since they were, in effect, anonymous and untested for reliability or
motive, who could possibly have said (with reason) that she
was guilty of a
breach of some recognisable duty? Moreover, if I approach the matter in the
terms used by Pearson J in Webb's case,
I unhesitatingly come to the conclusion
that while the subject-matter of the words complained of, viz. the integrity and
quality
of the county court bench, was undoubtedly a matter in which the public
had an interest, the status of the material received by Miss
Holland and passed
on to the public was certainly not such as to attract privilege to its
publication. As regards some of the other
matters dealt with in the words
complained of, Miss Holland said her unidentified source was a judge at the
highest level. In my
view this makes not the slightest difference: the material
in question was still in effect from an anonymous source and was not tested
or
probed in any way by any independent
authority."
In the case
before us the arguments on behalf of
the respondents have laid heavy (and no doubt
proper)
emphasis on the public benefit and the right of the
citizen
to be informed by the press cm issues of burning
importance. There are, of course, two sides to the
coin.
Before turning to the facts on which the alternative
241
defences rest, it is not inappropriate, I think, to
quote
briefly from the judgments of two eminent English
judges.
In Campell v Spottiswoode (1863) 3 B & S 769 at
777
Cockburn CJ had the following to say on the topic:-
"It is said that it is for the interests of society that the public conduct
of men should be criticized without any other limit than
that the writer should
have an honest belief that what he writes is true. But it seems to me that the
public have an equal interest
in the maintenance of the public character of
public men, and public affairs could not be conducted by men of honour with a
view
to the welfare of the country, if we were to sanction attacks upon them,
destructive of their honour and character, and made without
any
foundation."
Much in the same vein is the
following rhetorical question
posed by Lord Macnaghten in Macintosh v Dun
[1908] AC 390
at 400:-
"Is it in the interest of the community, is it for the welfare of society,
that the protection which the law throws around communications
made in
legitimate self-defence, or from a bona fide sense of duty, should be extended
to communications made from motives of self-interest
by persons who trade for
profit in the characters
242
of other people?"
So much for the law.
It remains to apply the
legal principles above discussed to the
facts of the WM
case in order to see whether the alternative defence
has
been established.
Although the WM article is a lengthy one the
matter therein defamatory of the appellant represents a
very
small portion of the whole article. For the sake of
convenience
there will be repeated hereunder those
paragraphs from the WM article which I have lettered (K)
and (M)(3). They read as follows:-
(K) "According to self-confessed death squad leader Captain Dirk Coetzee
poison was one of the methods used by the SA Police in dealing
with ANC
suspects.
He said bottles of whiskey were injected with poison prepared by the police
forensic department and sent to Maputo to be given to
ANC members and that an
ANC suspect in detention in Port Elizabeth was
poisoned."
(M)(3) "According to Coetzee,
another senior police
243
officer involved was Lieutenant-General Lothar Neethling, head of the South
African Forensic Bureau, which is said to have prepared
the poisoned whiskey
allegedly sent to ANC members in
Maputo.""
The first point to
be noticed about the WM
article's inculpation of the appellant is this. When
Evans
wrote the WM article he knew what Pauw had written in
article
VWB(1). In the latter (see the paragraph earlier
lettered (B)(5)) Pauw had quoted Coetzee thus:-
(B)(5) "Tydens die verbranding van die twee terries het die veiligheidsmanne
van Komatipoort aan my
vertel hoe hulle sterk drank wat met gif gedokter is, onder ANC-lede in
Maputo versprei. Die gif word met 'n mikronaald deur die prop
in die bottels
ingespult." (Emphasis supplied).
It is
clear that in what he said to Pauw, Coetzee did not
himself claim first-hand knowledge that poisoned liquor had
been distributed among ANC members in Maputo. He related
to Pauw no more than what he had been told by others at
Komatipoort. What was no more than a hearsay statement
244
was nevertheless paraded in the WM article as a
first-hand
account by Coetzee himself. That the allegation
in
question in fact emanated from an anonymous source was
not
disclosed. A second point which may fairly be made is
this. That portion of the WM article defamatory of the
appellant might well have been expunged altogether, so I
consider, wihout appreciably whittling down the purpose for
which the article had been written.
These initial observations apart, it is clear, in
my opinion, that the respondents in the WM case failed to
establish that the defamation in question had been
published on a privileged occasion. Concerning the WM
article the learned trial judge remarked:-
"Die besadigde en saaklike trant van die Weekly Mail-berig getuig van 'n
bedoeling aan die kant van die skrywer (en 'n waarskynlike
begrip by die leser
daarvan) om 'n bydrae tot genoemde debat ['die wydlopend en voortslepende
openbare debat rondom bewerings van
magmisbruik tot op hoe vlak deur lede van
die veiligheidsmagte'] te lewer. Die verwysing na die gif en die
forensiese
245
laboratorium (in die berig die buro genoem) was nie as 'n brok sensasie
aangebied nie maar vervul 'n wesenlike rol in die saamgestelde
artikel wat weer
op sy beurt 'n rol wil speel in die debat. Die feit dat die eiser in die artikel
rakelings getref is, is die prys
wat betaal moet word ter bevordering van die
openbare belang. Sy reg op die onskendbaarheid van sy reputasie moet wyk voor
die groter
reg van die gemeenskap om ingelig te word oor aangeleenthede wat die
voortbestaan van die regsorde mag bedreig. Ondanks die feit
dat die betrokke
bewering nie as waar bevind kan word
nie...."
I must confess, with
deference, to uncertainty of
mind as to the true import of the trial court's finding
in
the WM case. If the finding is intended to signify that
the publication was not unlawful on the grounds that
through its participation in a public debate in relation to
a matter of great public concern the newspaper was
providing information to which the public was entitled,
then in my respectful opinion it is legally insupportable
because the facts mentioned, without more, do not in our
law afford immunity in respect of a defamatory newspaper
246
article.
If, on the other hand, the trial court's conclusion
is more properly to be construed as a finding that the requirements of the
traditional
defence of qualified privilege were satisfied, then I must
respectfully dissent therefrom. Having regard to the authorities examined
earlier in this judgment I am driven to the conclusion that the matter
defamatory of the appellant contained in the WM article was
in no sense for the
public benefit; and that it was not published in the discharge of any
journalistic duty such as would be recognised
by the mass of right-thinking
people in the community. There was, in my view, no such community of interest
between the respondents
in the WM case and the readers of the WM newspaper as
could attract the protection of qualified privilege. The status of the
subject-matter
communicated was nothing short of deplorable. Its sole
247
source was a disaffected and retired police officer who was a
self-confessed murderer and thief. The sting of the defamation in the
WM case
derived not from what the source claimed as his own first-hand knowledge but
from hearsay. There was not a tittle of evidence
to suggest that before
publication the slightest steps had been taken to test or verify Coetzee's
allegations concerning the appellant.
Neither the journalist concerned nor the
editor of the WM found it either necessary or wise to testify to a belief in the
truth of
the allegations. In my opinion the readers of the WM had no possible
legitimate interest in having communicated to them these untested,
and largely
hearsay, allegations by an informant whose credibility and motive alike were
suspect. Applying the logical test indicated
by Murray J in Doyle v Economist
Newspaper (supra) one asks whether, had the respondents in the WM case upon due
reflection decided
not to publish as part of the article
248
that portion defamatory of the appellant, a suggestion might reasonably
have been advanced that they had been guilty of a dereliction
of journalistic
duty. Any such suggestion, so I consider, must be dismissed as
grotesque.
In my judgment both the defences raised by the
respondents in the WM case failed; and the learned trial judge erred in granting
judgment
with costs in their favour.
(2)
The defence of qualified privilege in the VWB
case:
The same considerations which
have already been mentioned in regard to the WM case apply largely also to the
facts of the VWB case,
and need not be here repeated. While it is true that in
the VWB case what Coetzee told Pauw purported to be based on Coetzee's
first-hand
knowledge of the relevant events, it seems to me that the
249
status of the subject-matter in the VWB case is even less impressive than
the subject-matter in the WM case. In the VWB case the sole
informant was not
only a self-confessed murderer and thief, but it was manifest to Pauw that
Coetzee had often been untruthful in
the past. In addition, and for the reasons
detailed earlier in this judgment, insofar as Coetzee inculpated the appellant,
his .
story was riddled with inherent improbabilities.
On behalf of the respondents it was urged that so vast and widespread
were the irregularities revealed by Coetzee's version, and so
commanding was the
position occupied by the appellant in the hierarchy of the SAP, that in
consequence no proper State authorities
remained to whom Coetzee's grave charges
might effectively be addressed. Accordingly, so the argument proceeded,
publication to the
world at large remained the only realistic channel for
obtaining redress. In my view there is no merit in this
250
argument. The appellant admittedly held a very senior
and
important position in the SAP, but there were officers
in
the SAP superior in rank to him. Having regard to
the
gravity of Coetzee's charges appropriate complaints
could
have been addressed either to the Commissioner of
Police,
or to the Minister of Law and Order; and,
failing
satisfaction in those quarters, the matter might
suitably
have been referred to the Cabinet itself.
In my judgment both the defences raised by the respondents in the VWB
case failed; and the learned judge erred in granting judgment
with costs in
their favour.
(K) FINAL CONCLUSION
:
In the result the appeal in each case must succeed.
251
I turn to the matter of the assessment of damages. In regard to the
quantum of damages the evidence of the three witnesses called
on behalf of the
appellant to testify to his reputation went unchallenged and was accepted by the
trial court. In these circumstances
it would have been open to counsel, by
agreement, to invite this court itself to determine the awards of damages in
case the appeal
should succeed. That might have been an expeditious course. It
would have avoided' the further delay and the additional costs involved
in
referring the matter back to the trial court for the determination of damages.
Such a course would furthermore eliminate the unfortunate
possibility of a
second appeal to this court following upon a determination of damages by the
trial court.
252
The arguments addressed to us in the appeal were limited to the merits.
The question of quantum was not dealt with; and counsel did
not ask us to
determine the damages in the appeal shoulu succeed. This statement involves no
criticism of counsel. It is trite that
the assessment ot damages lies peculiarly
within the province of the trial judge. It follows that the suggestion, made by
counsel
on both sides, that if the appeal succeeded the matter should be sent
back for damages to be fixed by the trial court was entirely
proper.
In the ordinary course of events this court might well have been disposed
to adopt the procedure so suggested. In the present case,
however, in all the
circumstances remittal to the trial court could prove inconvenient for all
concerned. Subject to further argument
thereon our prima facie view is that it
would be more fitting that this court itself should assess the
253
damages to be awarded.
In the light of the above the undermentioned orders are made:-
(A) (1) The appeals succeed with costs to date
hereof, such costs to include the costs consequent upon the employment of
two counsel. (2) The order of the trial court dismissing
the plaintiff's claims
with costs is set aside, and there is substituted for it the following
declaration: "Die eiser is op genoegdoening
geregtig."
(B) (1) Leave is granted to both parties to
file further heads of argument. The heads of argument of the appellant
must be filed by noon on 15 February 1994, and the heads of
argument on behalf
of
254
the respondents by noon on 15 March 1994. (2) In the further heads of
argument counsel will be free, if so instructed, to advance
reasons why the
quantum of damages should be determined by the trial court rather than by this
court, The further heads must in any
case deal fully (i) with the quantum of
damages against the eventuality that this court may decide itself to determine
the damages;
and (ii) deal fully with the matter of the costs occasioned by the
proceedings subsequent to today's order and any other remaining
issue of costs
which may require determination.
255
(C) Failing a settlement between the parties in regard to each and every
remaining issue not covered by the order in (A) above (including
the issue of
the costs of the trial), further argument in regard to the matters set forth in
(B)(2) above will be heard by this court
on a date to be advised by the
registrar of this court.
G G HOEXTER,
JA
Nesradt JA )
Nienaoer JA ) Concur
Nicholas AJA )
J U D G M E N T
2
CORBETT
CJ:
I have had the privilege of reading the
judgment of my Brother Hoexter. I am in broad agreement with it and I concur in
the order
proposed by him.
I wish to make it clear that, in my view, this is one of those relatively
rare cases where the probabilities are evenly balanced and,
therefore, the case
must be decided according to the incidence of the onus of proof. My Brother's
judgment deals very fully with
the credibility of the vital witnesses and the
inherent probabilities. I intend merely to highlight the factors which
particularly
impel me to the view that in the end a probative equilibrium came
about: that it is not possible to say with any degree of confidence
who was
telling the truth.
The case turns essentially on the mutually destructive stories of Coetzee
and the appellant. Consequently their relative merits as
witnesses are
3
matters of cardinal importance. The other evidence tends to be
peripheral. And here the important point to be made is that the trial
Judge had
to adjudge the merits of Coetzee as a witness on the bare record of the evidence
given by him on commission in London;
and that in this respect this Court is in
exactly the same position as the trial Judge. This aspect of the case makes it,
in my experience,
very unusual.
As regards the appellant's merits as a witness, I am in agreement with
the criticisms thereof expressed by Hoexter JA, save that I
take a more serious
view than he apparently does of the appellant's misquotation of the record of
the evidence given by him before
the Harms Commission of Inquiry. I have
carefully read and reread the relevant evidence and, subject to one
qualification, I find
it difficult to accept that the misquotation was anything
but deliberate: an attempt by appellant to extricate himself from the
difficulties
created by his
4 initial insistence that Coetzee's
ability to describe the appellant's home was derived from the video shots
contained in the "Dispatches"
television programme. The qualification is that
the appellant was never confronted with this misquotation while in the
witness-box
and thus did not have the opportunity to explain it. In fact the
misquotation passed unnoticed by everyone until the trial Judge
picked it up
while studying the record for the purpose of writing his judgment. It is thus
not possible to make a decisive finding
on this issue. I would, however, point
out that there is a similar, though less extensive, misquotation later on in
appellant's evidence.
Purporting to quote from what he told the Harms Commission
appellant stated:
'"Ek het gesien dat hy daardie beskrywing kon gekry het deur net na
televisie opname te kyk maar dat hy dan as dit kom by die detail
heeltemal
verkeerd is.'"
5 The quoted passage actually reads:
"Ek het gesien dat hy daardie beskrywing kon gekry het deur net na
die
televisie-opname te kyk, maar dat hy dan as dit kom by die detail
heeltemal verkeerd is." (My emphasis.)
Again this small, but significant, discrepancy passed unnoticed.
In weighing the two witnesses against one
another one must place in the scales in favour of appellant and against
Coetzee:
(1) Coetzee's character and previous record; his proven involvement in a
series of heinous crimes; his utterly unscrupulous approach
to what he did; his
evident lack of any measure of contrition or regret; and his capacity for
deception, mendacity and the fabrication
of false evidence and his ingenuity in
this
6
regard. (2) Other characteristics of Coetzee which
emerge clearly from the record are an inquisitive interest in the affairs of
others,
particularly fellow members of the South African Police, an apparent
knowledge of their affairs, an enjoyment derived from revealing
discreditable
facts about them and a penchant for embellishing his evidence with
circumstantial detail.
(3)
Coetzee's
grudge against the
police.
(4)
The circumstances
under which Coetzee decided to flee the country and his sudden espousal of the
African National Congress. His previous
disclosures to Welz tend, however, to
negative this factor.
(5) The
improbabilities of his story about the
abortive poisoning of Peter
and Vusi, which are
7
fully elaborated in my Brother's judgment and in
my view, derive mainly from the unlikelihood (i) of a man in appellant's
position
lending himself to this scheme involving criminal conduct, (ii) of
appellant's apparent ineptitude (in spite of his expertise in
this field) in
providing a "poison" which despite increased dosages had no effect whatever,
(iii) of Coetzee requiring a poison at
all when in the end the victims were
shot, and (iv) of Coetzee requiring a poison which left no traces when the plan
all along was
to incinerate the corpses. (6) The real difficulty in fitting the
visit by Coetzee and Vermeulen to appellant's home on Sunday, 25
October 1981
into the reconstruction of Coetzee's movements and duties over that
weekend.
8
(7) The discrepancies in Coetzee's description of appellant's home and
family circumstances and the absence of evidence concerning
information
emanating from the appellant which would have corroborated Coetzee's allegation
that he was there on 25 October 1981.
On
the other hand, in the scales in favour of Coetzee and against appellant
are:
(8) What the trial Judge referred to as "die drie sentrale momente" i e
Coetzee's ability to describe appellant's home, his ability
to describe the
forensic laboratory complex and the appellant's office, and the entry relating
to appellant's telephone numbers in
his pocket-book. These factors, taken
together, are not conclusive, but they nevertheless constitute a probability in
favour of Coetzee's
version,
9
given the appellant's contention that, so far as he could
recall, he had no contact with Coetzee at all relevant times. Of course,
Coetzee
could have visited the forensic laboratory and seen the inside of appellant's
office on some occasion without appellant's
knowledge; and he could similarly
have seen appellant's home. And there are various arguments for and against the
significance of
these two "sentrale momenta" which I need not detail.
Nevertheless, these two factors do trouble me when it comes to an acceptance
of
appellant's denial of any relevant contact between Coetzee and himself. This is
further compounded by the late discovery of the
entry in Coetzee's pocket-book
(the third "sentrale moment") which at the very least suggests that at this time
Coetzee had a reason
to record for
10 his own convenience
appellant's office telephone numbers. One asks oneself "Why"? (9) The
consideration that if Coetzee had wished
falsely to implicate the appellant in
poisoning episodes he could readily have devised a story less replete with
inconsistency and
improbability, and therefore more persuasive, than the one he
told. The very bizarreness of his tale thus tends to give it the ring
of truth.
(10) The evidence of Mrs Coetzee (Coetzee's mother) concerning the visit to the
forensic laboratory, which, though again
not conclusive, raises a probability in
Coetzee's favour. But in the end, as I have indicated, I am unable to find a
preponderance
of probability one way or the other and the case must, therefore,
be approached on the basis that the allegations defamatory of the
11
appellant may or may not be true. The correct approach to onus is,
therefore, of critical importance to my decision on the case.
I agree with my Brother Hoexter's judgment on
the question of the onus of proof in regard to the
defence of justification, i e truth and public
benefit.
I was the author of the judgment in the case of
Borgin
v
De Villiers and Another
1980 (3) SA 556
(A). As
my
Brother points out, in that case the exact nature of
the
onus cast upon a defendant who raises the defence
of
qualified privilege did not arise for decision.
The
observations about onus in regard to privilege
appearing
on p 571 F-G were merely of an introductory nature
and
repeated what was said in
O'Malley
's case with
reference
to animus injuriandi (at 403 B-D) . Upon consideration
I
agree with what my Brother Hoexter has stated in
regard
to the dicta in
O'Malley
's case and the intended scope
of
Rumpff CJ's remarks about a "weerleggingslas". I, too,
12 am satisfied that the true position in our law is that a defendant who
relies upon the defence of truth and public benefit bears
the full onus of
proving that the defamatory statements are substantially correct. Were this not
so, it would be a defence to say
and prove that it was as likely as not that the
defamatory imputation was true.
I also express my concurrence with the section in my Brother's judgment
dealing with the further defence of newspaper privilege.
M M CORBETT
CHIEF JUSTICE