Brief Summary

Defamation — Imputation of racially derogatory language — Appellant, a black CEO, claimed defamation after being accused in a newspaper article of calling a white coach 'white trash' — Court a quo found the article not defamatory, reasoning that the appellant's remarks were a response to perceived racism — On appeal, held that the ordinary reader would interpret the appellant's alleged use of racially derogatory language as unacceptable and defamatory, thus overturning the lower court's decision and allowing the appeal.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an appeal to the Supreme Court of Appeal arising from an action for damages for defamation. The core question on appeal was whether a newspaper article that attributed to the appellant the use of the expression “white trash” towards the first respondent was defamatory of the appellant.

The appellant, Banele Sindani, was the chief executive officer of Athletics South Africa. The respondents were JP van der Merwe (a teacher and athletics coach), the Editor of Rapport (second respondent), and Johan van Wyk (a journalist employed by Rapport and author of the article).

Procedurally, the matter began in the Witwatersrand Local Division where the appellant sued for defamation arising from an article published in Rapport on 28 September 1997. At the start of the trial, the court a quo, acting under rule 33(4) of the Uniform Rules of Court, ordered that the issue of whether the publication was defamatory be determined separately and first, before any other issues (including defences).

The court a quo held that the article was not defamatory of the appellant and dismissed the claim with costs. The appellant obtained leave to appeal. The appeal thus concerned the threshold element of defamation—whether the publication bore a defamatory meaning in its ordinary sense—rather than whether any pleaded defences (such as truth and public interest) were available.

2. Material Facts

The dispute arose from an Afrikaans newspaper article published in Rapport under the headline “Sepeng se breier glo as rassis uitgekryt”, translated in the judgment as “Sepeng’s coach said to be reviled as a racist.” The article concerned a conflict involving Athletics South Africa and the first respondent, who coached Mr Hezekiel Sepeng, a prominent athlete and Olympic silver medallist.

According to the article, the first respondent had criticised Athletics South Africa in a letter to the press for failing to provide adequate financial support to prominent athletes. After that letter was published, the appellant allegedly telephoned the first respondent. The article conveyed that, during this telephone conversation, the appellant allegedly vilified the first respondent as a racist and allegedly used the insult “white trash,” adding that the first respondent should rather have left the country with his “white pals.”

For purposes of the separated issue, the court treated the relevant factual platform as the content of the published article and its ordinary meaning. The appellant’s case on the separated issue did not rely on innuendo or special knowledge of readers; it relied only on the ordinary meaning of the words and the imputation that the appellant used racially derogatory abuse. The judgment also noted that the appellant denied having uttered the words attributed to him, but that dispute went to defences and the merits beyond the separated issue, not to the single question initially determined.

The court a quo held, and the Supreme Court of Appeal accepted, that the article attributed to the appellant the use of racially derogatory language. The central disagreement between the courts lay not in what the article conveyed, but in whether the meaning conveyed was defamatory of the appellant.

3. Legal Issues

The central legal question was whether, applying the objective standard of the reasonable reader, the article’s ordinary meaning—particularly the attribution to the appellant of calling a white man “white trash” and suggesting he should leave with his “white pals”—was defamatory of the appellant.

The appeal therefore concerned a question of law applied to expressed meaning, involving the standard defamation inquiry into ordinary meaning and whether that meaning would lower the appellant in the estimation of right-minded members of society (as framed through the established common-law approach). It was not an appeal on factual disputes about whether the appellant actually made the remarks, nor on the respondents’ defences (such as truth and public interest), which remained for later determination in the trial court.

The case also raised an evaluative component inherent in defamation law: whether the imputed conduct—here described as the gratuitous use of racially derogatory language and racial vilification—would be regarded as reprehensible by right-minded members of South African society, making its attribution defamatory.

4. Court’s Reasoning

The Supreme Court of Appeal applied the established two-stage inquiry for defamation in relation to ordinary meaning. The first stage is determining the natural and ordinary meaning of the words in context; the second is deciding whether that meaning is defamatory. The Court emphasised that the ordinary meaning is not confined to a dictionary meaning but depends on what a reasonable reader of ordinary intelligence would understand from the publication, read as a whole, including what is implied as well as what is stated expressly.

In elaborating the reasonable-reader standard, the Court stressed that the hypothetical reader is not legally trained, is likely to read a newspaper article casually, and is unlikely to subject it to careful analysis or a second reading. The Court also cautioned that judges, by closely analysing text in litigation, must guard against mistakenly treating themselves as the “ordinary reader.”

On the meaning of the words, the respondents argued that the reasonable reader would see “white trash” as abusive but not racially charged, relying largely on dictionary meaning. The Court rejected this approach, holding that the coupling of “trash” with “white,” used of a white person, would be understood as racially loaded, and that the article’s reference to the first respondent’s “white pals” reinforced the racial connotation. The Court therefore accepted that the article attributed to the appellant racially derogatory language, a conclusion that aligned with the court a quo’s view of the imputed conduct.

The divergence from the court a quo arose at the second stage: whether the imputed conduct was defamatory. The court a quo had reasoned that the appellant’s remarks would likely be seen as a retort by a non-racist against someone perceived to be a racist, and thus not necessarily as unacceptable conduct. The Supreme Court of Appeal held that this reasoning depended on an assumption that the reasonable reader would appreciate that the appellant had a basis for accusing the first respondent of racism. On the Supreme Court of Appeal’s reading, the article provided no factual basis for that accusation beyond the appellant’s allegation itself.

The Court held that the reasonable reader could not be taken to engage in “mature consideration” to infer that the accusation must have been justified. Instead, on a perfunctory reading, the article would be understood to mean that the appellant responded to a non-racially framed complaint about financial support for athletes by reviling the first respondent as a racist and by using racially derogatory abuse without apparent justification. The first respondent’s race was not presented as relevant to his initial complaint, whereas the appellant’s response, as reported, introduced race through insult and vilification.

Having determined that the article attributed to the appellant the gratuitous use of racially derogatory language and racial vilification, the Court concluded that such conduct is regarded by right-minded members of South African society as reprehensible, and that, in the Court’s description, it is conduct that must be eradicated in accordance with constitutional imperatives. Accordingly, attributing such conduct to the appellant would tend to lower his standing and was therefore defamatory.

On costs, the Court reasoned that a finding on the separated issue did not finally determine the litigation in the court a quo. Other defences pleaded by the respondents (including truth and public benefit) remained to be tried, and the appellant might ultimately fail. The Court therefore considered it inappropriate for the trial court to have made a final costs order on the separated issue; instead, the costs occasioned by determining that issue should stand over for later determination.

As to the costs of appeal, the Court recognised that the appellant had succeeded on the separated issue, but it also noted that the appellant’s denial of having uttered the words was central to his case, and that if the defence of truth and public benefit were ultimately upheld, the appellant might be found to have acted unconscionably in pursuing the defamation action on a false basis. In that context, the Court made an order modeled on the precedent it cited, delaying taxation of appeal costs and allowing for the possibility of revisiting the appeal-cost order after final determination of the action.

5. Outcome and Relief

The Supreme Court of Appeal upheld the appeal and set aside the order of the court a quo that had dismissed the action on the basis that the article was not defamatory.

In substitution, the Court declared that the separated issue was determined in favour of the appellant and that the article was defamatory of him. The matter was directed to proceed in the trial court on the remaining issues (including the respondents’ defences).

The Court ordered that the appellant was awarded the costs of appeal, but with the qualification that the appellant would not be entitled to tax those costs until the trial action had been finally determined. The respondents were granted leave to apply to the Supreme Court of Appeal, within a specified time after final determination of the trial action, for an order setting aside or altering the appeal-cost order.

In the trial court, the costs occasioned by adjudication of the separated issue were ordered to stand over for later determination.

Cases Cited

SA Associated Newspapers Ltd en 'n Ander v Samuels 1980 (1) SA 24 (A).

Argus Printing & Publishing Co v Esselen's Estate 1994 (2) SA 1 (A).

Morgan v Odhams Press Ltd and Another [1971] 2 All ER 1156.

Ngcobo v Shembe and others 1983 (4) SA 66 (D).

Quadrangle Investment Ltd v Witind Holdings Ltd 1975 (1) SA 572 (A).

Legislation Cited

No specific legislation was cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, rule 33(4).

Held

The Supreme Court of Appeal held that the article’s ordinary meaning attributed to the appellant the gratuitous use of racially derogatory language and racial vilification, including calling the first respondent “white trash” and suggesting he should leave the country with his “white pals.” The Court held that, assessed through the perspective of the reasonable reader and in light of prevailing societal norms, the imputation was defamatory of the appellant.

The Court further held that the court a quo erred by effectively attributing to the reasonable reader an inference that the appellant had a justified basis for accusing the first respondent of racism, when the article itself provided no such basis beyond the accusation.

The appeal succeeded; the separated issue was determined in the appellant’s favour; costs were managed in a manner that recognised that the remaining defences had yet to be adjudicated.

LEGAL PRINCIPLES

The determination of defamation in relation to ordinary meaning involves a two-stage inquiry: first, establishing the publication’s natural and ordinary meaning in context; second, deciding whether that meaning is defamatory.

The ordinary meaning is assessed objectively according to what the reasonable reader of ordinary intelligence would understand from the publication read as a whole, including implications. The reasonable reader is not assumed to engage in careful, legally trained, or repeated analysis, and courts must avoid substituting their own close textual scrutiny for the reasonable reader’s more casual engagement.

In determining meaning, dictionary definitions are not decisive; the contextual use of words in a newspaper article may convey a different ordinary meaning to readers. Language that is facially abusive may acquire a racial connotation when racial descriptors are used in conjunction with derogatory terms and reinforced by surrounding references.

Attributing to a person the gratuitous use of racially derogatory language and racial vilification is capable, in its ordinary meaning, of being defamatory, because such conduct is regarded as reprehensible by right-minded members of society.

Where a discrete issue is separated under rule 33(4) and decided in advance of remaining issues and defences, the appropriate treatment of costs may require that costs associated with the separated issue stand over for later determination, and that appeal-cost consequences may be structured to accommodate the possibility that the ultimate merits (including defences such as truth and public interest) may alter the fairness of a final costs allocation.

Sindani v Van Der Merwe and Others (212/2000) [2001] ZASCA 130; [2002] 1 All SA 311 (A) (27 November 2001)