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REPORTABLE

IN THE SOUTH GAUTENG HIGH COURT

JOHANNESBURG

CASE NO : 26184/2011

DATE:18/09/2012

In the matter between:

PRINCE MANGOSUTHU BUTHELEZI..................................................... Plaintiff

and

BDFM PUBLISHERS (PTY) LIMITED......................................................First Defendant

PETER BRUCE..........................................................................................Second Defendant

PROTAS MADLALA..................................................................................Third Defendant

JUDGMENT

WILLIS J:

[1] The plaintiff is H.R.H. Prince Mangosuthu Buthelezi. He has instituted a defamation action against three defendants. He has claimed damages in an amount of R200 000- together with interest and costs as well as the publication of an apology and a ‘retraction’. Counsel referred, throughout their submissions, to the plaintiff as ‘the Prince’. I shall do likewise. The alleged defamation arises from an article published on 30 June 2010 by Business Day, a daily newspaper of which the first defendant is the owner and publisher and the second defendant, Peter Bruce, the editor. In that article it was reported that the third defendant, ‘an independent political analyst’ had said that the Prince ‘has always been a violent man’. I shall refer to the first defendant as ‘the newspaper” and the second defendant as the ‘editor’.

[2] The newspaper and its editor, but not the third defendant, have excepted to the plaintiff’s particulars of claim on the basis that ‘when the article is read as a whole it sets out, in a balanced fashion, competing viewpoints in relation to the plaintiff and his attitude to violence in the past and the future’. The newspaper and its editor further contend, in their exception, that ‘the author and publishers of the article do not, in the article, endorse any one of those viewpoints’. In the circumstances, the newspaper and its editor allege that the Prince’s particulars of claim lack averments necessary to sustain a cause of action and that, accordingly, the Prince’s claim should be dismissed, with costs.

[ 3] The article in question reads as follows:

Buthelezi sounds that familiar warning

BY SIBONGAKONKE SHOBA, JUNE 30 2010

“IF YOU warn a person when you cross the street that there is a snake, that there is a mamba there, that does not mean that you put it there."

This is how Inkatha Freedom Party (IFP) leader Mangosuthu Buthelezi responded to suggestions that his warning - that violence would erupt should the African National Congress (ANC)-led tripartite alliance march to Ulundi before the first democratic elections - was an attempt to threaten his opponents.

Mr Buthelezi warned the ANC and its allies that, if they marched to Ulundi, the Bhisho massacre would look like a school picnic. About 28 people were killed by Brig Oupa Gqozo-led soldiers in Bhisho in 1992. After this warning, the planned march to Ulundi was called off. But that was then.

Now, with just weeks before he faces near certain challenge, Mr Buthelezi is again warning of violence. But this time not against his traditional political foes, but those within the IFP.

Writing in his online newsletter, Mr Buthelezi warned of a threat of violence at the party's planned elective conference next month if differences within the organisation were not resolved.

"As the IFP approaches its annual general conference, the leadership of the party is apprehensive over the threat of violence," he wrote. He called for an urgent leadership meeting to iron out differences before the conference.

Mr Buthelezi is facing a revolt within the IFP , which he formed 35 years ago. A faction within the party, led by the IFP Youth Brigade, wants Mr Buthelezi to be succeeded by party chairwoman Zanele Magwaza-Msibi next month. Supporters of both Mr Buthelezi and Ms Magwaza-Msibi, who call themselves the friends of VZ (Ms Magwaza-Msibi's first name is Veronica), have clashed in recent months .

Youth-wing leaders who have publicly supported Ms Magwaza-Msibi have been expelled for sowing division in the party.

Mr Buthelezi says this is a result of a "disappearance" of respect, which has been replaced by "rudeness and vulgarity".

"The corrosion of a culture of respect can only end in bloodshed. We need to arrest this development," said Mr Buthelezi.

Political analysts differ on the motive behind these statements.

Political analyst Aubrey Matshiqi says he agrees with Mr Buthelezi that the emerging feature of violence in "our black politics" must be eradicated. But Mr Matshiqi cautioned against predicting unrest at the planned congress. "He himself is feeding in to this culture of violence."

Mr Matshiqi says it is self-serving for Mr Buthelezi to blame the lack of respect for the chaos in his party. "He is saying show respect for me because I'm older, instead of saying I'm a credible leader." He says Mr Buthelezi has a history of threatening opponents with a possibility of violence "when he did not get what he wanted" in the '80s and '90s. "He would say there would be violence and violence will follow," says Mr Matshiqi.

Independent political analyst Protas Mgadlala agreed, saying Mr Buthelezi "has always been a violent man".

The Rev Musa Zondi, IFP secretary and Mr Buthelezi's right-hand man, says comments linking his party leader to violence "do not deserve a decent comment". "That argument is not sustainable. (Mr Buthelezi) is talking about the reality within the IFP . Violence has been used in all our conferences."

Siphamadla Zondi, a political analyst with the Institute for Global Dialogue, concurred with the Rev Zondi, saying Mr Buthelezi's warning was out of genuine concern.

"I don't think he is saying this as a threat to his opponent. It is not in his interest to do that because it would make him look bad," says Mr Zondi. He blames the tension within the IFP on the leadership's actions to silence the youth.

"Mr Buthelezi should have allowed a smooth transition... The IFP tried to silence the youth instead of harnessing it to deepen democracy."

Analysts say it does not matter who put the snake on the street, the IFP must kill it before contesting next year's elections.

[4] The Prince alleges that the following passages in the article:

(i) Now, with just weeks before he faces near certain challenge, Mr Buthelezi is again warning of violence. But this time not against his traditional political foes, but those within the IFP…

(ii) Mr Buthelezi has a history of threatening opponents with a possibility of violence "when he did not get what he wanted" in the '80s and '90s… and

(iii) Independent political analyst Protas Mgadlala agreed, saying Mr Buthelezi "has always been a violent man". taken in context would have been understood by the ordinary reader as stating that the Prince is a violent man and is willing to or was intending to use the threat of violence against his political opponents within the Inkatha Freedom Party (IFP). Accordingly, so it is alleged, the article was defamatory of him.

[5] Separate allegations were made in the Prince’s particulars of claim of defamation by Protas Madlala, the third defendant, in making the allegations which appear in this article. The Prince’s claim against the third defendant is thus not necessarily joint and several with the newspaper and its editor but may stand alone.

[6] As Davis J (as he then was) said in Glaser v Heller¹ and repeated in Kahn v Stuart,² ‘The true object of an exception is either, if possible to settle the case, or at least part of it, in a cheap and easy fashion’. This was approved by Steyn J and Broeksma AJ in Suburban Real Estate Limited v Whall and Bocking³ and it seems by necessary implication to have been approved in this division of the High Court by Botha AJ (as he then was) in Marais v Steyn en ’n Ander.⁴ In Dharumpal Transport (Pty) Limited v Dharumpal⁵ it was said that the main purpose of an exception was ‘to avoid the leading of unnecessary evidence’. ⁶ This dictum has been followed in numerous cases.⁷

[7] In general, the rule is that an exception has to be decided by the court on the pleadings themselves without the leading of evidence.⁸ Again, in general, pleadings tend to be skeletal but flesh may sometimes be discerned on the bones without the bones being dressed by the giving of viva voce evidence. A court may, in appropriate circumstances, stray a little outside the pleadings to have regard to the surrounding circumstances: as was said by Harms JA (as he then was) when he delivered the unanimous judgment of the Supreme Court of Appeal (SCA) in Telematrix (Pty) Limited t/a Matrix Vehicle Tracking v Advertising Standards Authority SA:⁹

Exceptions should be dealt with sensibly. They provide a useful mechanism to weed out cases without legal merit. An over-technical approach destroys their utility.¹⁰

[8] Relying on the case of R v Tager¹¹ in which what was then known as the Appellate Division of the Supreme Court of South Africa (‘the AD’) distinguished between knowledge which the judge has as a result of being an individual observer and knowledge which is ‘notorious’,¹² I may fairly have regard to the fact that political violence in the province of Kwazulu/Natal since the mid-1980’s has become a notorious fact. The report of the Truth and Reconciliation Commission¹³ records that it is widely accepted that as many as 20 000 lives may have been lost as a result of this violence.¹⁴ In the three month run-up to the first democratic elections in 1994 approximately 2000 people were killed as a result of political violence in Kwazulu/Natal.¹⁵ It is also notorious that the dramatis personae in this violence have been the supporters of the IFP and the African National Congress (ANC) respectively.¹⁶ For the purposes of this judgment, the factual detail is unimportant. What matters is that, like the daubs of an impressionist painting, a picture of the situation has been created that is both vivid and embellished in our collective memory. This picture of violence is not only tragic but inimical to our progress as a nation. Even if I am wrong in having regard to these notorious facts, my ultimate decision would be no different. The notorious facts merely strengthen the conviction with which I have reached my conclusion.

[9] Our law protects the right of the Prince to fama or reputation.¹⁷ In his particulars of claim the Prince describes himself merely as the head of the IFP, a duly registered political party. The Prince may have been guilty of undue modesty. It is an understatement to describe the Prince as the head of a political party. He is much more than that. He has served as Acting President of our country. The Prince rivals H.M. Queen Elizabeth II as a public figure who has been around and reported upon for as long as almost anyone can remember. In his a long career in public life, the Prince has attracted both admirers and detractors. In public affairs and, in particular, political contestation in South Africa, the Prince has a fama that is so well established that it is impervious to a newspaper article reporting on the contumeliae (insults) of the kind in question which were allegedly made by the third defendant. As the Afrikaans proverb goes, ‘Die hoogste bome kry die meeste wind’. This may be somewhat inelegantly translated into English as “The taller the tree, the more it is buffeted by the wind’.

[10] The case also has to be decided against a constitutional right to freedom of expression, which expressly includes the freedom of the press,¹⁸ as well as a common law reluctance to regard political utterances as defamatory. As was said by Grosskopf JA, delivering the unanimous judgment of the court in Argus Printing and Publishing Company Limited v Inkatha Freedom Party,¹⁹ this reluctance stems from the fact that it is recognized that ‘right-thinking people are not likely to be greatly influenced in their esteem of a politician by derogatory statements made about him by other politicians or political commentators’.²⁰ Accordingly, in a political context, the traditional test of determining whether the words of which there is a complaint tend to lower the plaintiff ‘in the estimation of right-thinking people’ is not easily straddled.²¹

[11] In the Argus Printing and Publishing v Inkatha case Grosskopf JA went on to say that ‘(w)hen one is dealing with political matters, a great deal of latitude is traditionally allowed for comment’.²² The learned judge also referred to the celebrated words of Ludorf J, in Pienaar and Another v Argus Printing and Publishing Company Limited,²³ known to every student learning about the law of defamation in the university for the first time:

(T)he courts must not avoid the reality that in South Africa political matters are usually discussed in forthright terms. Strong epithets are used and accusations come readily to the tongue. I think, too, that the public and readers of newspapers that debate political matters, are aware of this. How soon the audiences of political speakers would dwindle if speakers were to use the tones, terms and expressions that one could expect from a lecturer at a meeting of the ladies agricultural union on the subject of pruning roses.²⁴

In The Citizen 1978 (Pty) Limited v McBride (Johnstone and Others, amici curiae),²⁵ the majority of the Constitutional Court endorsed the general thrust of ratio for the decision in the Argus Printing and Publishing v Inkatha case.²⁶

[12] It has long been recognized in our law that the words in respect of which there is a complaint by the plaintiff must not only be insulting from a subjective point of view but must also be insulting when viewed objectively.²⁷ The objective test is measured against a criterion of reasonableness (an ‘algemene redelikheidsmaatstaf’).²⁸

[13] The opening sentences of the article in question, viz.

“IF YOU warn a person when you cross the street that there is a snake, that there is a mamba there, that does not mean that you put it there."

This is how Inkatha Freedom Party (IFP) leader Mangosuthu Buthelezi responded to suggestions that his warning - that violence would erupt should the African National Congress (ANC)-led tripartite alliance march to Ulundi before the first democratic elections - was an attempt to threaten his opponents.

together with the closing sentence, viz.

Analysts say it does not matter who put the snake on the street, the IFP must kill it before contesting next year's elections.

provide parameters or matrices to the article which give it context. As Lord Steyn said in R v Secretary for the Home Department, ex parte Daly,²⁹ “In law, context is everything”. This was approved by the Supreme Court of Appeal in Aktiebolaget Hässle and Another v Triomed (Pty) Ltd.³⁰ The importance of context in defamation actions has pertinently been affirmed by the Constitutional Court in the case of Le Roux v Dey.³¹

[14] Mr du Plessis, who together with Ms Pudifin-Jones appeared for the Prince, submitted that it is not only the context of the offending statements in the article itself which is relevant to the question of whether the article is defamatory but also the context and circumstances in which the article was published. In other words, so he submitted, the court needs first to obtain a bigger picture of what the reasonable reader would understand when reading the article. This, so the argument went, was a matter for evidence.

[15] Mr du Plessis also placed especial reliance on the case of Sutter v Brown³² in which Innes CJ, delivering the unanimous judgment of the AD, held that where the words in question were not per se et propria significatione contumelium inferent (i.e. not defamatory in their ordinary and natural signification) but had a secondary meaning the significance of which would be appreciated by the hearers and which secondary meaning would be defamatory, then evidence would be necessary.³³ Innes CJ was here referring to an innuendo.³⁴ No innuendo or secondary meaning to the words in question has been pleaded by the Prince. The audience of this publication is the general reading public (although it may fairly be recognized that, in general terms, that reading public of this newspaper is drawn mainly from the better educated classes in the country). The audience is not a group of ‘insiders’ or ‘those in the know’ who may understand there to be some kind of innuendo. The case of Sutter v Brown does not assist the Prince.

[16] Mr Du Plessis further submitted that, the correct test to be applied at exception stage is whether a reasonable person of ordinary intelligence might reasonably understand the words of the article to convey a meaning defamatory of the plaintiff. In this regard he relied on the following cases: Basner v Trigger;³⁵ Conroy v Stewart Printing Company Limited;³⁶ Argus Printing and Publishing Company v Esselen’s Estate;³⁷; Mthembi-Mahanyele v Mail & Guardian Ltd and Another.³⁸ In his submission the word ‘might’ is central to the analysis, as it indicated a mere possibility, not a probability. Relying on National Union of Distributive Workers v Cleghorn & Harris Limited³⁹ and Mangope v Asmal ,⁴⁰ he submitted that the test on exception is not whether the statement is defamatory on a balance of probabilities, but rather whether it is ‘reasonably capable’ of conveying a defamatory meaning and, if so, that the exception must fail.

[17] In response to Mr du Plessis’ submissions that the matter could not be decided without the hearing of evidence, Mr Budlender, who appeared for the newspaper and its editor, retorted there was an authoritative answer: in Le Roux v Dey (supra), Brand AJ, delivering the judgment of the majority of the Constitutional court, said:

Because the test is objective, a court may not hear evidence of the sense in which the statement was understood by the actual reader or observer of the statement or publication in question.⁴¹

Mr Budlender’s reliance on Le Roux v Dey has provided the complete answer to the point of Mr du Plessis about the need to hear evidence before deciding this matter.

[18]The context in which the article is read gives it the following overall import:

(i) that, although not everyone will agree that the Prince is entirely innocent of the political violence, the Prince could be understood to have merely warning about the real possibility of violence over the issue of the leadership of the IFP rather than fomenting it himself; and

(ii) that political violence was metaphorically analogous to a dangerous snake which the IFP had a duty to kill.

[19] In the absence of an unequivocal call to his followers within the IFP to bring about an end to on-going political violence in the province of Kwazulu/Natal,the Prince, as its head, cannot escape being tainted with the suspicion that he may bear some responsibility, at least in part, for it. This does not mean that he is indeed in favour of the use of political violence or that he himself resorts to it or promotes it. The article in question does not suggest that this is indeed the case. It merely raises the possibility that it is true because certain commentators believe it to be so. If the Prince’s alleged complicity in the violence is true, it is for the public benefit and in the public interest that it be known.⁴²

[20] The article in question cannot be defamatory for a reason that is mathematical in both its simplicity and its lucid beauty: it leaves open the possibility that the Prince is not complicit in Kwazulu/Natal’s political violence (in which case there is no defamation) but, on the other hand, recognizes that there are those who believe that he is. If the Prince’s complicity in the violence is true, the fact that it would be for the public benefit that this be known would quash the action.⁴³

[21] The order of the court is the following:

(i) The first and second defendants’ exception is upheld;

(ii) The plaintiff’s claim against the first and second defendants is dismissed with costs.

DATED AT JOHANNESBURG THIS 18th DAY OF SEPTEMBER, 2012

______________________

N. P. WILLIS

JUDGE OF THE HIGH COURT

Counsel for the Plaintiff: Adv. M. du Plessis (with him, Adv. S. Pudifin-Jones)

Counsel for the First and Second Defendants: Adv. S. Budlender

Attorney for the Plaintiff: Lourens De Klerk

Attorney for the First and Second Defendants: Rosin Wright Rosengarten

No appearance for the Third Defendant (who did not take exception to the Plaintiff’s Particulars of Claim)

Dates of hearing: 4th September, 2012

Date of judgment: 18th September, 2012

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