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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

Case No. 8933/05

Date:18/10/2006

In the matter between:

ELIAS MALULEKE ….................................................................................Plaintiff

and

JOHNNIC COMMUNICATIONS LIMITED....................................First Defendant

THABO LESHILO......................................................................Second Defendant

MATSHUBE MFOLOE..................................................................Third Defendant

JUDGMENT

[1] The plaintiff in this matter sues the defendants for payment of the amount of R3 million, being damages allegedly suffered by the plaintiff as a result of the publication by the defendants in the Sowetan newspaper of a certain article containing defamatory statements on 13 October 2004.

[2] The plaintiff is a journalist and he was formerly a senior journalist with City Press. I was informed by counsel for the defendants, Mr O. Mooki, that it is accepted that the first defendant is the owner and publisher of the Sowetan even though the pleadings and the evidence omitted these facts. The second defendant is the editor of the Sowetan and the third defendant is the journalist who wrote the article in issue.

[3] The third defendant wrote the article giving rise to this action and the editorial staff of the Sowetan added the caption, which reads “Former journalist held, charged with theft”. The article then continues as follows:

“FORMER journalist Elias Maluleke has been arrested and charged with possession of a suspected stolen vehicle found locked inside a garage in Mamelodi East, Pretoria.

Police said the car was stolen during a robbery at Villiera, Pretoria East on Sunday. Some of the items stolen and loaded in the car during the burglary included DVDs and a computer.

Police spokesman Piletji Sebola confirmed that Maluleke (54), a former senior journalist with City Press, was arrested and detained on Monday.

He was released on warning after making a brief appearance in the Mamelodi Magistrate’s Court yesterday. The case was postponed to November 12. Sebola said police received information that a stolen Daewoo sedan was parked on property apparently owned by Maluleke.

“But when police arrived at the house Maluleke denied ownership of the house and refused to open the garage door,” Sebola said.

Maluleke was asked to accompany police to where the “rightful owner” of the house was. “Instead police were made to drive around the township with Maluleke until they decided to drive back to the house,” Sebola explained.

Police found the car that matched the one reported stolen.”

[4] The following averments are made in paragraphs 7 and 8 of the particulars of claim:

“7. The said article stated of the Planitiff that:

7.1 Plaintiff was found in possession of suspected stolen motor vehicle.

7.2 The said motor vehicle was stolen during a robbery in Pretoria East.

7.3 The motor vehicle was found in the Plaintiff’s house.

7.4 The Plaintiff was arrested and detained.

8. The said words in the context of the article are wrongful and defamatory of the Plaintiff in that they were intended and were understood by readers of the Sowetan newspaper that the Plaintiff is dishonest in the following respects:

8.1 The Plaintiff is a thief;

8.2 The Plaintiff is a criminal who commits robbery in Mamelodi and around Pretoria.”

[5] Mr Mooki submitted that the plaintiff is bound by and limited to the statements selected in paragraph 7 of the particulars of claim and the meanings attributed to them in paragraph 8 of the particulars of claim. Mr Moshoana, who appeared for the plaintiff, took issue with this submission.

[6] Paragraph 7 of the particulars of claim did not attack the article generally, but parts of it were selected from the rest and the plaintiff can accordingly not seek redress for any other defamatory matter which may be detected in the article. The plaintiff, in paragraph 8 of the particulars of claim, selected certain meanings that are to be attributed to the particular selected statements, namely that they were meant and understood to mean that the plaintiff is dishonest, a thief, and a criminal who commits robbery in Mamelodi and around Pretoria. Such meanings were not pleaded as an innuendo, but a quasi-innuendo so as to point to the sting of the imputation. Once a plaintiff has selected the meanings of the offending statements upon which he relies, he is bound by that selection and, if he should fail to establish that the selected statements bear such meanings, he cannot then fall back on any other defamatory meaning or meanings which he contends that the selected statements bear per se, unless he has pleaded the selected meanings as an alternative to a general allegation that the selected statements are defamatory per se. [See: Sachs v Werkerspers Uitgewersmaatskappy (Edms) Bpk 1952 (2) SA 261 (W) at 272H – 273B; Gayre v SA Associated Newspapers ltd 1963 (3) SA 376 (T) at 378H – 379A; Geyser en ‘n Ander v Pont 1968 (4) SA 67 (W) at 70A; Marais v Steyn en ‘n Ander 1975 (3) SA 479 (T) at 486C-D; HRH King Zwelithini of Kwa Zulu v Mervis and Another 1978 (2) SA 521 (W) at 524D-H; Demmers v Wyllie and Others 1978 (4) SA 619 (D&CLD) at 622F-H; De Villiers v Schutte 2001 (3) SA 834 (CPD) at 839A-C].

[7] In paragraph 5 of their plea the defendants have admitted the contents of paragraph 7 of the particulars of claim. The defendants, in paragraph 6.2 of their plea, have denied that the selected statements carried any of the meanings which the plaintiff has attributed to them in paragraphs 8.1 and 8.2 of the particulars of claim. In paragraph 6.1 of the plea, the defendants “…admit that the said words are per se defamatory of the plaintiff.” A fact which a litigant would ordinarily be required to prove in civil proceedings may be formally admitted by his or her opponent and it is, in terms of section 15 of the Civil Proceedings Evidence Act 25 of 1965, not necessary for any party to prove any fact admitted. The plaintiff, however, has not pleaded that the selected statements are per se defamatory of him and the plaintiff has not pleaded the selected meanings as an alternative to a general allegation that the words are defamatory per se. The plaintiff was accordingly not required to prove that the selected statements are defamatory per se. The meanings selected by the plaintiff were what the plaintiff was required to prove and what the defendants were called upon to meet.

[8] The approach to be followed in determining whether the statements in issue are defamatory in their ordinary meaning, is succinctly stated as follows by Brand AJA in Sindani v Van der Merwe and Others 2002 (2) SA 32 (SCA) at 36 B – E: “The question whether the article is defamatory in its ordinary meaning, involves a two-stage enquiry. The first is to establish the natural or ordinary meaning of the article. The second is whether that meaning is defamatory. (See, for example, SA Associated Newspapers Ltd en 'n Ander v Samuels 1980 (1) SA 24 (A) at 30F - G.) …The ordinary meaning of the words under consideration does not necessarily correspond with their dictionary meaning. The test to be applied is an objective one, namely what meaning the reasonable reader of ordinary intelligence would attribute to the words read in the context of the article as a whole. In applying this test it must be accepted that the reasonable reader will not take account only of what the words expressly say but also what they imply (see, for example, Argus Printing and Publishing Co Ltd and Others v Esselen's Estate 1994 (2) SA 1 (A) at 20F - G).”

[9] I am of the view that the average ordinary reader would have understood the article to say that the plaintiff, who is a former journalist with City Press, has been arrested, detained and charged with possession of a suspected stolen motor vehicle, that he was released on warning after a brief appearance in the Mamelodi Magistrate’s Court, and that the case against him was postponed to a future date. The average ordinary reader would have understood the article to further say that the motor vehicle was, according to the police, stolen during a robbery at Villiera, Pretoria East, and found locked inside a garage at a house in Mamelodi, Pretoria East, which property, according to information received by the police, is apparently owned by the plaintiff, but, when the police arrived at the house, the plaintiff denied ownership of the house, he refused to open the garage door, he was asked to accompany the police to the rightful owner of the house, but he instead made the police drive around the town with him until they decided to drive back to the house and they found the motor vehicle that matched the one reported stolen.

[10] I am of the view that the statements selected in paragraphs 7.1 – 7.4 of the particulars of claim, did not, within the context of the article as a whole, convey the defamatory meanings which the plaintiff seeks to place upon them in paragraph 8 of the particulars of claim. The statements are, in my view, incapable of bearing the imputation that the plaintiff is dishonest, a thief, or a criminal who commits robbery in Mamelodi and around Pretoria.

[11] The article states that the plaintiff has been arrested, detained and charged with a criminal offence. To say of a person that he has been arrested does not necessarily amount to an imputation of guilt, and whether it amounts to an imputation of guilt depends on whether the distinction between suspicion and guilt emerges from the words used. (See: Independent Newspapers Holdings Ltd and Others v Sulliman 2004 (3) All SA 137 (SCA), paras 24 – 30). In Hassen v Post Newspapers (Pty) Ltd & Others 1965 (3) SA 562 (W), Colman J said this at 565D-E: “In my view the reasonable, normally intelligent, right thinking member of society, when he hears that a man known to him has been charged with a crime, will withhold final judgment on that man.”

[12] In Independent Newspapers Holdings Ltd and Others v Sulliman 2004 (3) All SA 137 (SCA), Marais JA said this in para 20: “A defamatory meaning should not be attributed to an isolated part of a newspaper report if the rest of the report would show that it is not justified.” Reading the headline within the context of the article as a whole, the reasonable reader would have appreciated that the plaintiff was only a suspect in connection with the possession of a suspected stolen motor vehicle. The reasonable reader would have appreciated that the plaintiff’s alleged possession of the suspected stolen motor vehicle was based on the plaintiff’s alleged ownership of the property where the vehicle was found. The reasonable reader would also have appreciated that the charge against the plaintiff was based on the presence of the motor vehicle on property allegedly owned by the plaintiff.

[13] I am of the view that the reasonable reader would have concluded after reading the headline and the article in question that the plaintiff was arrested, detained and charged as a suspect in connection with the possession of a motor vehicle that was stolen during a robbery at Villiera, Pretoria East. The reasonable reader would have appreciated that the plaintiff had not been proved to have been guilty of the criminal offence with which he had been charged, and the reasonable reader would not have concluded that the plaintiff is a thief, or a criminal who commits robbery in Mamelodi and around Pretoria.

[14] The plaintiff has, in my judgment, failed to establish that the selected statements bear the selected defamatory meanings. The plaintiff has not pleaded the selected meanings as an alternative to a general allegation that the words are defamatory per se, and he can accordingly not fall back on any other defamatory meaning or meanings which the words may bear per se. The plaintiff did not seek an amendment of his particulars of claim.

[15] My finding on this aspect of the case makes it unnecessary to consider any other defamatory meaning or meanings which the words may bear per se or to consider the other defences raised by the defendants, which are truth and public interest, reasonableness of the publication, and the absence of animus iniuriandi.

[16] In the result the following order is made:

a) Absolution from the instance is granted against the plaintiff; and

b) The plaintiff is ordered to pay the defendants’ costs of this action.

PA MEYER, AJ

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