IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

REPORTABLE
CASE NO:  212/2000

In the matter between:

BANELE SINDANI

Appellant

and

JP VAN DER MERWE

First Respondent
THE EDITOR OF RAPPORT

Second Respondent
JOHAN VAN WYK

Third Respondent

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CORAM:

Hefer ACJ, Cameron JA, Cloete, Brand and Froneman  AJJA

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Hearing date:
19 November 2001

Delivered:

27 November 2001

Whether the imputation in a newspaper article that the appellant abused the first
respondent as 'white trash' is defamatory of the appellant.
________________________________________________________________________

J U D G M E N T

________________________________________________________________________

BRAND  AJA

BRAND AJA
[1] Is it defamatory of a black man to impute to him that he abused a
white man by calling him "white trash"?   That is the question raised by this
appeal.
[2] The appellant is the chief executive officer of Athletics South Africa,
the body that controls and administers the sport of athletics in this country.
He brought an action for damages for defamation in the Witwatersrand
Local Division against the three respondents.
[3] The first respondent is a teacher and the coach of a prominent athlete,
Mr Hezekiel Sepeng ("Sepeng"), who won a silver medal at the 1996
Olympic Games.   The second respondent is the editor of the Rapport
newspaper  while the third respondent is employed by that newspaper as a
journalist.

[4] The action arose from an article ("the article") written by the third
respondent and published in the Rapport of Sunday 28 September 1997 in
Afrikaans under the headline "Sepeng se breier glo as rassis uitgekryt"  or,
freely translated, "Sepeng's coach said to be reviled as a racist".
[5] According to the article, the first respondent had criticised Athletics
South Africa in a letter to the press for not providing sufficient financial
support to prominent athletes like Sepeng.   After this letter was published in
a daily newspaper the appellant telephoned the first respondent.   During the
ensuing conversation, so the article informed its readers, the appellant
proceeded to vilify the first respondent as a racist and to abuse him as 'white
trash' who 'should rather have left the country with his white pals' ('wit
maatjies').
[6] In the appellant's particulars of claim it was alleged that the article
was defamatory of the appellant in that it would be understood by its readers

to mean, in essence, that the appellant was a racist who conducted himself in
a reprehensible manner.   The respondents denied that the article was
defamatory.   In the alternative they pleaded a number of defences that
would apply only if it were found that the article was in fact defamatory.
One of the defences raised was that the imputations made in the article were
true and that they were published in the public interest.
[7] At the commencement of the trial, the Court a quo  (Boruchowitz J) of
his own accord ordered, as he was entitled under rule 33 (4) of the Uniform
Rules of Court, that the question whether the article was defamatory of the
appellant be decided before and separately from any other issue or question.
The appellant proceeded to call one witness with reference to this issue.
The respondents called no witnesses but relied on the contents of certain
documents and newspaper publications that were admitted by agreement.
In its judgment the Court a quo found that very little if any of the evidence

presented was admissible and that, in any event, such evidence did not assist
in the determination of the separated issue.    Since I agree with the latter
view I find it unnecessary to dwell on the admissibility of the evidence.
[8] In the event the Court a quo held that the article was not defamatory
of the appellant.   Consequently, his claim for damages was dismissed with
costs; whereupon the appellant sought and obtained the leave of the Court a
quo for the present appeal to this Court.
[9] The appellant does not rely on any innuendo or secondary defamatory
meaning which would be attributed to the article only by a reader with
knowledge of special circumstances.   His case is that the ordinary meaning
of the article, and particularly the imputation that he used the expression
"white trash", is per se defamatory of him.
[10] 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 e g SA Associated Newspapers Ltd en 'n Ander v Samuels
1980 (1) SA 24 (A) 30 F-G.)
[11] 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 e g Argus Printing & Publishing Co v Esselen's Estate 1994
(2) SA 1 (A) 20 F-G).   It must also be borne in mind that the ordinary reader
has no legal training or other special discipline and that
'if he read the article at all would be likely to skim through it casually and not to
give it concentrated attention or a second reading.   It is no part of his work to

read this article, nor does he have to base any practical decision on what he reads
there'

(per Lord Pearson in Morgan v Odhams Press Ltd and Another [1971] 2 All
ER 1156 at 1184).   Consequently, a court that has of necessity subjected a
newspaper article under consideration to a close analysis must guard against
the danger of considering itself to be "the ordinary reader" of that article (see
also Ngcobo v Shembe and others 1983(4) SA 66 (D) 71 C-D).
[12] It was submitted on behalf of the respondents that although the
ordinary reader would regard the expression "white trash" as abusive
language, he or she would not attach any racial connotation to it.   Support
for this submission was primarily found in the dictionary meaning of the
expression.   I do not agree with this submission.  As indicated, it is an
accepted principle that ordinary readers do not necessarily attach dictionary
meanings to words used in newspaper articles.   "Trash" is clearly

derogatory and abusive.   When it is coupled with the word "white" and used
with reference to a white person, it becomes racially charged.    In addition
the reference in the article to the first respondent's "white pals" who should
supposedly have left the country makes the racial connotation even more
evident.   Consequently, the words attributed in the article to the appellant
would in my view, be understood by the ordinary reader as racially
derogatory language.
[13] It follows that the conduct imputed to the appellant in the article was
that he used racially derogatory language.   This was also the finding of the
Court a quo.   Despite this finding the Court concluded, however, that upon
a reading of the article as a whole, the reasonable reader would not look
upon appellant's conduct as unacceptable and that, consequently, the article
was not defamatory.   The Court's reasoning in support of this finding
appears from the following:

'I do not consider that a reasonable reader would have apprehended that the
plaintiff made the statement because he was antagonistic or prejudiced towards
whites, as is suggested.   The plaintiff's antagonism appears to stem not from the
fact that first defendant is white but because he considered the first defendant to
be a racist.   This is evident from the head note and from what is stated in the
passages to which I have referred.   The abusive and derogatory remarks imputed
to the plaintiff appears to have been made in order to express his contempt for the
first defendant who he considered to be a white racist.   What the plaintiff was
saying in effect was that the first defendant was a white racist who was worthless
and has no place in South Africa.   Put differently, I view the remarks attributed to
the plaintiff as the retort of a non racist expressing his contempt in an abusive
fashion for some one who he perceived to be a racist'.

[14] An essential element of the Court's reasoning is an appreciation on the
part of the reasonable reader that the appellant had some reason for
regarding the first respondent as a racist.   On my reading of the article,
however, the very element that is lacking is any suggested basis for accusing
the first respondent of racism.   All that is said in the headline as well as in
the body of the article is that the appellant accused the first respondent of

being a racist.  I do not believe that the mere accusation of racism by the
appellant himself, without any suggested reason for such accusation, would
make the appellant's use of racially derogatory language any more
acceptable in the eyes of the reasonable reader.   What the Court a quo
appears to ascribe to the reasonable reader - at least by implication - is the
conclusion, after mature consideration, that the first respondent would not
have called the appellant a racist without any reason for doing so.   I do not
believe however that such mature consideration can justifiably be ascribed to
the reasonable reader.   On the contrary, I believe the exact opposite
approach, is dictated by both precedent and human nature.   On a single
perfunctory reading of the article the reasonable reader would understand
from it that the appellant was using the racially derogatory language not as a
shield but as a sword and without any apparent justification for doing so.
According to the article the appellant's response was triggered by the first

respondent's complaint, in his capacity as an athletics coach, that Athletics
South Africa had failed to render financial support to prominent athletes,
both black and white.   The first respondent's own race was of no apparent
relevance to his complaint.   The response by the appellant as the chief
executive officer of Athletics South Africa, to this complaint, so the article
informed its readers, was to revile the first respondent as a racist and to
address him in racially derogatory language.   That, in my view, is how the
reasonable reader would understand the article.
[15] So understood I have no doubt that the answer to the second enquiry,
namely whether the article is defamatory of the appellant, must be a positive
one.   What the article attributes to the appellant is the gratuitous use of
racially derogatory language and racial vilification.   Such conduct is
regarded by right minded members of South African society not only as
conduct that is reprehensible but as something which must, in accordance

with constitutional imperatives, be eradicated.   It follows that the imputation
of such conduct to another must be defamatory.   In the result, the appeal
against the Court a quo's decision to the contrary and the consequent
dismissal of the appellant's claim with costs, must succeed.
[16] What remains to be considered is the question of costs.   The finding
in favour of the appellant that the article is defamatory is not the end of the
matter in the Court a quo.   It means that that Court must now consider the
validity of the other defences raised by the respondents.   Although the
appellant has won this battle, he may still loose the war.   Consequently, the
appropriate costs order in the Court a quo would have been that the costs
occasioned by the adjudication of the separate issue regarding the
defamatory nature of the article must stand over for later determination.
[17] As to the costs of appeal, the approach would ordinarily be that,
following the appellant's success, these cost are to be awarded in his favour.

It is apparent, however, that the appellant denies having uttered the
objectionable words ascribed to him in the article and that this denial is
central to his case.   It means that if the respondents' defence of truth and
public benefit is eventually upheld it may very well be found that the
appellant acted unconscionably in bringing and pursuing a defamation action
on the basis of a deliberate falsehood.   In that event this Court may want to
mark its disapproval by depriving the appellant of his costs of the successful
appeal.   In these circumstances it was rightly conceded on behalf of the
appellant that an appropriate costs order would be that for which there is
precedent in Quadrangle Investment Ltd v Witind Holdings Ltd 1975 (1) SA
572 (A) 582 H-583 A.   That is therefore the order I propose to make.
[18] In the result the following orders are made:
1(a) The appeal is upheld with costs.

(b)  The appellant shall not be entitled to tax the costs of appeal
until the trial action between the parties has finally been
determined by judgment or otherwise.
(c) The respondents are granted leave to apply to this Court for an
order setting aside or altering the order for costs in (a), provided
the application for such an order is filed with the registrar of
this Court within 21 days of the determination of the trial action
in the Court a quo by judgment or otherwise.
2.
The orders or the Court a quo are set aside and the following
orders are substituted:
"The separate issue regarding the defamatory nature of the
article is determined in favour of the plaintiff and the article is
declared to be defamatory of him.   The trial will proceed on the
remaining issues between the parties.   The costs occasioned by

the adjudication of the separate issue are to stand over for later
determination ."

__________________
FDJ BRAND
ACTING JUDGE OF APPEAL

CONCUR:

Hefer  ACJ
Cameron  JA
Cloete  AJA
Brand  AJA
Froneman  AJA