Case number: 195/03
In the matter between:
TIMES MEDIA LIMITED
First Appellant
MICHAEL WILLIAM ROBERTSON
Second Appellant
JAN HENNOP
Third Appellant
ROWAN PHILP
Fourth Appellant
CRAIG JACOBS
Fifth Appellant
and
BARRY NISELOW
First Respondent
NISE CATERERS CC
Second Respondent
CORAM:
MPATI AP, STREICHER, CONRADIE JJA,
ERASMUS and PATEL AJJA
HEARD:
26 AUGUST 2004
DELIVERED:
1 DECEMBER 2004
Summary:
Defamation – plaintiff relying on a sting or quasi-innuendo restricted to the defamatory meaning chosen in pleadings and cannot
rely on any other meaning that words complained of may be capable of bearing. [Order in para 31.]
____________________________________________________________
JUDGMENT
____________________________________________________________
MPATI AP:
[1]
The second respondent is a Johannesburg catering business of which the first respondent is the sole member. The respondents were the
successful plaintiffs in an action for damages for defamation which they instituted in the Johannesburg High Court against the appellants.
The first appellant is the owner and publisher of the Sunday Times newspaper and the second appellant its editor. The third, fourth
and fifth appellants are journalists on the staff of the Sunday Times.
[2]
On 10 September 1999 approximately 600 children from around the country and who were members of
the Field Band Foundation (the Foundation), an organisation that provides facilities and instruments for young people to play in
musical bands, were engaged to perform at the opening ceremony of the All Africa Games at the Johannesburg Stadium. They assembled
in the parking area of the stadium at approximately 10h00. The organiser of the Foundation, Ms Retha Cilliers, had made prior arrangements with the second respondent for
the latter to serve two meals to the children, lunch between 12 noon and 13h30 and supper. However, lunch, consisting of beef stew
and maize meal porridge (‘pap’), was only served at 15h00. A fruit juice in unmarked plastic containers was also supplied.
When the second respondent ran out of beef stew, pieces of chicken were served.
[3]
It is common cause that a large number of the children took ill within an hour of having consumed
the meal. They experienced nausea, stomach cramps and vomiting. Ms Cilliers summoned medical assistance and Dr John Garth Boden,
accompanied by para-medics, came to the scene. He and his team had been contracted to provide medical services within the stadium
for the Games. Dr Boden testified that he found two large groups of children between the Johannesburg Athletics Stadium and Ellis
Park Stadium. Some of them were actively vomiting and others had vomited. Because of the large number of children who needed medical attention his team
could not cope. He called for back-up, which arrived in the form of two private emergency services. The Johannesburg Metro dispatched
vehicles from their fleet which included their disaster bus and the sick children were removed by ambulance and buses to various
hospitals which had been notified that they would be receiving multiple casualties. At these hospitals, one of which was the Johannesburg
General Hospital, some of the children were discharged after treatment while others were kept overnight.
[4]
On 12 September 1999 an article appeared in the Sunday Times newspaper under the heading: ‘Cook
that spoiled Games broth’. On the same day a placard bearing the legend of the Sunday Times, reading: ‘POISONED KIDS COOK FOUND’ appeared in the streets of Johannesburg. The article read:
‘The man who served up the meal that poisoned 600 children at the opening of the All Africa Games on Friday is still catering at the
event. Barry Niselow, 38, said he would continue to dish up the beef stew suspected of poisoning the children at the games.
On Friday night, four major Johannesburg hospitals went into crisis alert as busloads of children – aged between eight and 18
– arrived suffering from severe vomiting, diarrhoea and dehydration. Niselow’s Company, Nise Caterers, supplied the children with beef stew, pap and fruit juice at a
vending stand outside Johannesburg Stadium at 3.30 pm on Friday – 45 minutes before children began complaining of stomach cramps.
Niselow refused to take responsibility for the fiasco until the food had been tested, saying the natural acidity of the fruit juice
he served – rather than the meat – had triggered mild nausea symptoms among just a few children.
However, Professor Kenneth Boffard, head of disaster planning at Johannesburg Hospital, said he believed the caterer’s stew
was to blame. “The samples brought in smelt awful and looked appalling. I’d say food poisoning of this type is the result
of contamination in the preparation process or food being left out too long.”
The caterer claimed that the children’s illness had been “blown out of proportion”. “Some of those kids were
dancing on the hospital bus – only eight children were really sick, which isn’t even a percentage of the 15 000 meals
served that day. Under the circumstances, the food preparation was 100 percent. Yet my whole reputation is at stake in this.”
But Dr John Boden, a trauma physician who supervised the treatment of 150 children at Johannesburg Hospital, said dozens of his patents
were “vomiting, rolling on the floor and crying”, while 18 were treated with drips overnight for dehydration.
“To my mind this is the biggest medical disaster of its sort I’ve ever come across.”
Delia Koopman, 18, who had travelled from Stellenbosch with fellow members of the Penny Players Field Band to perform in a gymnastic
display at the opening, said: “Shortly after we ate, I started feeling funny – like my stomach was burning. Some kids
fainted and others started throwing up all around me. I felt like I had a fever.”
The chairman of the All Africa Games board of directors, Mthobi Tyamzashe, said the organisers of the games had not terminated their
contract with the caterers because “we have not found them guilty up to now”. The All Africa Games is conducting an internal
probe.’
[5]
The respondents did not plead that the statement or the placard or cartoon was per se defamatory of them. They pleaded instead, in their particulars of claim, that the readers of the Sunday Times understood the article
to have the following defamatory meanings:
‘9.1
The First Plaintiff was responsible for the dishing up of beef stew which was the cause of the poisoning
of 600 children at the opening of the All Africa Games;
9.2
Such poisoning was attributable to the negligence of the First Plaintiff who had not
taken proper care to prevent the food being contaminated in the preparation
process or had negligently allowed
such food to be left out too long.
9.3
Samples of the food prepared by the First Plaintiff “smelt awful and looked appalling”.
9.4
The First Plaintiff callously refused to accept responsibility for such food and continued to supply
children with the same food notwithstanding that such was responsible for the said food poisoning of children;
9.5
The First Plaintiff untruthfully denied that beef stew prepared by him was responsible for such
poisoning and falsely averred that the acidity of fruit juice had triggered mild nausea symptoms in the children, when he knew or
should have known that the poisoning of the children was caused by the beef stew prepared by him.
9.6
The First Plaintiff’s denials were to be rejected in as much as Professor Kenneth Boffard,
head of disaster planning at Johannesburg Hospital said he believed the caterer’s stew was to blame and made the statement
attributed to him in the third column of such article.
9.7
The poisoning constituted the biggest medical disaster of its sort which Dr Boden who supervised
the treatment of the children at the hospital had ever come across.’
[6]
The allegations in paragraphs 9.1, 9.2 and 9.3 of the particulars of claim as quoted above were repeated in respect of the second
respondent and it was alleged further that:
’12.1.4
The Second Plaintiff did not use proper skill or care in the preparation of the food and should not have been trusted
to continue catering at the All Africa Games.
12.1.5
The Second Plaintiff represented by the First Plaintiff callously
denied responsibility for their actions and were unrepentant in regard thereto.’
In addition the respondents relied for their claims on a cartoon which appeared in the next issue of the Sunday Times, on 19 September
1999. The cartoon depicts part of a stadium with images of children lying on the ground with arms outstretched. The caption at the
top read: ‘ALL AFRICA GAMES, THE CLOSING CEREMONY . . .’. Then there is depicted an official who is on the telephone
with a clipboard in his left hand, saying: ‘HELLO; CHOREOGRAPHER? DOES THIS REPRESENT THE END OF THE GAMES, OR ARE WE STILL USING THE SAME CATERER?’
The respondents alleged in the particulars of claim (para 11.3) that the cartoon ‘was meant and understood to mean by readers
of the Sunday Times that food supplied by the Plaintiffs was calculated to cause the unconsciousness or death of children to whom
the Plaintiffs were supplying meals’.
[7]
The appellants admitted the publications but denied that the article and cartoon are capable of
bearing the meanings attributed to them by the respondents and accordingly denied that they are defamatory of the respondents. In
the alternative, the appellants pleaded that the allegations contained in the article were true, alternatively, substantially true and were published in the public interest. Two
further defences were pleaded in the alternative, viz (a) that the publications were made in circumstances that made it reasonable
to do so and, (b) that the publications contained expressions of opinion.
[8]
At the commencement of the trial the court a quo (Foulkes-Jones AJ) ordered, by agreement, that the issues of liability and quantum be separated. The trial accordingly proceeded
on the issue of liability only, at the end of which the trial judge held that ‘the article . . . and the poster were defamatory
of the plaintiffs’ and found ‘in favour of the plaintiffs, with costs, including the costs of two counsel’. It
is against that order that the appellants now appeal with leave of the trial court.
[9]
The first question to be considered is whether the article and cartoon conveyed to the ordinary
reader of the Sunday Times one or more or all of the defamatory imputations attributed to them in the particulars of claim. Such ordinary reader would be ‘a person who gives a reasonable meaning
to the words used within the context of the document as a whole and excludes a person who is prepared to give a meaning to those
words which cannot reasonably be attributed thereto’. (Demmers v Wyllie and Others 1980 (1) SA 835 (A) at 842H.) Very recently this court (per Lewis JA), in Mthembi-Mahanyele v Mail and Guardian Ltd and Another [2004] 3 All SA 511 (SCA) at 520 para [26], endorsed the following statement by Colman J in Channing v South African Financial Gazette Ltd 1966 (3) SA 470 (W) at 474A-C:
‘. . . the ordinary reader is a “reasonable”, “right-thinking” person, of average education and normal intelligence; he is not a man of “morbid and suspicious mind”, nor is
he “super-critical” or abnormally sensitive; and he must be assumed to have read the article as articles in newspapers
are usually read. For that assumption authority is to be found in Basner v Trigger 1945 AD 22 at pp 35-6. It is no doubt fair to impute to the ordinary reader of the South African Financial Gazette a somewhat higher standard of education and intelligence and a greater interest in and understanding of financial matters than newspaper
readers in general have. But this, I think, is clear: one may not impute to him, for the purposes of this enquiry, the training or
the habits of mind of a lawyer.’
As to the attributes of a ‘right-thinking’ person Marais JA said the following in Independent Newspapers Holdings Ltd and Others v Suliman [2004] 3 All SA 137 (SCA) at 153 para [29]:
‘For myself, I have no doubt that sound legal policy should not require a court hearing a defamation suit to ascertain the meaning
and effect of words by reference to the meaning and effect that would be attributed to them by anyone other than the well-known notional
reasonable person in the particular circumstances. Anything less would be unfair to the publisher of the statement who is sought
to be held liable; anything more would be unfair to a plaintiff who bears the onus of establishing both the meaning of the words
used and the defamatory nature of that meaning. In the former case it would subject the publisher to liability for less than reasonable
interpretations of published matter; in the latter case it would require a plaintiff to establish more than that reasonable readers
would attribute a particular meaning of a defamatory nature to the matter. The same considerations apply, so it seems to me, to the
suggestion (Jansen JA in SA Associated Newspapers Ltd en ‘n ander v Samuels 1980 (1) SA 24 (A) at 30 and Demmers v Wyllie 1980 (1) SA 835 (A) at 840) that one test should be applied when ascertaining the meaning of the words used and another more intellectually
and ethically rigorous test when deciding whether the ascertained meaning is indeed defamatory. In my view, neither logic nor sound
legal policy requires the application of two different criteria to these questions.’
[10]
In her judgment Foulkes-Jones AJ said that ‘what is contended for by the Plaintiffs in paragraph
9 of their particulars of claim as regards the meaning of the article, appears from the evidence to have been established’.
Not unexpectedly, counsel for the appellants criticised this finding, submitting that the test in establishing whether or not the
plaintiffs had proved their quasi-innuendos or stings is objective; no evidence is admissible to assist them in this regard. He relied
for his submission on the decision of Johnson v Beckett and Another 1992 (1) SA 762 (A) at 773A-D, and Argus Printing and Publishing Co Ltd and Others v Esselen’s Estate 1994 (2) SA 1 (A) at 20E-G.
[11]
Counsel’s submission as to the test to be applied is obviously correct. The criticism, however,
is not entirely justified. It was alleged in the particulars of claim (para 9.5) that Professor Kenneth Boffard, head of disaster
planning at Johannesburg Hospital, had said that ‘he believed the caterers’ stew was to blame’ and ‘the samples (of the food) brought in smelt awful and looked appalling’. In his testimony,
which was accepted by the trial court, Professor Boffard denied that he had uttered these words. The trial court’s finding
that the meaning of the article as contended for in paragraph 9 of the particulars of claim ‘appears from the evidence to have
been established’ follows upon the evaluation of the evidence and a finding that Professor Boffard had not uttered the words
attributed to him in the article. My comment on counsel’s criticism must, of course, not be construed as an acceptance or confirmation
of the trial court’s approach that because Professor Boffard had not uttered the words attributed to him the statement is for
that reason defamatory of the respondent. This issue will receive attention later in this judgment.
[12]
Foulkes-Jones AJ held that the ‘sting of the charge or the gist of the defamation is that the stew
prepared by the Plaintiffs caused the poisoning of the children’ and that an additional sting was that ‘Professor Boffard
said he believed the caterer’s stew was to blame’. With regard to the additional sting the learned trial judge said: ‘I have already indicated
above that I do not find that such a statement was made by [Professor Boffard]’ and that the appellants ‘thus need to
prove that the latter statement attributed to him in the article was in fact made by him’.
[13]
Counsel for the respondents did not contend in this court, nor in their heads of argument, that the court a quo ought to have found that other stings in addition to those mentioned in para [12] above had been established. On the other hand counsel
for the appellants submitted that the trial court erred in finding that the stings mentioned in para [12] above had indeed been established.
With regard to the additional sting he argued that the respondents did not plead as a sting merely that Professor Boffard said that
he believed the plaintiffs’ stew was to blame and that therefore it was not open to the trial court to find that the additional
sting had been established.
[14]
It was alleged in paragraph 9.6 of the particulars of claim that the article and placard meant that the first respondent’s denials
(that the beef stew caused the poisoning of 600 children) were to be rejected ‘inasmuch as Professor Kenneth Boffard . . .
said he believed the caterer’s stew was to blame and made the statement attributed to him in the third column of such article’.
What is alleged to have been said by Professor Boffard was clearly not pleaded as a sting but rather to strengthen or confirm the
alleged meaning of the article, viz that it was the beef stew that caused the poisoning of the children. The paragraph merely says
that the first respondent’s denials were to be rejected because of what Professor Boffard said, i.e. that he believed the caterer’s
stew was to blame. Counsel for the appellants is therefore correct, in my view, in his argument that the trial court was not entitled
to find the additional sting to have been established. That really disposes of the question whether or not the trial court was correct
in requiring the appellants to justify the additional sting by proving that Professor Boffard in fact had made the statement attributed
to him.
[15]
As to the main sting found by the trial court to have been established, counsel for the appellants submitted
that the sting of the article is that the meal (as opposed to the beef stew) served by the respondents was the cause of the poisoning of the children. He argued further that the statements
regarding the beef stew meant no more than that it (the beef stew) was ‘suspected’ of being, or ‘believed’
to be, the cause of the food poisoning, and that at best for the respondents the article conveyed the meaning that there were grounds
for investigating whether or not the stew and/or fruit juice were responsible, alternatively, that there were reasonable grounds
for suspecting that the stew and/or fruit juice caused the food poisoning.
[16]
I agree with counsel for the respondents that in determining what meaning would be attributed to the
article by the ordinary reader one should have regard to the heading of the article: ‘Cook that spoiled Games broth’
as well as the caption against the photograph of the first respondent which appeared in the article, reading: ‘DEFIANT: Caterer Barry Niselow is still serving up stew at the games’. Regard should
also be had to the poster that read: ‘POISONED KIDS COOK FOUND’. In other words the context of the article as a whole
must be considered. Stewart Printing Co (Pty) Ltd v Conroy 1948 (2) SA 707 (A) at 714; Johnson v Rand Daily Mails 1928 AD 190 at 204; HRH Zwelithini of Kwa Zulu v Mervis and Another 1978 (2) SA 521 (W) at 526H.
[17]
It is true that the article commences with the assertion that it was the meal served up by the first
respondent that poisoned the children and that he is still catering at the All Africa Games. The allegation that the first respondent
‘is still catering’ at the event was obviously based on the last paragraph of the article, which states that the chairman
of the board of directors of the All Africa Games had said that the organisers of the games had not terminated the respondents’ contract because ‘we have not found them guilty
up to now’. The second paragraph then becomes more specific as to what part of the meal might have been the culprit. It states
that the first respondent had said he would continue to ‘dish up the beef stew
.RTF of original document