REPORTABLE

REPUBLIC
OF NAMIBIA

IN THE HIGH COURT OF
NAMIBIA, MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: I 1838/2010

In the matter between

UNIVERSITY OF NAMIBIA
..........................................................................1^ST
PLAINTIFF

LAZARUS HANGULA
..................................................................................2^ND
PLAINTIFF

FILLEMON AMAAMBO
...............................................................................3^RD
PLAINTIFF

OSMUND DAMIAN MWANDEMBELE
.........................................................4^TH
PLAINTIFF

BONIFACE SIMASIKU MUTUMBA
.............................................................5^TH
PLAINTIFF

JOB JOHANNES JANSEN
..........................................................................6^TH
PLAINTIFF

ELLEN NDESHI NAMHILA
..........................................................................7^TH
PLAINTIFF

ALOIS ERNST FLEDERSBACHER
.............................................................8^TH
PLAINTIFF

and

EVILASTUS KAARONDA
........................................................................1^ST
DEFENDANT

TRUSTCO GROUP INTERNATIONAL (PTY)
LTD ..................................2^ND
DEFENDANT

MAX HAMATA
..........................................................................................3^RD
DEFENDANT

PATIENCE NYANGOVE
...........................................................................4^TH
DEFENDANT

Neutral citation: University of
Namibia v Kaaronda (I 1838/2010) [2013] NAHCMD 4 (16 January 2013)

Coram: SMUTS, J

Heard on: 5 - 16 November 2012

Delivered on: 16 January 2013

Flynote: Application for
absolution in defamation action on grounds that it was not
established that there was a reference to certain plaintiffs in a
newspaper article – the test as to whether there is reference
to plaintiffs restated.

JUDGMENT

SMUTS, J

[1] When the plaintiffs closed their
case in this defamation action for damages, the two sets of
defendants each applied for absolution from the instance.

[2] In the case of the first
defendant, he sought absolution from the instance of the plaintiffs’
claims against him. He did so on two bases, as I understood Mr S.
Nkiwane who appeared on his behalf. He firstly contended that the
plaintiffs had chosen a wrong cause of action against the first
defendant in that their cause of action against him was that of
iniuria and not defamation. In the second instance, he submitted that
qualified privilege had been established and that absolution from the
instance should be granted.

[3] The second to fourth defendants,
represented by Mr R. Heathcote, SC, assisted by Mr P. Barnard,
applied for absolution from the instance of the fourth, sixth and
eighth plaintiffs’ claims. The basis for the application was
that those plaintiffs had not established that the defamatory words
contained in the newspaper article in question were published of and
concerning them.

[4] After the conclusion of argument,
I briefly adjourned and then dismissed the first defendant’s
application with costs but reserved judgment in respect of the second
to fourth defendants’ application by reason of the abundance of
authorities which were referred to in oral argument which I needed to
further consider before coming to a conclusion with regard to that
application for absolution.

First defendant’s application
for absolution

[5] As far as the first defendant’s
application for absolution was concerned, I dismissed it because
neither of the grounds referred to had in my view been established.
The first ground, as I understood it, was that the plaintiffs’
cause of the action was for an injuria and could not be defamation
because there had not been publication. This was because the first
defendant’s letter complained of in the action had been
addressed to the Chancellor of the university and that the matter was
an internal university matter. At best for the plaintiffs, so Mr
Nkiwane contended, they would have a cause of action for an injuria.
In order to consider this and the other application for absolution,
regard would need to be had to the pleadings themselves.

[6] The plaintiffs, which include the
University of Namibia (UNAM) even though it does not seek any
damages, complain that a letter addressed by the first defendant, the
Secretary General of the National Union of Namibian Workers, to the
founding President of the Republic of Namibia, who was then the
Chancellor of UNAM was defamatory of the individual plaintiffs. That
letter contended that the administration of the university under the
leadership of the Vice-Chancellor, the second plaintiff, was beyond
control to such an extent that it induced a sense of shock and
dismay. It further contended that positions at UNAM were filled in an
inappropriate manner by UNAM senior management. It also alleged that
UNAM’s senior management engaged in mischievous and corrupt
practices and that its money had been misused. It also contended that
UNAM’s management had failed to account for about N$5 million
which was lost and that the management had acted in a suspicious and
dubious manner in relation into that money. It further contended that
the stolen money was paid back from the coffers of UNAM which
resulted in further deprivation for Namibians. It called for a
commission of enquiry and that those guilty should be suspended and
discharged from office.

[7] The individual plaintiffs
contended that the letter was wrongful and defamatory of them and
that it was understood or intended to be understood that it inter
alia imputed incompetence to them and that they were mischievous and
corrupt, dishonest, not worthy of their positions and covered up
theft.

[8] This letter subsequently received
prominent coverage in an edition of the Informante newspaper in
February 2010. It is alleged that the newspaper is published by the
2^nd defendant, edited by the 3^rd defendant and
that the article is written by the 4^th defendant. The
newspaper article in its headline and in the body of the article
suggested that the second plaintiff had squandered N$5 million and
accused him of corruption. It also contended the second plaintiff and
his senior management allegedly embezzled N$5 million intended for a
masters programme in public administration at UNAM and that they had
in a suspicious and devious manner chosen to pay back the N$5 million
to the donors.

[9] I turn to the two separate
applications for absolution. In the particulars of claim it is
alleged that the first defendant had caused publication of his letter
to the Chancellor and made it available to various persons whose
names were unknown to the plaintiffs. The first defendant admitted
that he authored the letter which was attached to the particulars of
claim and stated that the Chancellor was the only intended recipient.
Mr Nkiwane accepted in argument that at the very least the
Chancellor’s secretary was likely to have read the letter but
nevertheless denied that there had been publication as required for
defamation and that the plaintiffs’ cause of action was at best
for them of one injuria. This argument is not in my view sound.

[10] The fact that there was limited
publication would not mean that the plaintiffs were confined to an
action for injuria. The plaintiffs had been unable to establish any
wider publication of the letter than to the intended recipient and
his office which included at least his secretary. But that would in
my view amount to publication for the purpose of defamation. The fact
that the plaintiff had in their particulars of claim asserted that
there had been further publication (on the part of the first
defendant) to persons unknown to them and that the this had not been
established by the conclusion of their own case would not mean that
further publication could not yet be established in this trial. But
whether or not this is established, the fact remains there had been
publication to the Chancellor and his office, as has been accepted by
the first defendant. This would in my view amount to publication for
the purpose of defamation.

[11] The second basis for the
application for absolution on the part of the first defendant would
appear to have been with reference to the defence of qualified
privilege raised in the first defendant’s plea. That is how I
understood the argument advanced by Mr Nkiwane. But the plaintiffs
had replicated to the plea of qualified privilege to the effect that
the first defendant was not under any duty to have made the
statements in the letter to the Chancellor and had no right to do so
and that the statements had no foundation in evidence or fact and
were not pertinent or germane to the alleged privileged occasion. The
plaintiffs further contended that the statements were actuated by
malice and that the first defendant had indirect or improper motives
in making the statements and that they were untrue.

[12] The defence of qualified
privilege and the replication to it are matters which would need to
be determined in evidence. The first defendant bears the onus of
establishing qualified privilege as pleaded. His defence has however
not been established on the basis of the plaintiffs’ evidence
alone. I am thus not in a position to determine whether this defence
is thus sound on the evidence thus far in the matter.

[13] It follows that this basis for
absolution has not in my view been established and would not arise at
this stage. The application for absolution based upon the defence of
qualified privilege thus cannot at this stage succeed.

[14] It was for these reasons that I
dismissed the first defendant’s application for absolution with
costs.

2^nd –
4^th defendants’ application for
absolution

[15] I turn now to the second to
fourth defendant’s application for absolution. As I have
already said, it is based upon the contention that the fourth, sixth
and eighth plaintiffs have not established that the article published
by the second to fourth defendants refers to them. The full text of
the article is as follows:

“University
of Namibia, Vice Chancellor Professor Lazarus Hangula and his senior
management allegedly embezzled N$5 million meant for the Masters
Programme in Public Administration and are allegedly employing
expatriates at the expense of equally or better qualified Namibians.
The National Union of Namibian Workers (NUNW), Secretary General
Evilastus Kaaronda who made the allegations also accused UNAM of
unprocedurally employing people in senior management positions.
Efforts to get a comment from UNAM proved fruitless as the
university’s public relations officer, Utaara Hoveka, said it
was impractical for Informante to get a response from them yesterday
(Wednesday) as they needed time to consult.

Hangula
was said to be out of office until next week with his mobile going on
voice mail. In his damning letter to Unam Chancellor and Namibia’s
Founding Father, Dr Sam Nujoma dated 4 February 2010, Kaaronda
alleges NUNW “independently confirmed that the university
management had failed to account for about N$5 million lost in the
MPPA program”.

“We
are informed and have independently confirmed that the university
management had failed to account for about N$5 million lost in the
MPPA program. While some committed Namibians employed by the
university including the director of this program had requested for a
forensic audit so as to help bring those found wanting to book, the
university management in a very suspicious and dubious manner only
chose to pay back the money to the donor instead of heeding the
advice of the director and others,” Kaaronda wrote to Nujoma.

He
further alleged that money used by the university management to pay
back the stolen funds was allegedly taken from the coffers for the
university short changing Namibian students in the process.

“It
is apparent that the Vice Chancellor is either not interested to
properly serve out people with the required sense of diligence and
care,” Kaaronda wrote.

In
the same letter, Kaaronda states that the university recorded a
deficit of approximately N$12 million in 2006 and the situation has
been deteriorating ever since. Kaaronda claims Unam management has
over the years continued building and constructing projects without
subjecting them to tender. He also accused UNAM senior management of
filling six senior positions without either advertising the vacant
positions internally or externally.

“These
positions are a) director: human resources b) director: estate
services c) director: language centre d) director: UNAM central
consultancy bureau e) UNAM legal advisor. Other two positions which
were appointed in a similar fashion are shoes of special advisor to
the vice chancellor and that of strategic planner. To further
buttress out on administrative discretion used to achieve the wrongs
ends, we wish to point out a case that relates to the Registrar of
the University who in addition to his office responsibilities was
appointed to act as the director of the Computer Centre, a position
for which he is not trained or qualify to hold, “Kaaronda
wrote.

The
NUNW leader also queried why expatriate contracts are extended in
contravention of the immigration requirements guiding appointments
and retention of foreign workers.

“The
Vice Chancellor has repeatedly overruled relevant committees of the
university to promote expatriates of professors in situations where
they failed to fulfil the university criteria as set out in the UNAM
promotions policy.”

UNAM
Governing Council Chairperson, Filemon Amaambo refused to comment on
the issue saying he was not comfortable conducting telephone
interviews and that he does not respond to rumours. Kaaronda admitted
writing the letter to the Founding Father after NUNW was approached
by the Namibian National Teachers Union.

“Yes
it’s true we were approached by NANTU and we communicated our
concerns to the Chancellor.”

Acting
Permanent Secretary in the Ministry of Education, Alfred Ilukena,
said his office has not yet received or heard about the letter
written to Nujoma or any of the allegations being levelled against
Hangula. The Founding Father’s personal assistant John Nauta
confirmed that comment on the issue saying he was out of the country
last week.”

[16] The fourth plaintiff is Professor
O . D. Mwandemele, the Pro-vice-Chancellor: Academic Affairs and
Research of UNAM. In the particulars of claim it is contended that he
is a member of the management of UNAM. The sixth plaintiff is Mr JJ
Jansen. He is the Bursar of UNAM. It is also contended that he is
member of the management of UNAM. The eighth plaintiff is Mr A E
Fledersbacher, the Registrar of UNAM. It is likewise contended in the
particulars of claim that he is a member of management of UNAM.

[17] The particulars of claim allege
in the introductory portion of paragraph 21 as follows:

“The
said edition of the newspaper in its headline (annexure B1) and the
article (annexure B2) stated the following of second to eighth
plaintiffs directly or by implication . . .”

[18] The sub-paragraphs of 21 then
proceed to refer to what was stated in the article concerning the
second plaintiff and UNAM’s senior management and management.
In the plea of the second to fourth defendants, the allegations in
paragraph 21 are admitted. Despite this the application for
absolution was made. Mr Heathcote SC then in argument applied on
behalf of the second to fourth defendants to withdraw these
admissions. He submitted that it was a legal question as to whether
the article referred to the plaintiffs. Mr Heathcote also referred to
the proposed pre-trial order agreed to by the parties in which it was
stated that an issue which was not in dispute was that the second to
fourth defendants had admitted that the article stated of the second
to eighth plaintiffs what was alleged in paragraph 21 of the
particulars of claim.

[19] Mr Heathcote submitted that the
test as to whether there was a reference to the plaintiffs was a
matter of construction and was a legal question and that a concession
of law on the issue was not binding on his clients. He submitted that
there could be no prejudice to the plaintiffs as a reference to them
was not a matter which could be established by evidence but is a
legal question to be determined with reference to the terms of the
article itself. Mr Heathcote then proceeded to refer to several
authorities in support of the contention that there was not a
reference to the plaintiffs for the purpose of a defamation action. I
refer to those below.

[20] Mr Coleman, who appears for the
plaintiffs, contended on the other hand that reference to the
plaintiffs was sufficiently established by the reference to senior
management and management of UNAM, even though none of the 4^th,
6^th and 8^th plaintiffs had been referred to by
name in the article. He also submitted that it was not open given to
the 2^nd to 4^th defendants to withdraw their
admissions in the pleadings in the manner in which they sought to do
so. He submitted that a substantive application to amend would need
to be brought and that the plaintiffs would have the right to re-open
their case if such an amendment were to be granted. He submitted that
it was a question of fact whether the plaintiffs had been referred to
and that this had been admitted.

[21] As I point out below, the
approaches of both counsel on the issue are not sound. The issue is
neither solely one of law or fact but a combination of the two.

[22] Mr Coleman further submitted that
the 2^nd,
4^thand
8^th
plaintiffs were all identified in the
university’s empowering legislation, the University of Namibia
Act, 18 of 1992 (‘the Act’) and that the senior
management of UNAM was not an amorphous indeterminate group as the
office bearers of a union referred to in the Sauls¹
case relied upon by Mr Heathcote in
argument.

[23] The test as to whether there is a
reference to a plaintiff in a publication for a defamation action was
referred to by this court²,
in quoting with approval a decision of he then Appellate Division (of
South Africa)³
at a time when it was the highest
court of appeal from this court as it was previously constituted, to
the following effect:

'In
every defamation action the plaintiff must allege, and prove, that
the defamatory words were published of and concerning him. So too, in
a case of so-called class or group libel, the plaintiff can only
succeed if it is proved at the trial that the matter complained of,
though expressed to be in respect of the class or group of which he
is a member, is in fact a publication thereof of and concerning him
personally.'

See
also Sauls
and Others v Hendrickse 1992
(3) SA 912 (A) at 918F - G.

‘Hence,
in determining whether the element of identification has been
established, the only relevant question in every case is: would a
reasonable person understand the words to refer to the plaintiff
specifically? Factors to be considered in deciding the element of
identification include the size of the class or group, the generality
of the imputation and the extravagance of the accusation. It is
necessary to caution that none of the factors referred to above is
conclusive of the issue. As Lord Russell remarked in Knuppfer's
case supra
AC 116 at
123, the nature of the defamatory statement and the circumstances in
which it is published are crucial. Each case must, of course, be
considered according to its own circumstances. See per
De Villiers
JP in Bane
v Colvin 1959
(1) SA 863 (C) at 867B; Knupffer's
case supra
AC 116 at
124.’

[24] This court in the Universal
Church matter, with respect, correctly held, the test is objective
and the actual intention of the defendants is irrelevant (save on
issues of express malice and damages).⁴

[25] As I have already pointed at the
article makes no specific reference by name to any of the 4^th
, 6^th
or 8^th
plaintiffs. It refers to UNAM’s
senior management at the outset and thereafter refers to UNAM’s
management. Mr Heathcote correctly in my view accepted that the
subsequent reference to UNAM’s management in the context of the
article refers to UNAM’s senior management which was referred
to at the outset. The article thus refers to persons belonging to a
class or group of senior management at UNAM. As was held in Sauls⁵:

“To
succeed in their action appellants must establish that the words
complained of would lead an ordinary reasonable person acquainted
with them to believe, on reading the statement, that such words
referred to them personally. The test is, therefore, an objective one
and the actual intention of the respondent is irrelevant. In Knupffer
v London Express Newspaper Ltd
[1944] 1 All ER 495 (HL) at 497F-G, Viscount Simon LC propounded a
twofold test for a matter such as the present in the following words:

‘The
first question is a question of law- can the article, having regard
to its language, be regarded as capable of referring to the
appellant? The second question is a question of fact, namely does the
article in fact lead reasonable people, who know the appellant, to
the conclusion that it does refer to him?’

It
is common cause that the first question must be answered in favour of
the appellants. What is in issue is whether the second question also
falls to be so answered. Whether defamatory words used of or
concerning a group will be taken to refer to every member of such
group will depend in each case upon the precise words used seen in
their proper factual matrix. The mere reference to a group per se
will not be sufficient. A plaintiff must still prove that, as a
member of such group, he was included in the defamatory statement –
often a difficult matter, particularly when one is dealing with a
group comprising a large or indeterminate number of persons. In
Knupffer’s case supra at 498 A Lord Atkins
remarked:

‘The
reason why libel published of a large or indeterminate number of
persons described by some general name generally fails to be
actionable is the difficulty of establishing that the plaintiff was
in fact included in the defamatory statement: for the habit of making
unfounded generalisations in ill-educated or vulgar minds: or the
words are occasionally intended to be a facetious exaggeration.’

He
went on to add (at 498C):

‘It
will be as well for the future for lawyers to concentrate on the
question whether the words were published of the plaintiff rather
than on the question whether they were spoken of a class.’

[26] The first component of the
enquiry is thus a legal question capable of being determined on
exception, namely whether the words are reasonably capable of
referring to the plaintiffs. The second question upon which evidence
can be led is one of fact - whether a reasonable person would regard
the words as referring to the plaintiff. The first question being one
of law would exclude evidence whilst the second being one of fact is
one upon which evidence would be admissible.⁶
But the question of a reference to the
plaintiffs, embodying both questions, has been admitted in the
pleadings.

[27] If plaintiffs are able to mount
the first hurdle, then the second the enquiry as to whether the words
were understood as referring to the plaintiff within a factual matrix
is a factual issue upon which evidence may be led.⁷
Burchell expresses the view that such
evidence is not merely admissible to prove identification of the
plaintiff, but is essential.⁸
Burchell refers in this regard to what
he terms as the classic question referred to by English counsel in
the Knupffer matter (cited in Sauls above) and put to witnesses is
“To
whom did your mind go when you read that article?”
⁹
But, as is also stressed by Burchell,
the ultimate test is objective and the court would not be bound to
accept such evidence on this point.¹⁰

[28] Mr Heathcote submits that the
plaintiffs do not pass the first hurdle which is a legal question, so
I understood his submissions, and confines his argument to that
issue. But can he do so in the face of the admission that the article
referred to the plaintiffs in question? In my view not. That
admission was unqualified and extended to both components of the
enquiry. The admission did not merely constitute a concession of a
legal issue, as Mr Heathcote contended, which could be withdrawn if
considered to be incorrect. The admission was also directed at the
second component of the enquiry which is a factual question upon
which evidence could (and ordinarily should) be led.

[29] The 2^nd to 4^th
defendants would appear to have considered this aspect in agreeing at
the trial conference that evidence upon this issue was not required.
Mr Coleman is accordingly correct in contending that it was not open
to the 2^nd to 4^th defendants to seek to
withdraw their admissions on this issue in the way in which Mr
Heathcote sought to do as the withdrawal of a legal concession. The
plaintiffs do not agree to the amendment required in order to proceed
with the application for absolution. In the absence of granting an
antecedent amendment to withdraw the admission, the application for
absolution is not competent in view of the admission. Given the
factual nature of the second component of the enquiry, the plaintiffs
would be entitled to amend their pleadings in the sense set out below
and re-open their case if such an amendment were to be granted. As I
repeatedly put to Mr Heathcote, if the defendants disputed the first
component of the enquiry, then the course of action open to them was
to except. They elected not to do so but instead pleaded to the
allegation by admitting it, entailing an admission to both
components of the enquiry.

[30] In the exercise of my discretion,
I decline the amendment moved from the bar by Mr Heathcote given the
unsound basis for it, negating the dual nature of the underlying
issue – both legal and factual – admitted by those
defendants. It is thus not open to them to seek an amendment on the
basis of a concession of a legal issue incorrectly made (even though
it was confirmed in pre trial proceedings) given the factual
component to the enquiry. If those defendants would want to amend
their plea to withdraw those admissions, a formal application to
amend would be required, given the plaintiffs’ objection to it,
and the issues could then be considered. This is by no means a
formalistic response to the application for absolution by reason of
the admission of factual issues implicit in the admission which was
expressly subsequently confirmed in the pre trial minute.

[31] But it would in any event seem to
me that this application for absolution is premised upon a misreading
of the authorities in the question and in particular of the Sauls
case heavily relied upon by 2^nd to 4^th
defendants and that, even if an amendment were to be granted, an
application for absolution on the basis of the first component of the
enquiry would seem to be misplaced.

[32] In the Sauls matter, the action
concerned a statement made by the defendant, a politician, with
reference to the then prevailing unrest situation in South Africa
that it had been shown that office bearers of a union (NAAWU) “were
involved behind the scenes in the unrest.
. .”. The
plaintiffs in that matter were all office bearers of that union and
contended that the statement was defamatory of them. The trial court
absolved the defendant from the instant on the basis that the
plaintiffs had not discharged the onus that the statement relates to
them. The court of appeal upheld that decision. It referred to the
fact that, unlike as in other cases, the words used did not expressly
or by necessary implication amount to a defamatory imputation held to
apply to every member of a group concerned (such as to a medical
council,¹¹
a specific licencing board¹²
or a company where it was held
included a specific reference to every director¹³).

[33] What weighed with the court in
Sauls was that the statement did not expressly or by implication
refer to all the office bearers of the union. The court also referred
the fact that the union was a national union which operated at
national, regional and at a local level. The plaintiffs were at
different levels according to their designations. But there was no
evidence as to how many branches the union had throughout South
Africa, how many office bearers at each branch and at the regional
and national levels. The court concluded: “For
all we know the overall number of office bearers in the Republic may
be a very sizeable one. The statement refers to some of them”.
The court finally
concluded that “A
reasonable person reading the statement would have no grounds for
connecting it with the appellants personally”.¹⁴

[34] This case is distinguishable from
this matter on the facts. In this matter, all of the plaintiffs gave
evidence of the top management of UNAM being a very small group
comprising those persons referred to in the Act and appointed by the
Council of the University under the Act. This
is entirely unlike the position in Sauls where court found that the
reference was to an indeterminate and potentially large number of
office bearers.¹⁵
The plaintiffs gave
this evidence despite this aspect not being in issue by reason of the
2^nd
to 4^th
defendants’
plea. The 4^th,
6^th
and 8^th
plaintiffs all
testified that they occupied their respective positions, specified in
the Act, and were part of UNAM’s top management. I again stress
that this evidence was given without this aspect being in issue on
the pleadings.

[35]
Implicit in Mr Heathcote’s argument is that evidence on the
size of senior management and UNAM’s structures was
inadmissible because the question was a legal question which would
only be determined upon the interpretation of a reasonable reader of
the article. This is however incorrect and overlooks the dual nature
of the enquiry and what was actually in issue in Sauls. The first leg
of the enquiry – being the antecedent legal question as to
whether the article is capable of referring to the plantiffs –
was accepted as common cause as being answered in favour of the
plaintiffs (appellants) in that matter. What was in issue was the
second leg of the enquiry upon which no evidence had been led.

[36] This
application for absolution would appear to be based upon a misreading
of the approach of the court and of the facts and issues in Sauls.
Smallberger JA, for that court expressly stated that there were no “.
. . background facts or surrounding circumstances from which a person
acquainted with appellants could reasonably have inferred that they
were the office-bearers to whom the statement referred”.¹⁶
It would have been
open to the plaintiffs to plead such facts, such the size of senior
management and its structure in replication had this been denied in
the plea. It follows that if leave is granted that the admissions in
question are to be withdrawn, then it would be open to the plaintiffs
to amend their pleadings and re-open their case. It would follow that
the application for absolution cannot succeed for this reason alone.

[37] As to the first component of the
enquiry – being the legal question as to whether the article is
capable of referring to the 4^th, 6^th and
plaintiffs, it would in any event seem to me that it would. They each
contend in the particulars of claim that they are members of
management and state the position which they occupy. The article
refers to UNAM’s senior management and its management. The
plaintiffs allege that the words complained of directly or by
implication refer to them. It would in any event seem to me that the
article is capable of referring to them and that the antecedent legal
question is to be answered in the affirmative, as was accepted in
Sauls. The second question of fact which would in the absence of the
admission in the plea then arise, namely, does the article in fact
lead reasonable readers who know the 4^th, 6^th
and 8^th plaintiff to conclude that it referred to them. It
was not necessary for the plaintiffs to have led evidence on this
issue given the admission in question. But they all gave evidence on
the size of UNAM’s top management and their membership of it by
virtue of their respective positions, as I have said, even though
this was not in issue.

[38] If the 2^nd to the 4^th
defendants apply to amend their plea to withdraw the admissions, the
plaintiffs would have the opportunity to re-open their case to lead
evidence on the issues raised by the withdrawal of the admissions in
paragraph of the plea if such an amendment were to be granted. But it
would in any event seem to me on pleadings that the first component
of the enquiry relating being the legal question as to whether the
article is reasonably capable of applying to the plaintiffs, should
be answered in favour of the 4^th, 6^th and 8^th
plaintiffs. I express this view, even though it is not necessary for
the purpose of this judgment, because it was fully canvassed in
argument by counsel. Indeed Mr Heathcote’s argument was that
the 4^th, 6^th and 8^th plaintiffs do
not pass the first component of the enquiry – being the legal
question as to whether the words are capable of referring to those
plaintiffs but he proceeded to do so with reference to the approach
of courts as to how the second component is to be answered. But, as I
have said, it would seem to me that the article is capable of
referring to those plaintiffs.

[39] It follows that the 2^nd
to 4^th defendants’ application for absolution from
the instance is to be dismissed with costs. The costs in question
include the costs of one instructed and one instructing counsel.

__________________

DF SMUTS

Judge

APPEARANCE

PLAINTIFFS : G. Coleman

Instructed by AngulaColeman

1^ST DEFENDANT: S. Nkiwane

Instructed by Tjitemisa &
Associates

2^nd to 4^TH
DEFENDANTS: R. Heathcote SC (with him P. Barnard)

Instructed by Van der Merwe-Greeff
Inc.