Banele Sindani v JP van der Merwe, The Editor of Rapport and Johan van Wyk

The appellant was the chief executive officer of Athletics South Africa. The first respondent was a teacher and coach of prominent athlete Hezekiel Sepeng (1996 Olympic silver medalist). After the first respondent criticized Athletics South Africa in a press letter for not providing sufficient financial support to prominent athletes, the appellant allegedly telephoned him. According to an article published in Rapport newspaper on 28 September 1997, written by the third respondent (a journalist) under the editorship of the second respondent, during that telephone conversation the appellant vilified the first respondent as a racist and abused him as 'white trash' who 'should rather have left the country with his white pals'. The appellant brought a defamation action against all three respondents. The Witwatersrand Local Division (Boruchowitz J) ordered that the question whether the article was defamatory be decided separately under rule 33(4), and held that the article was not defamatory of the appellant, dismissing his claim with costs.

• Whether a newspaper article imputing that a black man called a white man 'white trash' is defamatory of the black man
• What is the ordinary meaning of the words in the article as understood by a reasonable reader of ordinary intelligence
• Whether the use of racially derogatory language, as imputed in the article, constitutes defamatory conduct
• The appropriate test for determining whether published words are defamatory
• The appropriate costs order where a separate issue is decided in favor of a plaintiff but other defenses remain to be adjudicated

The appeal was upheld with costs (subject to conditions). The orders of the trial court were set aside and substituted with: (1) the separate issue regarding the defamatory nature of the article was determined in favor of the plaintiff and the article was declared defamatory of him; (2) the trial would proceed on remaining issues; (3) costs of the separate issue adjudication to stand over for later determination. As to appeal costs: the appellant was granted costs but shall not tax them until final determination of the trial action, and the respondents were granted leave to apply to set aside or alter the costs order within 21 days of final determination of the trial action.

The binding principles established are: (1) The test for whether words are defamatory involves a two-stage inquiry: first, establishing the natural or ordinary meaning of the words, and second, determining whether that meaning is defamatory. (2) The ordinary meaning is determined objectively by what a reasonable reader of ordinary intelligence would understand from a casual, perfunctory reading of the article in context, not from close analysis or dictionary meanings. (3) The expression 'white trash' when used with reference to a white person is racially charged and constitutes racially derogatory language. (4) The imputation that a person used racially derogatory language and engaged in racial vilification without justification is defamatory per se in South African law. (5) Such conduct is regarded by right-minded members of South African society as reprehensible and something which must, in accordance with constitutional imperatives, be eradicated, and therefore its imputation is defamatory.

The Court observed that courts conducting close analysis of newspaper articles must guard against the danger of considering themselves to be 'the ordinary reader' who would typically skim through an article casually without concentrated attention or a second reading. The Court also noted that although the appellant succeeded on the defamatory nature issue, he may still lose the case if other defenses (particularly truth and public benefit) are upheld, and if it is found he uttered the words but denied doing so, this could constitute acting unconscionably in bringing the defamation action on the basis of a deliberate falsehood. The Court applied the precedent in Quadrangle Investment Ltd v Witind Holdings Ltd regarding conditional costs orders where further issues remain to be determined that could affect the appropriateness of the costs award.

This case is significant in South African defamation law for establishing that the imputation of using racially derogatory language is per se defamatory, reflecting constitutional imperatives to eradicate racism. It clarifies the test for determining the ordinary meaning of allegedly defamatory words - focusing on the reasonable reader's casual, perfunctory reading rather than close legal analysis. The judgment emphasizes that in post-constitutional South Africa, conduct involving gratuitous racial vilification is regarded by right-minded members of society as reprehensible and its imputation is defamatory. The case also demonstrates the proper application of rule 33(4) for separating issues in defamation cases and provides guidance on appropriate costs orders where a plaintiff succeeds on one issue but other defenses remain to be determined.