A NEUMANN CC v BEAUTY WITHOUT CRUELTY INTERNATIONAL 1986 (4)...

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A NEUMANN CC v BEAUTY WITHOUT CRUELTY INTERNATIONAL 1986 (4) SA 675 (C)

1986 (4) SA p675

Citation Court Judge Heard Judgment Annotations

1986 (4) SA 675 (C) Cape Provincial Division Tebbutt J June 3, 1986 August 7, 1986 Link to Case Annotations

Flynote : Sleutelwoorde
Defamation - What is and is not actionable - Respondent erecting posters along Cape TownSimonstown railway line as part of its campaign against wearing of fur garments - Posters depicting woman dragging fur coat behind her leaving trail of blood and bearing captions: "It takes up to 40 dumb G animals to make a fur coat. But only one to wear it" and "If you don't want millions of animals tortured and killed in leg-hold traps, don't buy a fur coat" - Whether such posters defamatory of applicant, a close corporation trading as a furrier in Cape Town Court holding that captions could not be said to be reasonably capable of being understood to apply H specifically to applicant - Such contention attributing unwarranted process of extended reasoning to ordinary reasonable reader - If posters capable of referring to persons other than wearers or buyers of fur coats, they apply not to sellers only but everyone involved in fur industry - Assuming that poster defamatory of persons involved in fur I trade, such defamatory words not reasonably capable of being understood to apply to applicant as respondent's campaign aimed at large and indeterminate body of persons and not an attack on any individual - Posters having no reference to fur sellers in Cape Town - As posters not reasonably capable of being understood to refer to applicant, application for interdict J restraining respondent from exhibiting such posters dismissed
1986 (4) SA p676

- Semble: ordinary reader of average intelligence reading the posters would not conclude that posters were defamatory of applicant - To reach such conclusion would involve supercritical form of thoughtprocess on part of reader which could not be ascribed to ordinary reasonable man - The B latter would not consider that merely because applicant was member of fur trade that words were defamatory of it in the sense that it (applicant) was lowered in the estimation of that reader.
A

Headnote : Kopnota Applicant, a close corporation trading as a furrier in Cape Town, had brought an application for an interdict restraining C respondent from publishing in any manner or form a certain poster which the respondent had erected along the southern suburbs railway line from Cape Town to Simonstown. The poster depicted, in black and white, a photograph of a woman in a skirt wearing stockings and high heeled shoes, taken from the waist down, dragging a full length fur coat along the ground leaving behind it a trail of blood which was coloured bright D red on the poster. The main caption on the poster read:"It takes up to 40 dumb animals to make a fur coat. But only one to wear it." Below that was a subsidiary caption which read:"If you don't want millions of animals tortured and killed in leg-hold traps, don't buy a fur coat." The photograph and caption presumably had its origin in an organisation in London for on the poster also appeared the words "Greenpeace, 36 Graham Street, London", and the address and telephone number of such organisation. The erection of the posters by the E respondent had

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attracted much media attention, and the applicant's managing director had alleged in the application that, as a result of the posters, she had received a number of telephone calls from clients expressing their concern at the adverse image created by the posters and several had returned their fur garments for storage as the owners no longer felt able to wear them as a result of the posters. Applicant's attorney hereafter wrote a letter to respondent stating that F the publication of the posters in question constituted defamation of the applicant and called upon respondent to have the posters removed and to apologise for having defamed the applicant. Applicant did not wait for a response from respondent but itself approached the South African Transport Services and the posters were thereafter taken down. This generated more media interest and the applicant, having been informed by respondent that the posters were not defamatory and G that there was no apology forthcoming from the respondent, brought the present proceedings. The parties had agreed that the Court should decide two questions in terms of Uniform Rule of Court 33 (4), viz (a) whether the poster in question was reasonably capable of being understood as referring to applicant; and (b) if it was, whether the poster was reasonably defamatory of applicant. Held, as to (a), that the first, main caption on its own could H not by any stretch of the imagination be said as being reasonably capable of being understood to apply to the applicant and that the argument that the caption was reasonably capable of being understood to apply to the sellers of fur coats, of which the applicant was one, attributed a process of extended reasoning to the ordinary reasonable reader which was not warranted or likely to be found in the ordinary everyday reading of the caption by the reasonable reader. I Held, therefore, that the first caption was not reasonably capable of being understood by the ordinary reasonable reader as applying to fur dealers or sellers generally, let alone to applicant specifically. Held, as regards the second caption, that at best for the applicant, it was only reasonably capable of being understood to refer to a wide body or class or group of persons connected with the fur trade which would include sellers of fur and that if one had regard to the poster as a whole and read both the captions contained in it, the group or class to which it was J capable of referring became even wider, viz it would then also include wearers of fur coats.
1986 (4) SA p677

TEBBUTT J Held, further, that, even if it were to be held that the poster A was capable of referring to persons other than the wearers or buyers of fur coats, it would still not apply to the sellers of furs only but to everyone concerned in the fur industry. Held, further, assuming that the poster was defamatory of that class or group of persons involved in the fur industry, that the defamatory words were not reasonably capable of being understood to apply to the applicant as the campaign in question was mounted against a very large and wholly B indeterminate body of persons and was clearly not an attack on any individual and emphatically not an attack on the applicant: it was a campaign against a cult and not an attack on individuals and, in any event, if it did apply to sellers of fur, it applied to them generally as a class wherever they might be and had no reference to sellers in Cape Town. Held, therefore, the first question having been answered in the C negative, that it was unnecessary for the Court to deal with the second question, viz whether the poster was reasonably capable of being defamatory of applicant. Application dismissed. Semble: a reading of the poster by the ordinary reader of average intelligence would not give him to understand that the poster was defamatory of applicant. To read the defamatory meanings into the poster which the applicant contended for D would involve a super-critical form of thought process on the part of the reader which could not be ascribed to the ordinary reasonable man. No reasonable reader could consider that, merely because applicant was a member of the fur trade, the words were defamatory of it in the sense that it was lowered in the estimation of that reader. Case Information Application for an interdict. The facts appear from the reasons E L King SC (with him C Y Louw ) for the applicant.
E

for judgment.

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S Aaron SC (with him D G Scott ) for the respondent.

F

Cur adv vult.

Postea (August 7). Judgment TEBBUTT J: Is a poster depicting a woman dragging a fur coat from which blood is dripping, with the captions "It takes up to G 40 dumb animals to make a fur coat. But only one to wear it" and "If you don't want millions of animals tortured and killed in leghold traps, don't buy a fur coat", defamatory of a furrier who sells fur coats? That, in essence, is the question raised in this case. The applicant is a close corporation. Mrs Wilma Neumann is its H sole and managing director. She says applicant has been trading as a furrier in Cape Town for almost 50 years. She considers herself an expert on the fur trade and was once chairman of the Fur Trade Association (Cape). In 1968 she won the title of world's top buyer. Applicant has, she says, a world-wide reputation for its garments. It is also a member of the International Union for the Conservation of Nature and I Natural Resources and of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, an 87nation body which regulates trade in endangered and threatened species. Applicant designs, manufactures and sells fur coats and jackets and accessories such as hats and scarves. It also repairs, restores and re-designs furs. She says applicant has built up a reputation for quality service, personalised J attention and absolute
1986 (4) SA p678

TEBBUTT J
A commercial integrity. Its clientele includes heads of State, cabinet ministers and their wives, members of parliament, diplomats and leading persons in commerce and industry. She says applicant does not deal in endangered species. It would be unlawful to do so. Its products are furs produced on ranches B under optimum conditions essential for high quality pelts. Applicant trades and has its principal place of business on the third floor of Strand Towers, Strand Street, Cape Town. So much for the applicant.

The respondent is an association described as a "non-denominational, non-political, charitable educational trust". It is also apparently registered as a fund-raising C organisation in Cape Town. It has its principal place of business in Claremont, Cape Town. At about the beginning of August 1985, respondent caused a large and striking billboard poster to be erected on at least two railway stations on the southern suburban railway line from Cape Town to Simonstown. One of them was the Observatory D station. The poster depicts in black and white a photograph of a woman in a skirt wearing stockings and high-heeled shoes, taken from the waist down, dragging a full-length fur coat along the ground leaving behind it a trail of blood which is coloured bright red on the poster. The main caption on the poster reads:"It takes up to 40 dumb animals to make a fur E coat. But only one to wear it." Below that is a subsidiary caption which reads:"If you don't want millions of animals tortured and killed in leg-hold traps, don't buy a fur coat." The photograph and caption apparently had its origin in an organisation in London for on the poster also appear the words "Greenpeace, 36 Graham Street, London NI 8LL, Tel: 01 2513020". The photographer is an internationally-known photographer called David Bailey.
F The erection by the respondent of the poster has attracted the attention of the media. In the Cape Times of 7 August 1985 there was a picture of the poster on the Observatory station with the following caption below it:

"An unusual sight in South Africa, but also an indication that Capetonians are not far behind international conservation G sentiments, are the Greenpeace posters recently erected along the Southern Suburbs railway line. The poster has a photograph taken by world-famous photographer David Bailey and has been used extensively in Britain to counter the notion that fur coats are status symbols and to make people aware of the atrocities connected with the fur industry. Here the campaign has been launched in association with Beauty Without Cruelty. To date the multi-million rand fur trade has been responsible for placing 40 animals on an international list of endangered species."
H

The Argus on 31 July 1985 also carried a picture of the poster, and in a caption said

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that "commuters on the southern suburban line have recently been exposed to the hardhitting posters, which are part of a Beauty Without Cruelty anti-fur awareness campaign". The Sunday Times on 11 August 1985 carried I an article headlined "Fur is flying over Bailey skin poster" and there have been numerous letters to the Press published in the Cape Times, mostly condemning the wearing of fur coats. There has also been a report and an interview about the poster on the radio. Mrs Neumann says that as a result of the posters she has received a number of telephone calls from clients expressing their concern at the adverse image created by the poster. Several had returned their fur garments for storage as J the owners no longer felt able to wear them as a result of the poster.
1986 (4) SA p679

TEBBUTT J On 14 August 1985 applicant's attorney wrote a long letter to

A

respondent stating that

"publication of the posters in question constitutes an unlawful and unjustified defamation of our client, which forms part of an identifiable group or class of persons, namely fur traders and dealers in fur, and the reasonable man to whom such defamatory matter has been published would consider our client to be one of the members of that class".

He then went on to say why applicant considered the poster to B be defamatory - aspects to which I will return in due course - that applicant had suffered and was still suffering damages and that the poster constituted an unlawful and unjustifiable infringement upon applicant's good name, dignity C and reputation. A long discourse on the applicant's business was then followed by the statement that applicant "conducts a lawful, legitimate and reputable business and is entitled to be protected from wide-ranging libellous generalisations such as contained in the poster". Respondent was called upon to cause the poster to be removed from wherever it appears in South Africa by 19 August 1985, to apologise for having defamed D applicant and to undertake not to make "any further defamatory allegations" against applicant in the future. Applicant did not wait for a response from respondent but itself approached the South African Transport Services and on 19 August 1985 the posters were taken down. This generated more media interest and the managing trustee of respondent, Mrs E Christine Berry, was reported to have said, inter alia, that "the posters are going up again" and that "now the fun is really going to start. The complainant's lawyer has been informed that the posters are not defamatory at all and we will certainly give no form of apology." This apparently prompted the applicant to bring these F proceedings, which are an application on notice of motion for an interdict restraining, prohibiting and interdicting respondent
"from publishing in any manner or form the Greenpeace poster consisting of a photograph by David Bailey of a woman dragging a fur coat leaving behind it a trail of blood or any other matter defamatory to plaintiff or disparaging of its products G and/or goods".

Respondent has filed opposing affidavits but it is not necessary for me to deal with these or set them out because when the matter came before me the parties had agreed that the Court should, on the allegations contained in the founding affidavit of Mrs Neumann to applicant's notice of motion, which are the facts I have set out above, at this stage decide two questions, as it were, on exception. They are (a) whether the H poster in question is reasonably capable of being understood as referring to applicant; and (b) if it is, whether the poster is reasonably defamatory of applicant in its primary sense, if any, or in the sense alleged in the founding affidavit, details of which I will set out later. The Court can, of course, do I this in terms of Rule 33 (4) and it would appear advisable from a costs point of view that it should do so here. I turn then to the first of these questions. It is obvious that applicant is not named directly in the poster. It is also trite that a plaintiff or applicant in a defamatory action must allege and prove that the defamatory matter was published of and concerning him. It must refer to or J concern him personally (see Burchell The Law of
1986 (4) SA p680

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TEBBUTT J
A Defamation in South Africa at 128; Goodall v Hoogendoorn Ltd 1926 AD 11 at 15; South African Associated Newspapers and Another v Estate Pelser1975 (4) SA 797 (A) at 810C; Knupffer v The London Express Newspaper Ltd [1944] 1 All ER 495 (HL) at 496A). It has been stated on many occasions that the test is an B objective one and it is whether the ordinary reasonable reader would have understood the words complained of, in conjunction in this case with the picture, to apply to the plaintiff or as in this case to the applicant (see Young v Kemsley and Others 1940 AD 258 at 281; South African Associated Newspapers Ltd and Another v Estate Pelser (supra at 812H); Burchell (loc cit )). This gives rise to a two-stage inquiry. Firstly, whether the words (with the picture) are reasonably C capable of referring to the plaintiff or applicant. This is a question of law and can be decided on exception. Secondly, and if the answer to the first part is in the affirmative, whether a reasonable person would regard the words as referring to the plaintiff or applicant. This is a question of fact on which evidence would be admissible (see Burchell (op cit at D 129); Knupffer v London Express Newspaper Ltd (supra per Viscount SIMON at 497F and per Lord PORTER at 499D); Bane v Colvin1959 (1) SA 863 (C) at 865C - D). It is only with the first of these inquiries that I am presently concerned.

In considering this, one must again remember that the words on E the poster in question do not refer to any particular person and certainly not to the applicant. If they are defamatory at all, they are defamatory of a class or group. There are no special rules of law which apply to cases of class or group libel where an individual member of the class or group institutes a defamation action based on defamatory matter which refers to the class or group. Here, too, the plaintiff or F applicant can only succeed if he can show that the matter complained of, though expressed to be in respect of a class or group of which he is a member, is in fact a publication of and concerning him personally (see per WESSELS JA in the South African Associated Newspapers' case supra at 810B - D). As stated by Lord RUSSELL in Knupffer's case supra at 498E:
G

"The crucial question in these cases in which an individual plaintiff sues in respect of defamation of a class or group of individuals is whether on their true construction the defamatory words were published of and concerning the individual plaintiff. Unless this can be answered in the affirmative, he has no cause of action."

Lord PORTER again (at 499A), with reference to the question H whether an individual can sue in respect of words which are defamatory of a body or class of persons generally, to which he said the answer as a rule was "No", went on to say that the true question always was:"Was the individual or were the individuals bringing the action personally pointed to by the words complained of?" Emphasising that it was no doubt true to say that a class cannot be defamed as a class nor can an I individual be defamed by a general reference to the class to which he belongs, Lord PORTER stressed that the first question always to be decided was: are the words in conjunction with the relevant circumstances reasonably capable of being understood to apply to the plaintiff? (See at 499C - F.) These statements of the law have been approved as coinciding with our law of defamation in South Africa (see eg Visse v Wallachs' Printing J and Publishing Co Ltd ; Visse v Pretoria News and Printing Works Ltd 1946 TPD 441 at 448;
1986 (4) SA p681

TEBBUTT J Vermaas v Pelser and Others1951 (1) SA 752 (T) at 761A - H; A Bane v Colvin (supra at 867A)) and the reasoning of Lord ATKIN in Knupffer's case has been said by the Appellate Division to correctly state the law (see South African Associated Newspapers and Another v Estate Pelser (supra at 810D)). The learned Law Lord there said:
"The only relevant rule is that in order to be actionable the B defamatory words must be understood to be published of and concerning the plaintiff. It is irrelevant that the words are published of two or more persons if they are proved to be published of him: and it is irrelevant that the two or more persons are called by some generic or class name. There can be no law that a defamatory statement made of a firm, or trustees, or the tenants of a particular building is not actionable, if the words would reasonably be understood as published of each member of the firm or each trustee or each tenant. The reason C why a 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 is ingrained in ill-educated or vulgar minds: or the words are occasionally intended to be a facetious exaggeration. Even in such cases

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words may be used which enable the plaintiff to prove that the D words complained of were intended to be published of each member of the group, or at any rate of himself."

In determining whether the element of identification of the plaintiff or applicant with the defamation has been proved, the Court does not look merely to the words complained of but must have regard as well to the surrounding circumstances. In this regard the following factors are important: the size of the E class or group, the generality of the charge and the extravagance of the accusation (see Knupffer's case supra at 499D; Bane v Colvin (supra at 867B)). None of them is, however, conclusive. The enquiry always remains: are the words in conjunction with the relevant circumstances reasonably capable F of being understood to apply to the plaintiff or applicant? Turning then to the poster in question it seems to me clear that the first caption on its own cannot by any stretch of the imagination be said as being reasonably capable of being understood to apply to the applicant. The wording obviously involves a play on the use of the word "dumb". It can mean, as the Oxford Dictionary defines it, "destitute of the power of speech". Or it can mean, as the Supplement to the Oxford G Dictionary says, "foolish, stupid, ignorant" or, as Webster in his dictionary has it, "(of a person) lacking perception or understanding". The caption is, in my view, clearly intended to convey that the wearers of fur coats are foolish or stupid or lacking in perception and understanding. It is also contended by applicant that by the use of the word "animal" the caption H intended to convey that the wearers of fur coats were brutish, bestial or unhuman. I do not think this is necessarily so. The word "animal" can also refer to a living being as distinct from vegetable forms and that by the use of the word "one" in reference to a dumb animal the caption was intended to convey this meaning that a wearer of a fur coat was a stupid foolish human being. I shall, however, assume that the caption intended I the baser meaning contended for by the applicant and that it intended to convey that the wearers of fur coats are foolish, stupid, ignorant people lacking in perception and understanding who are brutish and inhuman. The poster is, as I have said, not aimed at any particular person. The first portion is aimed at a class or group or persons. It is clearly aimed at the wearers of fur coats. The applicant goes further, however. It says that J the
1986 (4) SA p682

TEBBUTT J
A caption is reasonably capable of being understood to apply to the sellers of fur coats, of which it is one. The argument is that for someone to wear a fur coat, someone else has to sell it to such wearer and that therefore the caption was capable of referring to sellers of fur coats as well as to the wearers of B them. This, however, in my view attributes a process of extended reasoning to the ordinary reasonable reader which I do not think is warranted or likely to be found in the ordinary every-day reading of the caption by the reasonable reader and would represent the "extraordinary behaviour" of the "scientific analysis" and "conscientious study" on the part of the reader against which MILNE J warns as not being the criterion to be adopted in these cases, in S v Gibson NO and C Others1979 (4) SA 115 (D) at 144A - C. As HOLMES JA said in Dorfman v Afrikaanse Pers Publikasies (Edms) Bpk 1966 (1) PH J9 (A), the Court -

"must be careful not to attribute to the ordinary reader a tendency towards such (intellectual) analysis or any ability to D recall more than an outline or overall impression of what he or she has just read".

(See also per RUMPFF JA (as he then was) in Dorfman's case.) I therefore cannot find that the first caption is reasonably capable of being understood by the ordinary reasonable reader as applying to fur dealers or sellers generally, let alone to applicant specifically.
E The second caption comes nearer home as far as the applicant is concerned. It enjoins persons who do not want "animals tortured and killed in leg-hold traps" not to buy fur coats. Again it does not specifically refer to sellers of fur coats. It could refer to all persons engaged in the fur trade, ie the suppliers of skins, the ranchers who produce skins and who, according to applicant, produce the skins it uses in its F garments, the trappers in those instances where animals are trapped, the exporters and importers of skins, the manufacturers of fur garments and the sellers. All these are engaged in the production of fur coats which the caption on the poster enjoins people not to buy. The

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poster can, in my view, certainly not be read to mean that only the sellers of fur G coats torture and kill in leg-traps millions of animals. It can also not, in my view, be read to mean that only the manufacturers of fur coats torture and kill in leg-traps millions of animals. Nor can it be read to mean that only manufacturers and sellers of fur coats do so. At best for the applicant therefore it is, in my view, only reasonably capable H of being understood to refer to a wide body or class or group of persons connected with the fur trade which would include sellers of furs. If one looks at the poster as a whole and reads both the captions contained in it, the group or class to which it is capable of referring becomes even wider. It then would also include wearers of fur coats.
I Again, looking at the poster as a whole, it was contended by applicant that it was reasonably capable of applying to it in that it, as a seller of fur coats, for commercial gain exploited the stupidity and foolishness of its customers and benefited from and exploited that which is brutish, bestial and inhuman in its customers and that, by admonishing potential buyers of them not to buy fur coats because animals were tortured and killed in leg-traps, the poster was capable J of being understood to mean that

1986 (4) SA p683

TEBBUTT J
A applicant was guilty of, participated and acquiesced in, associated itself with, was responsible for and made a profit from the torturing and killing in leg-traps of millions of animals.

Here, too, I feel that this involves a process of analytical reading and reasoning which one does not expect of the ordinary reasonable reader. As RUMPFF JA said in the passage in Dorfman v Afrikaanse Pers B Publikasies (Edms) Bpk referred to above:
'Ek meen ook dat die toepasser van die reg gewaarsku moet wees dat 'n analitiese ondersoek van di artikel, veral 'n oorweging van individuele sinne en paragrawe, die neiging het om die oorspronklike geheelindruk te verwring of te verdryf.'
C An overall view of the poster is that it is a hard-hitting, dramatic and indeed emotive admonition of and appeal to people not to wear fur coats. Its statement that it takes one dumb animal to wear a fur coat and its exhortation of people not to buy fur coats if they do not want millions of animals tortured and killed is clearly directed at the buyers and D wearers of those garments. It is a campaign against the whole fur industry, appealing for a cessation of the wearing of fur garments. The poster is not directed against sellers of fur coats, although obviously wearers and buyers of coats must obtain their garments from sellers of them. But in my view it is as little capable of applying to them only, when one views the poster as a whole and has regard to its obvious E purpose, as an advertisement admonishing people not to smoke because smoking can cause illness such as cancer or heart-disease, can be said to apply to every vendor of cigarettes or tobacco. In the same way a poster exhorting people to become vegetarians and not to eat meat because animals are inhumanely killed at abattoirs could be held to apply to every butcher who sells meat as associating himself with such killing. F Even if it were to be held, however, that the poster was capable of referring to persons other than the wearers or buyers of fur coats, it would still, as I have stated, not apply to the sellers of furs but to everyone concerned in the fur industry as associating themselves with the torture and painful killing of dumb animals. G Assuming at this stage that the poster is defamatory, it would then be defamatory of that class or group of persons involved in the fur industry. Applicant is a member of that group. The crucial question then arises: Are the defamatory words reasonably capable of being understood to apply to the applicant? H It is now, I think, well recognised that if a group or class is so small or so readily ascertainable that what is said of the group or class is necessarily said of every member of it, then a member of that group or class may be able to bring an action if there is a defamation of the group or class. The reason for this, it would seem, is that every member of the group or class, it being so small, is identified in the libel or, as it has been put, is 'individually aspersed and can sue I and that therefore any one of them can' (see

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per MCKINNON LJ in Knupffer v The London Express Newspaper Ltd [1942] 2 All ER 555 (CA) at 558; Vermaas v Pelser and Others (supra at 759, 760)). For this reason the Court has, for instance, held that an allegation in a newspaper article of alleged defamatory conduct on the part of a company could reasonably J be interpreted as a reflection upon the board of directors of the company and that, as there
1986 (4) SA p684

TEBBUTT J
A were only five directors on the board, the article was capable of referring to each and every member of the board. It was therefore held that the article was capable of referring to the plaintiff who was one of the directors (see Bane v Colvin (supra )). The position is very different in the present case. The poster and its captions represent, B in my opinion, a campaign against a certain type of wearing apparel, ie fur coats and garments; it is an attack on a fashion cult or a clothing fad. Those who have mounted that campaign have directed their attack against all those involved in the fur trade, be they the wearers of fur garments or those involved in the production, supplying, manufacture or selling of such garments. This involves a very large and wholly C indeterminate body of persons. It is clearly not an attack on any individual and it is emphatically not an attack on the applicant. It is, if anything, an attack on a wide group or class in which it would be impossible to identify applicant individually. It is a campaign against a cult; it is not a attack on individuals.

It is not without significance that in her affidavit Mrs Neumann says D that she has received telephone calls from clients of applicant expressing their concern 'at the adverse image' created by the poster. She says further that in Europe and elsewhere 'where antifur campaigns have been launched and posters such as the (present) one have been widely used' the fur trade and fur industry have suffered substantial loss and that 'antifur campaign psychologically inhibits such people' E (ie sensitive, intelligent people involved in society and public life) from wearing and purchasing fur. Even if the class of persons to whom the poster applies could be said to be particularly the sellers of furs, as applicant contends - an F argument which I find hard to accept having regard to the wording of the two captions and their clear reference to the wearers and buyers of coats - I do not think that it can be said to be reasonably capable of applying to applicant. Applicant argues that it can be because, it says, the poster clearly refers to an identifiable group or class of persons, namely fur traders and dealers in furs 'and that applicant G occupies a prominent position within that group and the reasonable man to whom such a poster has been published would consider it to be one of the members of that class'. There are, it is averred, only six furriers in Cape Town who sell furs. Certain department stores also carry certain imported ready-made cheaper furs from Eastern countries. Even should it refer specifically to fur traders and dealers, the H poster clearly refers to such traders and dealers in general. It does not refer only to the traders and dealers in Cape Town. It was argued that the reasonable reader of the poster on the Observatory station would only regard it as applying to fur traders and dealers in CApe Town or could regard it as such. I cannot agree. If it could be said that the poster applies to sellers because it exhorts people not to buy I a fur coat because those who sell them torture and kill in leg-traps millions of animals, why should the reasonable reader of the poster, even if he is on the Observatory station which is close to Cape Town, understand it as applying only to those who sell them in Cape Town? The wording has no reference either directly or by implication to sellers in Cape Town. If it does apply to sellers, it applies to them generally as a class wherever they may be. One asks the question: if J the reader of the
1986 (4) SA p685

TEBBUTT J
A Observatory poster were a man from Johannesburg would he consider that it attacked only furriers and sellers of furs in Cape Town and not the furriers in Johannesburg? I think it is obvious that if he felt it attacked furriers at all he would consider that the poster referred to furriers everywhere, be they in Johannesburg, Cape Town or anywhere in B the Republic of South Africa or indeed overseas as well. The bold designation of

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'Greenpeace' with a London address gives the poster an international context. But it is not necessary, in my view, to go that far. I do not think the poster is reasonably capable of applying only to fur traders and dealers in Cape Town. It is only if it was, that applicant's argument that as it is one of only six furriers in Cape C Town the poster was reasonably capable of applying to it could have any validity for in that event applicant may be one of such a limited class of persons that the poster may be held to be reasonably capable of applying to it. As, in my view, it can only be understood as applying to fur traders and dealers generally, I do not think this criterion is applicable. As I have pointed out, the words and the surrounding D circumstances must be considered in deciding whether the alleged defamatory matter is reasonably capable of applying to the applicant, and such surrounding circumstances include the size of the class, the generality of the charge and the extravagance of the accusation. Here the class is a large one, the charge couched in very general and extravagant terms. As GODDARD LJ, in my respectful view, so aptly put E it in the Court of Appeal in Knupffer's case supra at 561B:
'The Court must in my opinion, pose the question: Is the article an attack on the policy or objects of a society or association or is it an attack on individuals?'

Applying that test to the present case, the poster and its captions that we are considering are, in my view, at attack on the activities of those involved in the fur trade including the traders and dealers. It F is not an attack on individuals. It is, in my view, emphatically not an attack on the applicant as an individual (cf Vermaas v Pelser and Others (supra)). Mr King, who appeared for the applicant, argued that at this stage it could not be said that the poster is incapable of being understood as referring to applicant and contended that this test G was such a stringent one that, if a person were to testify at the trial that he understood the poster to refer to the applicant, it would have to be said to him that he was not an ordinary reasonable person. That, however, is not the test at all. The test on exception is whether the words of a statement or article (or in this case a poster) are reasonably capable of conveying to the reasonable reader with average H intelligence and knowledge (which would include knowledge of the facts set out in the applicant's supporting affidavit, ie that there are sellers of fur garments of which applicant is one) that the criticism or attack in question referred to applicant (see SA Associated Newspapers and Another v Estate Pelser (supra at 811A); Geyser en 'n I Ander v Pont1968 (4) SA 67 (W) at 71C: Young v Kemsley and Others 1940 AD 258 at 281). It may well be that some friend or close associate of a plaintiff may understand a defamatory statement or article as applying to him but that would not satisfy the true test which is the one I have set out and has been applied both in our law and in England for several decades (see Halsbury Laws of England 4th ed vol 28 para 4 at 21; Gatley Libel and Slander 8th ed paras 41, 45. It is an J objective one (see Raw v
1986 (4) SA p686

TEBBUTT J
A Botha and Another1965 (3) SA 630 (D) at 636B). In Knupffer's case, for example, witnesses were asked the question: 'To whom did your mind go when you read that article?' and they replied by pointing to the appellant. Viscount SIMON at 497E-F said that was not unnatural

'... because they hapopened to know the appellant as the leading member B of the society (which was attacked in an allegedly defamatory manner in the article in question) in this country and not because there was anything in the article itself which ought to suggest even to his friends that he is referred to as an individual'.

The question of law, ie could the article, having regard to its language, be regarded as referring to the appellant as an individual, C was answered in the negative despite what I have just set out as to what some witnesses said (see also per Lord PORTER at 499G). Similarly in Raw v Botha (supra) an article was held to be defamatory of and an attack upon a political party, the United Party. The applicant alleged that the defamatory words were understood to refer to him as an individual and annexed affidavits by three people who said they understood the article as referring to him. The Court repeated the D test, viz that the question which was a question of law was whether the article was reasonably capable of referring to applicant as an individual and would be understood to be so by the reasonable reader. In answering that question the fact that the three deponents understood the words to refer to the applicant should be ignored.

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A NEUMANN CC v BEAUTY WITHOUT CRUELTY INTERNATIONAL 1986 ... Page 10 of 11

I am in respectful agreement with these views. They reflect, in my E view, the correct approach in matters such as these as I have set out above. As I have already stated, the wording of he poster does not refer to any individuals and to paraphrase the words of Viscount SIMON there is nothing in the poster to suggest even to applicant's clients that it is referred to as an individual entity.
F Having regard therefore to the poster and its wording I am unable to find that it is reasonably capable of referring to the appellant.

The first question posed is therefore answered in the negative. This conclusion makes it really unnecessary for me to deal with the second question that I was asked to consider, viz whether the poster is reasonably capable of being defamatory of applicant.
G I feel, however, that it may assist the parties if I were to set out briefly my views on it as well. The test on exception as to whether words are defamatory or not is whether a reasonable person of ordinary intelligence, having read the poster and its wording, might reasonably understand it as being defamatory of the applicant (see Basner v Trigger 1945 AD 22 at 32). It must be defamatory of the applicant, not H in the sense of it applying to it, with which I have already dealt, but in the sense of it defaming him, ie whether it might be reasonably understood by the ordinary reader of average intelligence as injuring the applicant in its good name and reputation, ie whether the imputation I contained in the poster lowers the applicant in the estimation of ordinary, right-thinking persons generally (see Burchell op cit at 103; Joubert The Law of South Africa vol 7 para 237 note 1 and cases there cited). A defamatory statement would include one which injures the reputation of the person concerned in his character, trade or business or which exposes him to enmity, ridicule or contempt (see Joubert (loc cit note 2)). This involves a consideration in its turn of two questions: (i) is the poster and its wording defamatory in its J ordinary or primary sense, and (ii) is it

1986 (4) SA p687

TEBBUTT J
A defamatory in the sense alleged by the applicant? (See National Union of Distributive Workers v Cleghorn & Harris Ltd 1946 AD 984 especially at 997). I am of the view that a reading of the poster by the ordinary reader of average intelligence would not give him to understand that the poster is defamatory of applicant. It is, in my view, part of a campaign to discourage the wearing of fur coats but it would not, in my B opinion, cause the reader concerned to consider that the applicant had been lowered in the estimation of right-thinking people. If it is defamatory of anyone, it could be defamatory of the wearers of fur coats who, having regard to the play on words contained in the first caption, viz that a dumb animal, ie one who is stupid or brutish, may C be said to be stupid or brutish if they wear furs. It might also be understood that in regard to such wearers they encourage the torturing and killing, by maiming, of animals. The poster, however, has no application, in my view, to the sellers of such coats and can therefore not be defamatory of them. D Applicant has, however, alleged in the founding affidavit firstly that the poster conveys to the reader of the type mentioned that it is 'dumb' or stupid. I have already expressed my view that this could not be understood by the reasonable reader. Applicant has, secondly, alleged that the reasonable reader would understand that applicant, for commercial gain, exploits the stupidity of its clients or that 'which E is brutish, bestial or inhuman' in them. I cannot agree. This would represent a form of extended and convoluted thinking which is not justified from the wording on the poster. The test of whether a statement is defamatory has long been held to be the judgment of the reasonable man; not that of the astute lawyer or the super-critical reader (see Joubert (op cit para 239); Burchell (op cit at 103); F Johnson v Rand Daily Mail 1928 AD 190 at 204; Basner v Trigger (supra at 35); Borkum v Cline and Another1959 (2) SA 670 (N) at 676A-B, despite the statement to the contrary of BROOME JP in Borkum v Cline and Another (supra at 671F-H)). I am unable to find that any ordinary reader of average intelligence could read into the poster this meaning contended G for by the applicant which, in my view, is one which is far-fetched.

Applicant has alleged thirdly that the poster is reasonably capable of being understood to

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mean that it 'is guilty of, participates in, acquiesces in, associates itself with, is responsible for and makes a profit from' the torturing and killing in leg-traps of millions of H animals. The applicant obviously relies for this alleged meaning on the second caption, ie 'If you don't want millions of animals tortured and killed in leg-traps, don't buy a fur coat'. The sentence is a clear reference to the manner in which animals are killed for their furs. It contains no reference to furriers. There is nothing in the poster to suggest that furriers participate in the torturing or killing, by I maiming, of fur-bearing animals or that they are responsible for or acquiesce or associate themselves with such activities. To read the meaning contended for by applicant as applying to dealers would again, in my view, involve a super-critical form of thought process on the part of the reader which I do not think could be ascribed to the ordinary reasonable man. The poster is an exhortation not to wear or buy fur garments. It does not suggest, in my opinion, that sellers of J such garments have any association with the mischief which the campaigner says would
1986 (4) SA p688

TEBBUTT J
A be avoided if fur garments were not to be worn. To use the examples I have already cited above, it would be like saying, in an anti-smoking campaign stating that smoking causes diseases, that every cigarette vendor associates himself with the possible spread, by smoking, of such diseases or that every butcher, in an anti-meat-eating campaign averring that animals are tortured at abattoirs, associates himself therewith. B That thinking, to my mind, would be too far-fetched to ascribe it to the ordinary reasonable man. Mr King argued that the applicant was a trading corporation engaged in the fur trade, that the poster was defamatory of the whole fur trade and, therefore, defamatory of the applicant simply because it was involved in such trade. If words are C defamatory of a trading corporation it has a remedy by way of action for libel (see eg G A Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1; Multiplan Insurance Brokers (Pty) Ltd v Van Blerk1985 (3) SA 164 (D)). The words must, however, have the effect of lowering in the estimation of right-thinking people the business character and D reputation of the trading corporation. I am unable to find that a reasonable reader could understand the words to mean that members of every aspect of the fur trade, be they trappers, producers, suppliers, manufacturers, sellers or buyers and wearers, associate themselves with the torture and maiming of furry animals. I am accordingly of the view that no reasonable reader could consider that merely because applicant E is a member of the fur trade the words are defamatory of it in the sense that it is lowered in the estimation of that reader.

I therefore also answer the second question in the negative, although as I have said, that is not strictly necessary having regard to the conclusion I have come to on the first question posed.
F It follows that the application must be dismissed with costs, such costs to include the costs of two counsel.

Applicant's Attorneys: Fairbridge, Arderne & Lawton Inc. Respondent's Attorneys: Findlay & Tait Inc.

2005 Juta and Company, Ltd.

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