Source:

South African Case Law, Juta's (1838 to date)/CHRONOLOGICAL LISTING OF CASES – 1838 to date/1980/Volume 4: 231 ­ 474 (November)/CHURCH OF
SCIENTOLOGY IN SA INCORPORATED ASSOCIATION NOT FOR GAIN AND ANOTHER v READER'S DIGEST ASSOCIATION SA (PTY) LTD 1980 (4) SA 313 (C)

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http://jutastat.juta.co.za/nxt/gateway.dll/sacl/3/13255/13749/13770?f=templates$fn=default.htm

CHURCH OF SCIENTOLOGY IN SA INCORPORATED ASSOCIATION NOT FOR GAIN AND ANOTHER v READER'S DIGEST ASSOCIATION SA
(PTY) LTD 1980 (4) SA 313 (C)
1980 (4) SA p313

Citation 1980 (4) SA 313 (C)

Court Cape Provincial Division

Judge van Den Heever J

Heard April 17, 1980; April 18, 1980; April 19, 1980; April 20, 1980; April 21, 1980

Judgment August 1, 1980

Annotations Link to Case Annotations

Flynote : Sleutelwoorde
B Defamation ­ What is and what is not actionable ­ Attack on a belief ­ Not subject to a damages claim or an interdict ­ Our law recognizes freedom
of speech in sense of not protecting ideas or philosophies against attack.
Defamation ­ Who may sue ­ Corporation ­ Such cannot sue for defamation ­ But may recover damages for patrimonial loss resulting from an
unlawful C attack upon its reputation as an integral part of its patrimony ­ Nothing in principle preventing non­trading companies from recovering
such patrimonial loss.
Headnote : Kopnota
Our legal system recognizes freedom of speech, inter alia, in the sense of not protecting ideas or philosophies against attack save in
recognized D categories. It would be a sad day indeed were we to revert to an approach whereby the author of an attack upon belief in the
Ptolemaic system, though fortunately no longer subject to the examen rigorosum, could be subject to a damages claim or interdicted from
airing his opinions.
A corporation cannot sue for defamation but may well be able to recover damages should it suffer patrimonial loss as the result of an unlawful E
attack upon its reputation as an integral part of its patrimony. There is nothing in principle necessitating discrimination against non­trading
companies so as to deny such a one the right to recover patrimonial loss suffered as the result of an unlawful attack upon its reputation.
Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk1977 (4) SA 376 (T) approved and applied. F
Case Information
Application for an interdict pendente lite. Facts not material to this report have been omitted from the reasons for judgment.

J Unterhalter SC (with him L R Dison SC and J J Gauntlett) for the applicants.

H Snitcher QC (with him P B Hodes) for the respondent.

G [The Court dismissed the application on 21 April 1980, reserving judgment on the question of costs, and handed down the following reasons for judgment and decision
on the question of costs on 1 August 1980.]

Judgment
VAN DEN HEEVER J: First applicant is an association not for gain H incorporated in South Africa. As its name shows, it calls itself a church. Its main object, in terms of its
memorandum of association, is:

"To worship and administer, and to propagate, in accordance with the Church creed and conditions as set forth hereunder, the religious faith, doctrines and
practice of scientology including the enhancement of the spiritual welfare and the promotion of the interests of the adherents of scientology."

Second applicant is described as a religious non­profit corporation registered in the State of California, United States of America.

Both are represented in these proceedings by a Mr Cook. He is the

1980 (4) SA p314

VAN DEN HEEVER J

chief administrative officer of the first applicant, and says he was authorised telephonically to represent also second applicant. This A authorisation was initially questioned.
Respondent however did not press the point when applicants offered to provide written proof but required a postponement in order to do so. I accordingly accept that both
applicants are properly before the Court.

Mr Cook filed two affidavits with annexures (and a certificate of urgency) B in support of a notice of motion. This prayed orders interdicting respondent permanently, failing
which temporarily, pending the outcome of further proceedings, either on affidavit or by way of action, to obtain a permanent interdict preventing respondent from
publishing an article called "Scientology ­ Anatomy of a Frightening Cult".

Applicants not only had wind of respondent's intention to include this in C the May edition of its monthly magazine, the "Reader's Digest", but were in possession of a copy
which they annexed to their papers. The order originally prayed went further and claimed the destruction of the entire May issue of the magazine. Applicants did not persist
in this prayer, nor in the main claim for a permanent interdict. The first alternative, for a D rule nisi operating as a temporary interdict, died a natural death since
respondent opposed the application as soon as it was launched. All that applicant sought at the hearing, was a temporary interdict pending the outcome of an action to
obtain permanent suppression of the article.

The application was refused. Judgment was reserved as to costs since I wished to consider whether they should stand over for determination in a E trial, as was done in,
inter alia, Roberts v The Critic Ltd and Others 1919 WLD 26 at 31. For various reasons such a ruling would not in my view be proper. Amongst others is the fact that applicants
conceded at the hearing that the prayers in their notice of motion went far beyond what is reasonable. Respondent was entitled to oppose the destruction of the F entire
May issue of its magazine and is entitled to a present award of costs. The reasons for refusing the temporary interdict follow.

The documents were prepared in haste. Perhaps because of this, many issues were raised which are impossible to decide on affidavit. Many of these are in any event
irrelevant to the present application, however relevant they may be in an action for damages based on defamation. The only cardinal G matter in dispute which to my mind
requires decision forthwith is as to applicant's legal nature judged by its objects. Respondent denied that the Church of Scientology propagates any religion at all. Applicants
countered with, inter alia, a lengthy apologia by a deponent who describes himself as "head and Prof in Dept of Science of Religion, University of Durban­Westville". He
concludes that

H "scientology... should receive recognition as a religious body and be treated in the same manner as a recognised church".

For present purposes I propose to do so.

I quote the offending article in full:

[The learned Judge then quoted the article and proceeded.]

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The article is written in emotive language. Methvin's "communicative skills" are themselves not inconsiderable. He clearly aims at holding up to disapproval and derision
Ron Hubbard, the operating methods of certain scientology officials in America and the thinking of adherents of
 For present purposes I propose to do so.

I quote the offending article in full:

[The learned Judge then quoted the article and proceeded.]

The article is written in emotive language. Methvin's "communicative skills" are themselves not inconsiderable. He clearly aims at holding up to disapproval and derision
Ron Hubbard, the operating methods of certain scientology officials in America and the thinking of adherents of

1980 (4) SA p315

VAN DEN HEEVER J

scientology ("Hubbard's bizarre 'philosophy'"). The only reference to the South African situation is in the boxed preface between the title and the body of the article.

A Stripped of all detail, illustration, and emotive language, the article pares down to the following:

1. (a) Hubbard decided to start his own religion with a view to amassing a personal fortune.
(b) He has succeeded in doing so, and lives like a capricious, pampered despot, whose wealth continues to increase.
B (c) He has lied about his qualificawjons and achievements, is dishonest and perhaps unbalanced.
2. According to Hubbare's teaching:
(a) Humans are material manifestations of eternal spirits who are repectedly reincarnated.
C (b) Our earthly troubles often result from painful experiences either in this life or informer incarnations; which he calls
"engrams".
(c) Scientology by tracing and removing engrams can benefit the person "cleared" in innumerable ways both physical and
spiritual.
D 3. The methods employed by Hubbard and his staff towards new recruits are immoral, since:
(a) gullible followers are duped with impressive­looking but ineffective machines and questions, purportedly aimed at
tracing and removing "engrams", into parting with money and intimate secrets;
E (b) these so­called "training routines" or auditing sessions conducted by Hubbard's followers for a commission of 10 per
cent of the fees paid by a new recruit, are psychologically damaging to those subjected to them; who became
subservient to those administering the routines, and have been known to commit suicide.
F 4. Hubbard, who in 1966 created his own "guardian office" of spies, is himself and through them amoral and ruthless towards individuals or organisations
regarded as defecting from or being inimical to scientology.

5. (a) An American jury last year awarded damages to Julie G Christofferson on the grounds of "the church's fraudulent and
outrageous conduct".
(b) Nine high scientology officials were last year convicted before a Federal Court of theft or conspiracy charges, arising
from their plot against government agencies regarded as being obstructive to the church.
H (c) Further action is pending in the Boston Federal Court "for fraud, outrageous conduct and breach of contract, on
behalf of a former scientologist abused by the cult".
6. Readers are cautioned in the final peroration to learn from what has happened in the USA to be wary of Ron Hubbard and the cult of which he is leader.

In the founding affidavits first applicant sets out its membership and income, and Cooks says that

1980 (4) SA p316

VAN DEN HEEVER J

"if the membership of the Church were to be reduced by a number of its members discontinuing their association with the Church because of their distrust of the
probity of its administration induced by an unlawful attack upon the Church, the first applicant would be gravely prejudiced in A the conduct of its church affairs
more especially because of the loss of income that it would suffer and the consequence that it would be unable to meet its commitments. Furthermore, the first
applicant, as a living religious entity, relies for its growth upon a continuing increase in its membership and, were this increase to be hindered or prevented by
any unlawful conduct of persons attacking the Church, there would be a grave retardation of the development of the Church with consequent financial loss."

B He says that the article is

"defamatory, unreasonable, unfair and untrue"

and that it will be

"injurious of first applicant and cause damage to its good name, its membership and its patrimony".

C Second applicant says that it is the mother church of first applicant; from which it derives income directly as tithes and indirectly via the Church of Scientology
administration and from scientology publications sent here for sale. Moreover South Africans go to the USA for courses in the theology and doctrine of the church and for
counselling against payment of fees, a portion of which likewise goes to the second applicant.

D "By reason of the fact that the doctrines of scientology and the tuition and counselling in regard thereto are the central features of the literature and services
referred to above, any unlawful attack upon Churches of Scientology in the United States of America that provide these will affect the income derived by the
(Church of Scientology) administration and... second applicant in regard to its enjoyment of its portion of such income."

E Respondent opposed the granting of any interdict. Its affidavits, shorn of irrelevancies:

(1) admit the intended publication of the article in question;

(2) deny that that article is "defamatory, unreasonable, unfair and untrue". The facts alleged are true, the balance is fair comment, the whole a matter of public
interest;
F (3) allege further that ­
(a) none of the allegations relate to first applicant;
(b) each applicant is autonomous, no vinculum iuris connecting one to the other;
(c) each applicant is a universitas without personality rights and incapable of being defamed;
G (4) say that the balance of convenience favours respondent. An interdict would necessitate reprinting 64 pages and the cover of the magazine. This would cost
R18 247. Delay in binding renders respondent liable in damages to the printers at a rate of R978 per day. One week's H delay of the May issue would lead not
only to loss of newsstand sales in a sum estimated at R4 320, but delay could further lead to a loss of subscribers, advertising revenue, goodwill.

Applicant's replying affidavits annex, inter alia, telex messages setting out the contents of affidavits from America that did not arrive in time for the postponed hearing of
the matter. To avoid further delay, respondent accepted these as being sufficient in form, without of course admitting the correctness of the contents. The effect of the
many documents is to dispute that the facts alleged in the article are true, reaffirm that the article is defamatory, defend the philosophy of scientology

1980 (4) SA p317

VAN DEN HEEVER J

and the morality of its founder and his followers, complain that the author of the offending article and respondent refused requests for opportunities to correct errors it
contains, and infer that the article is malicious and published with intent to injure.

A The portion of the article summarized above in paras 1 and 4 would without question found an action by Hubbard himself for damages for defamation, unless
successfully countered by a defence recognized in law. He is, however, not a party to the proceedings.

As regards para 2, our legal system recognizes freedom of speech, inter B alia, in the sense of not protecting ideas or philosophies against attack save in recognized
categories. (Blasphemy is in theory a criminal offence. Prosecutions are rare and convictions even more rare (cf Hunt SA Criminal Law and Procedure vol 2 at 287 et seq).) I t
would be a sad day indeed were we to revert to an approach whereby the author of an attack upon belief in C the Ptolemaic system, though fortunately no longer subject to
the examen rigorosum, could be subject to a damages claim or interdicted from airing his opinions.

As regards para 5, the fact that trials were held, and their outcome, and that a further trial is pending, is not disputed by applicants. They D complain that the Courts erred
and the judgments referred to are not final and may very well be reversed. That may well be so; but reporting the fact of an adverse judgment cannot in my view be
labelled as defamation.

What remains is para 3 and the comment concluding the article.

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I accept that these are calculated to bring scientology and its followers E ­ certainly those in the USA ­ into disrepute. However, the application is not brought by individuals
 the examen rigorosum, could be subject to a damages claim or interdicted from airing his opinions.

As regards para 5, the fact that trials were held, and their outcome, and that a further trial is pending, is not disputed by applicants. They D complain that the Courts erred
and the judgments referred to are not final and may very well be reversed. That may well be so; but reporting the fact of an adverse judgment cannot in my view be
labelled as defamation.

What remains is para 3 and the comment concluding the article.

I accept that these are calculated to bring scientology and its followers E ­ certainly those in the USA ­ into disrepute. However, the application is not brought by individuals
who claim to have been defamed as members of a defamed class or group, but by two non­trading unversitates claiming to be churches.

Despite all the verbal battles about Fichardt v The Friend Newspapers Ltd 1916 AD 1, our Courts do not seem to have recognized as a ratio decidendi F that a corporation, even a
trading corporation, is capable of being defamed. As RABIE JA points out in Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk1979 (1) SA 441 (A) at 445, the passages in
the Fichardt case and in Goodall v Hoogendoorn Ltd 1926 AD 11, often quoted as authority for the proposition that a trading company may sue for G defamation, were mere
obiter dicta. Even in the Tommie Meyer Films case supra the Appellate Division did not decide that a universitas may be defamed. This was assumed for the purposes of the
appeal, a decision on this issue being unnecessary. The many criticisms of what the Fichardt and H Goodall cases were supposed to have said appear to be well founded in
the basic principles of our law (see, eg, Bredell v Pienaar 1924 CPD 203; Neethling Persoonlikheidsreg a t 7 9 et seq; Universiteit van Pretoria v Tommie Meyer Films (Edms)
Bpk1977 (4) SA 376 (T) at 385). It seems to me, in the light of the comments of RABIE JA, that the present position is what it should in logic be: that a corporation cannot
sue for defamation but may well be able to recover damages should it suffer patrimonial loss as the result of an unlawful attack upon its reputation as an integral part of
its patrimony.

And the comment of MOSTERT J in the Tommie Meyer Films case

1980 (4) SA p318

VAN DEN HEEVER J

(1977 (4) SA at 386) appears to me with respect to be logical, that there is nothing in principle necessitating discrimination against non­trading A companies so as to deny
such a one the right to recover patrimonial loss suffered as the result of an unlawful attack upon its reputation. In fact, however, a non­trading company may find it
impossible, or certainly more difficult than a trading corporation would, to persuade the Court either that such an attack caused it patrimonial loss, or that it was unlawful. B
The words of WATERMEYER CJ in Die Spoorbond and Another v South African Railways; Van Heerden and Others v South African Railways 1946 AD 999 at 1009 may mutatis mutandis
be applied to the non­trading associations that most readily come to mind, such as churches and other concerns rendering service of one kind or another to the public or
sections of the public:

C "A business or trading corporation exists solely for the purpose of carrying on its trade or business, and the reputation which has been attributed to it in
decided cases is connected with or attached to the carrying on of that trade or business. On the other hand the Crown's main function is that of the Government
and its reputation or good name is not a frail thing connected with or attached to the actions of the individuals who temporarily direct or manage some particular
one of the many D activities in which the Government engages.. . its reputation is a far more robust and universal thing..."

Accepting that a non­trading corporation may protect its patrimony against damage by "defamation", it perhaps merits mention that the apparent difference of approach
between the Cape and Transvaal as to interdicts in matters of this nature appears to have been resolved as a result of the E lucid analysis by COETZEE J in Buthelezi v
Poorter and Others1974 (4) SA 831 (W) of the true ratio decidendi adopted by GREENBERG J (as he then was) in Heilbron v Blignaut 1931 WLD 167 at 169.

The present matter must accordingly be decided ­ as was said already in Cleghorn & Harris Ltd v National Union of Distributive Workers 1940 CPD 409 ­ on the basic principles
relating to interdicts: as set out in, inter F alia, Setlogelo v Setlogelo 1 9 1 4 A D 2 2 1 a t 2 2 7 a n d e l a b o r a t e d u p o n b y H O L M E S J i n Olympic Passenger Service (Pty) Ltd v
Ramlagan1957 (2) SA 382 (D) at 383C ­ G.

Respondent's allegations that the article will not be understood by the ordinary reader as referring to any activities by first applicant, appears G to me to be correct. There
is accordingly no attack on first applicant qua church and I have already said that an attack upon its (or any other) philosophy is not unlawful.

As regards second applicant, respondent's claim that the allegations as to events in the USA are true, is not the mere pleading of a defence such as H was held to be
ineffective to avert an interdict in Buthelezi's case supra. Methvin reveals most of his sources in the article itself and in his opposing affidavit and would prima facie be entitled
to rely on these. Assuming that second applicant is "defamed", when reprehensible conduct by its officials is alleged to have occurred, the conduct of those officials in the
USA appears to be prima facie a matter of public interest here. Second applicant itself alleges that South Africans attend scientology courses and undergo counselling in that
country. Moreover those officials referred to are, in their capacity as such, public figures. See Joubert Law of South Africa vol 7 para 247 and cases referred to in note 7.

1980 (4) SA p319

VAN DEN HEEVER J

In short, whether there is an attack upon first applicant, and whether any attack upon second applicant (as opposed to its individual officials) is unlawful, are at least
doubtful. And applicants have not shown on balance A that they or either of them would suffer irreparable harm were publication of the article not prevented. Their
allegations considered from a reipersecutory point of view are to my mind very thin ­ as thin as respondent's suggestion that delay in publication may lead to loss of
advertising revenue and/or goodwill. Both amount to no more than B speculation; and churches throughout history have borne attacks both lawful and perhaps unlawful but
certainly based on untruths, far more vigorous than the present one without noticeable diminution of the numbers of their convinced adherents nor loss of vigour in seeking
further converts.

Respondent has however placed evidence before the Court that it would be C out of pocket in a sum in the vicinity of R20 000 were a temporary interdict to be granted.
The balance of convenience in my view favoured dismissal of the application.

An order having been made on the merits at the hearing, it remains merely to rule that respondent is entitled to its costs. Applicants are ordered to pay these jointly and
severally, including the costs of two counsel.

D Applicants' Attorneys: Frank, Bernadt & Joffe. Respondent's E Attorneys: Lionel Murray & Co.

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