DETERMINING THE MEANING OF AN INNUENDO: CAN THE CONTEXT BE SEPARATED FROM THE WORDS?

Abstract

Defamation can be said to mean the wrongful and intentional publication of defamatory material which refers to a plaintiff. In order
for liability to arise in a defamation action there must be publication of defamatory material which refers to the plaintiff, and the plaintiff bears the onus of proving this. From the plaintiff’s perspective, the publication requirement entails a factual enquiry, whilst the determination of whether the publication was defamatory is more complex. To determine whether a publication is defamatory one has to, firstly, establish the meaning of the publication, and secondly, decide whether the meaning of the publication contained a defamatory imputation. However, this enquiry to establish the meaning of the material in question can become complicated considering that words may have more than one meaning and plaintiffs are entitled to rely on the secondary meaning of the words (also known as innuendos) in defamation actions. Recently the Supreme Court of Appeal (“SCA”) was called upon to decide the correctness of a High Court’s approach in determining the meaning of an innuendo (Molotlegi v Mokwalase [2010] 4 All SA 258 (SCA)). In the High Court a separation of issues order was granted with the effect that the meaning of the innuendo in question had to be established without any regard to the context in which the words were uttered. This note will therefore consider whether a separation of issues, that is, separating the determination of the meaning of the words from the context in which they were uttered, would be appropriate in defamation cases where the secondary meaning of the words is relied upon by the plaintiff. In what follows, we shall consider what an innuendo is, the court’s approach to determining the meaning of innuendos, the legal principles underlying a
separation of issues order, and the decision of the Supreme Court of Appeal in Molotlegi v Mokwalase (supra).