## Facts

- In January 1977, Mrs. Claassens telephoned Mr. Van der Merwe and asked to speak to his wife.
- Van der Merwe replied in Afrikaans that his wife was staying with “that damn lesbian,” making it clear he was referring to Ms. Vermaak.
- Mrs. Claassens heard the word “lesbian” but did not know what it meant at the time of the call and therefore did not appreciate any defamatory meaning.
- Immediately after the call, Mrs. Claassens asked her husband what “lesbian” meant, and he explained it to her (as a woman who has sexual relations with other women).
- It was not disputed that, in that social and legal context, falsely describing Vermaak as a lesbian in the manner used was defamatory.
- Vermaak sued Van der Merwe for damages for defamation in the magistrate’s court.
- Van der Merwe’s counsel argued that for slander to be “published,” the hearer must understand the defamatory meaning at the time the words are spoken.
- The magistrate dismissed the defamation claim on the basis that there was no publication because Mrs. Claassens did not understand the meaning when she heard the statement.
- Vermaak appealed to the Natal Provincial Division, limiting the appeal to the dismissal of the defamation claim based on the “lesbian” remark.

## Issues

1. Whether an oral defamatory statement is “published” if the hearer does not understand its defamatory meaning at the moment it is spoken.
2. Whether publication is satisfied where the hearer learns the meaning shortly after the communication, through explanation or reflection.

## Decision

- The court allowed the appeal.
- The court held that the magistrate was wrong to find no publication.
- The court held that publication was satisfied because the words were communicated to Mrs. Claassens and she came to understand their defamatory meaning after the call.
- The result was that Vermaak was entitled to succeed on the defamation claim on this publication point (with the related order as to costs on appeal).

## Legal Principles

- Publication in slander does not require that the hearer’s understanding of defamatory meaning be simultaneous with the utterance.
- It is enough that defamatory words are communicated to a third party and that the third party comes to understand their defamatory meaning at some later stage, including by later explanation.
- Delayed understanding of meaning can be treated similarly to situations where a recipient later discovers the identity of the person referred to; in both situations, the gap between communication and full appreciation does not prevent publication.
- The rule accommodates real conditions in a multilingual society, where a recipient may initially fail to grasp the meaning or sting of a word or phrase but may understand it later.

## Conclusion

Vermaak v. Van der Merwe holds that an oral defamatory statement is published once it is communicated to a third person who later comes to understand its defamatory meaning; the hearer’s lack of immediate comprehension at the moment of speaking does not defeat the publication requirement, and the magistrate’s contrary approach was set aside on appeal.


Vermaak v. Van der Merwe, 1981 (3) SA 78 (N)