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[2010] ZASCA 41
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Le Roux and Others v Dey (44/2009) [2010] ZASCA 41; 2010 (4) SA 210 (SCA) ; [2010] 3 All SA 497 (SCA) (30 March 2010)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 44/2009
HENDRIK PIETER LE ROUX
First
Appellant
BURGERT CHRISTIAAN GILDENHUYS Second
Appellant
REINARDT JANSE VAN RENSBURG Third Appellant
and
LOUIS DEY Respondent
Neutral citation:
Le
Roux v Dey
(44/2009)
[2010] ZASCA 41
(30 March 2010)
Coram:
Harms
DP, Mlambo and Malan JJA and Griesel and Majiedt AJJA
Heard:
8
March 2010
Delivered:
30
March 2010
Summary:
Actio iniuriarum
– defamation – humiliation – jest –
wrongfulness – animus iniuriandi – consciousness
of
wrongfulness not required - damages
__________________________________________________________________
ORDER
__________________________________________________________________
On appeal from:
North Gauteng High Court (Pretoria) (Du Plessis J sitting as court of
first instance):
The following order is made:
1 The appeal is dismissed with costs, such costs to
include the costs of two counsel.
2 The cross-appeal is upheld with costs, such costs to
include the costs of two counsel.
3 The order of the court below is amended by
substituting para 3 with ‘Koste, insluitend die koste van twee
advokate’.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
HARMS DP (MLAMBO and MALAN JJA and
MAJIEDT AJA)
[1] This appeal relates to a claim
for sentimental damages for the infringement of the dignity
(dignitas) and reputation (fama)
of the plaintiff, the present
respondent, who was a vice principal at a well-known secondary school
in Pretoria. The perpetrators
were three scholars, the defendants.
The high court upheld both claims and awarded a composite amount of
R45 000 with costs on
the magistrates’ courts’ scale.
With the leave of the trial court the defendants appeal the judgment
while the plaintiff
cross-appeals the quantum of the award and the
costs order.
[2] The claims arose from these
facts: the first defendant, who then was fifteen and a half and in
grade 9, one evening searched
the internet for pictures of gay
bodybuilders. He found one. It showed two of them, both naked and
their legs astride, sitting
next to each other in a rather
compromising position – a leg of the one was over a leg of the
other – and the position
of their hands was indicative of
sexual activity or stimulation. He manipulated the photograph by
pasting a photo of the plaintiff’s
face on the face of the one
bodybuilder and the face of the principal of the school onto the
other. He also covered the genitals
of each with pictures of the
school’s badge.
[3] He sent the manipulated photo
to a friend who, in turn, sent it by cell phone to the second
defendant, who was in grade 11 and
17 years old. The picture spread
like fire amongst the scholars. A few days later the second defendant
showed the picture to a
female teacher during class and later decided
to print the photo in colour and showed it around on the playground.
At his behest
and because he did not have the necessary ‘guts’
the third defendant, who was in the same grade and of the same age,
placed the photograph prominently on the school’s notice board.
A teacher saw it quite soon and removed it.
[4] As a result, the plaintiff
instituted an action against them based on the actio iniuriarum,
claiming damages for defamation
as well as for his humiliation. The
facts are fairly uncontentious and the main issues raised by the
appeal and cross-appeal concerned
(a) wrongfulness; (b) the presence
of fault in the form of animus iniuriandi; (c) the quantum of
damages; and (d) the appropriate
costs order. There is, however,
another fundamental question relating to splitting of causes of
action that will be dealt with
in the course of the judgment. It may
be pointed out at this early stage that the first two issues are
essentially related to the
evidence of the defendants that the
publication of the picture was intended as a joke and was perceived
as such and that, accordingly,
they could not be liable under the
actio iniuriarum because their actions were not wrongful and because
they did not have the intent
to injure the plaintiff (a lack of
animus iniuriandi).
DEFAMATION: WRONGFULNESS
[5] I begin with the defamation
claim. The first matter to consider is the wrongfulness of the
publication of the manipulated photo.
It is well established that the
determination of whether a publication is defamatory and therefore
prima facie wrongful involves
a two-stage inquiry. (I use the word
‘publication’ to include a pictorial representation such
as a photograph.) The
first is to determine the meaning of the
publication as a matter of interpretation and the second whether that
meaning is defamatory.
1
[6] To answer the first question a
court has to determine the natural and ordinary meaning of the
publication:
2
how would
3
a reasonable person of ordinary intelligence
have
understood
it? The test is objective. In determining its meaning the court must
take account not only of what the publication expressly
conveys, but
also of what it implies, ie, what a reasonable person may infer from
it. The implied meaning is not the same as innuendo,
which relates to
a secondary or unusual defamatory meaning that flows from knowledge
of special circumstances. Meaning is usually
conveyed by words but a
picture may also convey a message, sometimes even stronger than
words.
[7] It may be accepted that the
reasonable person must be contextualised and that one is not
concerned with a purely abstract exercise.
4
One must have regard to the nature of the audience. In this case the
main target was the school children at the particular school
but it
also included at least teachers.
5
[8] A publication is defamatory if
it has the ‘tendency’ or is calculated to undermine the
status, good name or reputation
of the plaintiff.
6
It is necessary to emphasise this because it is an aspect that is
neglected in text-book definitions of defamation because it is
usually said that something can only be defamatory if it causes the
plaintiff’s reputation to be impaired.
7
That is not the case, as Neethling explains with reference to
authority:
8
‘It
is notable that the question of a factual injury to personality, that
is, whether the good name of the person concerned
was actually
injured, is almost completely ignored in the evaluation of
wrongfulness of defamation. In fact, generally
9
a witness may not even be asked how he understood the words or
behaviour. In addition, it is required only that the words or
behaviour
was
calculated
or
had
the tendency or propensity
to
defame, and not that the defamation actually occurred. In short,
probability
of injury
rather than actual injury is at issue. It can be concluded,
therefore, that the courts are not at all interested in whether
others’
esteem for the person concerned was in fact lowered,
but only, seen
objectively
,
in whether, in the opinion of the reasonable person, the esteem which
the person enjoyed was adversely affected. If so, it is
simply
accepted “that those to whom it is addressed, being persons of
ordinary intelligence and experience, will have understood
the
statement in its proper sense”.’
[9] It is often said that jest may
exclude animus iniuriandi, something to which I shall return.
10
Masch v Leask,
11
however, held
that jest could be a defence only if it was something that would have
been understood by the reasonable person as
jest – ‘if a
man says that the words were used in jest, he must prove that it
could be taken up in no other light by
a reasonable person.’
Melius de Villiers, like so many before (such as Voet 47.10.8)
12
and after him (including this court), did not distinguish clearly
between wrongfulness and animus iniuriandi in his classical work
on
iniuriae.
13
Ignoring this failure, his views on jest in the present context are
illuminating. He drew a distinction between legitimate jest
and jest
that is not legitimate. Jest is not legitimate, he said, when in
order to amuse yourself or to show off your wit, you
say or do things
which, considering the occasion or personal circumstances of another,
would be insulting, offensive or degrading.
[10] It appears to me that if a
publication is objectively and in the circumstances in jest it may
not be defamatory.
14
But there is a clear line. A joke at the expense of someone –
making someone the butt of a degrading joke – is likely
to be
interpreted as defamatory. A joke at which the subject can laugh will
usually be inoffensive.
[11] In determining whether a
publication is defamatory regard must be had to the person who was
allegedly defamed. What may be
defamatory of a private individual may
not necessarily be defamatory of a politician or a judge. By virtue
of their public office
they are expected to endure robust comment but
that does not imply that they cannot be defamed or should not be
entitled to turn
to courts to vindicate unjustifiable attacks on
their character.
15
This is to a lesser extent also true of teachers. They must expect to
be the subject of robust comment and the butt of jokes by
scholars
but, once again, there is a line that may not be crossed because
they, too, have the right to reputation and dignity,
which must be
protected.
[12] The plaintiff alleged that
the publication was per se defamatory and in the alternative alleged
in effect that the photo implied
that he masturbated in the presence
of another, was guilty of immoral exposure, had a low moral
character, had a homosexual relationship
with the principal, or was
homosexual. He did not rely on an innuendo.
[13] The learned judge, in
determining the objective ‘message’ conveyed by the
publication, held that although it was
obvious that the faces did not
belong to the bodies, the transposition of the faces onto the bodies
associated the two teachers
with the bodybuilders and their
behaviour. They were busy with some sexual activity (even though one
could not see what the two
men did because of the positioning of the
school badges) and that the photo created the impression that the two
figures have low
moral values and immodest sexuality.
[14] As to the question whether
the publication was defamatory, the learned judge said that the
reasonable person would have viewed
the photo through the lens of the
Constitution, more particularly s 10, which provides that everyone
has the right to have their
dignity respected and protected; s 14,
which guarantees the right to privacy; and s 9(2) and (3), which
demand that everyone’s
sexual orientation should be respected.
The publication raises questions about the plaintiff’s
sexuality and sexual orientation,
he said. It ridicules the
plaintiff’s moral values and disrespects his person. However,
the sexual orientation itself, he
said, is of little moment because
the ridicule would not have been different if the other person had
been a female member of staff.
[15] The defendants’ counsel
attacked these findings on a number of grounds. His main argument was
that the implicit meaning,
especially the association between the
plaintiff and the bodybuilders, had not been pleaded. The answer is
that interpretation
is for the court and need not be pleaded.
Meaning, express or implied, is a matter for argument and not
evidence. It is also not
understood where this technical argument was
supposed to lead. Counsel sought to rely on evidence that this is not
how the picture
was perceived and also on evidence that one or two
persons who had seen the picture did not believe that it reflected
the true
relationship between the two teachers or that they did not
think less of the plaintiff as a result of the publication. As
mentioned
above, all this is beside the point. Interpretation is an
objective issue. Actual loss of reputation is not required, nor is
belief
in the defamation.
[16] Something was also made of
the fact that the defendants were school children and that the
reasonable person would have taken
that into account in assessing the
meaning of the photo. I have some difficulty in appreciating how the
identity of the alleged
defamer can determine the objective meaning
of a publication. The picture was created and distributed
anonymously. Its origin down
the line would not have been known since
it was in the nature of a chain letter. An addressee may or may not
have suspected that
children were behind it all but there was no
reason for them to have accepted that as a fact.
[17] The picture was not published
in isolation. There was a background to it. The plaintiff’s
name rhymes with ‘gay’,
and a ditty based on this
association and a pamphlet with the same tenor was in circulation
amongst the children. This background,
which probably led to the
creation of the photo and its publication, is relevant in determining
its meaning.
16
Counsel also argued that although the publication would have been
defamatory if, say, a parent or minister of religion had been
portrayed in this manner it cannot be defamatory of a teacher because
he is a person in authority. I mention this submission only
because
it was repeatedly made and not because it deserves judicial
consideration.
[18] There is nothing that,
objectively speaking, indicates that the photo was perceived as a
joke, let alone a legitimate one.
Counsel could not explain the joke.
People may have laughed, just as they laughed at someone being
pilloried – not because
it was funny but because of the
humiliation of the victim. Schadenfreude, the Germans would have
called it. Laughter remains a
curious psychological phenomenon.
Sigmund
Freud divided
jokes into two broad categories: ‘innocent’ jokes and
‘tendentious jokes. Innocent jokes are jokes
without an
underlying hostility and do not evoke laughter at the expense of
anyone in particular.
‘Tendentious’
jokes are jokes made with aggressive or sexual provocations, to
elicit strong emotional response.
The philosopher
Alfred M Stern, for instance, argues that
we
laugh
at
degraded
values,
or
in order to degrade values
.
He said:
17
‘
In
my theory, laughter is interpreted as a value judgment, an
instinctive, negative value judgment concerning a degradation of
values. This judgment is not expressed in words, but in the
inarticulate sounds we call laughter. Laughter, however, is not only
our reaction towards a degradation of values. Sometimes it is also an
action provoking a degradation of values or, at least, trying
to
provoke it. When we laugh at a person, or a
thing done by a person, although no value degradation can be found in
them, we try to degrade their value. And often we succeed.
There
is a French saying,
Ie
ridicule
tue
,
the ludicrous kills. Of course, it does not kill physically, but it
may kill morally, axiologically; it may kill values, and then
laughter may have tragic consequences.
If we laugh at a serious person
or his work, this person is offended. And he is right to be offended,
for instinctively he recognizes
in this laughter an attempt to
degrade his value or that of his work in the eyes of other people.’
This accords with the views
expressed by the anonymous author of the title ‘Humour and Wit’
in 9
Encyclopaedia
Britannica
p11:
‘
Humour today seems to be
dominated by two main factors: the influence of the mass media and
the crisis of values affecting a culture
in rapid and violent
transition. The former tends toward the commercialized manufacture of
laughter by popular comedians and gags
produced by conveyor-belt
methods; the latter toward a sophisticated form of black humour
larded with sick jokes, sadism, and sex.’
In fairness to counsel, his ultimate submission was that
although the photo was not objectively funny, it would have been for
scholars
who would have enjoyed the photo because it held the
plaintiff up to ridicule, something I would have thought means that
they would
have interpreted the photo as being defamatory. As the
learned judge said, even adolescents know where to draw the line
between
jest and ridicule.
[19] I therefore conclude that the
photo was defamatory of the plaintiff and that its publication was
wrongful. It matters not for
this conclusion what his sexual
orientation was or what the sex of the other person on the photo was
because it deals with his
sexual orientation in a derogatory manner.
18
It ridicules him, his moral values and disrespects his person.
A DIVERSION: SPLITTING OF ACTIONS.
[20] The plaintiff’s second
cause of action was for the impairment of his dignity flowing from
the publication. The term ‘dignity’
covers a number of
concepts in s 10 of the Constitution but in the present context we
are concerned with the plaintiff’s
sense of self-worth. Melius
de Villiers
19
spoke of the inborn right to the tranquil enjoyment of one’s
peace of mind; and the valued and serene condition in one’s
social or individual life which is violated when one is subjected to
offensive and degrading treatment, or exposed to ill-will,
ridicule,
disesteem or contempt.
[21] The plaintiff gave extensive
evidence of how the publication of the photo had affected and
humiliated him. It placed him in
an invidious position as deputy
principal who was responsible for religious events and educating and
upholding morals at the school.
The court below upheld this claim
but, as mentioned, did not make a separate award of damages in
respect thereof. This led to a
major attack on the award by the
plaintiff in the course of the cross-appeal. The defendants, on the
other hand, attacked the judgment
on the grounds that it should have
held that plaintiff’s dignity was not impaired or because they
lacked animus iniuriandi.
[22] There is, however, an
anterior question that has to be considered: can the same act give
rise to two actiones iniuriarum in
the hands of the same plaintiff?
To illustrate, an assault gives rise to an actio iniuriarum. Does a
humiliating assault give rise
to an additional action for the
impairment of dignity? Or does the nature of the assault simply
impact on the quantum of damages?
I believe that the answer to this
example is on consideration evident: there is only one cause of
action.
[23] I am unaware of any instance
in the history of the actio iniuriarum where a particular defamatory
act gave rise to two causes
of action. (I exclude the cases where
patrimonial damages are also claimed.) The reason is in my view that
any defamation is in
the first instance an affront to a person’s
dignity which is aggravated by publication. Someone who is not
affronted by a
publication and who does not feel humiliated will not
sue for defamation.
20
That is why the award of damages compensates ‘the plaintiff for
injured feelings and for the hurt to his or her dignity and
reputation.’
21
As F P van den Heever J once said, ‘an action on defamation has
several purposes: to kill libel, to recover a solatium for
injured
feelings and to recover a penalty from the slanderer’.
22
In other words, in assessing compensation in a defamation case a
court must have regard to the effect the publication had on the
plaintiff.
23
In
Gelb v
Hawkins
24
this court’s determination of compensation in a defamation case
was said to relate ‘in the main to
contumelia
,
25
but does not overlook the elements of loss of reputation, and
penalty’, which means that on the facts of the case the
plaintiff’s
humiliation and not loss of reputation was the
major factor in deciding quantum.
26
[24] Risking the wrath of those
who believe that our law of defamation has not been contaminated by
the common law, I believe that
the following statement by Windeyer J
encapsulates what I wish to say:
27
‘
It seems to me that,
properly speaking, a man defamed does not get compensation for his
damaged reputation. He gets damages because
he was injured in his
reputation, that is[,] simply because he was publicly defamed. For
this reason, compensation by damages operates
in two ways as a
vindication of the plaintiff to the public and as consolation to him
for a wrong done. Compensation is here a
solatium rather that a
monetary recompense for harm measurable in money. The variety of the
matters which, it has been held, may
be considered in assessing
damages for defamation must in many cases mean that the amount of a
verdict is the product of a mixture
of inextricable considerations.’
[25] I therefore conclude that the
plaintiff’s additional claim based on the affront to his
dignity was ill-founded and does
not require further consideration
and I proceed to consider the second leg of the defamation claim,
namely animus iniuriandi.
DEFAMATION: ANIMUS INIURIANDI
[26] It is trite that delictual
liability depends in general terms on fault which, in the case of
defamation and all other iniuriae,
is fault of a particular nature,
namely animus iniuriandi. As mentioned, the defendants say that they
did not have the intention
to defame the plaintiff because their
intention was to make a joke and, in any event, they did not know
that there was such a thing
as defamation. It was not always clear
from the evidence whether the defence was one of legal incapacity due
to the inability to
distinguish between right and wrong but it was
not argued that the presumption of legal capacity was rebutted.
28
[27] To assess the defence of lack
of animus iniuriandi it is necessary once again to visit the issue as
to its meaning and application
in the context of the actio iniuriarum
in its different forms. Much has been said in judgments and academic
works on the issue
and my failure to refer to many of them is not due
to a lack of respect but only because I do not wish to clutter this
judgment
unduly.
[28] Our Roman-Dutch writers did
not distinguish clearly or consistently between wrongfulness and
animus iniuriandi (or dolus malus).
This gave rise to much confusion.
In any event, animus iniuriandi means the intention to injure. That
is how this court has understood
the concept since at least
Whittaker
v Roos and Bateman
.
29
This is also the meaning attached to the term by early proponents of
animus iniuriandi as an essential element of defamation, Melius
de
Villiers,
30
Prof D Pont
31
and Prof T W Price.
32
[29] The Continental Pandectists
of the 19th Century analysed the concept of dolus and added another
element to the intention to
injure, namely consciousness of the
wrongfulness of the act (coloured intent or
‘wederregtelikheidsbewussyn’).
33
In spite of my high regard for them it has to be conceded that by
systemising the Roman law concepts they did not necessarily state
the
Roman-Dutch law. This means that an adherence to the roots of our law
does not necessarily require an adoption of Pandectist
theories.
[30] Legal theory is important but
law is not a natural science and, as Oliver Wendell Holmes Jnr had
said, ‘
the
life of the law has not been logic; it has been experience’
34
and that ‘general propositions do not decide concrete cases
.’
35
Prof J C van der Walt once referred to the poet and philosopher N P
van Wyk Louw who spoke of the ‘spookagtige dans van logiese
kategorieë’ and indicated that although general rules are
on the one hand necessary for legal certainty they may on
the other
hand impede justice:
36
‘
Daar bestaan dus ‘n
ewige, inherente spanningsverhouding tussen die eise van
regverdigheid en regsekerheid. . . . Die reg
kan dus vanweë sy
inherente kompromiekarakter nooit volkome seker of regverdig wees
nie.’
The
bon
mot
of Holmes
must, nevertheless, be seen in context.
It was not a call for irrational judging or an
abandonment of general principles or consistency. As Max Rheinstein
explained in
his introduction to Max Weber’s
Law
in Economy and Society
:
37
‘
Not only the context in
which this famous passage appears but Holmes’s entire life and
work should have made it clear that
he would have been the last to
disparage logical thinking, that is, thinking which tries to avoid
intrinsic contradiction and to
maintain consistency within a given
line of argumentation. Clearly, Holmes was also far from disparaging
the use of concepts. Thinking
without concepts is as unthinkable as
painting without paints or making music without sounds. The only
problem is what sort of
concepts we use or, from what premises we
start when we begin to think. This is what Holmes means: that we
derive our premises
from the experience of life rather than
formulating them as artificial and purely formal concepts.’
[31] Probably the first reference
to coloured intent in our legal literature is to be found in the
first edition of
Strafreg
by J C de Wet and H L Swanepoel (p 91). The authors, significantly,
did not pretend to find the concept in our law but relied exclusively
on Dutch and German textbooks that were current at the time (1949).
In the delictual context the first reference to the requirement
(at
least to my knowledge) appeared in N J van der Merwe and P J J
Olivier’s 1966 edition of
Die
Onregmatige Daad in die Suid-Afrikaanse Reg
(p 72 and 75). The authors must have thought that the matter was
self-evident because they did not rely on any authority for their
statement.
[32] This court in
O’Malley
38
accepted that coloured intent formed an essential part of animus
iniuriandi for purposes of defamation. The statement was in context
obiter and it will be recalled that this case created an exception to
the general requirement of animus iniuriandi by holding that
the
public media could not escape liability by relying on its absence.
The ratio was later overruled in
Bogoshi
.
39
As far as iniuria in general is concerned, Jansen JA sought to hold
in
Ramsay
40
that coloured
intent was a general requirement but the majority (per A S Botha AJA)
held otherwise.
41
It held, significantly, that whether or not coloured intent should be
required for any particular iniuria is a matter of legal
policy and,
by implication, not a matter of legal philosophy.
[33] To test the correctness of
the assumption that colourless intent is a valid defence in the case
of iniuria it is useful to
consider the case law in this regard. One
seeks rather in vain for an instance where the defence was accepted.
42
The opposite is true. It is not a defence in the case of invasion of
privacy,
43
unlawful arrest or detention,
44
assault,
45
defamation by the press,
46
or wrongful attachment.
47
[34] Malicious prosecution appears
to be an exception because it has been held firmly that coloured
intent is a requirement for
liability.
48
The interesting aspect of this cause of action is that it is probably
the only iniuria where the plaintiff must prove animus iniuriandi
instead of the defendant having to prove its absence. This, and the
common name of the action, indicates that there is something
special
about this cause of action. It appears to me that this is an instance
where coloured intent forms part of the wrongfulness
element: public
policy considerations demand that a plaintiff should only be
compensated for a prosecution that was instigated
without reasonable
or probable cause if, in addition, it was ‘malicious’ (in
the sense of coloured intent). The practical
effect of this might be
that a further inquiry into the fault element may become unnecessary
because it has already been established
by the plaintiff and there is
accordingly nothing for the defendant to disprove.
[35] Aquilian causes such as
intentional interference with contractual relationships and injurious
falsehoods have been explained
on the same basis. The theoretical
problem with these is that the general requirement of fault under the
lex Aquilia is negligence
while they require dolus or animus
iniuriandi. This court held in
Gore
49
that animus iniuriandi is in these instances a requirement for
wrongfulness because public policy considerations demand that a
plaintiff should be compensated for an interference with contractual
relationships only where the interference was accompanied
by coloured
intent.
50
[36] Reverting to defamation, the
defence of privileged occasion provides another illustration.
51
The plaintiff may prove that, although the defendant had published
the statement on a privileged occasion, he had overstepped the
mark
by having spoken animo iniuriandi in the sense of coloured intent.
Although this is usually said to be part of the fault investigation
it is indeed part of the investigation into wrongfulness and a close
reading of the cases dealing with privileged occasions, beginning
with
Jordaan v
van Biljon
52
and
Craig v Voortrekkerpers Bpk
,
53
confirms this conclusion.
[37] A purely Pandectist approach
does get one into a bind. This was even recognised by De Villiers AJ
in the commendable judgment
in
Maisel
v van Naeren,
54
which gave rise to the whole debate.
55
It appears to me to be incongruous that a defendant who, for example,
cannot establish truth and public benefit to justify defamation,
can
nevertheless escape liability by relying on a belief in either the
truth or public benefit. Not only that, the approach also
inhibits
the development of this part of the law under the Constitution. Van
Dijkhorst J, not surprisingly, sought to develop the
common law in
this regard by holding that a lack of coloured intent could not be a
defence if it was due to negligence,
56
a view similar to that of F P van den Heever J,
57
Colman J,
58
P Q R Boberg
59
and Burchell.
60
[38] It might be opportune to
revisit with the wisdom of hindsight the judgment in
Bogoshi.
61
The judgment
was primarily concerned with the correctness of
O’Malley
,
which had held that the press could not rely on a lack of
animus
iniuriandi
as a
defence in a defamation case. The judgment also dealt with the
anterior question of justification: the publication of a defamatory
statement will be lawful if it was reasonable in the circumstances of
the case. In other words the general criterion of reasonableness
determines whether a defamatory publication was wrongful or not.
62
‘Reasonableness’ in this context must not be conflated
with negligence.
63
If justifiable, the question of fault cannot arise. I agree in this
regard with Lewis JA
64
:
‘
However,
fault need not be in issue at all if in the particular circumstances
anterior inquiry shows that the publication is lawful
because it is
justifiable.
Bogoshi
indicates that the reasonableness of the publication might also
justify
it. In appropriate cases, a defendant should not be held liable where
publication is justifiable in the circumstances – where
the
publisher reasonably believes that the information published is true.
The publication in such circumstances is not unlawful.
Political
speech might, depending upon the context, be lawful even when false
provided that its publication is reasonable. . .
. This is not a test
for negligence: It determines whether, on grounds of policy, a
defamatory statement should not be actionable
because it is
justifiably made in the circumstances.’
It appears that on this analysis
the discussion of negligence in
Bogoshi
might have complicated matters unnecessarily. Once it is found that
the publication was unreasonable the next question should simply
be
whether it was published with the intent to injure.
65
[39] The effect of this is that
mistake or bona fides might in appropriate circumstances justify a
defamatory statement (ie, if
it was reasonable to have been made) and
that it is accordingly not necessary to require coloured intent. I
therefore conclude,
especially in view of precedent and the
constitutional emphasis on the protection of personality rights, that
the animus iniuriandi
requirement generally does not require
consciousness of wrongfulness (wederregtelikheidsbewussyn).
66
[40] In addition, and
pace
the obiter in
Herselman
NO v Botha
(mentioned earlier to which I was a party) and authors such as
Neethling,
67
I do not believe that jest excludes the intention to injure. It goes
to motive and, as Melius de Villiers said,
68
if a joke is degrading the defendant’s motive does not matter.
[41] The court below found that
since the defendants knew that what they did was wrong in the general
sense, they indeed did have
the required coloured intent in the sense
of consciousness of wrongfulness. Although the factual finding was
fully justified I
have some difficulty with the conclusion because it
could confuse moral and legal blameworthiness. It is sufficient to
rely on
counsel’s concession, correctly made, that the
defendants’ intention was to ridicule the plaintiff. This means
that
the defendants are liable. The remaining issues are quantum and
costs.
QUANTUM
[42] As mentioned, the court below
awarded R45 000 to the plaintiff. Assessment of compensation is a
matter for the trial court
and a court of appeal may interfere under
limited circumstances only. One is where the court had misdirected
itself on a material
issue. The parties were agreed that the court
indeed misdirected itself. It dealt with the matter as if the
assessment of quantum
was similar to the determination of sentence in
a criminal case.
69
Factors taken into account were that the perpetrators should not at
this young age be burdened with a debt that might affect their
future; and that their interests should be considered. This
misdirection may require a re-assessment of quantum. The defendants
argue that the amount should be reduced while the plaintiff, who had
claimed R300 000 in relation to each of the two ‘delicts’,
argued for a substantial increase.
[43] The defamation and consequent
humiliation was in my view serious. The publication was, on the
probabilities, widespread under
the scholars. The photo may still be
available on many a cell phone or computer and there is no reason to
believe that the dissemination
has stopped. The plaintiff was known
to the audience; and his position of authority was materially
undermined. He had reason to
suspect that he became the laughing
stock of the school.
[44] The plaintiff submitted that
because the right to dignity is now a protected right in terms of the
Constitution, this justifies
a new approach to quantum because, as
counsel said, the values underlying the Constitution are not
otherwise appropriately protected.
The problem with the argument is
that it assumes that the common law on defamation is deficient and
that one is entitled, albeit
indirectly, to constitutional damages.
It also ignores the fact that there are many rights guaranteed in the
Constitution and if
one were to re-assess the ‘monetary’
value of one the others, such as free speech, might be implicated.
70
[45] An apology impacts on quantum
and the defendants submit that they sought to apologise to the
plaintiff but that he refused
to speak to them on the advice of his
lawyers. The evidence of the defendants on their attempted apology
appears to me to be somewhat
suspect.
71
However, the attempt was made long after the event on the advice of a
third party. The manner in which they conducted their defence
during
the trial and the manner in which they gave evidence indicate clearly
that they were disrespectful towards the plaintiff,
had no remorse,
and did not wish to apologise. They justified their arrogance on the
basis that the plaintiff should not have taken
offence at what they
did, and that he should have been content with the disciplinary steps
that had been taken by the school and
the community service to which
they had been subjected. I agree with plaintiff’s counsel that
all this was aggravating.
[46] The court below had regard to
the impact of the publication on the plaintiff’s dignity but,
said his counsel, insufficiently
so. As mentioned, the plaintiff gave
extensive evidence on this. It was one of the considerations he took
into account in moving
to another school. I do not wish to elaborate.
It is clear that the plaintiff is a sensitive person but he may have
taken this
matter too much to heart. In my view one cannot assess
quantum subjectively. One must have regard to the probable
consequences
for someone in the position of the plaintiff. In other
words, the determination must be objectively justifiable.
72
I am not convinced that the court below erred in this regard.
[47] The last aspect that I wish
to address in this context is whether the fact that the defamers were
school children and the defamed
their teacher has an impact on
quantum. In other words, should the plaintiff not have taken the
publication from whence it came?
To illustrate: is an allegation by a
dissatisfied litigant that a judicial officer was dishonest less
serious than a similar allegation
by the minister of justice? I think
that the question has to be answered in the affirmative because it is
less likely that the
allegation by the litigant would be taken
seriously by an objective person. In other words, although the source
cannot affect the
defamatory nature of the statement it might affect
the award.
[48] After anxious consideration I
have come to the conclusion that in spite of the misdirection the
award of the court below was
fair in all the circumstances. I may
have awarded more but since my award would not have been
substantially more an interference
cannot be justified. It should be
remembered that there was a countervailing misdirection because the
court had upheld the loss
of dignity claim as a separate claim, which
might have affected his assessment. I do recognise that the plaintiff
may eventually
be out of pocket due to the cost of litigation but
defects in the costs structure cannot be rectified through awards of
damages.
COSTS
[49] As mentioned, the court below
ordered costs on the magistrates’ courts’ scale. This
means, if regard is to be had
to the amount awarded, that the
plaintiff has to bear a substantial percentage of his own costs. The
parties on both sides employed
two counsel for the trial and each
submitted that, if successful, the success should carry the costs of
two counsel, which is only
possible if costs were to be awarded on
the high court scale. On appeal they also employed two counsel and
agreed, correctly in
my view, that the costs of two counsel were
justified. It appears to me to be somewhat incongruous in those
circumstances to hold
that the trial costs should have been on the
lower scale.
[50] Costs are within the
discretion of the trial court and unless there is a demonstrable
error this court cannot intervene. The
high court correctly held that
the mere fact that the case concerned defamation did not justify
without more a costs order on the
higher scale.
73
However, the court misdirected itself in my view by regarding the
case as an ordinary run of the mill defamation case. The matters
of
principle involved justified in my view a costs order on the higher
scale and also costs of two counsel.
74
ORDER
[51] The following order is made:
1 The appeal is dismissed with costs, such costs to
include the costs of two counsel.
2 The cross-appeal is upheld with costs, such costs to
include the costs of two counsel.
3 The order of the court below is amended by
substituting para 3 with ‘Koste, insluitend die koste van twee
advokate’.
________________________
L T C Harms
Deputy President
Griesel AJA:
[52] Laughter can be a serious business with serious
consequences, as the defendants in this case discovered to their
detriment.
They testified that their intention was not to injure the
reputation of the plaintiff, but to make a joke. They also testified
that the overwhelming reaction of the recipients of the
manipulated picture was one of hilarity. Thus, to put their defence
in a nutshell, the defendants maintained that the manipulated
picture was not intended seriously and was not taken seriously.
[53] Trying to explain to others why we find certain
jokes or situations humorous can be problematic. As it was
graphically put
by E B White:
75
‘
Humor can be dissected as
a frog can, but the thing dies in the process and the innards are
discouraging to any but the pure scientific
mind.’
Nonetheless,
attempts have been made from time to time
to
dissect
humour. One of these attempts was
by
the British comedian,
Rowan
Atkinson (better known as
Mr Bean
),
who explained
that an object or a
person can become funny in three different ways: by behaving in an
unusual way; by being in an unusual place;
or by being the wrong
size.
76
[54] It seems to me that this was what the defendants
were trying to convey when pressed to explain the joke to the court
below:
they referred to the incongruity (‘teenstelling’)
created by the manipulated picture. The defendants said what made
the
picture so funny – in their eyes and in the eyes of their
fellow learners who saw it – was not the fact that it
was so
close to the truth, but that it was so very far removed from reality.
The following extract from the second defendant’s
evidence in
response to questions by the court illustrates the point:
‘
Hof
:
Wat is eintlik dan snaaks? U moet my verskoon, mnr Gildenhuys, maar
as u nie eintlik ’n negatiewe konnotasie geheg het nie,
dan wat
was snaaks? --- Omdat dit sovêr van die werklikheid af is. Dr
Dey is iemand wat hoë morele waardes voorgestaan
het by die
skool en . . . dit wat hy voor die skool gesê
het is al wat ek van hom geken het, en dit was altyd
goeie goed. Dit
was hoë morele waardes.’
[55] The first defendant explained that what he found
funny about the picture was the fact that it was so ‘far
fetched’,
namely to see the principal and the vice principal in
such a compromising position. The third defendant said much the same.
When
asked,
‘So dit is
die teenstelling wat snaaks is?’, he replied: ‘Dit is
definitief die kontras en die ironie.’
(Rowan Atkinson would explain that the figures in the picture are
depicted as behaving in an unusual way or being in an unusual
situation.)
77
[56] Prof Kriegler, an educational psychologist who was
called as an expert on behalf of the defendants, lent theoretical
support
to their defence by explaining that often it is the element
of incongruity that makes something funny:
‘
Teenstelling
is soos in inkongruensie, twee goed wat eintlik glad nie bymekaar pas
nie, soos sê nou maar ons sit Margaret
Thatcher se gesig op ’n
Penthouse
Pet
se lyf, dit sou snaaks wees omdat dit rym nie, dit hoort glad nie
bymekaar nie. Maar dit is ’n komplekse onderwerp.’
[57] Further light is thrown on this ‘complex
subject’ in the article by Prof Stern, quoted by my colleague,
78
where the author makes the following perceptive and apposite remarks:
‘
There
exist as many classes of jokes as classes of values. There are jokes
degrading intellectual values, others degrading moral
values,
esthetic values, religious values, vital values, instrumental values,
economic values, etc.
.
. . .
The
number of anecdotes drawing their comic effects from a degradation of
those moral values which characterize the erotic life
is especially
noticeable. On the one hand, we have the vigorous sexual passions; on
the other hand, the rigorous restrictions of
these passions by
ethics, religion, social conventions, and penal prohibitions.
The individual can not escape the social pressure
exerted by these
conventions and taboos. He can violate them only at the risk of
social and sometimes even of penal sanctions.
The individual takes
his revenge in trying, by means of jokes and anecdotes, to degrade
those moral values of erotic life which
the social and moral
conventions and legal prohibitions try to protect. The laughter
resulting from those degradations is for the
individual a kind of
symbolic liberation from a social pressure from which he suffers.
When the individual ceases to suffer from
the effect of those
conventions and prohibitions, he is no longer so eager to degrade
their value. Therefore, it is neither the
old ladies nor the old
gentlemen who tell us the most piquant stories.’
[58] The fact that the court – and the plaintiff –
may find the defendants’ attempt at humour banal or in bad
taste or unamusing is neither here nor there. This does not transform
a bad joke into a defamatory statement. In this regard I respectfully
endorse what was said by Sachs J in the
Laugh
it Off
matter
79
in a slightly different context:
‘
We
are not called upon to be arbiters of the taste displayed or judges
of the humour offered. Nor are we required to say how successful
Laugh It Off has been in hitting its parodic mark. Whatever our
individual sensibilities or personal opinions about the T-shirts
might be, we are obliged to interpret the law in a manner which
protects the right of bodies such as Laugh It Off
to
advance subversive humour. The protection must be there whether the
humour is expressed by mimicry in drag, or cartooning in
the press,
or the production of lampoons on T-shirts. . . . They
chose parody as a means, and invited young acolytes
to join their
gadfly laughter.’
[59] With that prelude I turn to the first inquiry,
namely to establish the natural or ordinary meaning of the picture in
question.
As rightly observed by the trial judge, any person who
looks at the picture would immediately observe that it is not in fact
a
photograph of the plaintiff and the principal, but rather the
product of amateurish manipulation. One is also struck by the fact
that the principal (who, incidentally, accepted the apologies of the
defendants and did not take legal action against them) is
depicted in
the picture with a broad smile on his face, as if recognising the
humour in the situation.
[60] If one were to apply the traditional test by
postulating the reaction of hypothetical ordinary right-thinking
persons
generally, such persons who are outsiders to the particular
school would not know or understand the context in which it was
created
or published: thus, they would not know the two men whose
faces have been superimposed onto the naked bodies; they would not
know
their true character and disposition; they would therefore not
see the incongruity in the situation; they would not recognise the
strategically placed school emblems and would not understand the
significance of those emblems in relation to the two figures depicted
in the picture. They would not know that the picture was created and
circulated by adolescent schoolboys in an attempt to
poke fun at
their principal and vice-principal. In short, such outsiders would
not understand the ‘natural and ordinary meaning’
conveyed by the picture – as little as if a picture were shown
to them bearing a subtitle in Mandarin. The subtitle in Mandarin
would first have to be translated before the reasonable person of
ordinary intelligence would be able to determine whether or not
it
carries a defamatory meaning. Here, the reasonable outsider would
require a ‘translation’ of a different kind before
being
able to interpret the picture in question.
[61] The audience for which the picture was intended,
namely the defendants and their fellow learners at the school, saw it
quite
differently. Some of them received it on their cell phones,
others saw the printout that was made by the second defendant. Their
reactions, while not decisive, were certainly significant. Being
familiar with the context, they immediately recognised the attempt
at
humour and laughed at the incongruity conveyed by the picture.
[62] I pause here to deal briefly with
Masch
v Leask
, referred to in my colleague’s
judgment.
80
There, the words used by the defendant – ‘Dit lieg jij’
(‘You are telling a lie’) – were defamatory
per se.
It was in that context that Wessels J said the following:
‘
It
is perfectly clear that the
animus
injuriandi
lies
with the person who uses the words, but if a person utters words that
are
per
se
libellous,
he is responsible for what he does, and he is responsible if he
injures the business of another. If, therefore, he was
to excuse
himself that he merely spoke in jest, he must prove to the Court that
it was in jest, and that the words must have been
accepted as such by
the by-standers.’
81
The present situation is different: here, it cannot be
held that the picture is defamatory per se and the court has to
grapple with
the natural and ordinary meaning thereof. It would be
wrong, in these circumstances, to require the defendants to prove
that it
could be taken up in no other light by a reasonable person.
The onus rests on the plaintiff to prove the defamation on which he
relies and if it were to be found that the publication in issue is
ambiguous or that doubt exists as to the meaning thereof, then
the
presumption of law is in favour of an non-injurious meaning.
82
[63] The present situation is analogous to the
defamation relied upon in
Mohamed v Jassiem
,
83
where the court held that it was defamatory to call someone ‘an
Ahmadi sympathiser’, even though it was only understood
in
a defamatory sense by ‘a tiny fraction of our national
population’ in the Western Cape Muslim community.
84
Likewise it would be inappropriate in this case to postulate the
reactions of ‘ordinary right-thinking persons generally’,
instead of restricting the inquiry to the microcosm comprising the
particular school community and examining the way in which they
understood the picture. Applying that test, the plaintiff has failed
to prove, in my view, that the meaning conveyed by the picture
is the
one relied on in the particulars of claim. It follows that the claim
based on defamation fails at the first stage, with
the result that it
is not necessary for me to consider the other aspects raised in the
erudite judgment of my colleague.
[64] Having said that, I accept, as does my colleague,
that there is only one cause of action arising from the defendants’
conduct herein. It is self-evident that whereas defamation invariably
involves ‘in the first instance an affront to a person’s
dignity which is aggravated by publication’,
85
the converse is not always true; in other words, an affront to a
person’s dignity does not necessarily amount to defamation.
86
On the facts of this case, I am firmly of the view that the
defendants’ conduct amounts to an impairment of the plaintiff’s
dignity, not his reputation.
[65] Turning to the claim based on the impairment of the
plaintiff’s dignity, the requisites for this cause of action
are
‘firmly entrenched in our law’ and do not require
repetition.
87
Essentially, the concept of
dignitas
is a subjective one.
88
In the present matter, the plaintiff testified as to how he,
subjectively, experienced the picture and its aftermath and how it
negatively affected his own feelings of self-respect and dignity.
89
That evidence was accepted by the trial court and its findings in
that regard have not been assailed on appeal. For the reasons
given
by my colleague,
90
I agree that it is not open to the defendants to rely on jest as a
defence against the claim based on iniuria. It does not protect
them
in these circumstances where they foresaw the possibility that their
attempts at humour might be perceived as insulting, offensive
or
degrading by the plaintiff.
[66] For these reasons and for the reasons furnished by
Harms DP in relation to quantum and costs, I agree with the order
proposed
by him.
B
M Griesel
Acting
Judge of Appeal
APPEARANCES:
APPELLANTS: T Strydom
H van Tonder
Instructed by Zietsman-Horn
Attorneys, c/o Beyers & Day Incorporated,
Pretoria
Claude Reid Attorneys, Bloemfontein
RESPONDENTS: M C Maritz SC
J du Plessis
Gerhard Wagenaar Attorneys, Pretoria
Symington & De Kok Attorneys,
Bloemfontein
1
F D J Brand ‘Defamation’ in 7
Lawsa
2 ed para 237.
2
Argus Printing &
Publishing Co Ltd v Esselen’s Estate
[1993] ZASCA 205
;
[1994] 2 All SA 160
(SCA); 1994 (2) SA 1 (A)
at 20E-21B.
3
Corbett CJ used the word ‘might’ because he was dealing
with an exception. At the trial stage the test is different.
To the
extent that
Mthembi-Mahanyele
v Mail & Guardian Ltd
[2004] ZASCA 64
; [2004] 3 All SA 511;
2004 (6) SA 329 (SCA) para 25 might have applied the
‘might’
test at the trial stage it erred. The perceived
error had no effect on the outcome of the case.
4
Mthembi-Mahanyele
v Mail & Guardian Ltd
para 26.
5
Mohamed v
Jassiem
[1995]
ZASCA 115
;
1996 (1) SA 673
(A).
6
J Neethling et al
Neethling’s
Law of Personality
2 ed (2005) p 131,
Sindani
v Van der Merwe
2002 (2) SA 32
(SCA);
[2002] 1 All SA 311
(A).
7
J Burchell
The
Law of Defamation in SA
(1985)
p 34-35
contains a collection. I shall refer to this work as ‘Burchell
I’.
8
Supra p 136.
9
The author explains that the exception applies to an alleged
innuendo only, something not relevant to this case.
10
Eg
Herselman NO
v Botha
[1993]
ZASCA 144
;
[1994] 1 All SA 420
(A);
1994 (1) SA 28
(A) at 35E.
11
1916 TPD 114
at 116.
12
Johannes Voet is an institutional writer on Roman-Dutch law. The
reference is to his
Commentarius
ad Pandectas
, a
commentary on the Digesta of Justinian. The standard English
translation of Voet is that of Percival Gane.
13
The Roman and
Roman-Dutch Law of Injuries
(1899) p 195.
14
Compare
Jansen
Van Vuuren & another NNO v Kruger
[1993] ZASCA 145
,
[1993] 2 All SA 619
(A); 1993 (4) SA 842
(A) at 855B-856G.
15
Argus Printing &
Publishing Co Ltd v Esselen’s Estate
1994 (2) SA 1 (A) at 23C-29A;
Mthembi-Mahanyele
v Mail & Guardian Ltd
[2004] 3 All SA 511, 2004 (6) SA 329
(SCA) paras 33-43.
16
Geyser
& ‘n ander v Pont
[1968]
1 All SA 43
(W);
1968 (4) SA 67
(W) at 69E-H.
17
‘Why do we laugh and cry?’
calteches.library.caltech.edu/154/01/stern.pdf.
(Accessed
on 15 March 2010.) For a detailed discussion see the article
‘Comedy’ in 4
Encyclopaedia
Britannica
15 ed.
18
J Burchell
Personality
Rights and Freedom of Eexpression: the Mmodern Actio Iniuriarum
(1998) p 184 n 4 (hereinafter ‘Burchell II’).
19
Op cit p 24-25.
20
Compare Voet 47.10.19 in a somewhat different context.
21
7 Lawsa 2 ed para 260. See also
SA
Associated Newspapers Ltd & ‘n ander v Samuels
[1980] 3 All SA 227
(A);
1980 (1) SA 24
(A) at 39F-G read with 40B.
22
Kriek
v Gunter
1940 OPD 136
at 144.
23
Muller
v SA Associated Press
1972 (2) SA 589
(C) at 595A.
24
[1960] 3 All SA 371
(A);
1960
(3) SA 687
(A) at 693H.
25
Which means contempt or insult.
26
Also
Van der
Berg v Coopers & Lybrand Trust (Pty) Ltd & others
[2001]
1 All SA 425
(A)
[2000] ZASCA 77
; ;
2001
(2) SA 242
(SCA) at 260H.
27
Uren v John
Fairfax & Sons Pty Ltd
[1966] HCA 40
;
117 CLR 118
(HC of A) 150. A part of the quotation appears in
Burchell I p 292.
28
Melius de Villiers op cit p 29-30.
29
1912 AD 92
at 124-125.
I
do not intend to list the annotations on this statement.
30
‘
Animus
iniuriandi
: An
essential element in defamation’
48 (1931)
SALJ
308.
31
Case note in
1940
THRHR
270
at 278-279.
32
‘
Animus
iniuriandi
in
defamation’ 66 (1949)
SALJ
4 at 6 and 26.
33
J R Midgley and J C van der Walt ‘Delict’ in 8(1)
Lawsa
2 ed para 105 n 3.
34
The Common Law
(1881) p 1.
35
Lochner
v New York
(1905)
198
US 45
at 76.
36
‘N P van Wyk Louw: Enkele konsekwensies vir die regsdenke’
1986
TSAR
257
at 268.
37
Simon & Schuster 1954 at p xlvi in the 1967 paperback edition.
38
Suid-Afrikaanse
Uitsaaikorporasie v O’Malley
[1977] All SA 631
(A);
1977 (3) SA 394
(A) at 403C-D.
39
National
Media Ltd v Bogoshi
[1998] ZASCA 94
;
[1998] 4 All SA 347
(SCA);
1998 (4) SA 1196
(SCA).
40
Ramsay
v Minister van Polisie & andere
[1981]
4 All SA 692
(A);
1981
(4) SA 802
(A).
41
Supra at 817F-819C.
42
The authorities relied on by Neethling op cit p 197 n 75 do not bear
out the statement that colourless intent is a defence in
cases of an
invasion of dignity.
43
C v Minister of
Correctional Services
1996 (4) SA 292
(T) at 306A-F.
44
Minister
of Justice v Hofmeyr
[1993] ZASCA 40
;
[1993] 2 All SA 232
(A);
1993 (3) SA 131
(A) at 154–157;
Ramsay
v Minister van Polisie
[1981] 4 All SA 692
(A);
1981 (4) SA 802
(A) at 818.
45
Bennett
v Minister of Police
[1980] 3 All SA 817
(C);
1980 (3) SA 24
(C).
46
National
Media Ltd v Bogoshi
[1998] ZASCA 94
;
[1998] 4 All SA 347
(SCA);
1998 (4) SA 1196
(SCA).
47
Coetzee
(Sheriff, Pretoria East) v Meevis
[2001] 1 All SA 10
(SCA),
2001 (3) SA 454
(SCA).
48
Rudolph &
others v Minister of Safety and Security & another
[2009] ZASCA 133
;
[2009] 3 All SA 323
;
2009 (5) SA 94
(SCA) para 18.
49
Minister
of Finance & others v Gore NO
[2007]
1 All SA 309 (SCA)
;
2007 (1) SA 111
(SCA). For criticism of the terminology used: J
Neethling and J M Potgieter ‘Middellike aanspreeklikheid vir
‘n opsetlike
delik’
2007
TSAR
616.
50
Dantex
Investment Holdings Pty Ltd v Brenner & others NNO
[1988]
ZASCA 122
;
[1989] 1 All SA 411
(A);
1989 (1) SA 390
(A) at 396G-I.
51
Anton Fagan ‘Rethinking wrongfulness in the law of delict’
122 (2005)
SALJ
90 at p 99 deals with this issue.
52
[1962] 1 All SA 350
(A);
1962 (1) SA 286
(A).
53
1963 (1) SA 149
(A). The same applies to
Nydoo
& andere v Vengtas
1965 (1) SA 1
(A)
54
1960 (4) SA 836
(C) at 850E-H.
55
Burchell II p 308.
56
Marais
v Groenewald
[2000]
2 All SA 578 (T);
2001
(1) SA 634
(T) at 646F-G.
57
Kriek v Gunter
1940 OPD 136.
58
Hassen v Post
Newspapers (Pty) Ltd & others
[1965] 3 All SA 528
(W);
1965 (3) SA 562
(W) at 570G-H.
59
‘
Animus
iniuriandi
and
mistake’
88 (1971)
SALJ
57.
60
Burchell I p 166-174.
61
National
Media Ltd v Bogoshi
[1998] ZASCA 94
;
[1998] 4 All SA 347
(SCA);
1998 (4) SA 1196
(SCA).
For
those learned authors who have criticized this court for having
failed to decide the case under the interim Constitution of
1994, it
could be mentioned that the defamatory articles complained of, as
the judgment indicates, mostly pre-dated its adoption.
62
Burchell II p 207-208.
63
See the discussion by J Neethling and J M Potgieter ‘Wrongfulness
and negligence in the law of delict: a Babylonian confusion?’
2007 (70)
THRHR
120 and the cases referred to. See also the debate between J
Neethling ‘The conflation of wrongfulness and negligence:
is
it always such a bad thing for the law of delict?’
123 (2006)
SALJ
204
and R W Nugent ‘Yes, it is always a bad thing for the law:
a reply to Professor Neethling’
123 (2006)
SALJ
557.
Further Anton Fagan ‘Blind faith: a response to
Professors Neethling and Potgieter’
124 (2007)
SALJ
285.
64
Mthembi-Mahanyele
v Mail & Guardian Ltd
[2004] 3 All SA 511; 2004 (6) SA 329
(SCA) para 47 discussed by J Neethling ‘Die locus
standi van
‘n kabinetsminister om vir laster te eis, en die verweer van
redelike publikasie van onwaarheid op politieke
terrein’
2005
(68)
THRHR
321.
65
J Neethling ‘Aanspreeklikheid van die massamedia weens laster:
die nalatigheidsvraag’ 2004
TSAR
406.
66
It should be clearly understood that this judgment does not deal
with crimen iniuria or with dolus in criminal law where other
policy
considerations may apply.
67
Op cit p 165-166.
68
Op cit p 195.
69
Mogale
& others v Seima
[2005] ZASCA 101
;
2008 (5) SA 637
(SCA) para 11.
70
Compare
Mogale
& others v Seima
2008 (6) SA 637
(SCA) para 9.
71
Compare
Tsedu &
others v Lekota & another
[2009] ZASCA 11
;
[2009] 3 All SA 46
(SCA);
2009 (4) SA 372
(SCA)
para 21-24.
72
Compare
Delange
v Costa
[1989]
2 All SA 267
(A);
1989 (2) SA 857
(A) at 861-862.
73
Graham
v Odendaal
1972 (2) SA 611 (A);
Mogale
& others v Seima
[2005] ZASCA 101
;
2008 (6) SA 637
(SCA).
74
McKay
v Editor City Press and another
[2002] 1 All SA 538
(SE).
75
US humourist and author (1899–1985) in
Some
Remarks on Humor, Introduction
,
accessed
at
http://www.quotationspage.com/quotes/E.
B. White
on 24 March 2010.
76
http://en.wikipedia.org/wiki/Humour
accessed on 2
4
March 2010.
77
Para 53 above.
78
Para 18 above.
79
Laugh it Off
Promotions CC v SAB International (Finance) BV t/a Sabmark
International (Freedom of Expression Institute as amicus
curiae)
[2005] ZACC 7
;
2006 (1) SA 144
(CC) para 108.
80
Para 9 above.
81
At 116.
82
Melius de Villiers op cit p 91.
83
Note 5 above.
84
At 703B–H.
85
Para 23 above.
86
Melius de Villiers op cit p 90
.
87
Delange v Costa
1989 (2) SA 857
(A) at 860I–861B.
88
Ibid.
89
Cf para 21 above.
90
Para 9 above.