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[1989] ZASCA 6
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Delange v Costa (433/87) [1989] ZASCA 6; [1989] 2 All SA 267 (A) (14 March 1989)
433/87 N v H
D M DELANGE / P R COSTA
SMALBERGER, JA :-
433/87
N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between
D M DELANGE
Appellant
and
P R
COSTA
Respondent
CORAM
: CORBETT, JOUBERT, SMALBERGER,
VIVIER, JJA, et NICHOLAS,
AJA
HEARD
: 3 NOVEMBER
1988
DELIVERED
: 14 MARCH 1989.
JUDGMENT
SMALBERGER, JA :-
The appellant, Douglas Michael Delange
("Delange"), is the managing director of Olienhof Farm (Pty) Limited
("Olienhof"). The respondent,
Phillip Raphael Costa ("Costa"), conducts business
under the name F Costa and Son ("Costa and
/2
2
Son"). Olienhof and Costa and Son are producers and
canners of olives, and
compete with each other on local
markets. Both Delange and Costa are
prominent
members of the South African olive industry ("the
industry").
On 21 March 1985 Delange, on behalf of
Olienhof, wrote to Costa, as manager of Costa and Son,
in the following
terms ("the letter"):-
"Dear Philip
STOCK OF TABLE OLIVES
We confirm having been advised by the Department of Agriculture, Economics and
Marketing that you have 116 metric tons table olives
for sale.
We have on numerous occasions during business hours and after hours attempted to
communicate with you by telephone, but to no avail.
We must therefore assume
that the stock you have are not for sale. We must furthermore assume that some
of your stock, more specifically
Calamata, are of imported origin.
We are frightfully sorry to have been so persistent in trying to get in touch
with you, but you will realize that we have large local
demands for the products
and that in
/3
3
such dynamio conditions vital decisions are
made daily.
When we therefore could not communicate
with
you we had no alternative but to
assume the
above."
In a letter dated 1 April 1985 addressed to
Delange
personally, Costa replied as follows ("the
reply"):-
"Dear Adv Delange I acknowledge receipt of your letter dated 21st ult.
today.
It would appear that you have made quite a number of groundless assumptions re
the S A Olive Industry of late, so a few more wouldn't
make any difference.
What you can assume - in fact the purpose of this letter is to confirm it - is
that we are not prepared to negotiate any transactions
with you until we are
satisfied that your motives are in the interest of your country's
industry."
(It is common cause that the reference to
"your
country's industry" was to the olive industry.)
The outcome of this exchange of
correspondence was an action instituted by Delange
/4
4
against Costa in the Magistrate's Court, Paarl, for
damages for
injuria
in the sum of R5 000-00.
Delange failed both in his action and
in his subsequent
appeal to the Cape of Good Hope Provincial Division.
He
now appeals to this court with leave of the court a
quo
.
Delange, in his particulars of claim, alleged
that his dignity and self-esteem.had been impaired by
Costa's statement in
the reply that he was not prepared
to negotiate with Delange "until we are
satisfied that
your motives are in the interest of your country's
industry". The alleged sting in the statement is
identified (in paragraph 4) as follows:-
"Met gemelde stelling het Verweerder (Costa) bedoel om te beweer, en is hy ook
so deur Eiser (Delange) verstaan, dat Eiser se optrede
in die verlede in en met
betrekking tot die olyfbedryf: (a) gemotiveer was deur oorwegings wat
nie
in die beste belang van die Suid-Afrikaanse
olyfbedryf was nie;
/5
5
(b) inderdaad strydig met die beste belange van die
Suid-Afrikaanse olyfbedryf was."
In response to the request for further particulars it was alleged that the
statement had been made "wrongfully". The plea amounted
to a denial of the
allegations made.
In order to determine whether the terms of the reply
constitute an actionable
injuria
regard must be had to the relevant
factual background against which the exchange of letters took place. Only
Delange and one other
witness testified at the trial. The evidence of the latter
can be disregarded. According to Delange, Olienhof is the largest producer
of
olives in South Africa. It operates three farms. Apart from producing and
canning olives it also runs a processing plant for the
extraction of olive oil.
Delange stated that since becoming involved in the industry he had travelled
extensively overseas doing
research in the
/6
6 interests of the industry; imported new olive varieties;
helped to improve the quality of locally grown olives; and been instrumental
in
obtaining better prices for the products of the industry. He had actively
promoted the industry in a positive way, and had contributed
substantially
towards its improvement and growth. He denied ever having acted contrary to the
industry's interests. He took pride
in his achievements on behalf of Olienhof
and the industry generally. Costa was aware of his involvement and achievements
in the
industry (and Costa probably knew that he valued such achievements).
According to Delange he was deeply hurt ("ernstig gekrenk") by the reply
because, after all he had done for the industry, his motives
were being called
into question by no less a person than Costa, whose standing in the industry he
respected. He felt
/7
7 so strongly about the humiliation he had suffered that he
was prepared to reconsider his future in the industry. Despite this somewhat
exaggerated reaction, it can be accepted that Delange felt genuinely wounded in
his self-esteem by what he considered to be an unjustified
attack on his good
name.
It emerged from cross-examination of Delange that Olienhof wanted to
purchase olives on the overseas market. But for the import duty
payable imported
olives were cheaper than those grown locally. Olienhof hoped to obtain a
suspension or reduction of the import duty
payable on overseas purchases. To
succeed it had to satisfy the authorities that there were no locally produced
olives for sale which
it could purchase. Delange on behalf of Olienhof applied
to the Department of Trade and Industry for a rebate on import duty. He
did so
without the knowledge or
/8
8 approval of the Olive Growers Association ("the
Association") of which Olienhof was a member. The Council for Trade and Industry
prepared a report on the application, a copy of which was handed in at the
trial. The report admittedly contained certain factual
inaccuracies e g the
statement that Olienhof was "die enigste kweker van olywe wat ook verwerking
behartig". Delange denied that
he was the source of the inaccurate information.
What matters is not whether he was the source of such information, but the
impression
which the report must have created. When Olienhof's application
hecame known it caused dissension in the ranks of the Association
and evoked
criticism from its members. Delange confirmed that the matter had been raised at
a meeting of the Association, and that
Costa had been strongly critical of his
conduct. Amongst others the accusation was made that
/9
9 Olienhof was trying to secure certain benefits which were
in its interests only.
It may reasonably be inferred from the evidence that
Delange's purpose in writing the letter to Costa and Son was to obtain
confirmation
that it did not have olives for sale. Letters with a similar
purpose in mind were apparently written on behalf of Olienhof to other
producers
of olives. One such purported request for the purchase of olives ended with the
statement "(i)f we do not receive your
response to the above within two days
from date hereof we will assume that you are unable to deliver". The recorded
assumptions were
presumably intended eventually to serve as evidence of the
unavailability of locally produced olives and thereby to further the case
for
relief from import duty on imported olives.
/10
10
I now turn to consider the law which is
applicable to the facts of the present matter.
Melius
de
Villiers
: The Roman and Roman-Dutch Law of
Injuries at p 27 notes three essential requisites to
establish an action
for
injuria
. They are:
"I. An intention on the part of the offender to produce the effect of his
act;
II. An overt act which the person doing it
is not legally competent to do;
and
which at the same time is
III. An aggression upon the right of another,
by which aggression the other
is
aggrieved and which constitutes an
impairment of the person, dignity
or
reputation of the
other."
These requisites
are firmly entrenched in our
law - see e g
R v Umfaan
1908 T S 62
at 66;
Whittaker
v
Roos and Bateman
1912 AD 92
at 130/1;
R v Chipo and
Others
1953(4) SA 573 (A) at 576 A. (In the present
instance we are concerned with
the impairment of
dignity - as to the meaning of which see
Melius
de
Villiers op cit
at pp 24/5 and
Minister of Police v
...../11
11
Mbilini
1983(3) S A 705 (A) at 715 F - 716 A.)
Logically in an
action for
injuria
one should commence by enquiring into the existence of
the second of these requisites,
viz
., whether there has been a wrongful
overt act. (It is more common, and probably juristically more correct, to speak
of a "wrongful"
rather than an "unlawful" act.) A wrongful act, in relation to a
verbal or written communication, would be one of an offensive or
insulting
nature. Once the wrongfulness of such act has been determined
animus
injuriandi
will be presumed (
Whittaker v Roos and Bateman
(
supra
) at 124;
Walker v Van Wezel
1940 W L D 66
at 67). It would
be open to the defendant to rebut such presumption by establishing one of the
recognised grounds of justification.
If the defendant fails to do so the
plaintiff, in order to succeed, would have to establish the further requirement
that he suffered
an
/12
12 impairment of his dignity. This involves a consideration
of whether the plaintiff's subjective feelings have been violated, for
the very
essence of an
injuria
is that the aggrieved person's dignity must
actually have been impaired. It is not sufficient to show that the wrongful act
was such
that it would have impaired the dignity of a person of ordinary
sensitivities. Once all three requisites have been established the
aggrieved
person would be entitled to succeed in an action for damages subject to the
principle
de minimis non curat lex
.
It was contended on behalf of the appellant that if a person intentionally
sets out to insult and impair the dignity of another who
is known to be highly
sensitive, and succeeds in doing so, such person's conduct would be actionable.
This, it was argued, was in
essence what had happened in the present instance
-
/13
13
Costa had deliberately set out in the reply to insult Delange, who was known
to him to be a man of not inconsiderable self-esteem
and heightened sensitivity,
and had achieved his object. In this respect it was sought to place reliance on
the decision in
Jackson v S A National Institute for Crime Prevention and
Rehabilitation of Offenders
1976(3) SA 1 (A).
It is doubtful, to say the
least, whether the facts provide a proper foundation for the argument advanced.
Costa and Delange were
not very well acquainted, and there would seem to be
insufficient evidence to justify the inference that Costa knew that Delange
was
the somewhat sensitive person he has been shown to be. But even if a proper
factual basis for the argument exists, it is not
well founded.
Jackson's
case was a matter decided on exception. The question whether there had been a
wrongful act
/14
14 was not specifically raised. In the course of his
judgment JANSEN, JA considered whether dignitas is an objective concept or
whether
it relates to the subjective feelings of the individual. He ultimately
left open the question whether an objective or subjective
test was applicable in
regard to the assessment of impairment of dignitas, but assumed the test was
subjective. The appeal was dismissed
(and the exception upheld) on the basis
that the facts pleaded were insufficient to sustain an inference of
animus
injuriandi
. Because proof that the subjective feelings of an individual have
been wounded, and his dignitas thereby impaired, is necessary before
an action
for damages for
injuria
can succeed, the concept of dignitas is a
subjective one. But before that stage is reached it is necessary to establish
that there
was a wrongful act. Unless there was such an
/15
15 act intention becomes irrelevant as does the question
whether subjectively the aggrieved person's dignity was impaired. I do not
understand the judgment of JANSEN, JA to suggest that all that is required for a
successful action for damages for
injuria
are words uttered
animo
iniuriandi
towards another which offend such person's subjective
sensitivities, and in that sense impair his
dignitas
. If Lhis were so it
could lead to the courts being inundated with a multiplicty of trivial actions
by hypersensitive persons. (See
Burchell
: 1977 SALJ at pp 7/8;
Neethling
: Persoonlikheidsreg : 2nd Edition : at p 193.) According to
Melius de Villiers
op
cit
at p 37, "(s)o long as an act is
outwardly lawful it cannot be an injury, with whatever intention or motive it
may have been committed.
Even when a person entertaining an injurious intention
believes an act which he commits to
/16
16
be injurious when it really is not such, his intention will not affect the
character of the act". Likewise the character of the act
cannot alter because it
is subjectively perceived to be injurious by the person affected thereby.
In
determining whether or not the act complained of is wrongful the court applies
the criterion of reasonableness - the "algemene
redelikheids-maatstaf"
(
Marais v Richard en 'n Ander
1981(1) SA 1157 (A) at 1168 C). This is an
objective test. It requires the conduct complained of to be tested against the
prevailing
norms of society (i e the current values and thinking of the
community) in order to determine whether such conduct can be classified
as
wrongful. To address words to another which might wound his self-esteem but
which are not, objectively determined, insulting (and
therefore wrongful)
cannot
/17
17 give rise to an action for
injuria
. (
Walker v
Van Wezel
(
supra
) at 68.) For words to be injurious they must
infringe one of the "absolute rights of personality". (
Whittaker v Roos and
Bateman
(
supra
) at 122;
Walker v Van Wezel
(
supra
) at
68). There is no such thing as an absolute right not to be criticised. A person
must be prepared to tolerate legitimate criticism
i e criticism which is fair
and honest. Put differently, an act done in the exercise of a right is not a
wrongful act, and can therefore
not constitute an
injuria
. Honest
criticism is such an act. (
Melius de Villiers
(
supra
) at pp
15/16.) Whether in given circumstances criticism may be regarded as legitimate
must depend upon i a the relationship of the
parties involved and the nature of
the affairs they engage in. Businessmen who engage in competition (like
politicians who take part
in
/18
18
public life) expose themselves to, and must expect, a greater degree of
criticism than the average private individual.
Delange's complaint is that in
the reply Costa accused him of being motivated by considerations which were
contrary to the best interests
of the industry. This is much the same as saying
that he was motivated by self interest, and that cannot be regarded as a basis
for
an
injuria
. Costa probably appreciated that the purpose of the letter
was to advance Delange's case for a reduction of import duty on imported
olives.
He presumably did not regard this to be in the interests of the industry and was
telling Delange that until he (Costa) was
satisfied to the contrary he was not
prepared to enter into any transactions with him. In my view, all things
considered, it cannot
be said that Costa's statement
/19
19
exceeded the bounds of legitimate criticism. To hold otherwise would be to
impose unjustified restrictions on the right to criticise.
The communication on
which Delange's action was founded therefore did not constitute a wrongful act,
and accordingly no
injuria
was committed by Costa, even though
subjectively Delange's dignity was impaired.
In the result the appeal is
dismissed with costs.
J W SMALBERGER JUDGE OF APPEAL
CORBETT, JA )
JOUBERT, JA ) CONCUR
VIVIER, JA )
NICHOLAS, AJA )