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[1992] ZASCA 63
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Argus Printing & Publishing Company Ltd. v Inkatha Freedom Party (468/90) [1992] ZASCA 63; 1992 (3) SA 579 (AD); [1992] 2 All SA 185 (A) (15 May 1992)
Case No 468/90
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
THE ARGUS PRINTING & PUBLISHING
COMPANY
LIMITED
Appellant
and
INKATHA FREEDOM PARTY
Respondent
CORAM:
CORBETT, CJ,
HOEXTER, HEFER, E M GROSSKOPF, et
GOLDSTONE, JJA
HEARD:
6 MARCH
1992
DELIVERED: 15 May 1992
JUDGMENT E M GROSSKOPF, JA
2
In
Dhlomo NO v. Natal Newspapers (Pty) Ltd and Another
1989 (1) SA 945
(A) ("the
Natal Newspapers
case") this Court held (at p. 954 D) that a
non-trading corporation may sue for defamation if a defamatory statement
concerning the
way it conducts its affairs is calculated to cause it financial
prejudice. However, this did not necessarily mean, the Court stated,
that every
non-trading corporation would in all circumstances be entitled to sue for
defamation - it was conceivable that such a
corporation might, in certain
circumstances, be denied the right to sue on the ground of considerations of
public or legal policy.
Indeed, the Court said (at p. 954 G), the
Natal
Newspapers
case could conceivably give rise to the question whether it would
be in the public interest to permit attacks on political bodies,
whose policies
and actions are normally matters for debate on public and political platforms,
to be made the basis of claims for
damages in courts of law.
The question which, it was said, could conceivably
3
arise from the
Natal Newspapers
case now in fact falls to be answered
in the present case. The facts are not in dispute. The respondent, the Inkatha
Freedom Party
("Inkatha") (which, incidentally, was the successful appellant in
the
Natal Newspapers
case, in that case represented by its
Secretary-General), now, after amendments to its constitution and a
consequential amendment
to its pleadings, appears in its own name. It, together
with a co-plaintiff, issued summons in the Witwatersrand Local Division against
the present appellant, the Argus Printing and Publishing Company Limited, for
damages in respect of defamatory statements alleged
to have been published in
two articles in the Sowetan, a newspaper of which the appellant was the
proprietor, publisher and printer.
Mr. J. Latakgomo, the editor of the Sowetan,
was joined as second defendant. These two articles reported on the same events
as those
dealt with in the article which was in issue in the
Natal
Newspaper
s case, and the nature of the alleged defamations complained of
is
4
similar. Since the nature and effect of the articles are
not in dispute it
is not necessary to deal with them in any
detail.
After close of pleadings in the present case
the
parties came to an agreement to limit the
issues. This
agreement was embodied in a minute of a pre-trial
conference
held in terms of rule 37 of the Uniform Rules of Court.
The
minute recorded that the claim by the second plaintiff had
been
disposed of, and that the trial would continue with
Inkatha as the sole plaintiff. Neither party would lead
evidence, and the parties agreed that the sole issue for
adjudication was
"... in as much as Inkatha is a non-trading corporation (a universitas
capable of suing and being sued in its own name) ... which
depends on financial
support from the public, ... whether Inkatha, as such a body, has the right to
claim damages for defamation
in respect of the articles complained of, assuming
those articles, for the purposes of argument, to be defamatory in the manner
alleged
by the plaintiff, and assuming further that the articles were calculated
to cause financial prejudice in the nature of loss of membership
dues and
donations."
5
Attached to the minute was an agreed statement
of
facts concerning Inkatha's nature and aims, as
well as a copy
of its constitution at the time. For present purposes
it
will suffice to quote the following passage from the
statement of facts:
"Inkatha may be described as a political body in the wide sense in that it
enters into debates of national and international significance,
and in the
narrow sense in that Inkatha puts up candidates for participation in local
authority and parliamentary elections within
KwaZulu."
Although expressions such as "assuming ... for the
purposes of argument" were used in the minute, it is clear
that the question posed to the Court was not a merely
theoretical one. Indeed, the minute proceeded to state
unequivocally that, if the Court were to hold that Inkatha
did not have a right to claim damages for defamation, its
claim should be dismissed with costs, but if the Court were
to hold otherwise, judgment should be entered in Inkatha's
favour in the sum of R7000 with costs. Save for the question
submitted to the Court for decision, the appellant must
6
accordingly be taken to have admitted all the elements of
Inkatha's claim and to have settled the guantum of Inkatha's
damages.
In accordance with the minute of the pre-trial
conference, no evidence was
led at the trial before
STEGMANN J and only the question submitted by the parties for
decision was argued. The Court a
quo
answered this question
as follows:
"There are no considerations of legal or public policy which deprive juristic
persons which are or which resemble political parties
of the ordinary remedy for
defamation."
As a result of this finding it gave judgment against both defendants jointly
and severally for payment of the sum of R7000 and costs
in accordance with the
agreement between the parties.
The two defendants applied to the trial judge for leave to appeal, which was
duly granted. The attorneys of the second appellant (the
editor of the Sowetan),
however, subsequently withdrew his appeal. Despite this withdrawal,
7
Mr. Daley, who appeared for Inkatha at the hearing of the appeal, informed us
that, if the appeal were to succeed at the instance
of the first appellant
(which is now the only appellant), Inkatha would not wish the judgment to stand
against the former second
appellant.
It is convenient at the outset to determine the exact ambit of the Court's
decision in the
Natal Newspapers
case. In that case, as I have already
stated, Inkatha claimed damages for defamation. The defendant (respondent on
appeal) excepted
to this claim. The issue raised by the exception, RABIE ACJ
said in delivering the judgment of this Court (at p. 948 C), was "whether
the
right on the part of a legal
persona
to claim damages for defamation is
limited to a legal
persona
which is engaged in trade and which alleges
that it has been injured in its business reputation or status". For convenience
the Court
referred to such a legal
persona
as a trading corporation. To
decide this issue, the Court found it necessary to consider the following
questions
8
viz.:
"(a) whether a trading corporation can in our law claim damages for
defamation, and (b), if it can, whether a non-trading corporation
can also do
so, or (c), if it has not yet been decided that a non-trading corporation can do
so, whether the right to do so should
be accorded to it". (ibid., p. 948 G).
The first question was answered in the affirmative, mainly on the strength of
G.A. Fichardt Ltd. v. The Friend Newspapers Ltd
1916 AD 1
(
ibid
.
p. 952 I). Moreover, the Court held (also following
Fichardt's
case) that
it was not necessary for a trading corporation which claims for an injury done
to its reputation to provide proof of actual
loss suffered by it (ibid. p. 953
C-D).
The Court then turned to the second guestion,
stated as follows (at p. 953 H):
"whether the right to sue for defamation should be restricted to trading
corporations, or whether such right should also be extended
to non-trading
corporations - or at least some kinds of non-trading corporations".
The manner in which the question was formulated
flowed from the nature of the exception which "was brought on
9
the narrow basis that no such extension to any kind of non-
trading corporation should be permitted, and that the
appellant's claim should,for that reason, be dismissed".
(
ibid
. p. 953 H).
The reasoning of the Court in answering
this
question is contained in one paragraph, and I
quote it in
toto
. It reads as follows (at p. 953 I-954 E):
"... one could, I suppose, adopt the attitude that the extension of the right
to sue for defamation to a trading corporation constituted
an extension of the
earlier law which conferred such a right only on natural persons, and that one
should not go further along that
road. I do not think, however, that such an
attitude would be justified. It was rightly not contended by the respondents
that no
non-trading corporation can have a
fama
which deserves the
protection of the law; the contention was that a corporation which has such a
fama
can protect it by means of an interdict or by claiming damages in an
Aquilian action, but not by suing for defamation. It seems to
me, however, that
once one accepts - as one must, in my view - that a trading corporation can sue
for an injury to its business reputation,
there is little justification for
saying that a non-trading corporation should not, in appropriate circumstances,
be accorded the
right to sue for an injury to its reputation if the defamatory
matter is calculated to cause financial prejudice (whether or not
actual
financial prejudice results). It is conceivable that in the
10
case of a non-trading corporation such as a benevolent society or a religious
organisation -these are but examples - which is dependent
upon voluntary
financial support from the public, a defamatory statement about the way in which
it conducts its affairs would be
calculated to cause it financial prejudice in
the aforementioned sense. It would in my view be illogical and unfair to deny
such
corporation the right to sue for an injury to its reputation, but to grant
it to a trading corporation when it suffers an injury
to its business
reputation. In my opinion we should hold, and I so hold, that a non-trading
corporation can sue for defamation if
a defamatory statement concerning the way
it conducts its affairs is calculated to cause it financial prejudice. This
finding involves,
in view of what I have said above concerning the narrow basis
on which the respondents' exception was brought, that the exception
cannot be
sustained. It is accordingly unnecessary to consider the further question
whether a non-trading corporation can sue for
defamation if the defamatory
matter of which it complains relates to the conduct of its affairs but is not
calculated to cause it
financial
prejudice."
Immediately after this paragraph there
appears the
passage, to which I referred at the outset of my judgment,
in
which the Court stated that its finding must not be taken to
mean that
every non-trading corporation would in all
circumstances be entitled to sue for defamation, and that it
11
is conceivable that such a corporation may, in certain circumstances, be
denied the right to sue on the ground of considerations of
public or legal
policy (in this regard the Court referred to
Die Spoorbond and Another v.
South African Railways
;
Van Heerden and Others v. South African Railways
1946 AD 999
("the
Spoorbond
case") - a case with which I propose
dealing later). The Court then mentioned and left open the question with which
we are now concerned,
viz., whether it would be in the public interest to permit
attacks on political bodies to be made the basis of claims for damages
in courts
of law.
The Court was, of course, only dealing with claims in respect of defamatory
matter which related to the conduct of the corporation
and was calculated to
cause it financial prejudice. This is also the only type of claim which is now
before us, and everything I
say hereafter must be read in that context.
The Court's reasoning in the
Natal Newsoapers
case
12
may, I consider, be summarized as follows for present purposes:
a) A trading corporation may sue for
defamation.
b)
A non-trading corporation, could, like a trading corporation, have a
fama
which deserves the protection of the law. It would accordingly be
illogical and unfair to deny such a corporation the right to sue
for an injury
to its reputation, but to grant it to a trading corporation when it suffers an
injury to its business reputation.
c)
Conceivably, however, certain corporations may be denied the right to
sue for defamation on the ground of considerations of public
or legal
policy.
The basis of the Court's reasoning was
therefore the illogicality and unfairness of denying to a non-trading
corporation the right
to defend its
fama
by recourse to law.
13
This reasoning applies to every non-trading corporation. The possible
exception in (c), stated rather tentatively by RABIE ACJ, would
then, if
applicable, exclude certain corporations from the general rule, and this would
be so irrespective of whether they have good
reputations which would normally be
protected by law.
The question then is whether this Court should, on the grounds of public or
legal policy, hold that a political body is not entitled
to sue for defamation
calculated to cause it financial loss. The effect of such a finding would be
that a political body would never
be able to defend its reputation against any
defamation, however gross or untrue.
The ground of public policy mainly relied upon by
the appellant is the need to foster and protect freedom of
expression. As was stated in
S. v. Turrell and Others
1973
(1) SA 248 (C) at 256 G:
"Freedom of speech and freedom of assembly are part of the democratic rights
of every citizen of the Republic ..."
14
However freedom of speech can never be absolute.
In
Publications Control Board v. William Heinemann Ltd. and
Others
1965 (4) SA 137
(A) at p. 160 E-F RUMPFF JA said the
following:
"The freedom of speech - which includes the freedom to print - is a facet of
civilisation which always presents two well-known inherent
traits. The one
consists of the constant desire by some to abuse it. The other is the
inclination of those who want to protect it
to repress more than is necessary.
The latter is also fraught with danger. It is based on intolerance and is a
symptom of the primitive
urge in mankind to prohibit that with which one does
not agree. When a Court of law is called upon to decide whether liberty should
be repressed - in this case the freedom to publish a story - it should be
anxious to steer a course as close to the preservation
of liberty as
possible."
One of the means by which the constant desire of
some to abuse freedom of speech is curbed, is to be found in
the law of defamation. As stated by Melius de Villiers (The
Roman and Roman-Dutch Law of Injuries, pp. 24-25);
"Every person has an inborn right to the tranquil enjoyment of his peace of
mind, secure against aggression upon his person, against
the impairment of that
character for moral and social worth to which he may rightly lay claim and of
that respect
15
and esteem of his fellow-men of which he is deserving, and against degrading and
humiliating treatment; and there is a corresponding
obligation incumbent on all
others to refrain from assailing that to which he has such right."
Although these words apply in terms to
natural
persons, De Villiers himself stated in a
footnote to this
passage that "the principles relating to injuries may also
be
extended to 'legal' or 'juridical' persons" (
ibid
., p. 24,
footnote 20). This has now been confirmed, at least with
reference to some legal or juridical persons, in the
Natal
Newspapers
case.
The present case therefore requires the balancing of two different and
competing values which our law seeks to protect - on the one
hand, freedom of
speech, and, on the other, the safeguarding of reputations against unjustified
attack.
In weighing up these rivalling values one should first determine which
corporations would be affected by a rule denying political
bodies the right to
sue for
16
defamation. On behalf of the appellant Mr. Doctor argued that all political
bodies should be included. This would firstly cover organizations
whose raison
d'être is politics, such as political parties (a concept with which I deal
in greater detail later). However,
there are many participants in the political
life of this country other than political parties in the ordinary sense of the
term.
If the purpose of the law is to permit, in the interests of freedom of
expression, attacks on all bodies participating in politics,
a very wide class
of corporations would be affected. This was particularly evident during the
recent referendum campaign when large
numbers of corporations urged the public
to vote in a particular way. But even in more settled political times overt
political activity
is not limited to political parties. On the national level
associations such as trade unions, employers' organizations, cultural
organizations, chambers of commerce and even churches frequently make political
pronouncements on highly
17
contentious political issues. On a more parochial level there are civic
associations, ratepayers' associations, etc. Many organizations
thus
participating in politics may have corporate personality. If a claim for
defamation is to be denied to all corporations taking
part in the political
debate in the country at whatever level, all these corporations could then be
defamed with impunity.
But the class becomes even larger when one has regard to the wide connotation
of the adjective "political". The Shorter Oxford Dictionary
defines it, in its
relevant context, as "of, belonging or pertaining to, the state, its government
and policy". I understood Mr.
Doctor to accept in argument that an organization
would properly be described as political if its functions included that of
attempting
to influence state policies in any field, including, for instance,
fields such as nature conservation, the economy or sport.
The amplitude of the class of corporations which
18
might appropriately be called political bodies is relevant in two main
respects. Firstly, the fact that the class is wide and amorphous
tends to make
it unsuitable for special treatment. If at all possible, boundary lines in law
should be definite and easily applicable
to the facts of particular cases.
But perhaps of greater importance is that the size of the class results in
great differences between its members. This must be borne
in mind when
considering the implications of according or denying to political bodies a right
to sue for defamation. In discussing
this whole topic one tends to think of the
position of great national parties, whose activities are matters of intense
public interest,
and which may have ample ways of defending their reputations by
means other than recourse to law. They are not, however, the only
participants
in the political process. There are also small parties or bodies in national or
local politics which do not have a captive
press or other forms of easy access
to
19
public attention. Moreover there are bodies which take part in politics but
also perform other functions. Depriving them of an action
for defamation may
lead to undesirable results which might differ from those pertaining to purely
political bodies. When considering
the various arguments presented in support of
the appellant's case I will revert to some of these distinctions.
In the alternative Mr. Doctor contended that, if it is difficult or
undesirable to define the class of political bodies which should
be denied a
right to sue for defamation, this Court need go no further than to hold that
political parties should fall within that
class, whatever other corporations
might also do so. I do not think that this approach would really solve the
problem. There is no
generally applicable legal definition of a political party,
although definitions may be found in particular statutes. Thus in section
1 of
the Electoral Act, no. 45 of 1979, "political party" is defined as a political
party registered
20
in terms of section 36 of that Act as a political party. Reference to section
36 discloses, however, that the Act is concerned only
with parties participating
in elections for any particular House of Parliament, and the definition is in
any event not helpful.
In more general terms, "party" is defined in the Shorter Oxford Dictionary in
its relevant context as "a number of persons united
in maintaining a cause,
policy, opinion, etc, in opposition to others who maintain a different one". If
this definition is applied,
"political party" would bear virtually as wide and
uncertain a meaning as "political body". It may, however, be suggested that an
essential element of a political party is that it proposes candidates for
election to governmental bodies. As a matter of language
this may be so, and in
stable democratic societies political parties in this sense may appropriately be
dealt with in a special way.
In the volatile and only partially democratic
political life of South Africa it would.
21
however, in my view, be completely unrealistic to distinguish in the present
context between political bodies which propose candidates
for election and those
which do not. It is a matter of common knowledge that some major political
organizations in this country have
never proposed candidates for election, and
in fact do not regard themselves as political parties at all, but rather as
liberation
movements or something similar. Public policy does not, to my mind,
reguire that they should enjoy greater freedom from attack than
bodies which
fight elections. There is consequently no basis in logic upon which we could lay
down a rule which would apply only
to political parties. Any decision which we
could give would necessarily have a wider application, and, in determining
whether public
policy demands such a rule, we must have regard to its full
effect.
I turn now to the reasons advanced for denying a political body the right to
sue for defamation. The essential one is that political
debate should be
unfettered.
22
People should not be restrained in their political utterances by the fear of
being subjected to claims for defamation. The same argument
applies of course to
the defamation of individuals. There also political debate is fettered to some
extent by the obligation not
to defame individual politicians. It will therefore
be a convenient starting point to consider the restraints imposed by the law
of
defamation on the expression of political views or statements with reference to
individual politicians, and what the position
might be expected to be if it were
to be recognized that political bodies also are entitled to sue for defamation.
At the same time
I propose considering the role played by public policy in the
shaping of the law of defamation as it is, and the extent to which
it may be
invoked in its further development.
The traditional standard for determining whether utterances are defamatory is
whether the imputation conveyed by them lowers the plaintiff
in the estimation
of right-
23
thinking persons generally. Mere debate on political
guestions, or
expressions of disagreement with an opponent's
political views, would clearly
not be actionable. Even
personal criticisms of a political opponent are not
readily
regarded as defamatory. In
Pienaar and Another v. Argus
Printinq and Publishing Co. Ltd.
1956 (4) SA 310
(W) at 318
C-E, LUDORF J said the following:
"... I think that the Courts must not avoid the reality that in South Africa
political matters are usually discussed in forthright
terms. Strong epithets are
used and accusations come readily to the tongue. I think, too, that the public
and readers of newspapers
that debate political matters, are aware of this. How
soon the audiences of political speakers would dwindle if the speakers were
to
use the tones, terms and expressions that one could expect from a lecturer at a
meeting of the ladies' agricultural union on the
subject of pruning roses!"
The same approach was adopted in
Botha en 'n ander
v. Marais
1974 (1) SA 44
(A). In that case the first
appellant accused the respondent of a "gesmous met dit wat
heilig is vir 'n volk". In determining whether these words
were defamatory the Court said (at p. 49 F - 50 A):
24
"Dit moet nie uit die oog verloor word nie dat die gewraakte woorde tydens 'n
politieke toespraak gedurende 'n verkiesingsveldtog
deur 'n politikus van een
politieke party t.o.v. 'n ander politikus, 'n lid van 'n ander politieke party,
gebesig is. Onder sodanige
omstandighede - alhoewel ek geensins te kenne wil gee
dat straffeloos belaster kan word nie - is sterk bewoorde kritiek van 'n
politieke
opponent niks ongehoord nie (vgl. met betrekking tot die verweer van
billike kommentaar,
Waring v. Mervis and Others
,
1969 (4) S.A. 542
(W) te
bl. 547, en gewysdes daar aangehaal). Die gedrag ... waarvan respondent verwyt
word, mag wel afkeuringswaardig wees, maar
respondent moet verder gaan en bewys
dat hy belaster is, Selfs bewerings wat 'n persoon by 'n sekere bevolkingsgroep
in onguns bring
is nie noodwendig lasterlik nie, tensy hulle daardie persoon se
aansien by regdenkende mense in die algemeen verminder (cf.
Conroy v. Nicol
and Another
,
1951 (1) S.A. 653
(A.A.) te bl. 660
in fine
en 663B). Ek
stem saam ... dat, in die samehang van die gewraakte woorde, die woord 'smous'
slegs te kenne gee dat iets wat verhewe
behoort te wees bo gebruik vir
persoonlike of politieke voordeel, nogtans daarvoor gebruik word. Daardie
aantyging sou egter nie,
na my mening, die aansien van respondent in die gemoed
van die denkbeeldige redelike aanhoorder of leser met normale verstand en
ontwikkeling werklik laat daal nie. Die gewraakte woorde is wel afkeurend van
respondent se gedrag, maar, in die geheel beskou, is
hulle, na my mening, nie
naamskendend van hom nie."
The law's reluctance to regard political utterances
25
as defamatory no doubt stems in part from the recognition that right-thinking
people are not likely to be greatly influenced in their
esteem of a politician
by derogatory statements made about him by other politicians or political
commentators. At the same time,
it seems to me, it also reflects the general
approach properly adopted by our courts that a wide latitude should be allowed
in public
debate on political matters.
Even if utterances during political debate can be regarded as
prima
facie
defamatory, the defendant would have available to him a number of
defences. The most important ones for present purposes are those
of fair
comment, justification (truth and public benefit) and privilege. The effect of
these defences is to exclude unlawfulness
- in other words, to render lawful the
conduct of the defendant in publishing matter which is
prima facie
defamatory. See
Marais v. Richard en 'n Ander
1981 (1) SA 1157
(A) at p.
1166 H-1167 A. As defences excluding unlawfulness their boundaries
26
are determined by applying a general criterion of
reasonableness
("algemene redelikheidsmaatstaf"). See
Marais
v. Richard en 'n
Ander
(
supra
, at p. 1168 C and authorities
there quoted). The
criterion of reasonableness necessarily
introduces considerations of public and legal policy. See
Lillicrap, Wassenaar and Partners v. Pilkinqton Brothers (SA)
(Pty) Ltd.
1985 (1) SA 475
(A) at p. 498 G-I. This feature
will be
illustrated when some facets of these defences are
considered.
I deal first with fair comment. Fair comment
provides a ground of defence in respect of the publication of
statements, upon the face of them defamatory, which take the
form of comment upon subjects of public interest (
Crawford v.
Albu
1917 AD 102
at 113) Its origin and essential nature are
stated as follows (ibid. pp. 113-4);
"Its development has been largely judge-made; so that its requirements, its
scope, and its limitations can only be gathered from the
decisions. Broadly
speaking, the defence rests upon the right of every person to express his real
judgment or opinion honestly and
fairly upon matters of public interest. The use
of the word
27
'fair' in connection with it is not very fortunate. It does not imply that the
criticism for which protection is sought must necessarily
commend itself to the
judgment of the Court, nor that it must be impartial or well-balanced. It merely
means that such criticism
must confine itself within certain prescribed
limits."
The "prescribed limits" to which reference
is made have to a large extent been laid down in previous decisions of the
courts, but
in the final analysis they depend on what the courts regard as
appropriate in the public interest in accordance with the general
criterion of
reasonableness to which I have already referred (
Marais v. Richard en 'n
Ander
(
supra
) at p. 1168 D-E). Policy considerations also enter into
the determination of what are to be considered matters of public interest.
These
matters have consequently not been finally laid down in a
numerus clausus
but may be developed in accordance with the changing needs of society.
When one is dealing with political matters, a great deal of latitude is
traditionally allowed for comment. See
Waring v. Mervis and Others
1969
(4) SA 542
(W) at p. 549 D-G
28
and authorities there cited, a passage which was approved in
Botha en 'n
Ander v. Marais
(
supra
) in the extract quoted above.
I turn now to
the defence of justification, which allows a defendant to escape liability for
publishing a statement which is on the
face of it defamatory, if it appears that
it is substantially true, and was published for the public benefit (I deal later
with the
onus
of establishing these matters). Here again public benefit
can hardly be determined without having regard to guestions of legal or
public
policy. The publication of true statements about public officials and figures is
generally for the public benefit (LAWSA vol.
7, para 247, p. 206).
The third defence which may be relevant in the
present context is what is traditionally called qualified
privilege. Its nature is described as follows in LAWSA, vol.
7, para 249, p. 209:
It is lawful to publish a defamatory statement in the discharge of a duty or
exercise of a right recognized by law to a person who
has a similar
29
duty or right to receive the statement. The immunity afforded to such a
publication is provisional, and the publication will be wrongful
if the
publisher acted with an improper motive."
The
jurisprudential nature of the qualified
privileges was considered in
Suid-Afrikaanse
Uitsaaikoreorasie
v. O'Malley
1977 (3) SA 394
(A) at p. 401 H
to 403 A. There the Court held that the publication of
defamatory matter gives rise to two presumptions, viz. that
the publication was intentional and that it was unlawful. As
far as the latter presumption is concerned (which is the
relevant one for present purposes) the Court said the
following (at p. 402 H - 403 A):
"Die vermoede van onregmatigheid kan in ons reg weerlê word deur
getuienis wat aantoon dat die lasterlike woorde gebesig is
in omstandighede wat
onregmatigheid uitsluit en wanneer die vraag ontstaan of die publikasie van die
lasterlike woorde regmatig of
onregmatig was, is dit die taak van die Hof om vas
te stel, vir sover dit die gemene reg betref, of publieke beleid verg dat die
publikasie geregverdig is en dus as regmatig bevind moet word. Die geykte
Engelse 'privileges' word juis as 'privileges' geag, omdat
die publikasie van
die lasterlike woorde in die betrokke omstandighede 'in the interest of public
policy' geag word. Vgl. Fraser,
On Libel and Slander
, 7de uitg., bl.
116.
30
Die omstandighede wat aanleiding gee tot die sgn. 'privileges' in die Engelse
reg geld ook in ons reg as voorbeelde van omstandighede
wat onregmatigheid
uitsluit."
See also
Borgin v. De Villiers and
Another
1980 (3) SA 556
(A) at p. 571 E-G, 577 D-G;
May v. Udwin
1981
(1) SA 1
(A) at p. 10 D-G; and
Joubert and Others v. Venter
1985 (1) SA
654
(A) at pp. 695 I - 696 C.
In principle, therefore, the court is not
limited to the accepted grounds of qualified privilege. Where public policy so
demands,
it would be entitled to recognize new situations in which a defendant's
conduct in publishing defamatory matter is lawful. So, in
Zillie v. Johnson
an Another
1984 (2) SA 186
(W) COETZEE J weighed up the interests of the
public against those of the persons defamed, and held that the defendants (the
editor
and publisher of a newspaper) were entitled to publish defamatory matter
where the public had, in the circumstances, a right to be
informed of the
facts.
Finally, if all defences fail, the court would
31
award damages. Our courts have not been generous in their awards of
solatia
. An action for defamation has been seen as the method whereby a
plaintiff vindicates his reputation, and not as a road to riches.
This is a
further factor which reduces the inhibiting effect of the law of defamation on
freedom of expression.
The above survey shows the role played by public
policy in the law of defamation. More particularly it shows how the importance
of
free political debate has been recognized in the determination of what is to
be regarded as defamatory and the limits within which
matter may lawfully be
published even if it is, on the face of it, defamatory. These are the rules
which would be applicable to the
defamation of political bodies, if an action by
them is to be permitted. And if it were to appear, in the interests of legal or
public
policy, that the limits of lawfulness are, in certain circumstances,
unreasonably wide or narrow our law is flexible enough to adapt
to the needs of
the times.
32
In his argument Mr. Doctor mentioned certain features of the law of
defamation which, he submitted, rendered it unsuitable for extension
to
political bodies. When analysed there does not, however, seem to be any material
difference in the operation of the law with reference
to, respectively,
political bodies and individual politicians. Thus, referring to the defence of
justification, it was contended
that a defendant may make a defamatory attack on
a political body containing a statement which is true, but that he would not be
able to prove the truth of the statement by admissible evidence, and might
therefore be held liable. This is said to be undesirable.
At the outset it must
be noted that it is by no means clear that there is an
onus
on the
defendant who raises the defence of justification, to prove the truth of the
defamatory statement. There is, at least, much
to be said for the proposition
that the defendant bears only a "weerleggingslas", the overall onus of proving
unlawfulness
33
remaining on the plaintiff. See
Suid-Afrikaanse Uitsaaikorporasie v.
O'Malley (supra
) at p. 403 B;
Joubert and Others v. Venter
(
supra
) at pp. 696 D to 697 G and I
yman v. Natal Witness Printing and
Publishinq Co (Pty) Ltd
1991 (4) SA 677
(N) at pp. 681 C- 684
in fin
.
However, be that as it may, the incidence of the onus is itself a matter of
legal policy (see
During NO v. Boesak and Another
[1990] ZASCA 51
;
1990 (3) SA 661
(A) at
p. 672 I - 673 A,
Joubert and Others v Venter
(
supra
) at p. 697
C-G). When the question of onus is finally resolved the decision will depend on
the balance to be struck between the various
policy considerations involved and
due weight will be given to the importance of freedom of expression.
The further point that the defendant would have to establish his case by
means of admissible evidence hardly bears examination. The
defendant in a
defamation action shares this burden (if burden it be) with every litigant
before our courts. The purpose of the law
of evidence is to
34
promote the efficient search after truth. If the law is lacking in any
respect, the answer is to improve it, and not to provide immunities
for persons
who might otherwise have to defend their actions in court. In fact many of the
examples quoted in argument where the
rule against hearsay would have worked to
the detriment of a defendant are no longer valid in the light of the
Law of
Evidence Amendment Act, No. 45 of 1988
.
To sum up so far: the law of defamation provides wide scope for freedom of
political expression. If its extension to political bodies
were to reveal any
substantial weaknesses or defects, the law is flexible enough to remedy them.
And the remedy could be applied
to the specific circumstances where it is
needed. There would accordingly appear to be no cogent reason why political
bodies should
be completely deprived of the right to protect their reputations
by recourse to law.
I turn now to certain practical difficulties which
35
it was contended would result from any extension to political bodies of the
right to sue for defamation. Firstly it is said that it
would be difficult to
find a judge whose past or present activities do not include support for one of
the contestants. I do not agree.
Judges do not take part in politics, and few of
them did so before their appointment to the bench. If a "political" defamation
action
comes before a judge he would not be required to take decisions on the
merits of the political programmes of political parties. He
would have to decide
whether a case of defamation has been made out. If he has personal connections
with one or other of the parties
it might be undesirable for him to sit, and in
practice he would be replaced without difficulty. This would, I consider, rarely
be
necessary. But, in any event, the same problem can arise with individual
litigants, and sometimes a judge will simply have to disregard
his personal
feelings. In
Upington v. Saul Solomon & Co.; Upinqton v. Dormer
1879
Buch 240 the plaintiff in a defamation action
36
was the attorney-general of the Cape Colony, who, at the
time, was a member of the government and also the leader of
the Bar. The Court (DE VILLIERS CJ) commented (at p. 260)
that, in view of the intimate relations which must always
exist between the Bench and the Bar, the great esteem which
the Judges had personally for the plaintiff, and their high
opinion of his ability and moderation in the conduct of cases
coming before the Court, the case was an extremely unpleasant
one for the Court to decide. He added:
"But of course the Court is open to the plaintiff as well as to any one else,
and the Court must decide a case whether the duty is
a pleasant or an unpleasant
one ..."
Then it is said that there would be a danger of
rendering political debate
sub judice
by the simple expedient
of issuing a defamation summons on matters of public debate.
This seems to me somewhat fanciful. The same expedient would
be available to individual politicians, but I cannot offhand
think of any case in which it has been employed. The fact is
that very few matters of public debate are amenable to
37
actions for defamation,as I have attempted to show earlier. If the matter in
issue can be regarded as defamatory (eg. where it relates
to the personal
integrity of a politician) it does not seem undesirable to me that it should be
resolved in a court of law rather
than on a political platform.
A further
argument is that it would be impractical in deciding whether an utterance is
defamatory, to apply, to matters of acute political
controversy, the test of how
it would be regarded by a body of right thinking people generally. Here again it
must be repeated that
the court is not concerned with the relative merits of
opposing political views or philosophies. In a defamation action the question
to
be decided will be whether the defendant has overstepped the limits of legality.
Where individual politicians have been involved
the courts have for many decades
applied the test of right thinking people. I am unaware of any general
dissatisfaction with the
way in which it was done. There seems to be no reason
why the position would be different
38
where, not individual politicians, but political bodies, feel themselves
aggrieved.
A number of arguments were addressed to us arising from the relationship
between a political body and its leaders. In most or all
cases of defamation of
a political body, it is said, its leaders also would have been defamed.
Consequently, it is contended, there
is no need to allow the body as a separate
party to sue. Now this argument, it seems to me, would apply to corporations
generally.
The affairs of a corporation are managed by natural persons. If the
corporation is defamed, the defamation would usually strike also
at one or more
natural persons. Nevertheless the right of corporations to sue for defamation
was firmly recognized in the
Natal Newspapers
case. And one can certainly
envisage circumstances in which only a corporation would have the right to sue.
This might be so, for
instance, where no natural person can be identified as an
object of the defamation, or, if one can be identified, he has died, or
39
where the defamer has made it clear that he is not casting blame on any
individual member or leader of the organization.
Then it is said that, where a political body sues in conjunction with one or
more of its leaders, there will be an unwarranted increase
in damages and costs
payable by an unsuccessful defendant. This possibility would again place a
fetter on political activity. However,
it seems to me that if the defamation of
the political body and its leader is essentially the same, the court will ensure
through
the size of its award and, if deemed necessary, its order for costs,
that the defendant is not oppressed by the bringing of two actions
where one
would have sufficed to vindicate the reputations of both the political body and
its leader. Cf.
Pienaar and Another v. Arqus Printinq and Publishinq Co. Ltd.
(
supra
) at p. 323 G to 324 A. Of course, if the interests of the
party and its leader differ, there would be no anomaly in both of them
suing and
receiving an appropriate award of damages.
40
A further objection to allowing political bodies to sue was that it would
lead to a great proliferation of defamation actions. I can
see no reason why
this should be so. Individual politicians rarely sue for defamation, probably
because the approach of the law,
which I have set out above, does not encourage
them to do so. There is no reason to suppose that political bodies will prove
more
litigious.
The appellant's counsel also placed much reliance on the historical argument
- we were, he emphasized, not referred to any authority
for the proposition that
a political body could recover damages for defamation. I deal first with the
lack of authority in South
Africa. This lack does not really surprise me. That a
universitas
can sue for defamation is not a matter of great practical
importance. Where a defamation has been committed, there is usually (although,
as I pointed out above, not always) some individual who feels aggrieved. For
this reason there would
41
normally be no strong incentive for a political body to sue, and it would in
the past have been discouraged by the uncertain state
of the law. These also, I
consider, are the reasons why it was not settled before 1988 (the
Natal
Newspapers
case) that a non-trading corporation may sue for defamation, and
why it has not yet been decided whether a non-trading corporation
may do so if
the defamatory matter of which it complains relates to the conduct of its
affairs but is not calculated to cause it
financial prejudice (the
Natal
Newspapers
case,
supra
, at p. 954 E). Then, as far as political
bodies are concerned, there is the further factor that defamation actions
arising from political
activity in any event do not succeed very easily. In all
these circumstances the lack of precedent in South Africa is not, I consider,
of
any significance.
I turn now to the absence of precedents in other jurisdictions, and this is a
convenient stage to deal generally with the value of
foreign authorities in
this
42
field. In
Marais v. Richard en 'n Ander
(
supra
) at p. 1168 D-E
the Court dealt with legal policy in the context of determining the permissible
limits of fair comment. In this respect,
JANSEN JA said, the basic criterion
must be the juridical convictions in South Africa and not elsewhere. This is not
mere legal chauvinism.
As judges we are expected to know and understand our own
society and its institutions, particularly its legal ones. We do not have
the
same understanding of foreign societies. Foreign authorities can be very
valuable in showing how problems have been dealt with
elsewhere, but one must
always bear in mind that circumstances may be different there, sometimes in
subtle but important ways. Thus
we were referred to a number of decisions on
defamation in the United States Supreme Court. See, in particular,
New York
Times Co. v. Sullivan
[1964] USSC 41
;
376 US 254
and
Gertz v. Robert Welch Inc.
418
US 323.
In the well-known
Sullivan
case the Court laid down that a State
could not under the First and Fourteenth Amendments to the United
43
States Constitution allow damages to be awarded to a public official for
defamatory falsehood relating to his official conduct unless
he proved "actual
malice" - that the statement was made with knowledge of its falsity or with
reckless disregard of whether it was
true or false. In weighing up the value of
free speech against the protection of a person's reputation the Court found a
formula
which struck a balance between freedom of speech and the right to
protect reputation. I do not propose analysing the Court's reasoning
in any
detail. Much of it is of relevance also to our circumstances, and, indeed, has
been reflected in counsel's arguments.
In the final analysis the Supreme Court held that the constitutionally
protected freedom of the press was in general to be accorded
a higher value in
American society than the protection of the reputations of public officials or
public figures. Even so, the Court
was not prepared to recognize an unfettered
freedom of expression such as
44
contended for on behalf of the appellant in the present case. The Court
weighed up a number of factors which, even if they were also
present in South
Africa to a greater or lesser extent, would not necessarily carry the same
weight. Thus it would seem that a factor
in the Court's desire to protect
defendants against awards for defamation at the instance of public officials was
the sheer size
of such awards in the United States of America. In
Sullivan's
case the plaintiff was an elected commissioner of the City of
Montgomery, Alabama. He sued the appellant, the New York Times, for
damages
arising from a defamatory statement which had appeared in an advertisement
published by the New York Times. The matter was
tried in Alabama, where the jury
awarded him damages in the sum claimed by him, viz. $500 000. Another plaintiff
who claimed in respect
of the same advertisement had been awarded a further $500
000, and in three cases still pending a total amount of $2 000 000 was
claimed
(vide Mr. Justice BRENNAN, p. 278, Mr. Justice
45
BLACK, pp. 294-5). The potential liability of the New York Times, in respect
of a paid advertisement published by it, was accordingly
$3 million, or
approximately R8 670 000 at current rates of exchange. It is inconceivable that
such large awards of general damages
would be made in a similar case in South
Africa.
In the result it seems to me that American cases, although containing helpful
and relevant discussions of the policy considerations
in issue in defamation
cases of a political nature, are, as far as the actual decisions are concerned,
of limited assistance because
of the different legal, social and political
milieu in which they operate. By the same token it does not seem important, as
far as
our law is concerned, that there is apparently no authority in American
law which either allows or denies a right to a political
body to sue for
defamation.
The same applies to English law and the laws of other English speaking
countries. In English law it was held
46
as far back as 1946 that a trade union could sue for defamation (
National
Union of General and Municipal Workers v. Gillian and Others
[1946] KB 81).
In a very recent case the Court of Appeal held that any corporation, whether
trading or non-trading, which can show that it has a
corporate reputation (as
distinct from that of its members) which is capable of being injured by a
defamatory statement, can sue
in libel to protect that reputation, in the same
way as can an individual, although there will of course be certain types of
statement
which cannot defame an artificial person (
Derbyshire County Council
v. Times Newspapers Ltd.
as yet unreported, delivered 19 February 1992). The
Court of Appeal went on to hold, however, that a local authority did not have
such a right. In so holding, it relied mainly on Article 10 of the European
Convention of Human Rights, and Article 19 of the UN
Covenant on Civil and
Political Rights, to both of which conventions Great Britain was a party. The
position of a political body
such as a political party has
47
not been considered in any decided case. What the outcome would be if this
question were to arise before an English court, and what
the reason is why it
has not yet done so, must, as far as I am concerned, be matters for conjecture,
which cannot have any effect
on the decision in the present case.
In Germany, on the other hand, non-trading corporations and associations of
persons are more readily regarded as capable of being
defamed and granted the
right to take appropriate legal action. See K.C. Horton, The Law of Defamation
in West Germany
(1979) 129 New LJ 785
, Karl Larenz, Allgemeiner Teil des
Deutschen Burgerlichen Rechts (1989) p. 135. Political organizations and parties
are not excluded.
See Rolf Serick Rechtsform und Realitat Juristischer Personen,
pp. 174-5; Enneccerus Nipperdey, Lehrbuch des Burgerlichen Rechts,
15th ed
(1959) vol. 1 p. 628. Again I cannot draw any conclusions from this which may be
helpful for the decision of the present
case.
48
A further argument advanced by the appellant
was
that political bodies have other remedies, apart
from legal
action, to protect their reputations. In particular, it
is
contended, such organizations "enjoy significantly greater
access to
the channels of effective communication, and hence
have a more realistic
opportunity to counteract false
statements than private individuals normally
enjoy" (Mr.
Justice Powell in the
Gertz
case,
supra
, at p.
344). Mr.
Justice Powell was, of course, distinguishing between, on the
one hand, public officials and public figures, and, on the
other, private individuals. Whether even in that context the
statement was correct may be doubted. There is, in my view,
a great deal of truth in what Mr. Justice Brennan said in
Rosenbloom v. Metromedia Inc.
403 US 29
at p. 46 (quoted by
him in the
Gertz
case at p. 363) viz.:
"While the argument that public figures need less protection because they can
command media attention to counter criticism may be
true for some very prominent
people, even then it is the rare case where the denial overtakes the original
charge. Denials, retractions,
and corrections are not 'hot' news, and rarely
receive the prominence of the
49
original story. When the public official or public figure is a minor
functionary, or has left the position that put him in the public
eye ..., the
argument loses all of its force. In the vast majority of libels involving public
officials or public figures, the ability
to respond through the media will
depend on the same complex factor on which the ability of a private individual
depends: the unpredictable
event of the media's continuing interest in the
story."
The same considerations apply to political
bodies. There may be some which are so prominent or newsworthy, or have so much
control
over the media, that their points of view will always be reported.
Smaller bodies on the national or local level would not normally
be so
fortunate, and might very well need the protection of the law to vindicate their
reputations.
I turn now in conclusion to some arguments based on the
Spoorbond
case
(
supra
), and, more particularly, on the relationship between a ruling
party and the government. In the
Spoorbond
case the South African
Railways sued two defendants for damages for defamation which was alleged to
have injured its "reputation
as the authority controlling,
50
managing and superintending" the railways (ibid., p. 1004). In each case an
exception was taken on the ground that the plaintiff was
not in law entitled so
to sue. On appeal it was held that the exceptions should have succeeded.
Concurring judgments were delivered
by WATERMEYER CJ and SCHREINER JA, and it is
necessary to consider them in some detail.
WATERMEYER CJ commenced by asking (at p. 1004): who is the plaintiff in the
action? His conclusion was (at p. 1005) that it was the
Governor-General-in-Council (whom he called the Crown and who was also sometimes
referred to as the Government of the Union). The
Crown is regarded as a legal
persona
distinct from the individual human beings who from time to time
hold office as Governor-General and as members of the Executive Council
(ibid.).
After discussing the law of defamation, WATERMEYER CJ assumed, without
deciding, that a business or trading corporation could recover
damages for
defamatory publication
51
without proof of special damage, and posed the question whether the Crown had
a similar right (at p. 1008). He first pointed out that
no case was quoted to
the Court in which such an action had ever been brought, and stated that the
non-existence of such cases would
be surprising if the Crown had a legal right
to sue for damages for injury to its reputation, since many business activities
are
carried on by the Crown, and the management and conduct of such activities
are peculiarly liable to hostile criticism and attack
by adverse interests
(ibid.). The same point was made by SCHREINER JA (p. 1013). These passages were
strongly relied upon by the
appellant, but I do not think they assist it to any
extent. At the time of the
Spoorbond
case it had been generally accepted
for many years that trading corporations could sue for defamation. If the Crown,
as a
persona
engaged in trade, also had such a right, one would have
expected this to be reflected in the case law, for the reasons stated ín
the
Spoorbond
case. As I have indicated above, the position
52
of non-trading corporations in general, and political bodies in particular,
is substantially different, and no significance can be
attached to the absence
of precedents as far as they are concerned.
WATERMEYER CJ then proceeded to
consider whether, even if an action by the Crown for damages for defamation was
a novelty, the courts
should extend to the Crown by analogy the right to bring
such an action. (ibid.)
He firstly agreed with SCHREINER JA that
considerations of fairness and convenience did not demand
such an extension (p. 1008-9). I shall deal with SCHREINER
JA's judgment in due course. WATERMEYER CJ then proceeded as
follows (at p. 1009):
"But, independently of considerations of fairness and convenience, it seems
to me that the position of the Crown in relation to any
reputation enjoyed by it
in connection with its trading or business activities is very different from
that of a business or trading
corporation. 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
53
other hand the Crown's main function is that of 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
activities in which the
Government engages, such as the railways or the Post
Office; it is not something which can suffer injury by reason of the publication
in the Union of defamatory statements as to the manner in which one of its
activities is carried on. Its reputation is a far more
robust and universal
thing which seems to me to be invulnerable to attacks of this nature."
Taking the judgment of WATERMEYER CJ as a
whole
(excluding for the moment his concurrence with
the views of
SCHREINER JA, with which I deal later) I consider that
it
provides no support for the appellant's submissions. Stress
was placed
on the use by WATERMEYER CJ of expressions which
indicated that it would have been an extension of the law to
allow the Crown to sue for defamation. But, as I have
stated, that was indeed the manner in which WATERMEYER CJ
approached the matter in the light of the then existing state
of the law. With us the situation is entirely different. In
principle it has been decided in the
Natal Newspapers
case
54
that non-trading corporations can sue for defamation. The guestion therefore
is not whether a novel action should be accorded to a
political body, but rather
whether a political body should be excluded from a class which has already been
recognized as entitled
to such an action.
The passage from the judgment of
WATERMEYER CJ which I have guoted above, also does not assist the appellant -
its reasoning is, in
my view, not applicable to political bodies. Depending on
the width of the class comprised by them (a matter to which I adverted
earlier)
political bodies could range, for instance, from bodies hoping to win the next
general election to bodies whose purpose
is to protect the ecology and are
continually in conflict with the Government on that score. But whatever form
these bodies take,
their functions would be as unlike those of the Government,
which are discussed in the above passage, as were those of business or
trading
corporations, mentioned in the passage. And there can, in my view, be no
suggestion that a political body's
55
reputation is necessarily so robust and universal as to be invulnerable to
defamatory attacks.
I turn now to the judgment of SCHREINER JA. He dealt with
the two grounds upon which the lower Court had held that the Crown had a
right
to sue for defamation. The first was that, since trading corporations could sue
for defamation, the Crown could also do so
where it is engaged in trade in order
to protect its reputation as a trader. Secondly, the lower Court had held that
considerations
of fairness and convenience required that the Crown, when engaged
in competitive trade, should be allowed to sue any subject for
damages who
defames it in respect of its trade. SCHREINER JA disagreed with the Judge
a
quo
on both these grounds.
As regards the comparison with trading
corporations, SCHREINER JA pointed to the dangers of arguing
by analogy. He concluded (at pp. 1011-1012):
"It is no doubt convenient for certain purposes to treat the Crown as a
corporation or artificial person. But it is obviously a very
different kind
56
of person from the rest of the persons, natural and artificial, that make up the
community. In many respects its relationship to
those other persons is unique
and there is no reason in common sense or logic for concluding that wherever a
subject would have a
right of action there the Crown must have one too."
SCHREINER JA then turned to the finding of the
Court
a quo
that considerations of fairness and convenience
required that
the Crown should be allowed to sue the subject
for defamation. He assumed
that the Crown might, at least in
so far as it took part in trading in
competition with the
subjects,enjoy a reputation, damage to which could be
calculated in money.
On this assumption, he said, there was
certainly force in the contention that it would be unfair to
deny to the Crown "the weapon, an action for damages for
defamation, which is most feared by calumniators" (p. 1012).
Nevertheless, he said, it seemed to him that considerations
of fairness and convenience were, on balance, distinctly
against the recognition of a right in the Crown to sue the
subject in a defamation action to protect that reputation.
57
His reasons are set out in the following passage (at pp.
1012-1013):
"The normal means by which the Crown protects itself against attacks upon its
management of the country's affairs is political action
and not litigation, and
it would, I think, be unfortunate if that practice were altered. At present
certain kinds of criticism of
those who manage the State's affairs may lead to
criminal prosecutions, while if the criticism consists of defamatory utterances
against individual servants of the State actions for defamation will lie at
their suit. But subject to the risk of these sanctions
and to the possible
further risk, to which reference will presently be made, of being sued by the
Crown for injurious falsehood,
any subject is free to express his opinion upon
the management of the country's affairs without fear of legal consequences. I
have
no doubt that it would involve a serious interference with the free
expression of opinion hitherto enjoyed in this country if the
wealth of the
State, derived from the State's subjects, could be used to launch against those
subjects actions for defamation because
they have, falsely and unfairly it may
be, criticised or condemned the management of the country."
Certain expressions used in this passage were much
relied upon by the appellant. Now, of course, in so far as
SCHREINER JA here emphasizes the importance to be attached to
the subject's freedom to express his opinion upon political
58
matters, this passage is relevant and important. The application of this
principle to the circumstances of the Crown or State is,
however, a different
matter from its application to a political body. Stress was placed upon the
statement that the normal means
by which the Crown protects itself against
attacks is political action and not litigation - the same, it was contended,
applies to
political bodies. However, the State's capacity to defend itself far
transcends that of any political body. The State can appoint
commissions of
enquiry, make official statements which would be widely disseminated, even
introduce legislation. These facilities
are not available to political bodies,
even the most prominent of them, or in any event not to the same extent. Smaller
or more obscure
political bodies may well enjoy none of the political advantages
possessed by the State.
Taking the judgments in the
Spoorbond
case as a whole, the central
theme is that the State as a
persona
is
59
unique - its nature and functions are different from those of all other
corporations and its reputation is not only invulnerable to
attack but can, in
any event, be defended by political action unavailable in its nature or scope to
others; moreover, the State should
not be allowed to use its wealth derived from
its subjects, to launch against those subjects an action for defamation. This
reasoning
clearly does not apply to political bodies.
The principle laid down in the
Spoorbond
case was used in another way
in argument. If the State cannot sue for defamation, it was asked, why should
the ruling party be allowed
to do so? In many circumstances a defamation might
apply to both the State (represented by the government) and the ruling party,
and the policy reasons precluding the one from suing apply also to the other.
Moreover, it was contended, even where the defamation
applies only to the party
and not to the State, the right to criticize and attack the ruling party is of
great importance and should
be allowed
60
unfettered by any fear of defamation actions.
These arguments must first
be placed in perspective. It is not contended that Inkatha must be non-suited in
the present case because
it is the ruling party in KwaZulu. This point is not
taken on the papers and is not covered by the question which the parties
submitted
to the Court. The argument concerning the ruling party was used only
in a theoretical or hypothetical way in order to underline the
undesirability of
according the right to sue for defamation to political bodies generally.
I turn now to the merits of the argument. The position of a ruling party is
closely analogous to that of an individual member of the
government. For many
years our courts have entertained actions for defamation brought by members of
the cabinet or other members
of the government. See, for example,
Upington v.
Saul Solomon & Co.
(
supra
);
Conroy v. Nicol and Another
1951 (1) SA 653
(A);
South African Associated Newspapers Ltd. and Another v.
Estate
61
Pelser
1975 (4) SA 797
(A) and
Minister of Justice v. S.A.
Associated Newspapers and Another
1979 (3) SA 466
(C). In
Pelser's
case (
supra
) it was specifically argued that, if individual ministers
could sue for damages for defamation consequent upon a criticism of the
government or the executive, the effect of the
Spoorbond
case would be
undone (pp. 807 H - 808 A). This argument did not succeed (p. 808 A-C).
The decision in
Pelser
's case has been criticized by academic writers.
See, for instance, 1975 Annual Survey of South African Law 194 (P.Q.R. Boberg)
and
C.F.Forsyth, Recent Judicial Attitudes to Free Speech,
1977 SALJ 19.
In the
former article the submission is made (at pp. 195-6) that a distinction should
be drawn between the case where an individual
member of the government is
defamed
solely by reason of his association with the government
for whose
policies and decisions he is responsible, and the case where he is defamed for
his personal actions or attitudes. It is
62
contended that in the former case no action for damages for defamation should
lie, but that one should be allowed in the latter case.
I do not wish to
express any view on the controversy concerning
Pelser's
case. If
political parties were to be accorded the right to protect their reputations by
legal action, the position of the ruling
party would have to be dealt with when
it arises. The Court would then, if the guestion were to be raised, have to
decide whether
Pelser's
case was correctly decided and whether it should
be applied by analogy to the ruling party; or whether the association between
the
ruling party and the government should lead to the denial of the right of
the party to sue for damages for defamation, either generally,
or in particular
cases where its position can be assimilated to that of the government. Whatever
the correct rule might be found
to be, the situation of the ruling party is
sui qeneris
, and I do not think it affords any reason why political
bodies generally should be
63
deprived of the right to protect their reputations by legal proceedings. In
the same way it has never been suggested that politicians
generally should be
denied such a right because it may be desirable that a minister should not be
able to sue for damages for defamation
consequent upon a criticism of the
government or the executive.
In the light of all the above-mentiond considerations, it seems to me that
the position is as follows. The appellant contends that
all legal
personae
falling within the rather nebulous class of political bodies should be
entirely denied the right to protect their reputations by legal
action. The
reason advanced is public policy, and in particular the need to protect freedom
of political expression. However, the
promotion and defence of this facet of
public policy do not in my view require that any class of person should be
prevented from
bringing proceedings for defamation. Where a right to sue exists,
the law of defamation itself recognizes the importance of
64
freedom of political expression, and makes provision for it. Moreover, this
provision is tailored to the needs of particular situations,
and does not
entail, as the appellant's argument does, that a large class of juridical
persons, including some which may be very
deserving, would be entirely prevented
from protecting their reputations by recourse to law. In these circumstances I
consider that
no good reason has been shown for excluding political bodies from
the class of non-trading corporations which, according to the
Natal
Newspapers
case, are entitled to sue for damages for defamation.
The appeal is dismissed with costs.
E M GROSSKOPF, JA CORBETT, CJ
HOEXTER, JA
HEFER, JA Concur
GOLDSTONE, JA