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[1993] ZASCA 205
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Argus Printing and Publishing Company Ltd. and Others v Esselen Estate (447/92) [1993] ZASCA 205; 1994 (2) SA 1 (AD); [1994] 2 All SA 160 (A) (7 December 1993)
CASE NO 447/92
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION)
In the matter between:
THE ARGUS PRINTING AND PUBLISHING
COMPANY LIMITED
FIRST
APPELLANT
HARVEY TYSON
SECOND APPELLANT
BRIAN CURRIN
THIRD
APPELLANT
and
ESTATE LOUIS LEIPOLDT ESSELEN
RESPONDENT
CORAM
: Corbett CJ, Botha, Nestadt, Goldstone JJA, et Howie AJA.
DATE OF HEARING
: 1 November 1993
DATE OF JUDGMENT
: 7 December 1993
JUDGMENT
/
CORBETT
CJ
2
CORBETT
CJ:
On 27 March 1990 there was published in the
Star newspaper an article under the heading "A TALE OF
TWO TREE MURDERS".
In conjunction with the article
there was evidently a picture of the author (the third
appellant) and the caption next to this picture read:
"Was justice colourblind in passing sentences? BRIAN CURRIN (right) of
Lawyers for Human Rights writes on the sensitive issue of Equality
before the
Law".
The body of the article read as follows (for convenience
of reference I have numbered the paragraphs):
"(1) The chairman of the Pretoria Bar Council, Advocate William de Villiers,
SC, recently took issue with me for suggesting our courts
discriminate on racial
grounds when convicting and/or sentencing.
(2) My comments which attracted the wrath of Mr de Villiers were in relation
to the so-called "Witbank Tree Murder". I think it would
be both interesting and
telling to compare this case, which involved black on white violence, with the
infamous Louis Trichardt Tree
Murder Case which involved
3
white on black violence.
(3)
In the Witbank case, two
black men picked up a white woman, had sexual intercourse with her, tied her to
a tree and then stole her
motor vehicle which they drove to Swaziland. Bar the
two thieves who were later arrested and charged with robbery, rape and murder,
the woman's domestic employee was the last person to see her
alive.
(4)
The deceased had bought a bottle of
vodka and according to the testimony of the domestic employee, she appeared to
be unhappy and
drunk. Nine days later, she was found dead and tied to a tree.
The probabilities are that she had been ' picked up' by the two accused
four
days after having disappeared.
(5)
The two accused were
subsequently arrested and charged with robbery, rape and murder. They were both
sentenced to 10 years' imprisonment
for robbery. With regard to the alleged
rape, the only evidence against them were confessions by each of the accused
that they had
intercourse with the deceased. According to them, she had
consented to the act.
(6)
In spite of the
circumstances in which she disappeared the trial judge found beyond reasonable
doubt that she had been raped. It must
also be emphasised that there was no
medical evidence to support such a
4
conclusion. They were both given 15 years' imprisonment for rape.
(7)
They were also found guilty
of murder and sentenced to death. This sentence was passed in spite of the
court's finding that there
was no direct intention to kill her. The court found
indirect intention, that the accused must have foreseen the deceased may not
be
found timeously, in which event she would die and in spite of this, left her
tied to a tree, regardless of the consequences.
(8)
It is relevant to mention that the tree was 50m from a gravel road,
about 30m from a plantation used as a dumping ground, 20m from
a number of bee
hives and a few hundred metres from seven houses.
(9)
The accused testified they thought
she
would be found soon after having been left and they had no intention of killing
her.
(10) The fact that they did not kill her also has a bearing on the charge of
rape, considering that rape can also attract the death
penalty. Fortunately,
both the rape and murder convictions were set aside by the Appellate Division in
November last year.
(11) It should be noted the Supreme Court judge who initially sentenced the
accused refused leave to appeal. Had the accused not
been represented by
lawyers, which is
5
the norm, there would have been no petition to the Chief Justice and they would
have been executed.
(12) In the Louis Trichardt Tree Murder Case, evidence was led how two white
farmers tied a black man to a tree. Unlike the Witbank
woman, his destiny was
not left to nature or to chance. He was brutally assaulted until he died.
(13) Both accused admitted tying the deceased to a tree and assaulting him.
However, they denied they intended to kill him or that
they foresaw he would die
as a result of the assault.
(14) The first State witness, a medical practitioner, handed in a post-mortem
examination report containing a list of the most horrendous
injuries found on
the body of the deceased.
(15) He described the incident as a 'massive assault'. The doctor testified that
these injuries could not have been caused by slaps,
but that blunt weapons must
have been used.
(16) The second State witness, a co-employee of
the deceased, testified that
both the
accused had kicked the deceased with
booted feet. During the
course of this
evidence-in-chief, the court
suddenly
adjourned.
6
(17) On re-convening, prior to any cross-examination of the second State
witness, the prosecutor indicated he had reached agreement
with the defence
concerning the acceptance of pleas tendered by the defence, namely culpable
homicide by the first accused and common
assault by the second accused.
(18) The next morning, the State and the defence presented to the court an
agreed statement of facts described as 'evidence upon
which the court must make
a finding'.
(19) This set of facts, described as common cause, bears hardly any resemblance
to the evidence testified by the second State witness
and appears to constitute
a complete capitulation by the State. Both accused were given nominal
fines.
(20)
The question is why did
the judge accept this state of affairs when he was not obliged to? I believe he
had a duty to query the preposterous
statement by counsel for the defence that
the facts on which the court was to find were those contained in the agreement
and not
as the witness had testified.
(21)
I
venture to speculate that had two black
men tied a
white man to a tree, inflicted a massive assault causing his death, we may once
again have been faced with application
of the common purpose doctrine
7 and death sentences.
(22) Lawyers for Human Rights runs a project which monitors racial
discrimination by our judiciary. These are certainly not the only
two cases
which lead us to believe our courts do sometimes discriminate on the basis of
race when convicting and passing sentence.
(23) Fortunately, there are many judges who do not allow the colour of either
the accused or the complainant or deceased in murder
charges to influence their
decisions.
(24) However, as long as there is even one judge who shows tendencies of racial
discrimination and he is tolerated by fellow judges
and the Minister of Justice,
the entire judiciary will be
tarnished."
As a result of the
publication of this article the late Mr Justice L L Esselen, of the Transvaal
Provincial Division, instituted in
that Division an action for damages for
defamation, citing as defendants the printer and publisher of the Star newspaper
(first appellant),
the editor of the newspaper (second appellant) and the author
of the article (third
8
appellant). In the plaintiff's particulars of claim it
was alleged
that the plaintiff was the Judge who presided
in the case referred to in the article as the "Witbank
Tree Murder" and that he had been identified as such by
the Star to its readers in prior editions of the
newspaper and also by other newspapers circulating in the
Transvaal. It was further alleged that portions of the
article were defamatory of the plaintiff and damages in
the sum of R120 000,00 were claimed.
The defendants noted an exception to the
plaintiff's particulars of claim as disclosing no cause
of action upon the following grounds:
"1. The passages relied on by the Plaintiff in paragraph 10 of the
Particulars of Claim read in the context of the article as a whole
are not
reasonably capable of conveying a defamatory meaning.
ALTERNATIVELY
2. 2.1 The article read as a whole concerned
9
the conduct of the Plaintiff only in his official capacity as a
Judge of the Supreme Court.
2.2
Any scandalous, improper or
defamatory imputation on a Judge arising out of the exercise of his judicial
function is an imputation
on the administration of justice and is punishable by
the law of contempt.
2.3
It is contrary to
public policy to permit a Judge of the Supreme Court to recover damages in an
action for defamation based upon criticism
of a judgment delivered by him in his
official capacity in judicial proceedings."
The
exception was argued before Hattingh J in the "Transvaal Provincial Division on
24 September 1991 and on 28 February 1992 he delivered
judgment, dismissing the
exception with costs. Unhappily Mr Justice Esselen had in the meanwhile passed
away on 3 February 1992.
10 Subsequently his estate was substituted as
plaintiff and it is, of course, the respondent on appeal. With leave from this
Court,
the appellants appeal against the order of the Court a quo. For
convenience I shall continue to refer to the late Judge as "the plaintiff".
The judgment of the Court a quo has been reported (sub. nom.
Esselen v
Argus Printing and Publishing Co Ltd and Others
1992 (3) SA 764
(?) ). From
this it appears that Hattingh J adopted, as the basic criterion for adjudicating
the merits of the first ground of exception,
the test as to whether a reasonable
person of ordinary intelligence
might
reasonably understand the words of
the article to convey a meaning defamatory of the plaintiff (see p 767 E-F) .
This is unquestionably
the correct approach and, as this formulation indicates,
the test is an objective one. In the absence of an innuendo, the reasonable
person of ordinary intelligence is taken to understand the words
11
alleged to be defamatory in their natural and ordinary meaning. In
determining this natural and ordinary meaning the Court must take
account not
only of what the words expressly say, but also of what they imply. As it was put
by Lord Reid in
Lewis and Another v Daily Telegraph, Ltd; Same v Associated
Newspapers, Ltd
[1963] 2 All ER 151
(HL), at 154 E-F -
"What the ordinary man would infer without special knowledge has generally
been called the natural and ordinary meaning of the words.
But that
expression is rather misleading in that it conceals the fact that there are
two elements in it. Sometimes it is not necessary to go
beyond the words
themselves as where the plaintiff has been called a thief or a murderer. But
more often the sting is not so much
in the words themselves as in what the
ordinary man will infer from them and that is also regarded as part of their
natural and ordinary
meaning."
12
And in
Jones v Skelton
[1963] 3 All ER 952
(PC) Lord Morris of
Borth-y-Gest, citing
Lewis
's case, stated (at 958 F-G):
"The ordinary and natural meaning of words may be either the literal meaning
or it may be an implied or inferred or an indirect meaning:
any meaning that
does not require the support of extrinsic facts passing beyond general knowledge
but is a meaning which is capable
of being detected in the language used can be
a part of the ordinary and natural meaning of words..."
(See also Gatley on
Libel and Slander
, 8 ed, paras 86, 93, 97;
Duncan & Neill on Defamation
2 ed, paras 4.05 and 4.06; Burchell,
The Law of Defamation in South Africa
, p 85; cf
Sauls and Others v
Hendrickse
[1992] ZASCA 68
;
1992 (3) SA 912
(A) , at 919 E. ) And I must emphasize that such
an implied meaning has nothing to do with innuendo, which relates to a secondary
or unusual defamatory meaning which can be attributed to the words used only by
the
13 hearer having knowledge of special circumstances. (See
National
Union of Distributive Workers v Cleghorn and Harris, Ltd
1946 AD 984
, at
993-4, 997.)
In his particulars of claim the plaintiff relied specifically upon paras 1 to
11 and 22 to 24 of the article as being defamatory of
himself, but did not plead
any specific imputation. The Court a quo held, as I understand the judgment,
that a reasonable person
of ordinary intelligence who read the article might
reasonably understand it as conveying that the plaintiff, as presiding Judge
in
the Witbank Tree Murder case, convicted the accused of rape, not because the
convictions were justified by the evidence, but because
the plaintiff is
racially prejudiced; that the plaintiff sentenced the accused to 15 years
imprisonment for the crime of rape and
to death for the crime of murder not
because these sentences were appropriate in the circumstances, but because the
plaintiff is
racially
14 prejudiced; and that plaintiff is also racially
prejudiced and does discriminate on racial grounds when convicting and
sentencing.
(See the reported judgment at 768 I - 769 A.)
On appeal appellants' counsel argued (as he did before the Court a quo) that
the article compares and contrasts "the infamous Louis
Trichardt tree murder
case" with the Witbank case in which the plaintiff presided; that the main
thrust of the article is that the
decision and sentences in the former case were
the product of racial discrimination on the part of the Court; and that the
article
should not be read as casting a similar aspersion on what was decided in
the Witbank case. In support of this argument counsel pointed
out that nowhere
in the article is there any direct allegation made that plaintiff was actuated
by an ulterior or improper motive
and submitted that this was particularly
important since no secondary meaning or innuendo had been pleaded.
15
I cannot agree. With regard to this latter
argument, it is true that no innuendo has been pleaded,
but it does not
follow from this that the plaintiff can
only succeed if the article contains
an express
allegation of racial bias or discrimination in his
handling of criminal cases. As I have pointed out
above, in determining the natural and ordinary meaning of
the words in issue the Court must take account not only
of what is expressly said, but also of what is implied.
Turning to the article itself, I note that its
general theme, as indicated by the headings and by the
content of the article itself, is the suggestion that
certain judges discriminate on racial grounds when
convicting and/or sentencing accused persons. To
substantiate this suggestion the author has selected two
cases, similar in that in each case the victim of the
crime was tied to a tree, dissimilar in that (a) the
victim in one case (the Witbank case) was white, whereas
16 in the other
(the Louis Trichardt case) he was black, (b) the perpetrators of the crimes were
in the Witbank case black, whereas
in the Louis Trichardt case they were white
and (c) the convictions and sentences were, in the view of the author, in the
one case
(the Witbank case) excessively harsh and in the other case (the Louis
Trichardt case) excessively lenient.
The author discusses each case in detail. His discussion of the Witbank case
is prefaced by reference
(in paras 1 and 2) to a previous criticism of his of the Witbank case which
had attracted "the wrath" of the
chairman of the Pretoria Bar Council. It is clearly to be inferred from these
paragraphs that this previous
criticism was to the effect that the Witbank case was an
instance where the Court discriminated on racial grounds
in convicting and sentencing.
The article proceeds (in par 2):
"I think it would be both interesting and
17
telling to compare this case [the Witbank case], which involved black on white
violence, with the infamous Louis Trichardt Tree Murder
Case which involved
white on black violence."
The author
then (in paras 3 to 5) refers briefly to some
of the facts of the Witbank
case and to the verdicts
reached and sentences imposed by the Court (paras 6
and
7). The latter two paragraphs, together with paras 8, 9
and 10, contain statements which can clearly be construed
as being critical of the rape conviction and of the
conviction and sentence of death for murder. Discussion
of the case concludes with reference to the appeal to
this Court, which took place despite the trial Judge's
refusal of leave and which resulted in the rape and
murder convictions being set aside. (The judgment of
this Court in the case has, incidentally, been reported:
see
S v Mamba en 'n Ander
1990 (1) SACR 227
(A).)
The article then turns to the Louis Trichardt
case and discussion of it and criticism of the verdicts
18 and sentences
occupies paras 12 to 21. The general thrust of the criticism is that it was a
very serious case in which the victim
was tied to a tree and brutally assaulted
until he died; that after certain damning evidence had been led, the State and
the defence
got together and presented to the Court an agreed statement of facts
upon which the Court was asked to make a finding; that this
statement bore
hardly any resemblance to the State evidence hitherto led and appeared to
constitute a "complete capitulation" by
the State; that both accused were given
"nominal fines"; and that in accepting this state of affairs the Judge failed in
his duty.
The author concludes (in par 21) -
"I venture to speculate that had two black men tied a white man to a tree,
inflicted a massive assault causing his death, we may once
again have been faced
with application of the common purpose doctrine and death sentences."
The final three paragraphs (22 to 24) contain
19 general observations about "racial discrimination by our
judiciary" and
includes the following:
"These are certainly not the only two cases which lead us to believe our
courts do sometimes discriminate on the basis of race when
convicting and
passing sentence."
This statement, read in the context of the article as a
whole, plainly charges the Judges in
both
the Witbank and
Louis Trichardt cases with racial bias, in favour of
whites and to the detriment of blacks, in convicting and
sentencing the accused who appeared respectively before
them. I think there is also to be read into the article
the imputation that the Judges concerned were improperly
influenced not only by the race of the accused, but also
by the race of the victims involved.
It is conceded by counsel for the appellants
that such imputations are defamatory (cf
Le Roux v Cape
Times Ltd
1931 CPD 316).
The first ground of exception
20
must accordingly fail. I turn now to the second ground of exception.
In support of this ground appellants' counsel submitted that by reason of
public policy and certain other factors a Judge should not
be permitted to sue
for damages for defamation in respect of criticism of a judgment delivered by
him in his official capacity in
judicial proceedings. Counsel made it clear that
he was not arguing in favour of a blanket prohibition against Judges suing for
defamation,
but only that there should be a disability in the sphere thus
indicated. (For the sake of brevity I shall call this "the disability
sphere".)
This formulation follows that contained in par 2.3 of the exception.
This is a bold and, in our law certainly, a novel contention. The firmly
entrenched principle of Roman-Dutch law is that
every person
is entitled,
as a primordial right, to be protected against unlawful
21 attacks upon his
reputation and to legal relief when such an attack has taken place. The classic
statement of the law on this topic
appears in Melius de Villiers's
The Roman
and Roman-Dutch Law of Injuries
(1899), at 24, and reads as follows:
"The specific interests that are
detrimentally affected by
the acts of
aggression that are comprised under the
name of injuries are
those which every man
has, as a matter of natural right, in the
possession
of an unimpaired person,
dignity and reputation. By a person's
reputation
is here meant that character
for moral or social worth to which he
is
entitled amongst his fellow-men; by
dignity that valued and serene
condition
in his social or individual life which is
violated when he is,
either publicly or
privately, subjected by another to
offensive and
degrading treatment, or when
he is exposed to ill-will,
ridicule,
disesteem or contempt.
The rights here referred to are absolute or primordial rights;
they are
22
not created by, nor dependent for their
being
upon, any contract; every person is
bound to respect them; and they
are
capable of being enforced by external
compulsion. 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 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.
The law recognises the absolute character
of this
right, so far as it is well
founded and has not been lost or forfeited
in
the eye of the law itself, and it takes
this right under its protection
against
aggression by others."
This statement, or relevant portions of it, have down the years been referred
to with approval by the Courts (see
23 e g
Rex v Umfaan
1908 TS 62
, at
66;
O'Keeffe v Argus Printing and Publishing Co Ltd and Another
1954 (3)
SA 244
(C), at 247 G - 248 A;
Minister of Police v Mbilini
1983 (3) SA
705
(A) , at 715 G - 716 A;
Jacobs en 'n Ander v Waks en Andere
[1991] ZASCA 152
;
1992 (1)
SA 521
(A), at 542 C-E;
Argus Printing and Publishing Co Ltd v Inkatha
Freedom
Party
[1992] ZASCA 63
;
1992 (3) SA 579
(A), at 585 E-G; also
Fayd'herbe v
Zammit
1977 (3) SA 711
(D), at 719 F-H).
In a footnote (no 20, on p 24) De Villiers makes it clear that by "person" in
the passage quoted above he means a human being or natural
person, but he does
not exclude the extension of these principles to legal or juridical persons. In
fact our law has, in the sphere
of defamation, allowed such extension. This
process is fully narrated and described in the judgments of E M Grosskopf JA in
the
Inkatha
case, supra, at 583 B - 584 J and of Rabie ACJ in
Dhlomo
NO v Natal Newspapers (Pty) Ltd and Another
1989 (1) SA 945
(A), at 948 F
-
24 953 D. (See also
Financial Mail (Pty) Ltd and Others v Sage Holdings
Ltd and Another
[1993] ZASCA 3
;
1993 (2) SA 451
(A), at 460 G - 462 B.)
In
Die
Spoorbond and Another v South African Railways; Van Heerden and Others v South
African
Railways
1946 AD 999
, this Court, however, held that the
South African Railways and Harbours (which was identified as the Crown or the
Government of the
Union of South Africa, a legal persona) was not entitled to
sue for damages in respect of defamatory statements alleged to have injured
its
reputation as the authority controlling, managing and superintending the
railways. The main judgment in this case was delivered
by Watermeyer CJ; and in
addition Schreiner JA gave a concurring judgment of his own. The case, and the
two judgments, were closely
analysed by E M Grosskopf JA in the
Inkatha
case, at 595 J - 598 J. Appellants' counsel cited the
Spoorbond
case in
support of the proposition that public
25
policy can constitute a ground for denying a party the
right to sue for
defamation. I shall return to this
case later.
The argument of appellant's counsel to the effect that a Judge is not
entitled to sue in the disability sphere may be summed up under
the following
heads:
(1)
There are a number of
considerations of public policy which constitute good ground for denying a Judge
the right to sue for defamation
in the disability
sphere.
(2)
There are available to a Judge
alternative remedies which negative, or at any rate materially reduce, the need
for a right to sue
for defamation.
(3) There is a
significant absence of precedent for
Judges suing for damages for
defamation.
(These heads do not necessarily represent the order in
26 which the
various arguments were presented.) I shall deal with each of these heads in
turn.
Public Policy
At the forefront of his argument based on public policy counsel placed
freedom of expression and of the press and he argued that these
freedoms were
not only integral components of democracy but also facets of public policy.
Moreover, he said, in the context of the
administration of justice freedom of
expression should be allowed the greatest possible latitude, particularly in
regard to comment
critical of a Judge in his official capacity. He submitted
that allowing Judges the right to sue for defamation in the disability
sphere
would have a "chilling effect" and would remove one of the few elements of
public accountability of Judges in our system.
In this connection he emphasized
that because of its position as an organ of State, because judicial
27
decisions affect citizens in every aspect of their lives (in some instances they
involve the very deprivation of life) and because
of the powerful public
position of Judges which allows them to assume "the role of public oracles", the
judiciary is inclined to
attract criticism. In much the same vein counsel
further argued that the healthy growth of the law is dependent upon "the highest
degree of latitude" in the criticism of judicial decisions by academic lawyers;
and that to allow Judges to sue in matters falling
within the disability sphere
would have a potentially inhibiting effect upon such criticism.
With much of this I have little fault to find; but the critical question to
be asked and answered is: does it follow from this that,
in the disability
sphere, the Judge should be denied the right enjoyed by all his or her fellow
citizens to sue when he or she has
been defamed?
I agree, and I firmly believe, that freedom of
28
expression and of the press are potent and indispensable instruments
for the creation and maintenance of a democratic society, but
it is trite that
such freedom is not, and cannot be permitted to be, totally unrestrained. The
law does not allow the unjustified
savaging of an individual's reputation. The
right of free expression enjoyed by all persons, including the press, must yield
to the
individual's right, which is just as important, not to be unlawfully
defamed. I emphasize the word "unlawfully", for, in striving
to achieve an
equitable balance between the right to speak your mind and the right not to be
harmed by what another says about you,
the law has devised a number of defences,
such as fair comment, justification (i e truth and public benefit) and
privilege, which
if successfully invoked render lawful the publication of matter
which is prima facie defamatory. (See generally the
Inkatha
case, supra,
at 588 G - 590 F.) The resultant balance gives due
29
recognition and protection, in my view, to freedom of expression.
I
also agree that Judges, because of their position in society and because of the
work which they do, inevitably on occasion attract
public criticism and that it
is right and proper that they should be publicly accountable in this way. And in
this connection I can
do no better than quote the following well-known remarks
of Lord Atkin in the Judicial Committee of the Privy Council in the case
of
Andre Paul Terence Ambard v The Attorney-General of Trinidad and Tobago
[1936] 1 All ER 704
(PC), which dealt with a conviction for contempt of court
(at 709):
"But whether the authority and position of an individual judge or the due
administration of justice is concerned, no wrong is committed
by any member of
the public who exercises the ordinary right of criticising in good faith in
private or public the public act done
in the seat of
30
justice. The path of criticism is a public way: the wrong headed are permitted
to err therein:
provided that members of the public abstain from imputing
improper motives to those taking part in the administration of justice,
and are
genuinely exercising a right of criticism and not acting in malice or attempting
to impair the administration of justice
, they are immune. Justice is not a
cloistered virtue: she must be allowed to suffer the scrutiny and respectful
even though outspoken
comments of ordinary men." (My
emphasis.)
(See also Kotzé J in
In re Phelan
(1877) Kotzé 5, 9-10;
R v Torch Printing and
Publishing Co (Pty) Ltd and Others
1956 (1) SA 815
(C), 819 F -
820 F, 821
F
- 822H;
S v Van Niekerk
1972 (3) SA 711
(A), 719 H - 721 A.)
There seems little doubt that in the nearly sixty years which have passed
since Lord Atkin made these remarks attitudes towards the
judiciary and towards
the
31
legitimate bounds of criticism of the judiciary
have
changed somewhat. Comment in this sphere is today far
less inhibited.
Criticism of judgments, particularly by
academic commentators, is at times
acerbic, personally
oriented and hurtful. I doubt whether some of
this
criticism would have been regarded as falling within the
limits of
what was regarded as "respectful even though
outspoken" in Lord Atkin' s day.
(See, for example, the
academic criticism alluded to, in
R v Shivpuri
[1986] 2
All ER 334
(HL), at 345 f-g and the relevant article in
[1986]
Cambridge Law Journal at 33, the language of which
was described by Lord
Bridge as being "not conspicuous
for its moderation".) But we are all to a
degree captive
to the age in which we live. And modern norms relating
to
freedom of expression and the discussion of matters
that were formerly
tabooed must be recognized and taken
into account in setting limits in this
sphere. To some
extent what in former times may have been regarded as
32 intolerable must today be tolerated. (Cf the remarks made, in regard to
contempt of court, in
Borrie and Lowe's Law of Contempt
, 2 ed, 231, 235,
236.) This, too, will help to maintain a balance between the need for public
accountability and the need to protect
the judiciary and to shield it from
wanton attack. As to the "chilling effect" referred to by counsel, in the not
inconsiderable
period of my experience I have certainly not become aware of any
such restraint, nor noticed its influence, despite the fact that
hitherto it has
always been generally assumed, as far as I know, that Judges enjoy the rights of
the ordinary citizen vis-a-vis those
who defame them.
With regard to the argument based upon the inhibition of academic criticism,
I would make three short points. Firstly, I do not believe
that there is any
valid reason for such inhibition. Secondly, I have again not noticed any such
inhibition in the past,
33
despite the assumed sanction of legal action for defamation lurking in the
background. Thirdly, I fail to see why in criticising the
judgment of a Court it
is in general necessary to resort to the language of defamation. In the
exceptional case where the criticism
itself is of so serious a nature as to be
prima facie defamatory, the critic must choose whether to voice it and rely upon
one of
the defences which render it lawful or to remain silent. After all, the
defamatory statement may, despite what the critic thinks,
turn out to be totally
unfounded. As I understand counsel's argument, in those circumstances, however
serious the defamation, the
Judge must simply grin and bear it. I do not believe
that that is the law.
Appellant's counsel further developed the argument based on public policy by
referring to what he termed "the negative impact on the
administration of
justice". In elaboration of this he submitted that the
34 prospect of a Judge
litigating in the Supreme Court in his personal capacity concerning a matter in
which his competence and integrity
as a Judge was in issue would inevitably have
the effect of bringing the administration of justice into disrepute; and that,
therefore,
it was contrary to public policy to allow this. In support of this
argument counsel referred to the Australian decision of
Trouqhton v
Mcintosh
(1896) 17 NSWR 334.
I shall deal with this case more fully at a
later stage. At this point it is sufficient to note that in the majority
judgments of
Stephen J and Cohen J (there was a minority dissent by Simpson J)
there are expressions of opinion which support counsel's general
submission.
I agree that a Judge litigating in the Supreme Court about his competence or
integrity is not a happy or desirable state of affairs.
The reasons are obvious
and it is not necessary to elaborate upon them. Because of this I believe that a
Judge should be chary about
35
resorting to litigation even where what has been said about him can be
categorized as defamation. But this is a far cry from denying
him the right to
sue in regard to all matters falling within the disability sphere. In this
connection the following remarks of Bristowe
J in
Attorney-General v
Crockett
1911 TPD 893
, at 931, made with reference to an application for
committal for contempt, are, in my view, apposite:
"There is much to be said for the view expressed by BUCHANAN, J.P., in
Rex
vs Blanch and Richardson
(supra, p. 89), that 'it is more conducive to the
dignity of a court of justice not to pass from its more serious work to take
notice
of every petty malicious attack.' If a court steadily and consistently
does its duty, it can often afford to disregard spiteful and
malicious comments.
On the other hand, as was said by WILMOT, C.J., in his undelivered judgment in
Almon
's case, it is not only necessary that a court should be impartial,
but it is also necessary
36
that it should 'be universally thought so'. And as was pointed out in
McLeod
and St. Aubyn
(1899, A.C. p 561), circumstances may arise in which it may be
very necessary to protect the Courts of Law from aspersions on their
honour and
integrity."
To deny a Judge the right
to sue in the disability sphere would be both illogical and inequitable. It
would be illogical because it
is conceded that he has a general right to
litigate and indeed may sue in respect of a defamation falling outside the
disability
sphere; yet such litigation would give rise to most, if not all, the
undesirable features which have been alluded to by counsel.
Here let me give an
illustration which was put as a hypothetical case to appellants' counsel in the
course of argument. Suppose that
it were stated publicly of a Judge that his
behaviour off the Bench (instances given) deviated so
37 grossly from social
norms that he was not fit to sit on the Bench. Such a defamation would, so I
understood counsel to concede,
fall outside the disability sphere and the Judge
would be entitled to take action. On the other hand, if it were said of a Judge
that he was a racist and that his judgments were perverted by racial bias, then,
I gather, litigation would be taboo. I cannot see
any merit or logic in such a
distinction.
Another illogicality, or anomaly, arises from the consideration that a Judge
who has been seriously defamed, even in the disability
sphere, can initiate (by
laying a charge) a prosecution of the defamer for criminal defamation (see
generally Hunt
South African Criminal Law and Procedure
, Vol II, revised
2 ed, 552 ff). This in fact happened in the case of
S v Revill
1974 (1)
SA 743
(A). In such a case, particularly where the accused pleads truth, the
Judge and his conduct come under scrutiny in Court just as
much as they would in
a
38
civil action for defamation.
Furthermore, as I have indicated, the disability in judicio contended for by
appellants' counsel could give rise to great inequity.
This is obvious if one
considers the case of a gross defamation, such as a statement that Judge X's
judgment in a particular case
bore no relation to the merits of the matter but
was motivated by a bribe given to him by or on behalf of one of the parties.
Postulate
that this allegation is devoid of truth and was widely and prominently
published in the press. Why should the Judge be denied the
satisfaction of
clearing his name in court and recovering damages to compensate him for wounded
feelings and injury to his reputation?
The reason escapes me.
Finally, under the general head of public policy, appellants' counsel invoked
the well-known precept of justice being "seen to be
done" and argued
39 that
it would be difficult to achieve this ideal where a Judge appears as a litigant
in his "own" Court. Viewed from the point
of view of the lay litigant, so it was
argued, there would, or might be, a reasonable suspicion that there would not be
an impartial
adjudication. I do not believe that there is substance in this
argument. One of the precautions invariably taken in cases involving
Judges is
that a Judge from another provincial division is asked to hear the case. This is
what happened in the present case; and
it is also what happened in
Revill
's case, supra, which involved two court hearings at first
instance. But even if there is substance in these considerations, it seems
to me
that they apply equally to litigation outside the disability sphere and do not
provide a reason for denying a Judge the right
to litigate within the disability
sphere. The only logical response to these considerations, if valid and
sufficiently cogent, would
be a total denial of the
40 right to sue.
Finally, appellants' counsel pointed out that there were a
number of special protections enjoyed by Judges not available to ordinary
litigants and argued that some of these would have the effect of "unfairly
strengthening" the position of a Judge in litigation against
an ordinary
citizen. In this regard he listed, as such protections, the qualified privilege
of a Judge for defamatory imputations,
the fact that a Judge may be sued only
with the leave of the Supreme Court, a Judge's immunity from compulsion to
testify and the
security of tenure of office which a Judge enjoys. With all due
respect to counsel, I am unable to see how these so-called "protections"
in any
way strengthen a Judge's position as a plaintiff in litigation generally; and,
in any event, I fail to understand why these
"protections" should
deny
the Judge the right to sue for defamation in the disability sphere, but
otherwise allow him free rein
41 to litigate.
I might add that in general Judges are rather more
vulnerable than their fellows. They are public figures and, as I have indicated,
they are accountable to the public for the proper discharge of their duties in
regard to the administration of justice. The public
have the right to criticize
them and the manner in which they discharge their duties. But they suffer under
the disability (not pertaining
to other public figures) of not normally being in
a position to defend themselves publicly, to answer back. As Lord Denning put
it,
in R
v Metropolitan Police Commissioner, Ex parte Blackburn (No 2
)
[1968] 2 All ER 319
, at 320 G -
"All we would ask is that those who criticise us will remember that from the
nature of our office, we cannot reply to their criticisms.
We cannot enter into
public controversy. Still less into political controversy. We must rely on our
conduct itself to be its own
42
vindication."
In the
Inkatha
case, supra, E M Grosskopf JA summed up the effect of the judgments in the
Spoorbond
case, supra, as follows (at 598 I-J):
"Taking the judgments in the
Spoorbond
case as a whole, the central
theme is that the State as a persona is 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."
These considerations obviously do not apply to Judges, who, as I have just
shown, are peculiarly ill-equipped to defend themselves.
There is no basis for
extending the general principle applied in the
Spoorbond
case to
the
43 present case. For these reasons appellants' counsel has failed to
persuade me that there is any valid reason on grounds of public
policy to
restrict a Judge's right to sue for defamation to the extent contended for.
Alternative Remedies
The only alternative remedy advanced by appellants' counsel was that species
of contempt of court known as "scandalizing the court",
which he described as a
unique criminal sanction having exclusive application to Judges and the
administration of justice and as
being fashioned to deal with insults to and
defamation of the judicial office and the administration of justice.
The law relating to contempt by scandalizing the court is dealt with fully in
the textbooks (see Hunt
South African Criminal Law and Procedure
, Vol II,
revised 2 ed, 178 ff; 6 LAWSA. par 201; Snyman, Strafreg, 3 ed,
44 358). It
is defined in LAWSA in the following terms (par 201):
"Contempt is here committed by the publication either in writing or verbally
of allegations calculated to bring judges, magistrates
or the administration of
justice through the courts generally, into contempt, or unjustly to cast
suspicion upon the administration
of justice."
The purpose which the law seeks to achieve by making contempt a criminal
offence is to protect "the fount of justice" by preventing
unlawful attacks upon
individual
judicial officers or the administration of justice in general which are
calculated to undermine public confidence in the courts. The
criminal remedy of
contempt of court is not intended for the benefit of the judicial officer
concerned or to enable him to vindicate
his reputation or to assuage his wounded
feelings (see
Attorney-General v Crockett
, supra, 925-6;
S v
Tromp
45
1966 (1) SA 646
(N), 652 G - 653 F;
S v Van Niekerk
,
supra, 720 H - 721 A) . As Lord Morris put it in
McLeod v St Aubyn
[1899]
AC 549
(PC), at 561 -
"The power summarily to commit for contempt of Court is considered necessary
for the proper administration of justice. It is not to
be used for the
vindication of the judge as a person. He must resort to action for libel or
criminal information."
(See also
Borrie and Lowe's Law of Contempt
, 2 ed, 229 -30.) Nor does
a prosecution for contempt do more than
punish the offender. It may, incidentally, vindicate the good name of the
judicial officer, but it does not provide him with any personal
relief by way of
damages. There are many differences of substance and procedure between a
prosecution for contempt and an action
for defamation. It is true that in
certain cases the two may overlap in the sense that the facts may give rise to
the
46 possibility of either being instituted, but this is no reason to
regard the one as displacing the other.
I know of no authority in our law
which even suggests that, because a statement concerning a Judge which
scandalizes him in his official
capacity could give rise to a prosecution for
contempt, the Judge is precluded from suing civilly the maker of the statement
for
damages for defamation. (I shall deal later with
Troughton v
Mcintosh
, supra, which appellants' counsel cited in support of this
proposition.) In my opinion, the existence of this so-called "alternative
remedy" is no reason to deny the civil remedy for defamation.
Absence of Precedent
Appellants' counsel contended that the absence of South African precedent
indicated that a Judge did not have a right of action in
the disability sphere
and he referred in this connection to what was said by
47
Watermeyer CJ in the
Spoorbond
case, supra, at 1008:
"No case was quoted to us in which such an action has ever been brought, and
the nonexistence of such cases would be surprising if
the Crown had a legal
right to sue for damages for injury to its reputation. It would be surprising
because many business activities
are, and have been in the past, carried on by
the Crown, not only in South Africa but elsewhere in the Commonwealth, and the
management
and conduct of such activities are peculiarly liable to hostile
criticism and attack by adverse interests. Had such a right existed
one would
have expected to find reports of cases in which it had been claimed."
I do not think that it is correct to say that there is a complete absence of
precedent. In
Meurant v Raubenheimer
(1882) 1 Buch App. Cas. 87 a
magistrate and civil commissioner in a country district was charged at a
48
public meeting with introducing private feeling into public
prosecutions. He sued one of the persons responsible for this charge and
recovered damages. It is clear that the defamatory statement related to the
plaintiff's discharge of his duties as magistrate. In
Philpott v Whittal,
Elston and Crosby & Co
1907 EDC 193
a resolution of a farmers'
association which was published in the press imputed to the plaintiff, the local
magistrate, bias in giving
decisions in regard to cases arising from
prosecutions under certain legislation and that his reason for so doing was
pecuniary profit
to himself. The magistrate sued and recovered damages for
defamation. In the early case of
Mackay v Philip
1 Menz 455
the
plaintiff, the magistrate ("landdrost") of Somerset, sued the defendant, the
well-known Dr John Philip of the London Missionary
Society, for damages for
defamation. The case arose from certain allegations in a book entitled
"Researches in South Africa", written
and
49
published by the defendant. In the book a description was given of the
cruel and oppressive treatment alleged to have been meted out
by the plaintiff
to "a Hottentot" who had stolen some of the plaintiff's brandy. The acts imputed
to the plaintiff were acts "committed
by him while in the execution of [his]
public office", but it is not clear whether they were of a judicial as opposed
to an administrative,
nature. At all events, plaintiff's action succeeded and
the defendant was ordered to pay damages in the sum of £200 and costs.
Appellants' counsel sought to distinguish these cases on the grounds that
magistrates are in a different position from Judges and
that the policy
considerations which preclude Judges from recovering damages for defamation in
the disability sphere do not all apply
to magistrates. In support of this he
referred to the facts that (i) magistrates do not enjoy security of tenure of
office; (ii)
that, being civil servants, they
50 are promoted on their
conduct and performance and thus ' their promotional prospects can be impeded by
injury to reputation; (iii)
that no special procedure exists for obtaining leave
when suing a magistrate; and (iv) that the alternative remedy of contempt is
limited by the powers conferred by sec 108 of the Magistrate's Court Act 32 of
1944, whereas Judges have an inherent jurisdiction
to punish for contempt.
Point (iii) above does not appear to me to have any relevance whatever.
Points (i) and (ii) are factually correct, but do not provide
any reason for
allowing a magistrate to sue for defamation, but not a Judge. Point (iv) is also
without substance. Sec 108 deals
only with contempts committed in facie curiae.
A magistrate's court has, in addition, jurisdiction to try a contempt of court
committed
ex facie curiae brought before it by way of an ordinary criminal
summons (see R v
Van Rooyen
1958 (2) SA 558
(T) ). The only
difference
51 between the magistrate's court and the Supreme Court in this
sphere is that the latter can also deal with a contempt ex facie curiae
by the
summary procedure (see Jones and Buckle,
The Civil Practice of the
Magistrates' Courts in South Africa
, 8 ed, 376). I fail to see the relevance
or the cogency of this distinction to the question as to whether a Judge, as
distinct from
a magistrate, should be denied the right to sue for defamation in
the disability sphere. Moreover, it seems to me that most, if not
all, of the
so-called public policy considerations advanced by appellants' counsel as
reasons why a Judge should not be permitted
to sue in this sphere, apply also to
a magistrate.
It is true that there are no reported cases in South Africa of a Judge suing
for a defamation relating to the discharge by him of
his judicial functions. The
Court is, nevertheless, aware of at least two instances (one of them very
recent) where a South African
Judge did
52
institute such action, but in each case the case was settled by an
out-of-court payment of damages by the defendant. There are also
admittedly no
recent examples in England of such litigation. (Cf
Doctor Caesar v
Curseny
[1653] EngR 620
;
78 ER 556
, and remarks in
Birchley's case
[1585] EngR 43
;
76 ER 894.)
In fact
the only relatively modern reported case on the subject which counsel's
researches could bring to light was
Troughton v Mcintosh
, supra.
In this case the defendant appeared as an appellant before the plaintiff,
described as a "police magistrate", in a number of appeals
against municipal
assessments for rates imposed on his properties. The court dismissed all but one
of his appeals. Immediately after
the conclusion of the last appeal and when
still in the courtroom the defendant made certain remarks which were alleged to
mean that
the plaintiff, while acting in his judicial office, was influenced by
corrupt, improper and malicious motives and that he gave his
decision in
53
the defendant's appeals by reason of malice and not on the merits of
the cases. Stephen J posed the issue thus( at 337):
"The question, therefore, for determination resolves itself into the
all-important one whether a Magistrate, exercising judicial functions,
can
sustain an action for words uttered (as these were) sedente curiâ,
implying that a decision was attributable to corrupt
motives."
At a later stage of his judgment Stephen J emphasized (at 341):
"I am dealing, it must be distinctly understood, solely with occurrences in
open Court - sedente curiâ. It may be admitted that
many of the reasons
against the policy of bringing actions by Judges apply to slanders outside, to
libels by newspapers, pamphlets
and the like, e.g., the reported cases of the
Sydney Morning Herald, the Evening News and the Echo. I
54
confine my judgment to the very case before me."
Points made in the judgments of Stephen J and Cohen J for denying the
plaintiff the right to sue for defamation included the following:
(1) The absence in textbooks which refer to contempt of Court of any hint of
another proceeding, where the contempt takes the shape
of an aspersion upon the
integrity of a Judge (at 337); and generally the lack of authority favouring a
civil action in such circumstances
(358-9).
(2) An aspersion of this kind should be regarded by the Judge as a libel on the
administration of justice; that the personal wrong
is absorbed in this offence;
and that there is no libel upon the Judge personally and no personal remedy open
to him (at 338, 341,
354-6).
55
(3) The difficulties and embarrassment which could
arise if
a Judge, having exercised his summary
jurisdiction for contempt, should
appear as a suitor in court and ask another Judge to come
to a decision on the same facts; or even if he sues without any antecedent
proceedings for contempt (at 339).
(4) A duel of words in Court between the incensed
Judge, who is protected
by absolute privilege,
and a disappointed suitor, who is not, would
not be
consistent with justice (at 341).
(5) The same considerations should apply to a
judicial officer in an
inferior court (341-21,
359-60).
(6) The defendant in a civil action might plead
truth and justification,
either as a defence or
in mitigation of damages. This would be
"anomalous
and a scandal upon the administra-
56 tion of justice". Rather that it be incompetent for the judicial officer to
bring such an action (at 343).
In his dissenting
judgment Simpson J indicated his disagreement with most of the points raised by
the majority. He stated, inter alia
(at 350-1) -
"It was not contended, and I do not think it could be contended, that if the
words complained of in the case now under consideration
were spoken of the
plaintiff out of Court, an action could not be maintained, see
Fuller v
Weston (2)
, and yet in such an action there might arise the same state of
things to which Mr Justice Stephen refers when he speaks of the defendant
pleading truth and publication for the public benefit, or setting up the truth
of the charge merely in mitigation of damages. Whether
an action be brought for
words spoken in or out of Court, the defendant can equally plead, by way of
defence, that the allegations
were true, and that it was for
57
the public benefit that they should be published, and, in either case, he can
set up the truth - without any special plea -in mitigation
of
damages."
While he admitted to being
impressed by the arguments based on public policy raised by Stephen J, Simpson J
stressed the need to ride
this restive horse carefully (at 351). He further took
the view that such authority as there was favoured the view that a magistrate
against whom a gross charge of corruption had been made in open court was not
deprived of the right "possessed by the humblest person
in the community" to
proceed civilly against his defamer (at 351).
I have dealt with the
Trouqhton
case at some length because it really
formed the keystone of the argument of appellants' counsel. But it must be borne
in mind that
at best it is merely persuasive authority, weakened by the sharp
differences of opinion on the Court
58
on matters of principle and by the fact that it is distinguishable from the
present case on the facts. Moreover, a curious feature
of the case as authority
is that it is apparently not referred to in any textbook on defamation or tort
(delict), save for Gatley
on
Libel and Slander
, 8 ed, par 400, note 78,
where it is cited in a footnote to a section dealing with the privilege of
parties to an action. No textbook
that I have consulted suggests that a Judge
cannot sue in the disability sphere. Indeed such indications as there are, seem
to be
to the contrary (see e g Gatley, op cit, par 173, note 37; Borrie and
Lowe, op cit, p 245). The significant points made in the majority
judgments have
been considered and dealt with earlier in this judgment. And finally, as to the
"scandal upon the administration of
justice" said to arise where in a civil
action for defamation by a Judge were truth and justification to be pleaded, I
would point
out that in
Meurant v
59
Raubenheimer
, supra, and
Mackay v Philip
, supra,
justification was pleaded and in
Philpott
's case fair
comment; and these defences were considered by the court in the ordinary
way.
An obstacle - in my opinion an insuperable one - standing in the way of
acceptance of the general contention advanced by appellants'
counsel is the fact
that it is very difficult to define the boundaries of such a disability sphere
and to justify such a rule. I
have already alluded to problems in this regard.
Let me give a further instance. During the course of his argument appellants'
counsel
was asked by a member of this Court what the position would be in case
where it could be shown that a person made a defamatory allegation
concerning a
Judge which fell within the disability sphere, knowing that the allegation was
false or with reckless disregard as to
whether it was true or false: whether in
such a case the Judge could sue for
60 defamation. Counsel's answer, as I
understood it, was in the affirmative; and he invited this Court to adopt the
well-known Sullivan
principle which pertains to actions for defamation by public
officials in the United States of America (see
New York Times Co v Sullivan
[1964] USSC 41
;
376 US 254
,
279-80). In terms of the Sullivan principle, the onus is on the
plaintiff (being a public official) to establish the defendant's knowledge
of
the falsity of his statement or his reckless disregard of whether it was false
or not. I am not sure whether counsel wished us
to import not only the basic
principle but the rule as to onus as well. At all events, I cannot conceive of
any valid basis upon
which this court could engraft upon our common law of
defamation, in respect of Judges only, the Sullivan principle or something
similar to it. To do so would amount to a usurpation of the powers of the
Legislature.
Finally, I would point out that all that is
61
being decided in this case is that a Judge who has been defamed by way of
criticism of a judgment delivered by him in his official
capacity in judicial
proceedings is entitled to sue his defamer. The success of his action will
depend, inter alia, upon whether
the defendant can effectively invoke one of the
various defences to which I have alluded, including fair comment and truth and
for
the public benefit.
The appeal is dismissed with costs, including the costs of two counsel.
M M CORBETT
BOTHA JA) NESTADT JA) GOLDSTONE JA)
HOWIE AJA)