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Neethling v Du Preez and Others, Neethling v Weekly Mail and Others (184/91, 401/91) [1994] ZASCA 133; 1995 (1) SA 292 (AD); [1995] 1 All SA 441 (A) (27 September 1994)

78 Reportability
Defamation Law
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Brief Summary

Defamation — Justification and qualified privilege — Appellant claimed damages for defamatory publications in two newspapers — Trial court found publications defamatory but upheld defences of justification and qualified privilege, denying damages — Appellant appealed successfully, with the appellate court considering whether it had jurisdiction to assess damages itself or remit to trial court — Court held it possessed the competence to determine damages due to the nature of the appeal and the circumstances, thus allowing for a direct assessment of damages rather than remittal.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings concerned two defamation actions in which the plaintiff, Lothar Paul Neethling (the appellant in the present proceedings), sued separate groups of defendants arising from publications in two weekly newspapers, namely Vrye Weekblad and The Weekly Mail. The defendants included journalists and publishing entities associated with each newspaper.


In the court of first instance (the Witwatersrand Local Division), the trial court (Kriegler J) held in each action that the impugned publications were defamatory of the plaintiff. However, the trial court nevertheless dismissed both actions on the basis that the defendants had established defences rendering the publications lawful: in the Vrye Weekblad matter, justification (truth and public benefit), and in The Weekly Mail matter, qualified privilege. The trial court accordingly entered judgment for the defendants with costs, including the costs of two counsel.


The plaintiff appealed to the Appellate Division. The appeal on the merits succeeded, and the Appellate Division’s judgment on the merits was delivered on 2 December 1993 and reported as Neethling v Du Preez and Others, Neethling v The Weekly Mail and Others 1994 (1) SA 708 (A). Because the trial court had dismissed the claims on the merits, it made no determination of quantum, and the Appellate Division did not at that stage itself fix damages. Instead, it invited further written and oral submissions directed to whether the Appellate Division should itself determine damages or remit the matter for the trial court to do so.


The present judgment (delivered on 27 September 1994) was confined to that post-appeal procedural question: whether, and in what circumstances, the Appellate Division had the competence to assess and award damages where the plaintiff had been non-suited in the trial court, and whether it should do so in these matters as a matter of discretion and convenience.


2. Material Facts


Two separate actions for defamation were tried together in the sense that they proceeded before the same trial judge, but they remained distinct: one related to publication in Vrye Weekblad and the other to publication in The Weekly Mail. In each action, the defendants pleaded defences which, if upheld, would preclude liability notwithstanding defamatory content.


The trial court found, as an undisputed premise for purposes of the appeals, that the publications were defamatory. The dispute at trial then turned to the defendants’ pleaded justifications for publication. The trial court accepted those defences (justification in the Vrye Weekblad matter; qualified privilege in The Weekly Mail matter) and dismissed the claims with costs. As a consequence of dismissing the claims in limine on wrongfulness/unlawfulness, the trial court did not make any award or quantification of damages.


On appeal, the Appellate Division reversed the outcome on the merits, thereby establishing that the plaintiff was entitled to damages, but it did not determine the quantum at that stage. The parties’ stance at the time of the merits appeal was common cause in one respect: neither side asked the Appellate Division to fix damages immediately, and counsel agreed that, if the appeal succeeded, the matter should be sent back to the trial court to determine the award.


After the merits judgment, further written submissions were filed. The appellant argued that it would be appropriate for the Appellate Division itself to quantify damages. The respondents, however, contended that the Appellate Division lacked original jurisdiction to determine damages absent consent, and in the alternative that it would be inappropriate to do so. The respondents also indicated an intention to apply to reopen the cases and/or lead further evidence relevant to damages, allegedly recently available.


In light of the respondents’ stance, the Appellate Division issued a directive identifying, as a point in limine for oral argument, the question whether the Appellate Division was competent to determine quantum without consent. The appellant persisted in contending that the Appellate Division both had jurisdiction and should exercise it. Oral argument was accordingly heard on 29 August 1994, leading to the present judgment.


3. Legal Issues


The central legal question was whether section 22 of the Supreme Court Act 59 of 1959, and in particular the provision empowering the Appellate Division “to give any judgment or make any order which the circumstances may require”, conferred competence on the Appellate Division to assess and award damages itself in a case where the trial court had dismissed the action on the merits and therefore made no order on quantum.


This issue was primarily a question of law, namely the proper construction and scope of the appellate court’s statutory powers. It also raised an issue of application of law to procedural facts, because the court had to decide how that statutory competence applied in the procedural posture where liability had been established on appeal but quantum remained unassessed.


A further issue, arising only if competence existed, was whether the Appellate Division should exercise that power in the circumstances of these matters or instead remit the cases to the trial court for quantum to be determined. This aspect was discretionary and involved a value judgment about the proper allocation of functions between trial and appellate courts and the interests of justice, convenience, fairness, and procedural propriety.


4. Court’s Reasoning


The court located the source of its appellate powers in section 22 of the Supreme Court Act 59 of 1959. It noted that section 22(b) empowers the Appellate Division not only to confirm, amend, or set aside the judgment appealed from, but also “to give any judgment or make any order which the circumstances may require” (referred to in the judgment as the auxiliary provision). The respondents’ construction would confine this auxiliary provision to orders arising directly from the appeal (such as remittal for further evidence or a further hearing), thereby excluding a power to determine damages where the trial court made no quantum determination.


The court rejected that restrictive construction. It reasoned that the language of the auxiliary provision, read contextually, was naturally capable of encompassing an order that the appellate court itself fix damages in circumstances where the trial court had wrongly non-suited a plaintiff on the merits. The court considered the respondents’ interpretation to impose an artificial limitation that would tend to impede the expeditious dispatch of litigation and could lead to unnecessary delay and costs in situations where remittal would serve no practical purpose.


To test the scope of the power and to demonstrate that the narrower interpretation was inconsistent with established appellate practice, the court surveyed authorities. It traced the origin of the auxiliary wording to section 4 of the repealed Appellate Division Further Jurisdiction Act 1 of 1911, indicating continuity between the pre-1959 and post-1959 statutory formulations. Against that historical backdrop, the court referred to a line of appellate decisions in which the Appellate Division had itself fixed damages after overturning a non-suit on the merits, including in defamation and other delictual contexts. These cases were treated as confirming that, as a matter of competence, the appellate court could in appropriate circumstances make a damages award even where the court below had made none.


Having concluded that it was legally competent for the Appellate Division to determine quantum, the court then turned to whether it should do so in these cases. It reiterated a general principle: assessment of damages is a function “peculiarly within the province of the trial court”. Even where the appellate court can assess damages, doing so is an exceptional course that may constitute an encroachment upon a function intrinsic to the trial forum.


The court emphasised that in defamation matters, damages primarily compensate sentimental loss, which is not readily translatable into money, and in respect of which the trial court traditionally enjoys a wide discretion. The judgment identified factors that had, in other matters, influenced decisions to assess damages at appellate level, including where damages would clearly be minimal, where the trial court had omitted to evaluate expert testimony relevant to damages, where trial proceedings had been protracted and costly, where no evidence on quantum had been led, and where counsel on both sides requested the appellate court to determine the issue.


A significant countervailing consideration was identified as the position of the parties. The court attached substantial weight to the fact that an objection by one or both parties to appellate assessment of damages operates powerfully against departing from the general rule. In these matters, the respondents maintained a firm objection and indicated that appellate assessment would be inconvenient to them. In the court’s evaluation, that objection was decisive in favour of remittal.


The appellant advanced an additional consideration: the trial judge had formed an adverse view of the appellant’s credibility and had remarked that, had wrongfulness not been established, the damages would have been far less than claimed. The appellant’s argument was that such views could affect the trial court’s later assessment of quantum. The Appellate Division rejected the suggestion that the trial judge would be unable to disabuse his mind of perceptions inconsistent with the appellate decision on the merits, and it found no basis for apprehension that the trial judge would not approach the assessment objectively.


For these reasons, although competence existed, the court concluded that the appropriate course in these matters was to remit the cases to the trial court for the assessment of damages and the making of appropriate cost orders in that court.


5. Outcome and Relief


The Appellate Division held that it was legally competent under section 22 of the Supreme Court Act 59 of 1959 to determine the quantum of damages itself in circumstances where a plaintiff had been wrongly non-suited on the merits and succeeded on appeal.


Despite that competence, the Appellate Division declined to assess damages itself in the circumstances of these cases, principally because the general rule favours trial-court assessment, and the respondents lodged a firm objection to appellate determination.


The matters were remitted to the trial court to assess the appellant’s damages and to make an appropriate order as to costs in the trial court.


As to costs in the Appellate Division relating to the post-merits damages procedure, the appellant was ordered to pay the respondents’ costs incurred in the Appellate Division subsequent to 2 June 1994, including the costs of two counsel. No order was made regarding the costs incurred in the Appellate Division between 2 December 1993 and 2 June 1994.


Cases Cited


Neethling v Du Preez and Others, Neethling v The Weekly Mail and Others 1994 (1) SA 708 (A).


Crawford v Albu 1917 AD 102.


Craig v Voortrekkerpers Bpk 1963 (1) SA 149 (A).


Botes v Van Deventer 1966 (3) SA 182 (A).


Pogrund v Yutar 1967 (2) SA 564 (A).


Areff v Minister van Polisie 1977 (2) SA 900 (A).


Ramsay v Minister van Polisie en Andere 1981 (4) SA 802 (A).


Botha v Lues 1983 (4) SA 496 (A).


Jansen Van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A).


Legislation Cited


Supreme Court Act 59 of 1959, section 22.


Appellate Division Further Jurisdiction Act 1 of 1911 (repealed), section 4.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The Appellate Division held that section 22(b) of the Supreme Court Act 59 of 1959 empowered it, in appropriate circumstances, to make an order determining damages even where the trial court had dismissed the action on the merits and therefore made no award on quantum.


The Appellate Division further held that, notwithstanding this competence, the circumstances of these matters warranted remittal to the trial court for assessment of damages, particularly given the general principle that quantification lies within the trial court’s domain and the respondents’ objection to appellate assessment.


LEGAL PRINCIPLES


The statutory power in section 22(b) of the Supreme Court Act 59 of 1959 to “give any judgment or make any order which the circumstances may require” is not confined to orders strictly incidental to the appeal process; it is capable, in principle, of authorising the appellate court to determine quantum of damages after overturning a non-suit on the merits.


The assessment of damages remains, as a general rule, a function peculiarly within the province of the trial court, and appellate assessment of damages is exceptional and typically reserved for circumstances where justice and convenience clearly favour that course.


In deciding whether to assess damages at appellate level or remit, relevant considerations may include the nature of the damages (including whether they are general damages), the presence or absence of factual disputes requiring trial-court resolution, the cost and duration of further proceedings, whether evidence on quantum was led, and the stance of the parties; a party’s objection to appellate assessment is a weighty factor favouring remittal.

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[1994] ZASCA 133
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Neethling v Du Preez and Others, Neethling v Weekly Mail and Others (184/91, 401/91) [1994] ZASCA 133; 1995 (1) SA 292 (AD); [1995] 1 All SA 441 (A) (27 September 1994)

\ihg
CASE NO: 184/91 AND 401/91
IN THE SUPREME COURT OP SOUTH AFRICA
(APPELLATE DIVISION)
In the matters of:
LOTHAR PAUL NEETHLING Appellant
and
MAX DU PREEZ First Respondent
CAXTON LIMITED Second Respondent
JACQUES PAUW Third Respondent
and
LOTHAR PAUL NEETHLING Appellant
and
THE WEEKLY MAIL First Respondent
W M PUBLICATIONS (PTY) LIMITED Second Respondent
GAVIN EVANS Third Respondent
CORAM
: CORBETT CJ, HOEXTER, NESTADT, NIENABER JJA et NICHOLAS AJA
DATE OF HEARING
: 29 AUGUST 1994
DATE OF JUDGMENT
: 27 SEPTEMBER 1994
JUDGMENT
2
HOEXTER JA:
In two separate actions in the Witwatersrand Local
Division the appellant, as plaintiff, claimed damages for matter defamatory of
him which had been published in two weekly newspapers respectively called the
Vrye Weekblad ('VWB') and The Weekly Mail ('WM'). Both
actions were defended. In
each action the defendants filed a joint plea. It is convenient to refer to the
action against the VWB
as "the VWB case"; and to the action against the WM as
"the WM case". In the VWB case there were four defendants. In the WM case
there
were initially four defendants, but following a settlement between the appellant
and the second defendant during the trial,
there were three defendants only at
the time of judgment.
During the course of the trial the respective pleas filed in each case were
amended. Thereafter, and subject to proof of the defamatory
nature of the matter
complained of, the trial court
3
(Kriegler J) had to consider in both the VWM case and the WM case the
validity or otherwise of:
1)
a main defence of
justification (that the matter complained of was true and that its publication
was in the public interest); and
2)
an
alternative defence of qualified privilege based on the existence of a duty on
the part of the newspaper to publish the defamatory
matter and a reciprocal
interest on the part of its readers to have the matter communicated to
them.
In each case Kriegler J correctly found that
the matter published was defamatory of the appellant. However, the learned judge
proceeded
to find: (a) that in the VWB case the defendants had established the
defence of justification; and (b) that in the WM case the defendants
had
established the defence of qualified privilege. Accordingly the trial court
concluded "dat geeneen van die stelle verweerders
onregmatig opgetree net", and
that the appellant was not entitled to any damages. In both cases the trial
court gave judgment
4
for the defendants with costs, such costs to include the costs of two
counsel.
The appellant appealed successfully to this court against the orders made by
the trial court in each case. The judgment of this court
was delivered on 2
December 1993 and has been reported as Neethling v Du Preez and Others,
Neethling v The Weekly Mail and Others
1994(1) SA 708(A).
In the appeal the seven respondents were represented by the same senior and
junior counsel. Argument on both sides was confined to
the merits. Neither side
suggested that if the appeal should succeed this court should itself fix the
quantum of damages. On the
contrary counsel on both sides agreed that in the
event of a successful appeal the matter should be sent back to the trial court
to enable it to determine the award of damages.
Having concluded in the course of its judgment that the appeals should
succeed, this court (at 786J - 787J) adverted to the
5
issue of damages. While pointing out (at 787C) that the assessment
of
damages is a function which lies peculiarly within the province of
the trial
judge, this court nevertheless expressed the opinion (at 787D)
that in the
instant case remittal to the trial court might prove
inconvenient to all concerned. It went on to say:
"Subject to further argument thereon our prima facie view is that it would be
more fitting that this Court itself should assess the
damages to be
awarded".
The orders allowing the appeals, and
certain ancillary orders, appear
at 787E-I of the reported judgment. The latter included (at 787F-H)
leave to the parties to file further heads of argument dealing, inter
alia, with the following:
a)
the reasons, if any, why the
quantum of damages should be determined by the trial court rather than by this
court;
b)
the quantum of damages against the
eventuality that this court might decide itself to determine the
damages.
6
In response to the above-mentioned orders there were respectively filed on
behalf of the parties: (i) additional heads by the appellant
dated 8 February
1994 ("the appellant's first AHA"); (ii) additional heads by the respondents
dated 15 March 1994 ("the respondents'
AHA"). In the appellant's first AHA it
was submitted, for a number of reasons, that a determination of the damages by
this court
would be appropriate. Various aspects of the two cases relevant to
the quantum were explored, and approximate figures were suggested.
In the
respondents' AHA, on the other hand, it was submitted that this court possessed
no original jurisdiction to determine the
quantum of damages. In the alternative
it was urged that in any case such a determination would here be inappropriate.
It was said
that the respondents proposed to apply for leave to reopen the two
cases, and/or to lead further evidence relevant to the issue of
damages, which
evidence "has only recently become available to the respondents".
7
Having regard to the stance thus adopted by
the
respondents this court on 2 June 1994 issued the
following directive
to the parties:
" (1) Counsel for the appellant may, if so advised, on or before 15 June 1994
file heads of argument in reply to respondents' heads
dated 15 March 1994 and
more particularly in response to the submission .... that in the absence of the
consent of all parties this
court lacks the competence to determine the issue of
the quantum of damages.
(2) Subject to paragraph (3) below oral argument as
foreshadowed in
paragraph (C) of the order made
by this court on 2 December 1993 will be
heard on
29 August 1994. The particular issue will be
argued as a point in limine.
(3) If in the light of the respondents' heads of
argument dated 15 March
1994 the appellant
accepts that in the absence of the consent of
all
parties this court is legally incompetent to
determine the damages, or
that, for any other
reason, the matters should be referred back to
the
trial court, his attorneys will in writing inform the
registrar of
this court thereof on or before 15 June
1994. Should the registrar be thus
informed then:
8
(i) the directive set forth in paragraph (2) above will fall away; and (ii) this
court will, without further reference to the parties,
make a further order that
the matters be referred back to the trial court for it to deal with all the
issues outstanding".
In response to
paragraph (1) of the said directive the appellant filed further heads of
argument ("the appellant's second AHA") dated
13 June 1994. Therein the
submission is made that this court indeed has jurisdiction itself to determine
the damages; and that in
all the circumstances of the present matter it should
do so. Having regard to the above, further oral argument by counsel became
necessary. Such argument was heard by this court on 29 August 1994.
The powers of this court to make orders on the hearing of
an
appeal to it derive from the provisions of sec. 22 of the
Supreme Court
Act, No. 59 of 1959 ("the Act"). That section reads as follows:
" 22. The appellate division or a provincial division, or a local division
having appeal jurisdiction, shall have power -a) on the
hearing of an appeal to
receive further
9
evidence, either orally or by deposition before a person appointed by such
division, or to remit the case to the court of first instance,
or the court
whose judgment is the subject of the appeal, for further hearing, with such
instructions as regards the taking of further
evidence or otherwise as to the
division concerned seems necessary; and b) to confirm, amend or set aside the
judgment or order which
is the subject of the appeal and to give any judgment or
make any order which the circumstances may require". (My
emphasis)
In what follows reference will be made to
the words emphasised in paragraph (b) in the above quotation as "the auxiliary
provision".
In the instant case the trial court decided that the appellant was
not entitled to damages. In consequence there was no judgment
or order in regard
to damages which was "the subject of the appeal" which could be "confirmed,
amended or set aside" by this court
on appeal. What now falls to be decided is
whether in the present situation the auxiliary provision invests this court with
the competence
itself to
10
determine the amounts of damages to be awarded to the appellant. If as a
matter of substantive law this court lacks such competence
then it is bound to
remit the matter to the trial court for the damages to be fixed by it. If on the
other hand, this court does
indeed have such competence, then the further
question arises whether in all the circumstances of the case it should exercise
the
power rather than remit the matter.
Counsel for the respondents submitted that the power conferred upon this
court by the auxiliary provision should be construed as being
one limited to
matters arising directly from the appeal itself - such as, for example, a
remittal of the matters to the trial court
for the hearing of further evidence
or for argument on the quantum of damages to be fixed by the trial court; and
that accordingly
this court had no competence itself to determine the damages.
On the other hand counsel for the appellant urged upon us that when
in an action
for damages a trial court has non-suited the plaintiff on the merits, then
11
in a successful appeal against the decision of the trial court this court
may, if the "circumstances" so "require", itself determine
the damages to be
awarded to the appellant plaintiff.
I think that the appellant's submission
is correct. Looking at the words of the auxiliary provision in their contextual
setting they
appear to me to be naturally susceptible of the interpretation for
which counsel for the appellant contends. The construction suggested
by counsel
for the respondents assigns, so I consider, an artificially restricted meaning
to the auxiliary provision, which would
in practice inhibit the expeditious
despatch of litigation. This consequence may be illustrated by reference to
situations which
not infrequently arise in appeals to this court flowing from
actions for damages in which this court concludes that the trial court
wrongly
found against the plaintiff on the merits; and that the plaintiff is accordingly
entitled to damages.
Two examples will here suffice. First, suppose that in such a case this court
is firmly of the opinion that the successful appellant
12
should be awarded damages in no more than a minimal amount. Again, suppose
that the trial court in giving judgment against the plaintiff
on the merits
only, but with an eye to a possible appeal, quantifies the damages it would have
awarded the plaintiff had he succeeded
on the merits; and that this court
considers that having regard to the damages actually suffered by the plaintiff
the figure mentioned
by the trial court:
a) represents an accurate and appropriate assessment of the amount
of damages
which should be awarded;
or
b) is glaringly disproportionate either because it is far too modest
or
because it is grossly excessive.
In each of the above situations
a remittal to the trial court would serve no purpose; it would simply involve
needless delay and additional
costs, both of which would be avoided if this
court itself determined the damages.
13
It is unnecessary, in my view, to enlarge upon the incongruous results
flowing from the narrow construction of the auxiliary provision
for which the
respondents contend. The fact of the matter is that in a number of appeals, each
resulting from an unsuccessful action
for damages in which the court below has
erroneously non-suited the plaintiff on the merits, this court has made orders
in regard
to the quantum of damages which involve a clear negation of the
restrictive interpretation. A survey of its reported decision reflects
that in
the past, and in the very sort of situation now under discussion, this court
has, in appropriate circumstances, itself fixed
the damages to be awarded the
plaintiff.
One begins by considering the position as it was before the Act was passed.
The Act repealed the whole of the Appellate Division Further
Jurisdiction Act,
No. 1 of 1911 ("the repealed Act"). It is to be noticed that the words of the
auxiliary provision, with immaterial
modifications, are a repetition of a
provision (emphasised in the
14
in the quotation hereunder) to be found in sec. 4 of the repealed Act.
Sec. 4 read:
"4. On the hearing of any appeal, the Appellate Division shall have power to
remit the case to the court appealed from for further
hearing, with such
instructions as regards the taking of further evidence or otherwise as may be
deemed necessary, and shall have
full powers of amendment, and also power to
receive further evidence on questions of fact, either orally or by deposition
before
a commissioner, and may give any judgment or make any order which the
case may require: Provided that in exercising the power to
receive such further
evidence the Appellate Division shall make such order as will secure an
opportunity to the parties to the proceedings
to appear for the purpose of
examining every witness whose evidence shall be so
received".
Crawford v Albu
1917 AD 102
was a
defamation case in
which the trial court upheld a defence of fair comment and dismissed
the plaintiffs action for damages with costs. The appeal to this court
was allowed by a majority (Innes CJ and De Villiers AJA; Solomon
JA dissenting). Having dealt with the merits Innes CJ went on to
15
say (at 121) (hat a survey of the circumstances satisfied him "that
this
is not a case for heavy damages". The learned Chief Justice
proceeded
(at 121-122) to state the essential facts; and he concluded
his judgment (at
122) with the following words:
"And though he [the defendant] overstepped the bounds of fair comment, and
refrained from attempting to justify his words, it does
not seem to me that he
should be mulcted in any substantial penalty. The justice of the case would to
my mind be met by awarding
25 damages. And the order of the Provincial Division
will be set aside and judgment entered for the plaintiff for that amount with
costs in both courts".
Turning to the period
subsequent to the passing of the Act
a number of decisions relevant to the inquiry are to be noticed. In
Botes v Van Deventer 1966(3) SA 182(A) the plaintiff claimed
damages based on negligence for the loss of three racehorses with
which the defendant's driver had collided. The trial court erroneously
concluded that the plaintiff was disentitled from recovering the value
16
of the animals as racehorses, and awarded damages on their value
simply as
ordinary horses. On appeal the issue of damages was dealt
with by Van Blerk
JA (at 191 in fin - 192A) in the following way:
"Aangesien daar geen evaluasie deur die Verhoorhof van die deskundige
getuienis is nie, moet hierdie Hof, of self die waarde van die
diere volgens die
getuienis vasstel, of die saak terug verwys na die Verhoorhof om die waardasie
te maak. Omrede die partye klaarblyklik
reeds buitensporige verhoorkoste
opgeloop het as gevolg van die uitgerekte verhoor is dit gerade dat in die
spesiale omstandighede
van hierdie geval hierdie Hof, soos deur beide advokate
versoek, die buitegewone stap neem om self die waarde vas te stel". His judgment
was concurred in by Ogilvie Thompson and
Botha JJA (at 193B); and the orders made by Van Blerk JA (at
193A-B) were concurred in by Rumpff JA (at 193B-C) and by
Williamson JA (at 195G-H).
A plea of privilege in a defamation action was upheld by the
17
trial court in Pogrund v Yutar 1967(2) SA 564(A). On appeal this
court
found (at 574A-B) that the plaintiff has established animus
injuriandi on the
part of the defendant, and was accordingly entitled
to succeed. The remaining
issue of damages was resolved by Beyers
JA (at 574B-C) in the following
fashion:
"No evidence was led at the trial on the question of damages. It will therefore
serve no purpose if this Court were to send the case
back to the trial Court for
an assessment of damages. It seems to me that we are in as good a position as
the Court a quo to make
the award. It is not easy to translate into terms of
money the injury sustained by the appellant, but having regard to all the
circumstances,
including the part played by him in the matter, I have, after
careful thought, come to the conclusion that an award of R500 will
meet the
case".
The judgment of Beyers JA was concurred in by the other
four
members of the court.
In Areff v Minister van Polisie 1977(2) SA 900(A) a
businessman had unsuccessfully sued the Minister of Police for
damages arising out of two allegedly unlawful arrests. In regard to
18
the first incident the trial court held that the Minister had
established
on a balance of probabilities that the arrest was lawful; and in
regard
to the second incident that the plaintiff had failed to prove the fact
of
his arrest. Accordingly the trial court dismissed the plaintiff's
claims
with costs. On appeal this court agreed with the trial court in regard
to the second incident, but in regard to the first incident it concluded
that the Minister had not established the lawfulness of the arrest, and
that the plaintiff was entitled to damages in respect thereof. The
unanimous judgment of this court was delivered by Muller JA.
Having stressed (at 914F-H) the gravity of the delict involving
deprivation of personal liberty, and after a summary of the salient
facts, the learned judge of appeal (at 915A) dealt summarily with the
undetermined matter of damages. He stated:
"Hy [the plaintiff] eis, ten opsigte van die betrokke insident, 'n bedrag van
R2 000. Na behoorlike oorweging van al die omstandighede
meen ek dat 'n bedrag
van Rl 000 redelike en billike vergoeding sal wees."
19
In Ramsay v Minister van Polisie en Andere 1981(4) SA
802(A) the
plaintiff, an attorney, had in the Transvaal Provincial
Division
unsuccessfully sued the Minister of Police and three police
officers for
damages for injuria in the sum of R3 000. On appeal this
court unanimously decided that the appeal should succeed. The issue
of damages was dealt with by
Jansen JA
(at 815B-C) in the
following
words:
"Die enigste oorblywende vraag is waiter bedrag as genoegdoening aan horn
toegeken moet word. Dit is 'n ernstige injuria wat horn
aangedoen is. Hy is as
professionele man en beampte van die Hof in die voorportaal van die
Hooggeregshof gekrenk in sy eergevoel
en in die uitoefening van sy professie.
Aan die ander kant is dit hier nie 'n geval van vryheidsberowing in die gewone
sin of aantasting
van liggaamlike integriteit of goeie naam nie. Genoegdoening
van Rl 500 skyn gepas te wees".
In a separate judgment by Botha
AJA (in which the remaining three members of the court concurred) agreement was
expressed (at 820H)
with the views of Jansen JA "aangaande die bedrag van
20
genoegdoening waarop die eiser geregtig is".
In Botha v Lues 1983(4) SA 496(A) the plaintiff, having
sued
unsuccessfully in the magistrate's court in an action for
damages for
unlawful arrest, appealed to the Orange Free State Provincial Division.
The latter found that the plaintiff had failed to prove that his arrest
had been unlawful and dismissed the appeal with costs. The
plaintiffs further appeal to this court succeeded. Having concluded
that the arrest had in fact been unlawful this court proceeded itself to
fix the damages payable to the plaintiff. In delivering the unanimous
judgment of the court Corbett JA (at 506 in fin) said the following:
"Wat genoegdoening betref, het respondent se advokaat nie eintlik kapsie
gemaak teen die bedrag (nl Rl 000) wat appellant geëis
het nie. Na
oorweging van al die omstandighede is ek egter van mening dat billikheid en
geregtigheid sal geskied as ek genoegdoening
ten bedrae van R500 toeken".
Lastly reference should be made to Jansen Van Vuuren and
Another NNO v Kruger 1993(4) SA 842(A). This was an appeal
21
against a judgment in the Witwatersrand Local Division dismissing a
claim
for damages for an alleged breach of the plaintiffs right to
privacy. This
court unanimously upheld the appeal and at the same
time itself fixed the
damages to be awarded to the plaintiff at R5 000.
Harms AJA stated the reasons for the court's decision itself to
determine
the damages in the following words (at 847 G-I):
" In the light of its finding the trial Court did not assess the amount of
damages suffered. Counsel were agreed that the matter
should not be referred
back to it for that purpose. There are good reasons for complying with this
request. Compare Botes v Van Deventer
1966(3) SA 182(A) at 191 G - 192 B. They
are: only general damages are in issue, both parties have closed their case,
there are no
factual disputes which need to be resolved, the plaintiff has died
and the appellants at this stage do not ask for a substantial
award and costs of
a further hearing ought, if possible, to be avoided".
In the
light of the foregoing I conclude that in the instant matter it would be legally
competent for this court itself to fix the
damages to which the appellant in
this appeal is entitled. I proceed
22
to consider whether in all the circumstances it should do so, or whether the
better course would be to remit the matter for determination
of the damages by
the trial court.
The general rule is that the determination of damages is a
function peculiarly within the province of the trial court. Although in
a
particular case the interests of justice and convenience will best be served by
the determination of damages by an appellate tribunal,
the exercise of such
power by the latter nevertheless represents an encroachment upon a function
which is intrinsic to the trial
court. In Craig v Voortrekkerpers Bpk 1963(1) SA
149(A) the plaintiff in a defamation action had been non-suited on the merits by
the trial court. The appeal to this court succeeded. In setting aside the order
of the trial court, the court expressed the view
that to bring the case to a
conclusion the proper course was to send it back to the trial court. In this
connection Rumpff JA, who
delivered the unanimous judgment of the court,
observed (at 162A):
23
"Die vasstelling van die bedrag van skadevergoeding wat respondent moet betaal,
is 'n funksie wat besonderlik eie is aan 'n Verhoorhof.
Daarby kom dat die
advokate, wat voor ons verskyn het, ons nie gevra het nie om self die bedrag van
skadevergoeding vas te stel,
indien die appèl sou slaag, en die deel van
die saak ook nie beredeneer het nie. In hierdie omstandighede is ek van mening
dat die aangewese weg is om die saak terug te verwys na die Verhoorhof om die
saak op die gebruiklike wyse af te handel, vir sover
dit betref die bedrag van
skadevergoeding en die koste in die Hof a quo".
It will be
recalled, moreover, that in Botes v Van Deventer (Supra) this court (at 192A)
regarded the fixing of damages by itself
as a "buitegewone stap"; it was
necessitated by "die spesiale omstandighede" to which reference was made; and it
was a procedure
requested by counsel on both sides.
24
In the light of the above it seems to me that in the absence of special
circumstances this court would be slow to depart from the
general rule that
damages should be left to the determination of the trial court. More
particularly would this be the approach in
a defamation case in which
compensation is primarily for sentimental loss. Such loss is not easily
translated into monetary terms;
and it is trite that the trial court has a wide
discretion in the assessment of the damages to be awarded.
From an examination of the judgments discussed above it appears that some of
the factors which have weighed with this court in its
decision itself to fix
damages rather than to remit the matter to the court below are:
a)
the fact that the damages
should be minimal;
b)
the fact that the trial
court has omitted to make its own assessment of expert testimony which has been
adduced in relation to the
issue of
damages;
25
c) the fact that the proceedings before the trial court have been protracted and
very costly;
d) the fact that before the trial court no evidence in regard to the quantum of
damages has been led;
e) the fact that counsel on both sides in the appeal have requested this court
so do deal with the matter.
It is impossible to attempt a
complete list of those factors which, either individually or cumulatively, would
be regarded as circumstances
special enough to warrant a departure from the
general rule that it is the trial court and not the appellate tribunal which
must
fix the damages. Each case must be dealt with on its own particular facts.
On the other hand it seems to me that a factor operating
powerfully against any
departure from the general rule would be an objection to the fixing of damages
by the appellate tribunal voiced
by the one or other (or both) parties to the
appeal. Since the determination of damages falls particularly within the domain
of the
26
trial court great weight must be given to a demand by either party to the
appeal that damages be fixed by the forum in which the action
was heard.
It has already been mentioned that at the stage when the merits of the
appeals were being argued counsel on both sides desired a remittal
to the trial
court in case the appeal should succeed. That remains the wish of the
respondents. In mooting the possibility of a departure
from the general rule
this court considered that such a course might serve the convenience of all the
parties. At the hearing of
the point point in limine counsel for the respondents
informed us that in fact such a course would be inconvenient to his clients;
and, as he was entitled to do, voiced a firm objection thereto. In all the
circumstances of the present case the respondents' objection
must, in my view,
operate decisively against any determination of the damages by this court.
In suggesting that a determination of the damages by this court
27
would be the more appropriate course, counsel for the appellant
placed
considerable emphasis on the fact that the trial court not only
found
the appellant to be a deliberately untruthful witness but further that
its
unfavourable impression of the appellant had adversely influenced its
notions as to what order of damages might have been appropriate had
the appellant succeeded on the merits. In this connection counsel
called our attention to the following observation made by the learned
trial judge in the concluding part of his judgment:
" dat die skade waarvoor verweerders aanspreeklik sou gewees het as die
verweer van regmatigheid nie geslaag net nie, by verre nie
die gevorderde bedrae
sou beloop het nie".
While fairly conceding that upon a remittal the trial judge (I quote from the
appellant's first AHA) -
".... would beyond doubt scrupulously and objectively" apply the findings of
this court's judgment on appeal, counsel nevertheless
suggested that in regard
to the quantum of damages the
28
trial court might perhaps hold the scales of justice less comfortably than
this court. I am unable to agree. I do not think that there
is any room for an
apprehension that the learned trial judge will not be able to disabuse his mind
of such of his own earlier perceptions
as are at variance with the judgment of
this court.
For the aforegoing reasons I conclude that in the circumstances of the
present case it is appropriate for the damages to be fixed
by the trial
court.
Counsel for the appellant properly conceded that in the event of this court
deciding to remit the case to the trial court the appellant
should pay the costs
involved in the hearing of the further argument on the point.
In the result the case is remitted to the trial court to assess the the
appellant's damages and to make an appropriate order for costs
in that court.
The appellant must pay the costs incurred in this court subsequent to 2 June
1994, including the costs of two counsel.
In
29
respect of the costs incurred in this court between 2 December 1993 and 2
June 1994 no order is made.
G G HOEXTER
CORBETT CJ ) NESTADT JA ) NIENABER JA) CONCUR
NICHOLAS AJA)

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