Argus Printing and Publishing Co Ltd v Inkatha Freedom Party

• Jurisdiction: South Africa
• Citation: 1992 (3) SA 579 (A)

Argus Printing and Publishing Co Ltd v Inkatha Freedom Party
1992 (3) SA 579 (A)

1992 (3) SA p579

Citation	1992 (3) SA 579 (A)
Court	Appellate Division
Judge	Corbett CJ, Hoexter JA, Hefer JA, E M Grosskopf JA, Goldstone JA
Heard	March 6, 1992
Judgment	May 15, 1992

Flynote : Sleutelwoorde B

Defamation — Who may sue and be sued — Non-trading corporations — Political parties — No good reason for excluding political bodies from class of non-trading corporations which are entitled to sue for damages C for defamation — Law of defamation recognises importance of freedom of political expression and makes provision for it.

Headnote : Kopnota

Public policy, and in particular the need to protect freedom of political expression, does not require that any class of persons should be prevented from bringing proceedings for defamation. Where a right to sue exists, the law of defamation itself recognises the importance of freedom of political D expression, and makes provision for it. Moreover, this provision is tailored to the needs of particular situations and does not entail that a large class of juridical persons, including some which may be very deserving, would be entirely prevented from protecting their reputations by recourse to law. There is accordingly no good reason for excluding political bodies from the class of non-trading corporations which are entitled to sue for damages for defamation. E

Dhlomo NO v Natal Newspapers (Pty) Ltd and Another 1989 (1) SA 945 (A) applied.

Die Spoorbond and Another v South African Railways; Van Heerden and Others v South African Railways 1946 AD 999 considered and distinguished.

Case Information

Appeal against a judgment in the Witwatersrand Local Division (Stegmann J). The facts appear from the judgment of E M Grosskopf JA. F

B E Doctor SC (with him G J Marcus) for the appellant referred to the following authorities: As regards the parameters of public policy with regard to the standing to sue, see Burchell The Law of Defamation in South Africa at 46 and M M Corbett 'Aspects of the Role of Policy in the Evolution of our Common Law' (1987) 104 SALJ 52 at 67-8. As regards those G facets of public policy which militate against affording a political organisation a right to recover damages for defamation, such as, inter alia, freedom of expression, see S v Turrell and Others 1973 (1) SA 248 (C) at 256G-H; Palko v Connecticut 302 US 319; Free Press of Namibia (Pty) Ltd v Cabinet for the Interim Government of South West Africa 1987 (1) SA 614 (SWA) at 623H; Publications Control Board v William Heinemann H Ltd and Others 1965 (4) SA 137 (A) at 160F-G; Buren Uitgewers (Edms) Bpk en 'n Ander v Raad van Beheer oor Publikasies 1975 (1) SA 379 (C) at 402H-403A; S v Mbiline and Another 1978 (3) SA 131 (E) at 140H; United Democratic Front and Another v Acting Chief Magistrate, Johannesburg 1987 (1) SA 413 (W) at 416C-E; R v Roux 1936 AD 271 at 281 and 293; Pienaar I and Another v Argus Printing and Publishing Co Ltd 1956 (4) SA 310 (W); Du Plessis v Minister of Justice 1950 (3) SA 579 (W) at 590A-F and 581H-582A; S v Nathie 1964 (3) SA 588 (A) at 595A-596E; R v Sutherland 1950 (4) SA 66 (T) at 71-4; R v Bunting 1929 EDL 326 at 332; New York Times Co v Sullivan 376 US 254 at 269-71; Gertz v Robert Welch Inc 418 US J 323 at 340. As regards practical considerations, see Die

1992 (3) SA p580

A Spoorbond and Another v South African Railways; Van Heerden and Others v South African Railways 1946 AD 999. As regards the absence of precedent, see Dhlomo NO v Natal Newspapers (Pty) Ltd and Another 1989 (1) SA 945 (A); the Spoorbond case (supra at 1008); Vermaas v Pelser and Others 1951 (1) SA 752 (T); Waring v Mervis and Others 1969 (4) SA 542 (W); Pienaar and Another v Argus Printing and Publishing Co Ltd (supra); Raw v Botha B and Another 1965 (3) SA 630 (D). As regards the position of the government and the ruling party, see the Spoorbond case supra at 1009 and 1012-13. As regards the availability of other remedies, see the Spoorbond case supra; Pienaar and Another v Argus Printing and Publishing Co Ltd (supra at 318C-E); Du Plessis v Minister of Justice (supra at 581H-582A); Gertz C v Robert Welch Inc (supra at 344). As regards parliamentary and extra-parliamentary organisations, see Abrams v United States 250 US 616 at 630. As regards the reasons militating against allowing actions for damages for group damages (which is in effect the situation in the instant case where action has been instituted in the name of an organisation) see D Fleming The Law of Torts 5th ed at 536; T I Emerson The System of Freedom of Expression at 398; Michigan United Conservation Clubs v C B S News 485 F Supp 893 at 900. As to the yardstick by which defamatory matter is assessed, see Suid-Afrikaanse Uitsaaikorporasie v O'Malley 1977 (3) SA 394 (A) at 408D-E; Coulson v Rapport Uitgewers (Edms) Bpk 1979 (3) SA 286 (A) E at 294H-295A; Gertz v Robert Welch Inc (supra at 359-60); Church of Scientology in South Africa Inc Association Not For Gain and Another v Reader's Digest Association SA (Pty) Ltd 1980 (4) SA 313 (C) at 317B-C and 319B. As to the requirements of 'sound legal principle', upon which the decision of the Court a quo was essentially based, see Oliver Wendell Holmes The Common Law, cited in Daniels v Daniels 1958 (1) SA 513 (A) at 522H. F

M Daley for the respondent referred to the following authorities: M M Corbett 'Aspects of the Role of Policy in the Evolution of our Common Law' (1987) 104 SALJ 52; Burchell The Law of Defamation in South Africa at 26. As regards the importance of the freedom of speech, see S v Turrell and Others 1973 (1) SA 248 (C); Palko v Connecticut 302 US 319; Buren G Uitgewers (Edms) Bpk en 'n Ander v Raad van Beheer oor Publikasies 1975 (1) SA 379 (C); S v Mbiline and Another 1978 (3) SA 131 (E); United Democratic Front and Another v Acting Chief Magistrate, Johannesburg 1987 (1) SA 413 (W); R v Roux 1936 AD 271; Free Press of Namibia (Pty) Ltd v Cabinet for the Interim Government of South West Africa 1987 (1) SA 614 (SWA) H at 622E-G; Publications Control Board v William Heinemann Ltd and Others 1965 (4) SA 137 (A) at 160E-F; Pienaar and Another v Argus Printing and Publishing Co Ltd 1956 (4) SA 310 (W); Botha v Pretoria Printing Works Ltd 1906 TS 710; Farrar v Hay 1907 TS 194. As to the element of 'actual malice', see New York Times Co v Sullivan 376 US 254; 'Justice Brennan and Cultural History: New York Times v Sullivan and its I Times' California Western Law Review vol 27 No 2 (1990-1991) at 339; Gertz v Robert Welch Inc 418 US 323 at 342. As to the defence of privilege being available to the author of a defamatory statement, see Burchell (op cit at 248); Cambrian Law Review vol 4 (1973) at 30; Zillie v Johnson and Another 1984 (2) SA 186 (W); 'Reform of the Law of Defamation' in Current J Legal Problems (1976) 183 at 191. As to considerations of 'fairness

1992 (3) SA p581

A and convenience', see Die Spoorbond and Another v South African Railways; Van Heerden and Others v South African Railways 1946 AD 999 at 1012. As to the absence of precedent, see Dhlomo NO v Natal Newspapers (Pty) Ltd and Another 1989 (1) SA 945 (A). As to the argument that with South Africa moving towards a parliamentary democracy, all political parties must take their chances equally in the political arena, does not take account of the B realities of the South African situation; see Abrams v United States 250 US 616 at 630. As to the argument that, if political bodies were allowed to institute action for defamation to protect their particular philosophies from attack as distinct from their reputation, such actions would be doomed to failure, see Church of Scientology in SA Inc Association Not For Gain and Another v Reader's Digest Association SA C (Pty) Ltd 1980 (4) SA 313 (C) at 317B-C. As to the application of 'sound legal principle', see the dictum by Holmes J referred to in Daniels v Daniels 1958 (1) SA 513 (A) at 522H. As to public policy in the context of South African politics taking into account the 'doing of simple justice between man and man', see Jajbhay v Cassim 1939 AD 537 at 544 and Sasfin D (Pty) Ltd v Beukes 1989 (1) SA 1 (A) at 9G.

Cur adv vult.

Postea (May 15).

Judgment

E E M Grosskopf JA:

In Dhlomo NO v Natal Newspapers (Pty) Ltd and Another 1989 (1) SA 945 (A) ('the Natal Newspapers case') this Court held (at 954D) that a non-trading corporation may sue for defamation if a defamatory statement concerning the way it conducts its affairs is calculated to cause it financial prejudice. However, this did not necessarily mean, the Court stated, that every non-trading corporation F would in all circumstances be entitled to sue for defamation - it was conceivable that such a corporation might, in certain circumstances, be denied the right to sue on the ground of considerations of public or legal policy. Indeed, the Court said (at 954G), the Natal Newspapers case could conceivably give rise to the question whether it would be in the public interest to permit attacks on political bodies, whose policies and actions G are normally matters for debate on public and political platforms, to be made the basis of claims for damages in courts of law.

The question which, it was said, could conceivably arise from the Natal Newspapers case now in fact falls to be answered in the present case. The facts are not in dispute. The respondent, the Inkatha Freedom Party H ('Inkatha') (which, incidentally, was the successful appellant in the Natal Newspapers case, in that case represented by its Secretary-General), now, after amendments to its constitution and a consequential amendment to its pleadings, appears in its own name. It, together with a co-plaintiff, issued summons in the Witwatersrand Local Division against the present I appellant, the Argus...