Benson v Robinson & Co (Pty) Ltd and Another

• Jurisdiction: South Africa
• Judge: Steyn CJ, Van Blerk JA, Rumpff JA, Botha JA and Holmes JA
• Judgment Date: 17 November 1966
• Hearing Date: 22 September 1966
• Court: Appellate Division

D Rumpff, J.A.:

This is an appeal from a judgment of FANNIN, J., in the Durban and Coast Local Division, whereby he dismissed, with costs, a claim for R20,000 as and for damages by reason of an alleged defamatory report in a newspaper. The facts are mostly undisputed.

In 1963, and the first part of 1964, the appellant, Ivor Benson, E broadcast two series of talks and a number of news commentaries over the broadcasting service conducted by the South African Broadcasting Corporation. In these talks he, inter alia, vigorously attacked the English Press in South Africa, accusing it of presenting slanted news to its readers. A number of English newspapers, and also a number of people, replied by way of counter attack, and heavy fire was opened on F the Broadcasting Corporation and on the appellant, the former being accused of having become a propaganda instrument and the latter of being biased. In the South African House of Assembly similar attacks were made by some members of the Opposition. Some letter-writers to the newspapers supported the appellant.

G Towards the middle of 1964 the appellant was no longer engaged by the South African Broadcasting Corporation. He left the Republic and was appointed Information Adviser to the Southern Rhodesian Government. On 2nd September, 1964, The Natal Mercury, a newspaper owned and printed by the first respondent and published by the second respondent, carried a H prominently placed report under the heading: 'Strong Attack on Benson in S.R. Debate'. This heading was printed in large capital letters covering a width of five columns. A second headline: 'Employed to encourage apartheid, claims M.P.', in somewhat smaller capital letters, covered the three columns which contained the report itself. Below this headline, in prominent but different type, were three paragraphs which read as follows:

'The Southern Rhodesian Government Information Officer, Mr. Ivor Benson, was yesterday described in Parliament by Mr. A. E. Abrahamson (R.P., Bulawayo East) as 'a highly controversial character who could do this country no good'.

Rumpff JA

Mr. Abrahamson, speaking in Committee of Supply, had earlier quoted criticism against Mr. Benson from the South African Press and in speeches made by United Party members of the South African Parliament.

Mr. Benson was both anti-Church and anti-Semitic, declared Mr. Abrahamson. In addition, he said, he was known for certain unethical attitudes in his profession. He had been proved to be guilty of untruths.'

A The report which followed purported to be a summary of a debate in the Southern Rhodesian Parliament.

When the appellant instituted action for damages by reason of the alleged defamatory contents of the report, the respondents conceded that B the report was per se defamatory, but pleaded absence of animus injuriandi by reason of circumstances entitling them to publish the defamatory report. The learned trial Judge, after considering the evidence that had been led, upheld the plea and dismissed the appellant's claim.

The appeal is directed against the finding by the learned trial Judge C that on the facts proved the respondents were entitled to publish the defamatory remarks made by Mr. Abrahamson.

The plea on which the respondents relied, reads as follows:

'3.

The defendants deny each allegation in para. 10 of the declaration and aver that by reason of the facts set forth in the particulars hereto the defendants acted without any animus injuriandi in publishing the said article.

D Particulars:

(a)

The article, annexure 'A' to the declaration, contained a fair and accurate summary of the proceedings of the Parliament of Southern Rhodesia, which proceedings were open to the public.

(b)

Southern Rhodesia is and has at all material times been a neighbouring country, the relationships with which and the conditions and situation in which are of general public interest in the Republic of South Africa.

(c)

E Shortly before his appointment as the Southern Rhodesia Government Information Officer the plaintiff had broadcast news commentaries over the broadcasting service conducted by the South African Broadcasting Corporation, established under Act 22 of 1936, as amended.

(d)

The said broadcasts by the plaintiff had been criticised both in the South African Parliament and in the South African Press as being biased commentaries.

(e)

F Both the fact and the nature of the criticism of the plaintiff in the Southern Rhodesian Parliament were matters of general public interest in South Africa.

(f)

The readers of the said newspaper had a legitimate interest in receiving and the defendants had a legitimate interest in publishing the said report.

(g)

There was a prospect that the plaintiff might be re-employed at G a later date by the South African Broadcasting Corporation or some public body in the Republic.

(h)

The said report was published without animus injuriandi and bona fide by reason of the matters hereinbefore set forth.'

The learned trial Judge construed the plea in the following manner:

'As I understand the plea, this part of the defence is that, by reason H of the facts alleged in sub-paras. (a), (b), (c), (d), (e) and (g) the readers of the newspaper had a legitimate interest in receiving and the defendants had a legitimate interest in publishing the report, and that the defendants' purpose in publishing it was not to injure or to defame the plaintiff, but to inform the readers of the newspaper of the contents of the report, that purpose being a legitimate one, or one authorised by law ('n geoorloofde oogmerk) (cf. Craig v Voortrekkerpers Bpk., 1963 (1) SA 149 (AD) at p. 157H).'

He referred to various other cases and, in addition, quoted the following passage from a judgment of the Privy Council in an appeal from Ceylon (Perera (M.G.) v Peiris & Another, 1949 A.C. 1 at

Rumpff JA

pp. 19 - 20), in which it was necessary to apply the law of defamation of that country:

'In Roman-Dutch law animus injuriandi is an essential element in proceedings for defamation. Where the words used are defamatory of the A complainant, the burden of negativing animus injuriandi rests on the defendant. The course of development of Roman-Dutch law in Ceylon has, put broadly, been to recognise as defences those matters which under the inapt name of privilege and the apt name of fair comment have in the course of the history of the common law come to be recognised as affording defences to proceedings for defamation. But it must be emphasised that those defences or, more accurately, the principles which underlie them, find their technical setting in Roman-Dutch law as B matters relevant to negativing animus injuriandi. In that setting they are perhaps capable of a wider scope than that accorded to them by the common law. Decisions under the common law are, indeed, of the greatest value in exemplifying the principles but do not necessarily mark out rules under the Roman-Dutch law. The 'gladsome light of Roman jurisprudence' once shone on the common law; repayment to the successor of the Roman law should not take the form of obscuring one of its leading principles.'

C In Craig's case this Court held that, if in reply to a charge of defamation, the defendant proves that the defamatory words were used with an object other than that of defaming the plaintiff, and that object is one permitted by law, the defamatory words are considered to have been used without animus injuriandi and the presumption which arose D from the use of the words is rebutted. Whenever defamatory words are proved to have been published in the discharge of a duty or in the exercise of a right, i.e. on a so-called privileged occasion, the presumption of animus injuriandi has been rebutted, and the plaintiff will not succeed unless he can prove the animus injuriandi by evidence E other than the defamatory words. A defendant who pleads circumstances from which a duty or a right to use defamatory words emerges, relies on the lawfulness of his act and pleads the investitive facts. In the result, when the defendant relies on this type of plea, it is the duty of the Court in each case to determine whether the circumstances in the eyes of a reasonable man create a duty or a right which entitled the defendant to speak.

F In the present case, the learned trial Judge, when he considered the position of the Parliament of Southern Rhodesia for purposes of the plea, referred to the well-established protection which exists in respect of reports of parliamentary and judicial proceedings, and also to what has been said in various decided cases with regard to G proceedings of other bodies. He inter alia mentioned Smith & Co v SA Newspaper Co., (1906) 23 S.C. 310, in which the status of the Table Bay Harbour Board, a statutory body under Act 36 of 1896 (C) was considered. In that case DE VILLIERS, C.J., at p. 317, said:

'If the circumstances attending the publication of an ordinary report of a judicial proceeding are sufficient to exonerate the publisher, I fail H to see why a fair and impartial report of the proceedings at a meeting of a public body like the Harbour Board, in regard to a matter of public interest, should expose the publisher to...