Blumenthal v Shore

• Jurisdiction: South Africa

Blumenthal v Shore
1948 (3) SA 671 (A)

1948 (3) SA p671

Citation	1948 (3) SA 671 (A)
Court	Appellate Division
Judge	Centlivres JA, Greenberg JA and Davis AJA
Heard	June 1, 1948
Judgment	June 16, 1948

Flynote : Sleutelwoorde

Defamation — Qualified privilege — Relevance of defamatory statement to occasion — Statement during legal proceedings.

Headnote : Kopnota

There are two questions which a Court must answer, in deciding whether a defamatory statement was published on a privileged occasion, if defamatory matter apparently unrelated to the purpose of the occasion was included in the communication:

(a)

Did a duty or interest exist which entitled the person to speak?

(b)

Was the speaker in fact speaking in discharge of his duty or in protection of his interest?

In answering the second question the Court adopted, without deciding that it was the correct one, the stricter of the two tests which have been suggested, viz. the 'simple objective test' of what could fairly be regarded as reasonably necessary to protect the interest or discharge the duty.

The dictum in Rabinowitz v Goldin (W.L.D. April 30, 1941) that an attack on an attorney for incurring unnecessary expense in obtaining a spoliation order was irrelevant to the spoliation proceedings, is incorrect. The mere fact that an argument is bad in law does not show that what is said in argument is irrelevant.

Plaintiff (Appellant), an attorney, had obtained a garnishee order attaching money in respondent's bank account in execution of a judgment for the taxed costs of ejectment proceedings against defendant (respondent). On the return day of the garnishee order defendant appeared in Court, went into the witness box and without being sworn made a statement in which he called the plaintiff a thief and accused him of robbing him. In an action for damages for defamation, the court a quo, whose findings were accepted on appeal, found on the facts of the case that defendant did not contend that plaintiff was a thief or a robber in the ordinary meaning of the words, but he meant and must have been understood by the magistrate to mean that plaintiff had wrongfully and improperly increased the costs in respect of which his bank account had been attached. The defendant also complained that he would not be liable to pay the costs of the garnishee proceedings because payment of the costs had never been demanded, but had in fact been tendered and refused.

Held, therefore, that what the defendant said could fairly be regarded as reasonably necessary to protect his interests.

Held, further, that no reason had been shown for differing from the Trial Court's finding that plaintiff had failed to prove malice, in that either:

(a)

defendant had no reasonable belief in the truth of what he stated; or

(b)

his language was so extreme as to establish malice.

The decision on the Witwatersrand Local Division in Blumenthal v Shore (1947 (3) S.A.L.R. 475), confirmed.

1948 (3) SA p672

Case Information

Appeal from a judgment of the Witwatersrand Local Division (NESER, J.). The facts appear from the judgment of CENTLIVRES, J.A.

L. O. Miller, for appellant: This Court is in as good a position as the Court a quo to decide as to the credibility of the parties; see Coghlan v Cumberland (1898, 1 Ch. D. 704); Acutt v Seta Prospecting & Developing Co., Ltd. (1907, T.S. at pp. 807 - 8, 810); Schoonwinkel v Swarts' Trustee (1911 TPD 397); Pieters & Co v Salomon (4 Buch. A.C. 374); Palmer & Son v Wakefield (1912 AD 299 at pp. 308 - 9); Forbes v Golach and Cohen (1917 AD 559 at pp. 561 - 2, 566); Estate Kaluza v Brauer (1926 AD 243 at p. 256); Powell and Wife v Streatham Manor Nursing Home (1935, A.C. 243 at p. 249); Gordon & Scholtz v Kennedy (1936 AD 150); Bitcon v Rosenberg (1936 AD 380 at pp. 395 - 6); Rex v Boxer (1943 AD 243 at p. 250). Respondent did not prove that the occasion was privileged. If the occasion was privileged, the statements 'I am going to make an affidavit against him to the Law Society' and 'I have two sons fighting for a young man like him' were not within the privilege of the occasion as they were not connected with or relevant to the main statement; they are prima facie defamatory; cf. Sim v Stretch (1936, 2 A.E.R. 1237); Holdsworth v Associated Newspapers (1937, 3 A.E.R. 872); Smith v Elmore (1938 TPD 18); Gluckman v Holford (1940 TPD 336); in any event they are defamatory in their context; cf. Tweedie v Eksteen (1942 AD 221 at pp. 235 - 6). As they had prima facie no relation to the main statement or to the subject of the confirmation of the garnishee order, it was not competent for the Court in the circumstances to find a way in which the words might be relevant, and in view of respondent's denial of the use of the words, he failed to prove that their use was within the privileged occasion; see Molepo v Achterberg (1943 AD 85 at p. 99). Appellant proved malice in the technical sense, that is that respondent made the defamatory statements from some improper or indirect motive; this was proved by both intrinsic and extrinsic evidence; cf. Basner v Trigger (1946 AD 83 at p. 97); inter alia, respondent made the defamatory statements for the gratification of his anger, spite or ill-will; cf. Basner v Trigger (supra at p. 98); Royal Aquarium v Parkinson (1892, 1 Q.B. 431 at p. 433); Clark v Molyneux (1877, 3 Q.B. 237 at p. 247); Middler v Hamilton (1923 TPD at p. 452); Innes v Proctor

1948 (3) SA p673

(19 E.D.C. 60 at p. 70); also personal antagonism or ill-will existed between appellant and respondent; cf. Gatley, Libel and Slander (3rd ed., at p. 636). This Court is in as good a position as the Court below to award damages; cf. Botha v Pretoria Printing Works (1906, T.S. 710); Salzman v Holmes (1919 AD 471 at pp. 481 - 3); Black and Others v Joseph (1931 AD 132 at pp. 146 - 50); Sandler v Wholesale Coal Suppliers, Ltd. (1941 AD 194 at p. 200). Costs in the Court below should not be awarded on the Magistrates' Courts' Scale; see Kock v Realty Corporation of S.A. (1918 TPD 356); Kriek v Gunter (1940 OPD 136 at p. 144); Molepo v Achterberg (supra at p. 100). Further on the facts.

C. S. Margo, for respondent: This Court will not overrule the decisions of the Court a quo, unless it is convinced that that Court was wrong; see Bitcon v Rosenberg (1936 AD 380 at pp. 395 - 6). Respondent, appearing in person to argue his own case, enjoyed the same privilege as that attaching to Counsel; see Basner v Trigger (1946 AD 83 at pp. 105 - 7). The dictum in Molepo v Achterberg (1943 AD 85 at p. 99), on the effect of the defendant's denial that he used the words in relation to privilege does not apply here because these words were clearly relevant to the occasion and because they added no fresh meaning to the words the respondent admittedly published; as to the words 'I have two sons fighting for a young man like him', no innuendo was pleaded by appellant and no evidence of meaning was given; further the words are not defamatory in their prima facie sense. As to whether appellant proved malice, no evidence was led as to how the words in question were understood and therefore their meaning in their context is a question of law; see Johnson v Rand Daily Mail (1928 AD 190 at p. 204); Sutter v Brown (1926 AD 155); De Middelandse Pers v Stahl (1917 AD 630); in their context the words 'rob' or 'thief' could not have been meant or understood in their literal sense but only in the sense that appellant had improperly increased the costs of the previous proceedings between the parties; the same applies to the reference, in its context, to the Law Society. When considering whether the actual expression used can be held as evidence of express malice, no nice scales should be used; see Adam v Ward (1917, A.C. 321 at p. 330); to submit the language of privileged communications to a strict scrutiny, and to hold all excess beyond the absolute exigency of the occasion to be evidence of malice would in effect greatly limit, if not altogether defeat,

1948 (3) SA p674

that protection which the law throws over privileged communications; see Laughton v Bishop of Sodor and Man (L.R., 4 P.C. 508); Adam v Ward (supra, at p. 336); Young v Kemsley (1940 AD 258 at 278); Molepo v Achterberg (supra, at p. 112). The onus of establishing malice rests on the plaintiff; see McLean v Murray (1923 AD 406); Monckton v B.S.A. Company (1920 AD 324 at p. 332); in the case of an action based on a statement made by a witness in Court, it is necessary for the plaintiff to prove that the witness was actuated by express malice, that the words spoken were false and that the witness had no reasonable grounds for believing them to be true; see Van Rensburg v Snyman (1927 OPD 123); MacGregor v Sayles (1909, T.S. 553 at p. 556); Preston v Luyt (1911, E.D.L. 298 at p. 310); in the case of a witness giving evidence there is a presumption in his favour that the statements he makes are true, or at least, that he had reasonable grounds for believing them to be true and that he was not actuated by malice; see Dold v Van Wyhe (1917, E.D.L. 375); Norden v Oppenheim (3 Menz. 42); Dippenaar v Hauman (1878, Buch. 135 at 140); Preston v Luyt (supra, at p. 310). As to damages, a Court on appeal will not interfere with a trial Court's view of the damage suffered unless a wrong principle was applied or unless that view was so unreasonable as to be out of all proportion to the injury inflicted; see Joseph v Black (1931 AD 132); Hazaree v Kamaludin (1934 AD 108 at p. 122). Further on the facts.

Miller, in reply.

Cur adv vult.

Postea (June 16th).

Judgment

Centlivres, J.A.:

This is an appeal from the judgment of absolution from the instance in the Witwatersrand Local Division in a case where the appellant sued the respondent for damages for defamation. For the sake of convenience I shall refer to the appellant as the plaintiff and...