Delange v Costa

• Jurisdiction: South Africa
• Judge: Corbett JA, Joubert JA, Smalberger JA, Vivier JA, Nicholas AJA
• Judgment Date: 14 March 1989
• Hearing Date: 03 November 1988
• Court: Appellate Division

Delange v Costa
1989 (2) SA 857 (A)

1989 (2) SA p857

Citation	1989 (2) SA 857 (A)
Court	Appellate Division
Judge	Corbett JA, Joubert JA, Smalberger JA, Vivier JA, Nicholas AJA
Heard	November 3, 1988
Judgment	March 14, 1989

Flynote : Sleutelwoorde B

Delict — Injuria — Written and verbal injuria — What constitute — Requisites for establishment of liability restated — Requisites being (a) animus injuriandi on part of offender, (b) a wrongful act which (c) causes plaintiff's dignitas to be impaired — Enquiry into C liability to commence with enquiry into whether there has been a wrongful act — If act not wrongful, intention, as well as fact that, subjectively, plaintiff's dignitas impaired, irrelevant.

Headnote : Kopnota

The three essential requisites to establish an action for injuria are (a) an intention on the part of the offender to produce the effect of his act (animus injuriandi ); (b) an overt act which the person doing D it is not legally competent to do (wrongful act); and which at the same time is (c) an aggression upon the right of another, by which aggression the other is aggrieved and which constitutes an impairment of the person, dignity or reputation of the other.

In an action for injuria, the enquiry should commence with the second requisite, viz whether there has been a wrongful overt act. A wrongful E act, in relation to a verbal or written communication, would be one of an offensive or insulting nature. Once the wrongfulness of such act has been determined, animus injuriandi (the first requisite) will be presumed. It would be open to the defendant to rebut such presumption by establishing one of the recognised grounds of justification. If the defendant fails to do so, the plaintiff, in order to succeed, would have to establish the further requirement that he suffered an impairment of his dignity.

Unless a wrongful act is established, intention becomes irrelevant, as does the question whether, subjectively, the aggrieved person's F dignity was impaired. In determining whether or not the act complained of was wrongful, the Court applies the criterion of reasonableness. This is an objective test and requires that the conduct complained of be tested against the prevailing norms in society in order to determine whether such conduct can be classified as wrongful. To address words to another which might wound his self-esteem but which are not, objectively determined, insulting (and therefore not wrongful) cannot give rise to G an action for injuria. There is no such thing as an absolute right not to be criticised. A person must be prepared to tolerate legitimate criticism, ie criticism which is fair and honest. An act done in the exercise of a right is not a wrongful act, and cannot therefore constitute an injuria. An expression of honest or legitimate criticism is such an act. Whether in given circumstances criticism may be regarded as legitimate must depend upon, inter alia, the relationship between the parties involved and the nature of the affairs in which they engage. For example, businessmen who engage in competition expose themselves to, H and must expect, a greater degree of criticism than the average private individual.

The third requisite involves a consideration whether the plaintiff's subjective feelings have been violated, for the very essence of injuria is that the aggrieved person's dignity must actually have been impaired. It is not sufficient to show that the wrongful act was such that it would have impaired the dignity of a person of ordinary sensitivities - it is the plaintiff's own dignitas which must have been impaired. I Once all three requisites have been established, the aggrieved person would be entitled to succeed in an action for damages, subject to the maxim de minimis non curat lex.

The decision in the Cape Provincial Division in Delange v Costa confirmed.

Case Information

Appeal from a decision in the Cape Provincial Division (Berman J J and Comrie AJ). The facts appear from the judgment of Smalberger JA.

1989 (2) SA p858

A P L Avenant for the appellant referred to the following authorities: Roos v Stent and Pretoria Painting Works 1909 TS 988; Walker v Van Wezel 1940 WLD 66; Jackson v National Institute for Crime Prevention and Rehabilitation of Offenders 1976 (1) SA 1 (A) at 10 - 13; Minister of Police v Mbilini 1983 (3) SA 705 (A); Melius de Villiers The Roman B and Roman-Dutch Law of Injuries at 93; Neethling Persoonlikheidsreg ; Hunt SA Criminal Law and Procedure vol II at 496; O'Keefe v Argus Printing and Publishing Co 1954 (3) SA 244 (E); Huber Praelectiones, ad Inst 4.4 para 3; Huber Hedendaagse Regsgeleerdheid (Gane's translation); Pauw Persoonlikheidskrenking en Skuld in SA Privaatreg ; Bliss Belediging in die SA Reg ; Minister van Polisie v Ewels 1975 (3) SA 590 (A); De Wet C en Swanepoel Strafreg 3rd ed; S v Kgagong 1980 (3) SA 600 (A); Labuschagne 'De Minimis Non Curat Lex ' in (1973) Acta Juridica at 291.

C Y Louw for the respondent referred to the following authorities: As to the wrongful act, see R v Umfaan 1908 TS 62 at 68; Minister of Police v Mbilini 1983 (3) SA 705 (A) at 715, 716; Walker v Van Wezel 1940 WLD 66 at 67, 68; Hunt SA Criminal Law and Procedure vol II at 525 et D seq ; Melius de Villiers The Roman and Roman-Dutch Law of Injuries at 24, 25, 26; Jackson v SA National Institute for Crime Prevention and Rehabilitation of Offenders 1976 (3) SA 1 (A) at 13D - E; Neethling Persoonlikheidsreg 2nd ed at 62, 66, 192. As to the criterion of reasonableness, see Marais v Richard en 'n Ander 1981 (1) SA 1157 (A) E at 1168C; Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) at 833A et seq. As to the test to be applied to the question of whether the appellant's dignitas had been impaired, see Jackson's case supra at 12H; Mbilini's case supra at 716; Burchell (1977) SALJ at 7; Neethling (op cit at 193).

Cur adv vult.

F Postea (14 March 1989).

Judgment

Smalberger JA:

The appellant, Douglas Michael Delange ('Delange'), is the managing director of Olienhof Farm (Pty) Ltd ('Olienhof'). The respondent, Phillip Raphael Costa ('Costa'), conducts business under G the name F Costa and Son ('Costa and Son'). Olienhof and Costa and Son are producers and canners of olives, and compete with each other on local markets. Both Delange and Costa are prominent members of the South African olive industry ('the industry').

On 21 March 1985 Delange, on behalf of Olienhof, wrote to Costa, as manager of Costa and Son, in the following terms ('the letter'):

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