Die Spoorbond and Another v South African Railways; Van Heerden and Others v South African Railways

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Greenberg JA, Schreiner JA and Davis AJA
• Judgment Date: 11 December 1946
• Hearing Date: 22 October 1946
• Court: Appellate Division

Watermeyer C.J.:

These two cases come to this Court on appeal from a decision given by BLACKWELL, J., in the Witwatersrand Local Division. They were argued together on the same footing as the point raised is the same in each case and it can be dealt with as a concrete point of law.

In each case the South African Railways and Harbours sued for £1,000 damages alleged to have been suffered by reason of the publication in a newspaper of an article, which, plaintiff alleged, was an accusation against the Railway Administration that it, inter alia, had caused or permitted trains, and especially electric trains of the Johannesburg-Pretoria and Johannesburg-Reef services, to be dangerously overloaded and to be driven at dangerously high and excessive speeds and had daily endangered the lives of the travelling public. Plaintiff in its declaration, alleged that these articles were false and defamatory, and that their publication "was calculated to injure and did injure the plaintiff in the provision and carrying on by it of railways in the Union and in its reputation as the authority controlling, managing and superintending such railways".

In each case an exception, that the declaration was bad in law and showed no cause of action, was taken and the ground assigned for its invalidity was that the plaintiff was not in law entitled to sue for damages for the alleged defamation. These exceptions were overruled by BLACKWELL, J and his decision is now before us on appeal.

Initially it must be observed that plaintiff's claim is one for compensation for defamation (i e., an injury to its reputation) and not a claim to recover actual or special damage (i.e. loss in respect of its property, business or prospective gains) caused by the publication of malicious falsehoods. An extract from the declaration

Watermeyer, C.J.

has been quoted above and though, in that extract, in addition to an allegation of injury to reputation, it is said that the publication injured the plaintiff "in the provision and carrying on by it of railways in the Union", the addition of these words was not intended to include a claim for compensation for actual loss sustained. This is made clear by the answers which were given in the case of van Heerden in response to defendant's request for particular's explaining, (a) how the publication was calculated to injure and did injure the plaintiff in the provision and carrying on of the railways, (b) what share of the total damages claimed should be assigned to the different heads of damage. The answers were:

"(a) The plaintiff says that by the publication of the said article it was injured in the ways alleged in para. 19 of the declaration, in that its high reputation was diminished, disquiet and anxiety were caused to its employees and the travelling public, and generally grave discredit was cast upon it.

(b) As the plaintiff claims general damage's only, the defendants are not entitled to these particulars."

If a claim for actual loss had been included, then different principles would have had to be considered. I do not intend to examine these principles; they have been discussed in several cases, e.g. Fichardt v The Friend Newspapers (1916 AD 1); Matthews v Young (1922 AD 492); Bredell v Pienaar (1924 CPD 203); van Zyl v African Theatres Ltd. (1931 CPD 61). The neat point therefore which is raised by this appeal is whether the South African Railways & Harbours can claim damages from the defendants for their publication of the defamatory statements mentioned above which are alleged to have injured the plaintiff's "reputation as the authority controlling, managing and superintending" the railways.

The first question which arises is who is the plaintiff in these actions? In the case of Winter v South African Railways & Harbours (1929 AD 100) this Court decided that the "Administration" of the Railways which, under sec. 65 of Act 22 of 1916, sues in the name of "South African Railways & Harbours" is "the Governor-General-in-Council who, in accordance with sec. 13 of the South Africa Act, is the Government of the Union of South Africa in whom, according to sec. 122 of that Act is vested all Crown Land and who is entitled to sue in the name of the South

Watermeyer, C.J.

African Railways & Harbours according to sec. 65 of Act 22 of 1916". The Govern-or-General-in-Council (whom I shall call the Crown and who is also sometimes referred to as the Government of the Union) is regarded in law as a legal persona, with a perennial existence, and as such, a legal persona distinct from the individual human beings or group of persons' who from time to time hold office as Governor-General and as members of the Executive Council, just as the Kin or the Crown in England is regarded as 9 a corporation sole with a perpetual existence, and, as such, distinct from His Majesty the King. (See Salmond Jurisprudence para 119.) The question therefore is whether this legal persona can recover damages for an injury to its reputation said to have been caused by the publication of the matter complained of. It may be that the allegations made in those publications reflect upon the individual persons who as agents of the Crown are responsible for the running of the railways in the manner described and that those persons have rights of action arising from those publications, but the rights of the Crown are not necessarily the same as the rights of its agents.

In Roman and Roman-Dutch law the plaintiff in an action for defamation does not seek to recover economic loss suffered from the publication of the noxious words but reparation for a wrong done to him. The damages which the publisher of defamatory matter is compelled to pay are regarded a penalty imposed upon him for the wrong which he has done by violating the injured party is right to retain his good name and fame untarnished and they are awarded to the injured person to compensate him for his injured feelings and the hurt to his dignity and reputation. Nevertheless in estimating the amount of such damages, economic loss, which is not too remote may also be taken into account, not as part of the compensation for injury to reputation but as damages resulting from the wrong which has been done. (See de Villiers, Injuries pp. 25, 155 and 178, Bredell v Pienaar (1924 CPD 203)). In English law the position is different. According to Sir Frederick Pollock (Torts, 13th ed., p. 249) "the law went wrong from the beginning in making the damage and not the insult the cause of action". The result...